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:
Upper W.J. Douglas Municipal Drain and Lower W.J. Douglas Municipal Drain Township of Champlain
Upper W.J. Douglas Municipal Drain and Lower W.J. Douglas Municipal Drain (RE) [Pre-Hearing Order] 2002 ONAFRAAT 18
STATUTE:
Drainage Act
HEARING:
DATE OF DECISION:
May 22, 2002
2002-18
NEUTRAL CITATION:
2002 ONAFRAAT 18
Upper W.J. Douglas Municipal Drain and Lower W.J. Douglas Municipal Drain [Pre-Hearing Order]
Township of Champlain
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Ulrich Schaerer under Section 54 of the Drainage Act from a decision of the Court of Revision and from the Engineer’s Report on the Upper W.J. Douglas Municipal Drain in the Township of Champlain
AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Jean-Paul Cusson and Victor Reasbeck under Section 54 of the Drainage Act from a decision of the Court of Revision and from the Engineer’s Report on the Lower W.J. Douglas Municipal Drain in the Township of Champlain, and in the Township of East Hawkesbury the appeal having been continued by the order of the Ontario Drainage Tribunal order of October 4, 1999 and the order of the Drainage Referee of September 25, 2001
AND IN THE MATTER OF: An appeal to the Drainage Referee by Cindy Sauve to the Drainage Referee under Section 47 of the Drainage Act certain aspects of which have been referred to the Agriculture, Food and Rural Affairs Appeal Tribunal by the order of the Drainage Referee of September 25, 2001
PRE-HEARING ORDER
Background
This is a written application by the Township of Champlain for directions regarding giving appropriate notices for the hearing of these matters.
What is now the Lower W.J. Douglas Drain was established in 1927, improving a watercourse that has its outlet in the Little Rideau Creek. The watercourse appears to have commenced some distance above what is now the Lower W.J. Douglas Drain. From the outlet of the Drain, Little Rideau Creek meanders about 10 kms to the Ottawa River. A request for maintenance led to a report in 1998 to reconstruct the specifications from surveying and to incorporate certain improvements. The 1998 report was appealed to the Tribunal by Jean-Paul Cusson and Victor Reasbeck. This led to a new report, dated November 1999, and the maintenance work under it was carried out in 2000.
In the meantime, a petition had been received for a drain just upstream of the Lower W.J. Douglas drain, and a report on that drain was prepared, dated December 20, revised March 21, 2001. The new drain is known as the Upper W.J. Douglas Drain. This still does not incorporate what might be considered the head of the watercourse that outlets into Little Rideau Creek. This report has been challenged in two different aspects, in two different venues. Ulrich Schaerer has appealed his assessment to the Tribunal, while Cindy Sauve has appealed to the Drainage Referee on the basis that drain does not have a sufficient outlet.
The Drainage Referee’s order (September 25, 2001) in the Sauve appeal provided that
The Drainage Engineer immediately conduct a survey of the Little Rideau Creek, downstream of the drain outlet, and prepare a preliminary report with respect to obstacle removal and straightening, if deemed necessary, together with an estimate of cost for such work or in the alternative proposals for injuring liability. Such Report to be submitted to the Drainage Tribunal at or in advance of their scheduled Hearing. The determination of the extent of the downstream extension of the Drain or the measure of relief by way of an injuring liability award is hereby referred to the Ontario Drainage Tribunal.
The Drainage Engineer review the existing culverts in the W.J. Douglas Municipal Drain and those immediately downstream in the area of concern so as to be in a position to make recommendations to the Tribunal with respect to sizing and revisions in the Report so as to control culvert alterations.
In the Sauve appeal all other matters, including the question of costs, were reserved by the Referee until the Ontario Drainage Tribunal has dealt with these matters. The Survey of the Little Rideau Creek and Preliminary Report have now been completed. In accordance with the usual practice, this Preliminary Report does not have a schedule of assessments. The review of the existing culverts has also been completed and an Amendment to the W.J. Douglas Municipal Drain prepared.
The Referee’s order in effect continues the appeal of Jean-Paul Cusson and Victor Reasbeck on the Lower W.J. Douglas Municipal Drain, as well as dealing with the Cindy Sauve appeal on the Upper W.J. Douglas Municipal Drain.
In the forthcoming hearing the Tribunal will have to deal with a number of issues. Without encroaching on the matters reserved by the Referee, it appears that the question of assessing the cost of the Survey and Preliminary Report may be dealt with by the Tribunal (as opposed to the question of the costs of the proceedings before the Referee), and that the Tribunal may be of the view that it is appropriate to assess some of the costs to the downstream owners along the Little Rideau Creek. It is important, therefore, that downstream owners be given notice of the Tribunal hearing.
The Survey and Preliminary Report are very bulky and contain extensive schedules. I am satisfied that in the circumstances appropriate notice to the proper parties will be afforded by the serving of the Preliminary Report only (exclusive of maps and schedules), together with the notification that those items are available for inspection at the municipal offices.
It is clear that the assessment appeal on the Upper W.J. Douglas Municipal Drain and the two matters resulting from the Referee’s order should be heard at the same time and that, in fact, the hearings be consolidated.
While a separate petition was needed to establish the Upper W.J. Douglas Municipal Drain, it may be appropriate that the two adjoining drains be consolidated and that future matters under s. 78 of the Act be undertaken on the basis of a consolidated drain, and directions may be given in that regard at the Tribunal hearing.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed, the Tribunal orders:
The hearing in regard to the appeal of Ulrich Schearer against the report of the engineer on the Upper W.J. Douglas Municipal Drain; the hearing in regard to the continued appeal of Jean-Paul Cusson and Victor Reasbeck on the Lower W.J. Douglas Muncipal Drain and the hearing of the appeal of Cindy Sauve on the Upper W.J. Douglas Municipal Drain referred to the Tribunal by the Referee, are hereby consolidated.
Notice of the hearings shall be given to all persons assessed on the two drains and all persons identified as adjoining landowners on the Little Rideau Creek on the maps attached to the Survey of the Little Rideau Creek, dated January, 2002.
In regard to the Little Rideau Creek Preliminary Report, only the engineer’s Preliminary Report (exclusive of the maps and appendices) shall be served with the Notice of Hearing.
The Notice of Hearing shall be accompanied by a copy of this Order and shall, in addition to the usual wording, contain the following: “Take notice that the maps and appendices which form a part of the Preliminary Report may be inspected at the Municipal Offices of the Township of Champlain, 948 Pleasant Corners Road East, Vankleek Hill, Ont. K0B 1R0, or at the Municipal Offices of the Township of East Hawkesbury, 5151 County Road 14, St-Eugene, Ontario.”
This panel member will remain seized of this matter for the purposes of any other pre-hearing orders.
Dated at Shelburne, Ontario this 22nd day of May, 2002.