Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West
Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
McLellan Drain Township of Southwold
McLellan Drain (RE) [Preliminary Decision] 2001 ONAFRAAT 23
STATUTE:
Drainage Act
HEARING:
April 20, 2001
2001-23
NEUTRAL CITATION:
2001 ONAFRAAT 23
McLellan Drain [Preliminary Decision] Township of Southwold
IN THE MATTER OF THE STATUTORY POWERS AND PROCEDURES ACT R.S.O. 1990, CHAPTER S.22.
AND IN THE MATTER OF: A request for review of a decision of the Agriculture, Food and Rural Affairs Appeal Tribunal under Section 29 of the Rules of Procedure from a decision of the Ontario Drainage Tribunal on the construction of the McLellan Drain in the Township of Southwold.
Before:
John C. Taylor, Q.C., Vice Chairman
BACKGROUND
The Township of Southwold adopted by by-law an engineer’s report dated June 30, 1998 prepared by M. P. DeVos. This report called for repair and maintenance to the McLellan Drain. It does not appear that there were any appeals launched against the report or against the assessments therein provided. The work was carried out pursuant to the report sometime in 1999. Mr. D. D. Hutchinson, one of the assessed ratepayers launched an appeal under Section 64 of the Drainage Act regarding the quality of the construction. That appeal was heard by a panel of the Ontario Drainage Tribunal on October 16, 2000. A decision of that Tribunal was issued on November 8, 2000.
The Tribunal by and large dismissed the appeal and found that the work had been adequately carried out. The only other effect of that decision was to make a clarification with respect to a short section of the drain fronting on Mr. Hutchinson’s property. The Tribunal directed that there be no order with respect to costs and each party is responsible for their own costs.
The upshot of this order is that the additional cost of the Tribunal hearing, principally additional engineering costs, were added to the cost of the drainage works. This has resulted in a revised assessment for each contributor to the drain. Notice of this additional assessment was mailed out by the Clerk of the Municipality in late January, 2001. Messrs Ronald J. Lyle and Russell Van den Dries, have written to the Appeal Tribunal to express their dissatisfaction with the decision of the Tribunal. One of these parties asked that the Tribunal reconsider or review its decision. Both of these letters expressed the view that the original appellant who brought forward the appeal in the first place should be solely responsible for the additional cost resulting from that appeal.
The review of a decision is provided for under Rule 29 of the Rules of Procedure. Such Rule has some 26 subclauses and for the purposes of brevity I quote only those clauses that have relevance to this particular proceeding:
Rule 29.04 The Tribunal may review a final decision or order at the request of a party to an appeal or on its own initiative.
Rule 29.09 In deciding whether it is advisable to conduct a review of all or any part of a final decision or order, the Tribunal may consider any relevant circumstances including;
(a) whether there is significant new evidence which was not available at the time of the original appeal;
(b) whether the Tribunal made a material error of law or fact such that the Tribunal would likely have reached a different decision;
(c) the extent to which any party to the appeal or any other person has relied upon the final decision or order;
(d) the extent to which any party to the appeal or any other person will be affected by the review process; and
(e) whether the public interest in finality of decisions is outweighed by the alleged prejudice to the requester.
Rule 29.13 The Chair of the Tribunal, or a Vice-Chair designated by the Chair, shall consider each request for review of a final decision or order and decide whether a review should be conducted.
Rule 29.14 The Chair, or the Vice-Chair who considers the request, may consult with the member or members of the Tribunal who participated in the hearing of the appeal or motion which resulted in the final decision or order which is the subject of the request for review.
Rule 29.17 The Tribunal may refuse a request to review a final decision or order without seeking submissions from any other party to the appeal.
Rule 29.24 Unless otherwise ordered, a review of a final decision or order of the Tribunal shall be conducted orally.
Rule 29.25 A review shall be conducted by a panel of the Tribunal designated by the Chair.
Rule 29.26 On a review the Tribunal may confirm, vary, suspend or cancel the final decision or order under review.
I have been designated by the acting Chairman of the Tribunal under Rule 29.25 to “evaluate” the request for review. Before ordering that a full review shall take place, I must determine whether under Rule 29.09 there exists the appropriate circumstances to let the review proceed further.
In evaluating the requests for review submitted by Lyle and Van den Dries, I find that the principal issue which they raise is the issue of who should be responsible for additional costs associated with the appeal. In the absence of any direction or decision to the contrary, the Drainage Act specifically provides that all costs associated with the drainage works are to form part of the drainage works. It is obvious from reading the decision under review that at that hearing the Municipality through its engineer specifically asked the Tribunal to assess the appeal costs against Mr. Hutchinson, the sole appellant. The panel of the Tribunal obviously took that submission under consideration and in the end did not make any specific assessment of costs against Mr. Hutchinson. Rather the decision makes a specific order that there shall be no order for costs and each party is responsible for their own costs. I do not find that the original panel of the Ontario Drainage Tribunal made any material error of law or of fact that is such that a different panel of the Tribunal would likely have reached a different decision. The current requesters for a review have not introduced any new evidence of any kind. Finally, the public interest in the finality of the decision is outweighed by the alleged prejudice to the requesters.
To allow a further review of that decision would only create additional costs, both in engineer’s time and other municipal expense that again would be downloaded on all of the ratepayers on the Drain. This is in addition to the substantial cost to the taxpayers of the Province of Ontario to convene an additional panel of this Tribunal and a further hearing to re-adjudicate on matters that have already been satisfactorily adjudicated upon. I find no unpalatable error or other form of injustice in the decision of the Ontario Drainage Tribunal in this matter. Therefore the requests for review by both requesters are refused.
ORDER
It is hereby ordered that the request for review by Ronald J. Lyle and Russell Van den Dries are hereby refused.
Dated at Tilbury, Ontario this 20th day of April, 2001.