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:

Bellcreft Beach Drainage and Pumping System Township of Essex

Bellcreft Beach Drainage and Pumping System (RE) 2001 ONAFRAAT 37

STATUTE:

Drainage Act

HEARING:

July 24 and 25, 2001

DATE OF DECISION:

July 26, 2001

2001-37

NEUTRAL CITATION:

2001 ONAFRAAT 37

Bellcreft Beach Drainage and Pumping System

Township of Essex

IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: An application to the Agriculture, Food and Rural Affairs Appeal Tribunal by James Ellis under Section 100 of the Drainage Act with regard to the Bellcreft Beach Drainage and Pumping System in the Town of Essex (formerly Township of Colchester South).

Before:

Andrew Osyany, Vice Chair

DECISION OF THE TRIBUNAL

This appeal was heard by way of a written hearing on July 24, 2001 and July 25, 2001. Mr. Ellis applied to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 100 of the Drainage Act (the Act) to extend the time in which he could appeal to the Tribunal under other sections of the Act. Mr. Ellis was concerned with the quality of construction and the design of the Bellcreft Beach Drainage and Pumping System in the Town of Essex.

Section 100 of the Act states:

100 The Tribunal, in any case that it considers proper, may extend the time otherwise limited for application, appeal or reference. R.S.O. 1980, c. 126, s.

The Issue

The issue before the Tribunal was:

Should the time in which Mr. Ellis may initiate appeals under the Act be extended.

The Evidence and the Findings

This is an application under s. 100 of the Act, which authorizes the Tribunal, in any case it considers proper, to extend the time otherwise limited for application, appeal or reference. The application by Mr. Ellis is in respect of several aspects of the drain and under several different sections of the Act.

The Re-considered Final Report on the Bellcreft Beach Drainage and Pumping System in the Township of Colchester South, now the Town of Essex (the Municipality) is dated March 20, 1998. The report was considered at the Court of Revision and was the subject of a Tribunal hearing in 1998. The Tribunal appeals were under ss. 48 and 54 of the Act, and all landowners had been made parties and had been served with notice of the hearing.

The construction works commenced in 1998 and the final payment certificate was issued on May 25, 1999. This is a major project, with a cost in excess of $322,000.00. There are more than 130 properties assessed on the drain.

Mr. Ellis is not shown on the assessment schedules. The Tribunal does not have information on when Mr. Eillis acquired his property, Roll No. 070-0285. The previous owners were Edward and Vergenica Krizan. Mr. Ellis first complained about various matters regarding the drain to the Municipality on June 19, 2000. Mr. Ellis then filed an appeal on December 1, 2000. Because he was out of time, his appeal was reconstituted as an application under s. 100.

The documentary evidence on this application consists of the appeal notice and supporting documentation, filed by Mr. Ellis and dated December 1, 2000, submissions to the Tribunal by Mr. Ellis, dated January 23, 2001, April 19, 2001 and May 3, 2001; the engineer's submissions, dated December 13, 2000; the drainage superintendent's memorandum, dated November 16, 2000; the municipality's submissions, dated December 22, 2000 and April 19, 2001 and the Re-Considered Final Report.

Mr. Ellis intends to appeal to the Tribunal under s. 64 in regard to the quality of construction. The section provides that the application is to be made within one year of completion. Mr. Ellis, by commencing his appeal on December 1, 2000, is six months late.

Mr. Ellis also intends to appeal under s. 48 in seeking changes to the drainage works and to his assessment. Mr. Ellis is more than two years late.

The general complaints are that the work was not completed, that water was diverted into the drain, that the pumps are not working, that the drains have been allowed to be blocked up, that there is not a sufficient outlet, that the pumping capacity is inadequate, that the drainage pipe outlet is unsafe.

The personal factual complaints of Mr. Ellis are that there is a blocked ditch in front of the Ellis property and that on June 25, 2000 there was a flood at the Bellcreft Beach area, backing up over County Rd. 50 West and there was flooding in the Ellis home basement, causing over $2,800 worth of damage.

No reasons have been advanced by Mr. Ellis for his failure to bring applications or file appeals under the Act earlier.

The wording of the Act directs the Tribunal to exercise a discre­tion in extending the time limits under the Act. The discretion is to be exercised so that the decision is fair to the applicant and also to the other assessed owners on the drain. Where all the parties consent, the Tribunal can easily accede to a request. Where the application is contested, as it is here, the Tribunal must weigh the request in the light of a number of considerations. Generally the following consider­ations are involved.

1. How much is the delay? In the case of s. 64, the delay is not excessive. Questions regarding the quality of construction do not necessarily appear immediately on completion, which is why there is a one year time limit. It may be that conditions are such that an extension of the time limit may be reasonable in the circumstances. There is not enough in the materials filed by Mr. Ellis to show why the quality of construction application could not reasonably have been brought before. In the case of s. 48, the delay is grossly excessive.

2. What are the reasons for the delay? The applicant should provide an explanation for not complying with the statutory requirements. Normally, acceptable reasons are related to absence from the area and knowledge of the proceedings or construction happening, illness or some other external circumstance interfering with the applicant's ability to comply with the statutory require­ments. The applicant is obviously an owner who did not have a chance to participate in the process until he did become an owner. Generally, the view of the Tribunal is that a person acquiring property on a drain simply steps into the shoes of the previous owner. The new owner does not get additional rights or an automatic extension of time in regard to the Drainage Act pro­cesses. In this case, the applicant has not provided any reasons for the delay, nor the date that the applicant became an owner.

3. What are the issues raised by the applicant? Trivial issues would not engage the sympathy of the Tribunal. Well-defined weighty issues that are within the obvious competence of the Tribunal and the intent of the sections involved are appropriate for the favourable exercise of the Tribunal's discretion. In this case, the issues are weighty in regard to s. 48. However, there has been a full hearing by the Tribunal under s. 48 and the considerations in that regard are set out below. In regard to s. 64, the applicant has not met the above test.

4. What is the likelihood of the application's success on the merits? Within the specified time limits the statute provides absolute rights of recourse to the Tribunal, but when the applicant needs a discretion exercised in his favour, then the Tribunal should, in order to be fair to the applicant and to the other landowners, assess in a summary fashion the chances of the applicant's ultimate success. Under s. 48 the applicant's chances of success are nil. There has been a full hearing in this case, where all issues could have been addressed. Except in some extreme situation (particulars of which are difficult to imagine) it would be an abuse of process to have a new s. 48 hearing. The applicant has not provided particulars of any special circumstances relating to the new hearing. Neither has the applicant provided enough particu­lars to enable the Tribunal to assess the applicant's ultimate success under s. 64.

5. What other remedies are available to the applicant? It may be that an applicant could have his concerns addressed through other parts of the Drainage Act, or the legal system, and the adverse exercise of discretion does not disadvantage the applicant. In this case the applicant can have no relief on the major issues in any other forum. Some of the other issues, however, are related to maintenance and the applicant can enforce maintenance of the drain through the Act, and also have his claim for losses.

6. What are the cost implications? The cost implications to the applicant and the other landowners in granting or refusing the request should be considered. In this case there can be no s. 48 remedy, but if there could be, the applicant would be required to undertake to be responsible for the costs of all the parties of a new hearing.

A s. 64 hearing would not, in all likelihood, be more expensive at this time, than had it been brought within the statutory period. Normally, the costs of a hearing are borne by all the landowners, on the basis that the hearing benefits all the landowners. On this large drain, with so many assessed properties, and with no other person having raised the issue of quality of construction, there would be an initial burden on Mr. Ellis to show that the hearing benefits the entire drain to justify the substan­tial cost involved. Otherwise, the Tribunal would grant an extension for a s. 64 hearing only on Mr. Ellis initially undertaking to be responsible for the costs of all the parties. Such an undertaking could be reviewed and released by the panel conducting the hearing.

7. What are the implications for the integrity of the system? The system must function and must not be susceptible to dismantling or manipulation so that drainage projects are rendered overly expensive or overly subject to delays. An application that would delay the work would be examined more rigorously than the one in the present case, which does not impact on the completion or the functioning of the drain. There must also be finality to the decisions and the applicant has not brought forward any facts that would show that the finality consideration should yield to others.

The burden of convincing the Tribunal that the application should be granted is on the applicant. The applicant must bring forward sufficient reasons and facts to convince the Tribunal to exercise its discretion in his favour. The Tribunal will not imply facts for the benefit of an applicant. An applicant cannot simply say to the Tribunal, in effect: "I am unhappy, please take care of me". The fair operation of the Drainage Act requires that parties make an effort to understand the basics of the system and that they not only have rights but also obligations to the other landowners in the drainage community to comply with the principles and processes of the Act.

Having weighed the above seven considerations, the application by Mr. Ellis under s. 100 for a s. 48 hearing clearly fails five of them, while the application for a s. 64 hearing clearly fails six of them.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

1. The application by Mr. Ellis is dismissed without costs.

Dated at Shelburne, Ontario this 26th day of July, 2001.