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:
Outlet Portion of the 2nd Concession Drain West of Wigle Creek
Town of Kingsville
Outlet Portion of the 2nd Concession Drain West of Wigle Creek (RE) 2002 ONAFRAAT 27
STATUTE:
Drainage Act
HEARING:
July 26, 2002
DATE OF DECISION:
July 30, 2002
2002-27
NEUTRAL CITATION:
2002 ONAFRAAT 27
Outlet Portion of the 2nd Concession Drain West of Wigle Creek
Town of Kingsville
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 Eric Denotter and Russell W. Rogers under Section 48 and Section 54 of the Drainage Act from a decision of the Court of Revision and the engineer’s report on the Outlet Portion of the 2nd Concession Drain West of Wigle Creek in the Town of Kingsville.
Before:
Andrew Osyany, Vice Chair; Yvon Simoneau, Vice Chair; Doug Flook, Member
Appearances:
Mr. John Kuntze, P. Eng. for the appellants Eric Denotter and Russell W. Rogers
Mr. Bruce D. Crozier, P.Eng. for the respondent, the Town of Kingsville
DECISION OF THE TRIBUNAL
This appeal was heard by way of a written hearing and considered by the Tribunal on July 26, 2002. Mr. Eric Denotter and Mr. Russell W. Rogers appealed under Section 54 of the Drainage Act (the Act) from a decision of the Court of Revision on the Outlet Portion of the 2nd Concession Drain West of Wigle Creek in the Town of Kingsville. The same appellants appealed under Section 48 of the Act from the engineer's report dated August 1, 2001 on the same drain.
Linda Burling, Acting Clerk of the Town of Kingsville (the municipality) performed the duties of the Clerk of the Tribunal.
Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the revised engineer’s report dated August 1, 2001 on the Outlet Portion of the 2nd Concession Drain West of Wigle Creek (the report) parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this written hearing.
This hearing was originally scheduled as an oral hearing to be heard on Thursday, June 27, 2002. At the request of the appellants and the respondent, the Tribunal converted the oral hearing to a written hearing. All parties were notified of this change and given the opportunity to object to the Tribunal proceeding by way of a written hearing. The Tribunal received no objections.
Statutory Context
Section 48 of the Act states:
Appeal to Tribunal 48. (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,
(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;
(b) the drainage works should be modified on grounds to be stated;
(c) the compensation or allowances provided by the engineer are inadequate or excessive;
(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,
may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46 (2), as the case may be. R.S.O. 1990, c. D.17, s. 48 (1).
Appeal by Director
(2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1). R.S.O. 1990, c. D.17, s. 48 (2).
Section 54 of the Act states:
Appeal to Tribunal
- (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal. R.S.O. 1990, c. D.17, s. 54 (1).
Notice
(2)The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal. R.S.O. 1990, c. D.17, s. 54 (2).
Procedure
(3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final. R.S.O. 1990, c. D.17, s. 54 (3).
The Issues
The issues before the Tribunal were:
Should the engineer's report be modified to remove two manholes and one catchbasin and add a different catchbasin to the design of the drain?
Should the assessments be adjusted to place a greater emphasis on statutory benefit and a lesser emphasis on outlet liability?
The Evidence
Evidence was taken by way of written submissions. Mr. John Kuntze, p. Eng., the agent of the appellants, and Mr. Bruce Crozier, P. Eng., representative of the municipality, made a joint submission which included minutes of settlement. Mr. Kuntze and Mr. Crozier asked the Tribunal to make an order to reflect the minutes of settlement. They asked that the Tribunal order that:
The appeals made pursuant to Section 48 of the Act be dismissed.
The appeals made pursuant to Section 54 of the Act be upheld and the Assessment Schedule for the engineer's report be amended by transferring $36,500 from outlet liability assessment to the benefit assessments for the 2nd Concession Road and the McCain Sideroad.
All parties be responsible for their own costs.
No other party to the hearing made a submission.
The Findings
The Tribunal accepts the joint recommendation of the engineers representing the appellants and the respondents in this matter. The Tribunal notes that no other assessed landowner will have their benefit assessment increased as a result of the proposed settlement and the outlet assessments on all properties will be reduced.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
- The engineer is to revise the Schedule of Assessment in the engineer's report dated August 1, 2001 on the Outlet Portion of the 2nd Concession Drain West of Wigle Creek in the Town of Kingsville as follows:
| Roll No. | Owner | Original Benefit | Revised Benefit | Original Outlet | Revised Outlet | Original Total | Revised Total |
|---|---|---|---|---|---|---|---|
| 380-00200 | A. Thorpe | 0 | 0 | $14,556 | $7,676 | $14,556 | $7,676 |
| 380-00100 | A. Oglesby | 0 | 0 | $4,657 | $2,456 | $4,657 | $2,456 |
| 380-04800 | E. & B. Denotter | 0 | 0 | $15,100 | $7,963 | $15,100 | $7,963 |
| 380-04900 | H. & B. Rollo | $1,000 | $1,000 | $1,165 | $614 | $2,165 | $1,614 |
| 370-04300 | D. & M. Booth | $500 | $500 | $524 | $276 | $1,024 | $776 |
| 330-05800 | E. Thorpe Estate | 0 | 0 | $388 | $205 | $388 | $205 |
| 330-05900 | R. & M. Rogers | 0 | 0 | $1,403 | $740 | $1,403 | $740 |
| 330-06600 | A. Balkwill | 0 | 0 | $472 | $249 | $472 | $249 |
| 330-06600 | M., R. & M. Rogers | 0 | 0 | $9,542 | $5,032 | $9,542 | $5,032 |
| 330-06100 | United Church of Canada | 0 | 0 | $268 | $141 | $268 | $141 |
| 320-03740 | M. & N. Ferguson | $250 | $250 | $619 | $326 | $869 | $576 |
| 320-03750 | G. & K. Ferguson | $250 | $250 | $748 | $394 | $998 | $644 |
| 320-03800 | L. & L. Ferguson | 0 | 0 | $1,039 | $548 | $1,039 | $548 |
| Subtotal | $2,000 | $2,000 | $50,481 | $26,620 | $52,481 | $28,620 | |
| 2nd Conc. Road | Town of Kingsville | $1,471 | $31,471 | $19,057 | $10, 050 | $20,528 | $41,521 |
| McCain Sideroad | Town of Kingsville | $593 | $7,093 | $7,682 | $4,050 | $8,275 | $11,143 |
| Subtotal | $2,064 | $38,564 | $26,739 | $14,100 | $28,803 | $52,664 | |
| Total | $4,064 | $40,564 | $77,220 | $40,720 | $81,284 | $81,284 |
The Clerk of The Corporation of the Town of Kingsville is directed to amend the Engineer’s Report, dated August 1, 2001, by marking on the front of the report in red and underlined: “Amended pursuant to the order of the AFRAA Tribunal, dated July 30, 2002”.
The appeals of Eric Denotter and Russell W. Rogers made under Section 48 of the Act are dismissed.
The non-administrative costs of the municipality in respect to this appeal shall be charged to the municipality and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.
Dated at Shelburne, Ontario this 30th day of July, 2002.