AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Foreman Municipal Drain Improvement

City of London

Foreman Municipal Drain Improvement (RE) [Order] 2002 ONAFRAAT 4

STATUTE:

Drainage Act

HEARING:

DATE OF DECISION:

February, 2002

2002-04

NEUTRAL CITATION:

2002 ONAFRAAT 4

Foreman Municipal Drain Improvement [Order]

City of London

IN THE MATTER OF a Request to the Agriculture, Food and Rural Affairs Tribunal by Dave Gardner and Mary Gardner under Rule 29 of the Rules of Procedure under the Drainage Act for a review of the decision of the Agriculture, Food and Rural Affairs Tribunal dated November 21, 2001 on the FOREMAN MUNICIPAL DRAIN IMPROVEMENT – 1999 in the City of London.

ORDER

Before: Taylor, John C., Q.C. – Vice Chairman

This matter comes before me as a result of certain rights granted under the Ontario Statutory Powers and Procedures Act. That act provides as follows:

Section 21.2(1) – Power to Review:

“A Tribunal may, if it considers it advisable and if its Rules made under Section 25.1 deal with the matter, review all or part or its own decision or order, and may confirm, vary, suspend or cancel the decision or order.”

There have been rules adopted under the Ontario Drainage Act that deal with the question of reviewing a decision. Those rules provide as follows:

Section 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.”

Section 29.05:

“Any person, other than a party to an appeal, may request the Tribunal to review a final decision or order with leave of the Tribunal.”

I have been requested by the Chairman of the Agriculture, Food and Rural Affairs Appeal Tribunal to review a decision of this Tribunal made on November 21, 2001 with respect to the Foreman Municipal Drain Improvement – 1999.

Background

The drainage works giving rise to this review was initiated by a report under Section 78 of the Drainage Act prepared by Stantech Consulting Limited (London branch) under date of May 7, 1999. It involves certain works and improvements recommended to the Foreman Municipal Drain. A number of assessed ratepayers under that original report launched an appeal to the Tribunal under Sections 48 and 54 of the Drainage Act. These appeals raised issues concerning modifications to the drain and changes to the report, as well as modifications to the allowances for land used and compensation recommended and issues over the assessments. This of course was done before the works recommended in the report were carried out and the decision of the panel of this Tribunal was issued on the 13th day of December, 1999. The original report recommended realignment of the Foreman Municipal Drain in a number of locations. The only one of concern in this review relates to a realignment through the property of the appellants. The report recommended that where the drain ended on the north side of the appellants’ property, it should be diverted to a new drain to be constructed along the north boundary of the property to the west limit of the property and then along or near the west limit to the south limit of the property and then along the south limit of the property to where the drain exited onto the neighbouring property, identified by Roll No. 040-114, owned by one Jensen at the time. Apparently it is now owned by people by the name of Lana Hicks and George Boothe. One of the results of the original appeal was to slightly move the alignment of the drain on the Hicks/Boothe property to the west limit of that property. The object seemed to be that this would line up the drain more with the diversion around the realignment on the Gardner property. It does not appear that Mr. and Mrs. Gardner participated to any great extent, if at all, in the original appeal that took place in 1999.

It seems then that the work proceeded as modified by the Tribunal’s Order and was completed sometime in the year 2000. After the completion of the works, several of the assessed owners appealed to the Tribunal under Section 64 of the Drainage Act. That Section reads as follows:

Section 64:

“An owner of land dissatisfied with the quality of the construction of a drainage works constructed under this Act may, at any time during the construction or up to one year from the date of completion of the drainage works, as certified by the engineer or the drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated.”

While it does not appear that Dave and Mary Gardner were parties who filed official appeals, they nevertheless appeared at the hearing along with a number of other affected ratepayers who were non-appellants. The usual order of the Tribunal having been made at the beginning of the hearing made all affected ratepayers parties to the appeal, therefore giving Mr. and Mrs. Gardner status to be heard at that hearing.

The works as carried out by the contractor seemed to have been attacked on a number of fronts at this second Tribunal hearing. There were complaints about inadequate grading, inadequate clean-up, failure by the contractor to hook-up underdrains and a general dissatisfaction with the way that the new and improved drain was operating. Some parties were complaining of worse flooding of their properties than before.

Mr. and Mrs. Gardner brought to the attention of that panel of the Tribunal the fact that they expected that the relocation of the alignment of the drain around the perimeter of their property would result in an abandonment of the old location of the drain. The original report did indeed state that the old drain was to be used as a dumping site for surplus excavated dirt from the new location. It must be assumed that the filling or partial filling of the old drain would allow Mr. and Mrs. Gardner to recover the use of the area of land where the old drain was located. However the evidence given at the hearing of the Tribunal indicated that the Drainage Superintendent had received a number of complaints that the contractor had not connected their underdrains to the new realigned drains. Apparently there were several of these. The engineer and the Superintendent said that the reason that these were not hooked up during the course of construction is that none of the parties using those outlet drains had ever brought their location to the attention of the engineer or the contractor and as a result they were not hooked up. Since this complaint was widespread, the Drainage Superintendent seems to have taken it upon himself during the course of construction to have installed both a six inch and an eight inch main on the Gardner property. The eight inch main was apparently constructed along the original alignment of the Foreman Municipal Drain. These two drains were intended to become outlets for the various underdrains that had not been connected to the new works.

At the hearing Mr. and Mrs. Gardner complained that this action by the Drainage Superintendent in laying down new tiles in the location of the old drain was not authorized under the report and therefore was an illegal drain. Moreover this frustrated their expectation that they would be recovering the use of the area of the old alignment and had paid dearly for this expectation. It is to be noted that the original report assessed Mr. and Mrs. Gardner a benefit of some $6,169.00. It is not clear from my reading of the report or the prior decisions as to how that assessment was calculated. In any event the panel of the Tribunal hearing the appeal under Section 64 were sympathetic to Mr. and Mrs. Gardner and allowed them an additional allowance of $5,000.00 for the fact that they were going to suffer the presence of these additional tiles across their property. It should be noted again that the original report provided for allowances to the Gardner property totaling $2,724.00, presumably for land taken by the new alignment and damages to trees and crops. In addition to the new allowance given to Mr. and Mrs. Gardner, the previous panel declared that the six inch and eight inch tile mains installed during the course of construction across the Gardner were to become part of the municipal drain. That being so the Tribunal justified the granting of the additional allowance.

The request for a review of the prior panel’s decision raises several grounds for the request.

As a preliminary matter, counsel for the appellants points out that while the request may have been launched past the usual thirty day limit provided by the regulation, it points out the fact that while the panel’s decision is dated November 21, 2001, it was not actually circulated until mid-December and therefore did not come to the attention of the requesters until just a short time before the date they launched their request. In addition counsel points out that Mr. and Mrs. Gardner were entitled to a full year to launch their own appeal under Section 64. That would have entitled them to more fully present their position before the previous Tribunal panel which dealt with the Section 64 appeal. He suggests that his clients were “drawn in” to the other appeals while they were unprepared and had not had an opportunity to have counsel represent them at that hearing.

The Rules do provide a discretion to the Chairman or Vice-Chairman to extend the period of time within which the review can be requested. Accordingly I do hereby extend the time for filing the request to January 20, 2002 or such date during which the Tribunal office received the written request.

The grounds for review submitted by the requesters can be summarized as follows:

The requesters were wrongly dragged into the Section 64 appeal brought by others while the time limit for the filing of their own appeals under Section 64 had not expired. They assert that the Tribunal allowance of ($5,000.00) was not based on reality. It did not consider any evidence from Mr. and Mrs. Gardner on what the value of the wrongful deprivation of the use of the old drain allowance or the amount of the injurious affection the location of those tile drains would have on their property. They submit that a new hearing under Section 64 should be had at which they would be given the proper opportunity to address that issue;
That the Tribunal erred in law and did not have jurisdiction at a Section 64 hearing to modify the original report. The modification complained of is the fact that the decision of the Tribunal in effect incorporated the six inch and the eight inch tile mains as part of the Foreman Municipal Drainage Works as well as incorporated the lands across which those tiles traverse as part of the works. Moreover they complained that the Tribunal Panel had no jurisdiction to fix allowances for compensation for the land taken.
Thirdly the requesters complained that their right to natural justice as provided by Section 6 of the Statutory Powers Procedures Act has been denied in that Mr. and Mrs. Gardner were not allowed to fully present their case before the Tribunal Panel since they did not expect that the issues affecting them were going to be dealt with at that hearing. They also allude to the fact that they were denied the benefit of counsel at such hearing because of the lack of notice and other “procedural deficiencies”.
Finally they allege that the Tribunal was without jurisdiction to make the order which it did and if there is no review, the mistakes of the Tribunal cannot be cured.

I have carefully studied the original engineer’s report dated May 7, 1999. I have a concern as to whether the original location of the Foreman Municipal Drain through the Gardner property was specifically intended to be abandoned. I am not able to find anything in the report itself that clearly indicates this. The abandonment may be suggested by the fact that the report calls for the “realignment or relocation” of the drain. Nevertheless, Mr. McNeely, the Engineer in his proposed revisions to the report presented to the Tribunal on November 26, 1999 clearly recommended as follows:

“The existing drain will be abandoned from the crossing of Westminster Drive downstream through the property roll no. 040-114 to station 1+390.”

The decision of that panel of the Tribunal issued on December 13, 1999 makes no direct mention of any such abandonment. However the recommended revisions quoted above were appended to the report as a result of the Tribunal’s order.

It seems that the Drainage Superintendent, supported by the engineer, before the Tribunal panel for the Section 64 hearing attempted to justify the location of the six inch and eight inch mains by the fact that the report specifically directed that any underdrains requiring drainage would be connected to the new drain. It would seem that that position is a little far-fetched when one considers that the shortest route from these underdrains to the new drain would be a continuation to it in the same alignment at the underdrains. Really the six inch and eight inch mains are collector mains running in a different direction and connecting with the new drain at a more downstream location. Nevertheless I believe that the panel of the Tribunal was correct in concluding that the most logical and efficient way of providing adequate drainage to those properties whose underdrains had not been hooked up during the course of construction was to put in the collector main and collect them all and run that collector along the old alignment. Counsel for the requesters questioned whether the Tribunal panel had jurisdiction to do this. I find that indeed the panel of the Tribunal had such jurisdiction under the following sections:

Section 51(1):

“On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, may make such order and direct such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act.”

Section 101:

“In any application, appeal or reference under sections 8, 10, 48, 49, 50, 54, 64, 65, 66 and 75, the decision of the Tribunal is final.”

While it may appear to be unusual that a Tribunal would make modifications to a report after the works have been completed, nevertheless I believe that the Drainage Act empowers the Tribunal to do this based on the Sections that I have read. On the questions of whether their decision was fair to these requesters as well as fair to the rest of the contributors in the drainage scheme, it would seem that it was. The allowance of $5,000.00 for the right to construct the buried tile mains less than 75 metres in length would seem to be quite adequate. This would be particularly so when the location of the drains are along what is or was formerly an alignment that was historically the location of a municipal drain. Surely a buried tile is better than an open drain. Perhaps the requesters may have been able to demonstrate at a re-hearing that there was imminent development plans for the property and that the location of this tile was going to injuriously affect the lands, nevertheless there was no suggestion of this at any of the prior hearings. I believe these lands have the benefit of agricultural assessment. In the absence of any substantial proof that some commercial, industrial or other development plans were interfered with, I find that the allowance made was adequate.

Finally I direct my attention to the provisions of Rule 29.09 which I must consider in order to evaluate this request for a reviewRule 29.09 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;

(b) whether the Tribunal made a material error of law or fact such that the Tribunal would likely have reached a different decision;

(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.

In response to each of the items provided therein, I would make the following findings:

(a) I do not find that there is any significant new evidence which was not available at the time of the original appeal;

(b) I do not find that the Tribunal made a material error of law or fact such that the Tribunal would likely have reached a different decision;

(c) I find that other persons have indeed relied upon the previous decision of the Tribunal, ie: neighbouring properties are being provided underground drainage through the impugned tiles;

(d) A further review process would be expensive not only to the administration of the Drainage Act but to the municipality as well as the other ratepayers and contributors to the drain;

(e) There is a public interest in the finality of decisions and I find that this interest outweighs the alleged prejudice to the requester.

Order

I make the order that the request for a review of the decision of the Tribunal dated November 21, 2001 with respect to the Foreman Municipal Drain is hereby denied.

Dated at Tilbury, Ontario this day of February, 2002.

Dave Gardner and Mary Gardner v. City of London, 2002 ONAFRAAT 4

Case Summary

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

ORDER

Background

Order