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:Tribunal@OMAF.gov.on.ca
1 Stone Road West 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:
Zimmer Drain 2004
Township of Malahide
Zimmer Drain 2004 (RE) 2005 ONAFRAAT 25
STATUTE:
Drainage Act
HEARING:
July 10, 2004
DATE OF DECISION:
September 29, 2005
2005-26
NEUTRAL CITATION:
2005 ONAFRAAT 26
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: An application to the Agriculture, Food and Rural Affairs Appeal Tribunal by the Township of Malahide, Aylmer, Ontario, under Subsection 58(4) of the Drainage Act, seeking an amendment to the engineer’s report on the Zimmer Drain 2004 in the Township of Malahide.
Before: Kirk Walstedt, Vice Chair; Jack Young, Vice Chair
DECISION OF THE TRIBUNAL
This application was dealt with by way of written submissions. The Township of Malahide (the Municipality) applied to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Subsection 58(4) of the Drainage Act (the Act) seeking to have the report on the Zimmer Drain 2004 dated July 10, 2004 (the Report) prepared by Spriet Associates (the Engineer), amended to address a situation that arose during construction of the drainage works.
Statutory Context
Section 58 of the Act states: By-law may be passed
- (1) Where the council of an initiating municipality has adopted a report for the construction of a drainage works after the time for appealing has expired and there are no appeals or after all appeals have been decided, the council may pass a provisional by-law thereby authorizing the construction of the drainage works, and work may be commenced ten days after the by-law is passed if no notice of intention to make application to quash the by-law has been filed with the clerk of the council. R.S.O. 1990, c. D.17, s. 58 (1).
Quashing of by-law
(2) If no notice of intention to make application to quash a by-law is filed with the clerk of the council within ten days after the passing of the by-law or, where a notice of intention has been given, if an application to quash is not made to the referee within three months after the passing of the by-law, the by-law, or so much thereof as is not the subject of or is not quashed upon any such application, is valid and binding according to its terms, so far as it prescribes or directs anything within the proper competence of the council. R.S.O. 1990, c. D.17, s. 58 (2).
Repeal of by-law
(3) A by-law may be repealed at any time before the work is commenced and before any assessment has been levied against the land assessed, and in such case the council of the initiating municipality shall pay all expenses in connection therewith out of the general funds of the municipality. R.S.O. 1990, c. D.17, s. 58 (3).
Where error in report
(4) If, at any time after the by-law is passed and before any assessments are levied, a gross error in the report is found, the council of the initiating municipality may on notice to all persons assessed apply to the Tribunal to correct the error. R.S.O. 1990, c. D.17, s. 58 (4).
Appeal to Tribunal
(5) Where the council does not proceed with reasonable dispatch with the construction of the work after passage of the by-law, a requisitioner or a petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area to be drained, the Minister may refer the matter to the Tribunal, and the Tribunal may direct the council to take such action as the council is authorized to take under this Act and as the Tribunal considers proper. R.S.O. 1990, c. D.17, s. 58 (5).
The Background
The Zimmer Municipal Drain was originally constructed in 1953 under the Act.
The Report on the Zimmer Drain 2004 in the Township of Malahide provided for the reconstruction of the lower portion of the Zimmer Municipal Drain (downstream of Station 1+625) and included the construction of two new branch drains. During the course of constructing the Zimmer Drain 2004, it was discovered that some of the drain upstream of Station 1+625 was also in disrepair and in need of replacement.
An additional 262 metres of 250mm (10 inch) tile drain was replaced as it was expedient to do at the time of construction. The Municipality requested that an addendum report be prepared to encompass the additional work.
Prior to considering this application by way of written submissions, the Tribunal caused to have circulated a Notice of Receipt of Application and a copy of an addendum report – Zimmer Drain 2004 Township of Malahide Addendum - dated March 15, 2005 (the Addendum Report) to all landowners assessed or compensated in the original Report. Landowners were given until September 7, 2005 to inform the Tribunal if they wanted to participate in the written hearing. No landowners indicated they wished to participate in the hearing.
The Issue
The issue before the Tribunal was:
- Should the Tribunal order amendments to the Report, due to a gross error in the Report, to provide for:
- installation of 262 m of 250 mm (10 inch) concrete field tile upstream of Station 1+625
- official abandonment of the existing 1953 Main Drain upstream of Station 1+625 under Section 19 of the Act
- changes in allowances and assessments to accommodate the above points?
The Evidence
Information provided by J.M. Spriet, P.Eng., the engineer who prepared both the Report and the Addendum Report, was that:
- the existing tile upstream of Station 1+625 was cracked and was in poor condition and required replacement.
- two landowners would be affected by changes he proposed to the Report to address this issue; and
- both landowners were aware of changes in their costs as a result of the amendments to the Report, and were in agreement with them.
The Township of Malahide provided the Tribunal with the following:
- Certified copy of Drainage By-Law No. 04-47 being a bylaw to provide for the drainage works on the Zimmer Drain 2004.
- Confirmation that the township had not yet billed out any costs incurred on the Zimmer Drain 2004, nor made applications for grants
- An acknowledgement signed by Renée Rommel, President, Rommel Farms Ltd. confirming his agreement with and accepting his share of the costs for the work called for in the addendum report.
- An acknowledgement signed by A. Watters, County of Elgin, confirming his agreement with and accepting the county’s share of the costs for the work called for in the addendum report.
- Verification that the Notice of Receipt of Application was circulated to all landowners assessed or compensated in the original Report.
The Findings
The Tribunal finds that ordering a correction in the engineer’s report, pursuant to Subsection 58(4) of the Act is a cost effective way to resolve this situation.
This is an unusual situation which led to an anomaly in the Report, which the Tribunal characterizes as a “gross error” under the provisions of the Act, and in this instance this is the most economical and reasonable way for the Tribunal to deal with this anomaly.
ORDER OF THE TRIBUNAL
After careful consideration the Tribunal decided that, pursuant to Section 51 of the Act, the Tribunal orders that the “gross error” be corrected as follows:
- Drainage By-Law No. 04-47 of the Township of Malahide is amended by the incorporation of the Addendum Report dated March 15, 2005 as follows:
a) Schedules A, B, C and D in the Addendum Report are to replace Schedules A, B, C and D in the original Report. The revised schedules shall be marked “As amended by the Tribunal decision dated September 30, 2005”
b) The Plan and Profile drawing marked “Revised March 14, 2005” is to replace the original Plan and Profile drawing.
c) The first two pages of the Addendum Report are to be included in the revised by-law.
d) The section of the original Zimmer Drain upstream of Station 1+625 on the Main Drain be abandoned in accordance with Section 19 of the Act.
- There be no order as to costs and all parties are responsible for their own costs, Attention is drawn to Section 73 of the Act.
Dated at Essex, Ontario, this 29th day of September, 2005.