Agriculture, Food and Rural Affairs Appeal Tribunal
1Stone Road West
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:appeals.tribunal@omaf.gov.on.ca
Guelph (Ontario) N1G 4Y2
Tél.: (519) 826-3433, Téléc.: (519) 826-4232
Email: appeals.tribunal@omaf.gov.on.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
J.A. Smith Drain
Municipality of Chatham-Kent
J.A. Smith Drain (RE)
2005 ONAFRAAT 30
STATUTE:
Drainage Act
HEARING:
November 15, 2005
DATE OF DECISION:
November 17, 2005
2005-30
NEUTRAL CITATION:
2005 ONAFRAAT 30
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: A request by Paul Clarke, Blenheim, Ontario that the Agriculture, Food and Rural Affairs Appeal Tribunal extend the time in which he may initiate an appeal under the Drainage Act from the engineer’s report and the decision of the Court of Revision for the J.A. Smith Drain in the Municipality of Chatham-Kent.
Before:
Rod Stork, Chair
DECISION OF THE TRIBUNAL
This request was considered in Guelph, Ontario on Tuesday, November 15, 2005. Mr. Clarke is a landowner assessed on an engineer’s report dated May 26, 2005 on the J.A. Smith Drain in the Municipality of Chatham-Kent (the Municipality). He sought to appeal the engineer’s report and the decision of the Court of Revision on the J.A. Smith Drain to the Agriculture, Food and Rural Affairs Appeal Tribunal (The Tribunal) and asked the Tribunal to extend the deadline in which he could make an appeal.
Statutory Context
Section 100 of the Drainage Act (the Act) states:
Extension of time
- The Tribunal, in any case that it considers proper, may extend the time otherwise limited for application, appeal or reference. R.S.O. 1990, c. D.17, s. 100.
Subsection 48(1) of the Act states:
Appeal to Tribunal
- (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
Information provided by the Municipality in this matter was:
The provisional by-law and notice of the sitting of the court of revision were mailed to landowners on August 30, 2005.
The decision of the Court of Revision was pronounced on September 28, 2005.
The appeal by Mr. Clarke was date stamped as being received on October 25, 2005 at the Municipality.
Submissions
Mr. Clarke submitted his request to the Tribunal by way of electronic mail. His submission was:
Yesterday I received a letter from Mr. Dick with your letter to him attached …many thanks for so kindly pointing out the deadline might be extended.
We would be much obliged if you would do this.
The reason we did not meet the deadline was a misunderstanding on my
part…..brought on I suppose by my age of 85.
We got a letter from Mr. Dick saying there would be another
meeting of the drainage board on Sept. 28, which we did not need to attend. I ASSUMED THAT FOLLOWING THAT MEETING MINUTES WOULD BE DISTRIBUTED SHOWING DEADLINE FOR THE TRIBUNAL. I kept waiting and finally phoned and found that the deadline was past. The moment I found out I sent another letter.
I am very sorry for this but do hope you can extend the deadline because I have even more evidence now of how unnecessary it is to install a 36 in. pipe and feel it is important to keep all costs as low as possible.
Again ….very sorry that I am so far gone but please help.
The Findings
The Tribunal finds that Mr. Clarke was sixteen days late in filing his appeal from the engineer’s report (Section 48 appeal) and six days late in filing his appeal from the decision of the Court of Revision.
Mr. Clarke indicated he was aware that there were deadlines for filing his appeals but that he assumed that the Municipality would write to him after the sitting of the Court of Revision indicating what those deadlines were.
Mr. Clarke’s appeals were filed very late in the view of the Tribunal. The process established by the legislature must be respected. The Tribunal will not extend the deadline for initiating an appeal.
ORDER OF THE TRIBUNAL
After careful consideration of the submissions made the Tribunal orders:
The deadline for initiating an appeal will not be extended in this instance.
Dated at Guelph, Ontario this 17th day of November, 2005.