Hambly-Sabourin Drain and Beaulac-Beach Drain (Re), 2005 ONAFRAAT 22

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 and Beaulac-Beach Drain

Township of Brethour

Hambly-Sabourin Drain and Beaulac-Beach Drain (RE) [Request for Review] 2005 ONAFRAAT 22

STATUTE:

Drainage Act

HEARING:

DATE OF DECISION:

August 17, 2005

2005-22

NEUTRAL CITATION:

2005 ONAFRAAT 22

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

AND IN THE MATTER OF: A request by Richard Gosselin, Belle Valleé, and others, that the Agriculture, Food and Rural Affairs Appeal Tribunal review its decision of June 10, 2005 regarding the Hambly/Sabourin Drain and Beaulac/Beach Drain in the Township of Brethour.

Before: Rod Stork, Chair

DECISION OF THE TRIBUNAL

On July 4, 2005, the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) received correspondence from the Township of Brethour which was framed as an appeal from the decision of the Court of Revision on the Hambly-Sabourin Drain and Beaulac Beach Drain in that municipality, pursuant to Section 54 of the Drainage Act (the Act). The ‘appeal’ was signed by assessed landowners Richard Gosslein, Gary Beach and Sylvain Gauthier. Further correspondence from the Clerk-Treasurer of the Township of Brethour confirmed that the last court of revision on these drains was held January 27, 2005. The ‘appeal’ was received far after the statutory limit for filing an appeal from the decision of the Court of Revision, and after the Tribunal had held a hearing on May 25, 2005 and issued a decision on appeals made under both Section 54 and Section 48 of the Act. In reading a letter attached to the ‘appeal’, it is clear that Messieurs Gosselin, Beach and Gauthier are concerned with that decision, dated June 10, 2005, and I have treated their ‘appeal’ as a request that the Tribunal review said decision.

Procedural Rule

The Tribunal’s Rules of Procedure provide guidance in evaluating a request for review of a decision. Sub rule 29.09 is reproduced below:

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;

(c) the extent to which any party to the appeal or any other person has relied upon the final decision or order;

(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.

It should be noted that the purpose of the Tribunal reviewing its own decision is to correct obvious errors or oversights in a decision and to avoid unnecessary applications to the Courts for judicial review. A review by the Tribunal is not an appeal or new hearing and determination of the evidence, although a review could result in a matter being referred back to the original hearing panel, or to a new panel, to hear and consider additional evidence, in an appropriate case.

The Background

The Tribunal held a hearing on November 8, 2002 to hear appeals from an engineer’s report dated July 12, 2002 and the Court of Revision on the Hambly-Sabourin Drain – 2001 and Beaulac-Beach Drain 2001. It held a further hearing on June 25, 2004 in order to review its original decision. On October 8, 2004 the Tribunal released a decision which included an order that the engineer prepare an addendum report for the Hambly-Sabourin Drain – 2001 and Beaulac-Beach Drain 2001 and provided specific direction as to what was to be included in this report. That Addendum Report was the subject of appeals to the Tribunal which were heard on May 25, 2005. In its decision, dated June 10, 2005, the Tribunal ordered changes to the future maintenance schedule which reduced the share of maintenance costs to two properties owned by Mr. Gosselin, and increased the share of maintenance costs on other properties.

The Current Request

Concerns raised in the ‘appeal’ of July 4, 2005 are that:

1. The Tribunal “Findings” omitted evidence of the engineer’s failure to fulfill conditions of assessment to Messrs. Beach, Gosselin, Gauthier according to the Section 1 definition of “benefit”.
2. The Tribunal “Findings”, contrary to fact, claimed that Mr. Gosselin petitioned for a reduced assessment. Messrs. Beach, Gosselin, Gauthier, in fact, petitioned for no assessment whatever, based on the Section 1 definition of “benefit”.
3. The Tribunal “Findings” refused to consider substantial visual and statistical evidence of Messrs. Beach, Gosselin, Gauthier because it was not accompanied by a “professional” opinion; yet the same “Findings” accepted evidence from Mrs. Connelly, entirely without corroboration, and based only on anecdotal hearsay. This apparent dichotomy of selection begs the question of bias on the part of the Tribunal.
4. The Tribunal “Findings” state that “maintenance … is always the responsibility of the landowners …” contrary to sections 74, 79, 80. 93 and, as in the last appeal by the same appellants, 118(2) of the Drainage Act.
5. Of all the assessed parties, only the appellants stand to lose, both now and for the future, if the proposed work is allowed to go forward as proposed. For that reason all other assessed owners are in basic disagreement with the appellants; essentially they don’t care because it will not harm them one way or the other. For the appellants, however, everything is at stake, and they deserve better treatment than you are giving them.

The Findings

In evaluating this request, I have reviewed the document submitted by Messrs. Gosselin, Beach and Gauthier, the decision of June 10, 2005, materials filed as exhibits at the hearing of May 25, 2005 and the Drainage Act. I rely on sub rule 29.09 of the Tribunal’s Rules of Procedure in making this decision.

I find that no significant new evidence that was not available at the time of the appeal was presented. The applicants largely rely on alleged errors in law made by the panel of the Tribunal which heard their appeals on May 25, 2005. Specifically, they allege that the Tribunal failed to consider evidence regarding the engineer’s misunderstanding of the definition of “benefit” in the Act, misunderstood the assignment of responsibility for future maintenance under the Act, and acted in a manner that was biased. The applicants also suggest that the Tribunal erred as it misinterpreted the nature of the appeals before it.

Section 1 of the Act defines benefit, as follows:

"benefit" means the advantages to any lands, roads, buildings or other structures from the construction, improvement, repair or maintenance of a drainage works such as will result in a higher market value or increased crop production or improved appearance or better control of surface or subsurface water, or any other advantages relating to the betterment of lands, roads, buildings or other structures; ("avantage")

The panel of the Tribunal that varied the assessment to Mr. Gosselin’s properties clearly considered the question of outlet liability and gave weight to the engineer’s testimony regarding his normal practice regarding the assessment of maintenance costs. The applicants argue that weight should have been assigned to evidence they provided which purported to demonstrate that the engineer failed to properly consider “benefit”. They also take issue with the Tribunal giving weight to hearsay evidence of another landowner, who was not a professional, yet giving no weight to their evidence, which was also unsupported by a professional opinion.

The panel that heard the evidence at the hearing was in a position to assign the appropriate weight to the testimony it heard and the documents that were presented to it. The Tribunal’s hearings are subject to the Statutory Powers Procedure Act which allows it to accept hearsay evidence. I am not persuaded by the applicants that there was a legal error made by the Panel that heard the appeals on May 25, 2005 with regard to the evidence it received.

The applicants quote several sections of the Act to challenge a statement made by the Tribunal that “Any maintenance, whether delayed or not, is always the responsibility of the landowners and utilities and roads that are assessed in the latest report”. Section 74 of the Act states:

Maintenance of drainage works and cost

74. Any drainage works constructed under a by-law passed under this Act or any predecessor of this Act, relating to the construction or improvement of a drainage works by local assessment, shall be maintained and repaired by each local municipality through which it passes, to the extent that such drainage works lies within the limits of such municipality, at the expense of all the upstream lands and roads in any way assessed for the construction or improvement of the drainage works and in the proportion determined by the then current by-law pertaining thereto until, in the case of each municipality, such provision for maintenance or repair is varied or otherwise determined by an engineer in a report or on appeal therefrom. R.S.O. 1990, c. D.17, s. 74. (emphasis added)

This supports the statement of the Tribunal in its decision of June 10, 2005. The other sections quoted by the applicants relate to damages due to insufficient maintenance, the cost of removing obstructions being assessed to the person responsible for the obstruction and the appointment of drainage superintendents by municipalities. I am not persuaded that the panel of the Tribunal that heard this matter misinterpreted the maintenance provisions in the Act or made a material error in fact or law that would have led to it reaching a different decision.

With regard to the allegation that the Tribunal misunderstood the appeal as Messrs. Gosselin, Beach and Gauthier asked that their assessments on the drain be reduced to zero, rather than just be reduced, I find this is simply a semantics issue. Clearly, if a positive assessment is changed to zero, it is reduced. I am not persuaded that the panel of the Tribunal that heard this matter misunderstood the nature of the appeals.

Given that the applicants have not persuaded me that there were material errors of law or fact made by the original panel of the Tribunal, it is not necessary to consider points (c), (d) and (e) in sub rule 29.09.

Decision and Reasons

After carefully considering the material presented, the Tribunal has decided that the request for review is denied.

The reason for this decision is that the Tribunal made no material error of law or fact such that the Tribunal would likely have reached a different decision