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:
Walker Drain Improvement – 2001 Municipality of Thames Centre
Walker Drain Improvement – 2001 (RE) [Decision on Application for Review] 2002 ONAFRAAT 33
STATUTE:
Drainage Act
HEARING:
April 17, 2002
September 13, 2002
2002-33
NEUTRAL CITATION:
2002 ONAFRAAT 33
Walker Drain Improvement – 2001 [Decision on Application for Review]
Municipality of Thames Centre
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, C.D.17 AS AMENDED.
AND IN THE MATTER OF:
The decision of the Tribunal in a request for review of the Agriculture, Food and Rural Affairs Appeal Tribunal by the Municipality of Thames Centre that it review its decision of May 29, 2002 with respect to the appeal to the Tribunal by:
K. Loucks K. Dimtrick Barbara Reid V. Chanyi
G. Dewit Paul Sinclair Jerry Baker T. Buys
Jacalin Ramsay R. Zweers W. Zweers S. & C. Fiedler
Mike Leal R. & L. Vanbesien P. Reid Richard Tipping
Shelley Wouters Tony Moonen Margaret Mitchell Frances M. Strothard
under Section 48 of the Drainage Act from the engineer’s report on the Walker Drain Improvement –2001 in the Municipality of Thames Centre.
AND IN THE MATTER OF : A review requested that is pursuant to Rule 29 of the Rules of Procedure of the Agriculture, Food and Rural Affairs Appeal Tribunal.
DECISION OF THE TRIBUNAL
Several assessed landowners appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act) from the engineer’s report prepared by R.J. Burnside & Associates Limited, dated August 17, 2001 (the Report). The appeal was heard in Dorchester, Ontario on Wednesday, April 17, 2002.
The decision of the Tribunal of May 29, 2002 resulted in an order that referred the report back to the engineer to:
Redesign the drain so that it follows a path offered in the report, as one of two alternate routings for the drain.
Provide an outlet to the Baker property on Charles Street.
Retain the north end of the existing drain which was proposed to be abandoned in order to provide drainage to the Zweer and railway properties.
By means of an easment across the Baker property, to provide for a connection to drain the Buys property.
Clarify that the actual cost of the road improvements will be assessed to the Municipality as a special benefit
In addition, the Tribunal order of May 29, 2002 directed the engineer to vary and/or reconsider the assessments for statutory benefits, outlet liability ratios and benefits for properties receiving a direct connection to the drainage works.
The Tribunal understood that given the complexity of the report and various orders to the engineer, the need for further clarification or modification might arise, therefore; the panel seized itself of the case to allow itself to examine any ensuing issues.
The Municipality of Thames Center (the Municipality) an assessed landowner, and several of the assessed landowners requested a review of the Tribunal decision of May 29, 2002.
Under the provisions of Rule 29.18, 29.19 and 29.20 of the Tribunal's Rules of Procedure a Notice of Request for Review of the Tribunal Decision was issued to the all parties to the appeal and all parties were invited to make submissions.
I understand that the reasons for the delay of the request are due to the alternative drain routes being expressed in general terms in a submission made with very short notice to the parties at the time of the hearing. As a result the options proposed were devoid of the details necessary to implement the alternatives. I find that it is only just now apparent to the Municipality and the affected landowners , that there are construction and liability considerations that need to be more thoroughly specified in order for the proposed works to be completed.
Upon carefully reviewing the Tribunal decision of May 29, 2002 and the reasons submitted by the parties for the review; I find that there are valid reasons for the delay of the request for review and that the reasons for the request, as submitted by the parties are provided for in Section 29.09 (a) of the Tribunal Rules of Procedure which states:
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;
The parties have demonstrated that there are sufficient grounds for a review, and therefore I order that there be a review by way of an oral hearing, by the Tribunal of its May 29, 2002 decision. The seized panel shall decide the matter at the hearing, the date of which is to be determined.
Dated at Ethel, Ontario this 13th day of September, 2002.