Agriculture, Food and Rural Affairs Appeal Tribunal

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

1 Stone Road West 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) [November 25 Request for Review] 2003 ONAFRAAT 33

STATUTE:

Drainage Act

HEARING:

DATE OF DECISION:

November 25, 2003

2003-33

NEUTRAL CITATION:

2003 ONAFRAAT 33

Walker Drain Improvement – 2001 [November 25 Request for Review]

Municipality of Thames Centre

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

AND IN THE MATTER OF: A request for a review a decision of the Agriculture, Food and Rural Affairs Appeal Tribunal dated May 14, 2003 with respect to the Walker Drain Improvement – 2001, Municipality of Thames Centre and a disposition of a request for review of that decision, dated July 25, 2003, made by the Municipality of Thames Centre pursuant to Rule 29 of the Tribunal’s Rules of Procedure.

Before:

Terry Denison, Vice Chair

DECISION OF THE TRIBUNAL

At the request of the Chair of the Agriculture, Food and Rural Affairs Appeal Tribunal, I have been given the task to consider a request for a review submitted by the Municipality of Thames Centre of the last decision of this Tribunal affecting the Walker Drain Extension and of a decision by the Tribunal not to reconsider that decision.

Evaluating a Request for Review:

Section 29.09 of the Rules of Procedure for this Tribunal sets out a number of criteria that the reviewer might consider relevant in deciding whether to order a review. These can be briefly stated as follows:

(a) Significant new evidence that was not available at the time of the original appeal;

(b) Any material error of law or fact in the Tribunal’s decision;

(c) The extent to which any party to the appeal or other person as relied on the final decision or Order;

(d) The extent to which any party to the appeal or other person will be affected by the review process; and

(e) Whether the public interest and finality of decisions is outweighed by the alleged prejudice to the requester.

The wording of paragraph 29.09 indicates that the above items are not intended to be exhaustive.

The Background

The Municipality of Thames Centre has requested the Tribunal to review its decision with respect to the Walker Drain. This matter has been before the Tribunal more than once. Following a hearing before a panel of the Tribunal which made a decision on May 14, 2003 a request for review was considered by Vice Chair J. Taylor on July 25^th, 2003, which denied a request filed by Terry Buys for a review of the decision of the Tribunal made on May 14, 2003. The decision of Vice Chair Taylor sets out the background of the Tribunal’s previous decisions concerning this drain and sets out the criteria found in Section 29.09 of the Tribunal’s Rules of Procedure that the reviewer might consider relevant in considering to order a review. There was no significant new evidence before Vice Chair Taylor or any material error of law or fact that would support a review of the Tribunal’s decision.

Subsequent to that decision, this request for review was made. The Tribunal was provided with new significant evidence that would support a decision to order a review, and therefore the Tribunal does order a review of the decision of the Tribunal made on May 14, 2003. The new evidence consists of the following information that was not provided previously:

1. A letter dated August 28^th, 2003 from R. J. Burnside & Associates Limited (Paul Elston, P. Eng.) which confirms that a re-evaluation by the municipality’s engineers indicates that the costs of construction of Alternative “C” is “considerably higher than the $6,750.00 as originally estimated” and therefore Alternative “C” route will be more expensive than that of Alternative “B”.

2. An indication, through attendance at a meeting of owners and a petition submitted that none of the owners within the watershed area supported Alternative “C”.

3. One of the owners on whose land Alternative “C” would cross would experience serious problems with the construction and location of Alternative “C” because of a health problem of his daughter.

The Findings

It is not clear why this evidence was not made available to the Tribunal previously as it would have been relevant and may have resulted in a different determination by the Tribunal. I was hesitant to order this review because this matter has a long history before the Tribunal and should have been finalized long ago. The Tribunal can only make a decision based upon the evidence that is brought before it by the parties. Decisions of the Tribunal should not routinely be reopened because an affected party either did not pay attention to the process at the appropriate time or because someone who could have lead relevant evidence didn’t bother to do so.

In any event, having considered the new evidence that was brought forward in the letter of September 17, 2003 by the municipality’s solicitors it is my decision that there should be a review of the decision of the Tribunal dated May 14, 2003 so the panel may hear that evidence.

ORDER OF THE TRIBUNAL

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

1. IT IS HEREBY ORDERED that the request filed by Siskind, Cromarty Ivey and Dowler LLP, solicitors for the Municipality of Thames Centre for a review of the decision of the Tribunal made on May 14, 2003 is granted.

2. NO ORDER is made as to costs.

DATED at Guelph, this 25^th day of November 2003.