Agriculture, Food and Rural Affairs Appeal Tribunal
1Stone Road West Guelph, Ontario
N1G 4Y2
Tel: (519) 826-3433, Fax: (519) 826-4232
Email:Tribunal@OMAF.gov.on.ca
Tribunal d’appel de l’agriculture,
de l’alimentation
et des affaires rurales
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:
Hope Drain
Municipality of Leamington
Hope Drain (RE) 2004 ONAFRAAT 34
STATUTE:
Drainage Act
HEARING:
September 21, 2004
DATE OF DECISION:
October 6, 2004
2004-34
NEUTRAL CITATION:
2004 ONAFRAAT 34
Hope Drain
Municipality of Leamington
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 Donald Bailey, Leamington, Ontario under Sections 48 and 54 of the Drainage Act from the engineer’s report and from the decision of the Court of Revision on the Hope Drain in the Municipality of Leamington.
Before:
Jack Young, Vice Chair; John Taylor, Vice Chair; Russell Piper, Member
Appearances:
George Reynolds, counsel to the appellant, Donald Bailey
Ed Dries, P. Eng., engineer who prepared the Report, for the Municipality of Leamington
Donald Bell, assessed landowner
Robert Reid, assessed landowner
Ronald Bailey, witness
DECISION OF THE TRIBUNAL
This appeal was heard in Leamington, Ontario on September 21, 2004. Mr. Bailey appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act) as he desired changes to the design of the drainage works. He also appealed his assessment pursuant to Section 54 of the Act.
Lu Ann Barretto, Corporate Services, Municipality of Leamington (the Municipality) performed the duties of the Clerk of the Tribunal.
Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the engineer’s report prepared by Todgham and Case Associates Incorporated on the Hope Drain dated April 14, 2004 (the Report) parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.
Statutory Context
Subsection 48(1) 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).
Subsection 54(1) 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).
The Background
Mr. Ed Dries told the Tribunal that landowners had requested the repair and improvement of the Hope Drain. He said the drain was originally constructed many years before under the Ditch and Watercourses Act, and was updated in 1957. He said the 1957 report called for a tile drain with