Agriculture, Food and Rural Affairs Appeal Tribunal
1Stone Road West Guelph, Ontario
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales
N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email:Tribunal@OMAF.gov.on.ca
1, chemin Stone Ouest Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email:Tribunal@OMAF.gov.on.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Hambly-Sabourin Drain 2001 and the Beaulac-Beach Drain – 2001
Township of Brethour
Hambly-Sabourin Drain 2001 and the Beaulac-Beach Drain – 2001 (RE) [Request for a Review] 2004 ONAFRAAT 16
STATUTE:
Drainage Act
HEARING:
November 8, 2002
DATE OF DECISION:
May 5, 2004
2004-16
NEUTRAL CITATION:
2004 ONAFRAAT 16
Hambly-Sabourin Drain 2001and the Beaulac-Beach Drain 2001 [Request for a Review]
Township of Brethour
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 September 29, 2003 with respect to the Hambly-Sabourin Drain 2001 and the Beaulac-Beach Drain – 2001 in the Township of Brethour made by K. Smart Associates Limited pursuant to Rule 29 of the Tribunal’s Rules of Procedure
Before:
Murray Cardiff, Chair
DECISION OF THE TRIBUNAL
The Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) received a request by K. Smart and Associates that it review its decision dated September 29, 2003 regarding appeals from an engineer’s report and decision of the Court of Revision on the Hambly-Sabourin Drain 2001 and the Beaulac-Beach Drain 2001 in the Township of Brethour. K. Smart and Associates is the engineering firm that prepared the Report.
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 Tribunal heard appeals by Mr. Gary Beach, Mr. Kenneth Hambly and Mr. Richard S. Gosselin on November 8, 2002. Two interim decisions were issued subsequent to that hearing and a final decision of the Tribunal was released in September 2003.
Subsequent to that decision, the request for review was made by the engineer. The key arguments that are made in favour of a review of the decision are that:
The decision is not clear on a number of points.
There is new evidence with respect to the cost of the work ordered by the Tribunal and the cost of the work will be substantive.
The Findings
Decisions of the Tribunal are final unless modified by the Tribunal itself or by the Ontario Superior Court of Justice (Divisional Court). The Tribunal does not routinely review its own decisions and does not make a decision to initiate a review lightly. In this particular case I am prepared to order the review in light of the concerns outlined by the engineer.
As one member of the original panel that heard this matter is no longer a member of the Tribunal, I have decided to substitute a different member of similar background to conduct the review.
ORDER OF THE TRIBUNAL
After careful consideration of the submissions made the Tribunal orders:
That the request filed by K. Smart and Associates Limited for a review of the decision of the Tribunal made on September 29, 2003 is granted.
That the review shall be conducted by a panel consisting of Andrew Osyany, Vice Chair; George Klosler, Member and Jack Young, Vice Chair.
The scope of the review and the procedure to be adopted shall be determined by the panel appointed in the previous paragraph.
Dated at Ethel, Ontario this 5th day of May, 2004.