Cook-Leddy Drain 2003 (Re), 2005 ONAFRAAT 5

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:

Cook-Leddy Drain 2003

Township of Ashfield-Colborne-Wawanosh

Cook-Leddy Drain 2003 (RE)

[Request for Review]

2005 ONAFRAAT 05

STATUTE:

Drainage Act

HEARING:

DATE OF DECISION:

February 9, 2005

2005-05

NEUTRAL CITATION:

2005 ONAFRAAT 05

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 April 30, 2004 with respect to the Cook-Leddy Drain 2003 in the Township of Ashfield-Colborne-Wawanosh.

Before: Rod Stork, Chair

DECISION OF THE TRIBUNAL

This review was initiated as a result of a request by Mr. Philip Cornish, counsel to Mr. Ken Leddy, the petitioner for the Cook-Leddy Drain 2003.

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.

Background

The Cook Leddy Municipal Drain 2003 was designed as an extension to the original Cook Leddy Drain which was constructed pursuant to a report by Maitland Engineering dated January 14, 2000. The report on the Cook Leddy Municipal Drain 2003 was prepared by K. Smart and Associates and dated June 23, 2003 (the report) to improve the outlet of the original drain.

The Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) heard an appeal by Joanne E. Cook, an assessed landowner, pursuant to Sections 48 and 54 of the Drainage Act (the Act) on November 17, 2003 and April 15, 2003. In an order dated December 11, 2003, the Tribunal modified the assessments to landowners on the drainage works. The Tribunal also made an order providing that an allowance be paid to K. and C. Leddy as follows:

4. The allowance to K. and C. Leddy of $1,500 is to be paid or credited to them on condition that they sign a full and final release in favour of the Municipality and the upstream owners on this drain, releasing them from any claim for damages arising out of any erosion or pollution that may have accrued prior to the construction of the works contemplated within the report. This release shall be completed prior to the award of a contract for construction. If Mr. Leddy refuses to sign such a release in a form acceptable to the Municipality, this panel of the Tribunal shall give further consideration to this order.

No such release was signed by K. and C. Leddy and the Tribunal continued the hearing on April 15, 2003. At that time, Mr. Philip Cornish, counsel to Mr. and Mrs. Leddy, explained to the Tribunal that Mr. Leddy was no longer prepared to sign the waiver in return for an allowance of $1,500.

On April 15, 2003, Mr. Cornish sought to introduce new evidence on the issues of assessment and design. Ms. Joanne Cook, the appellant, objected to a re-opening of that aspect of the Tribunal order. The Tribunal agreed that it would be unfair to other landowners to hear additional evidence on those points, and restricted the parties to making submissions regarding the provision of an allowance to Mr. and Mrs. Leddy, as compensation for erosion and potential pollution of their pond. The Tribunal explained that it was the intent of its December 11, 2003 order that only Point 4 be reconsidered in the event that the landowners did not sign the waiver.

Ultimately, in a decision dated April 30, 2004, the Tribunal opted to rescind point 4 of its order dated December 11, 2003. The Tribunal explained that it had only included Point 4 in its original order because Mr. Leddy had offered to sign a waiver, in return for an allowance of $1,500.

Request for Review by Ken Leddy

Mr. Cornish asked the Tribunal to review its decision of April 30, 2004 on the grounds that:

1. The Tribunal made incorrect findings of fact regarding the position of Mr. Leddy in its decision of December 11, 2003, from which arises prejudice.

2. The Tribunal declined to give further consideration of Point 4 of its order dated December 11, 2003 and simply omitted the provision of an allowance of $1,500 to K. and C. Leddy.

3. The Tribunal refused to hear additional evidence regarding damage to the Leddy property due to insufficient outlet.

4. The Tribunal proceeded on evidence that was errant and potentially fraudulent with regard to a pond on the Leddy property and the special benefit attributed to the Lot 24 and Lot 25 Leddy properties.

The Findings

Having reviewed the decisions of the Tribunal dated December 11, 2003 and April 30, 2004, I find that the Tribunal made no error in law.

There is no evidence that the Tribunal made incorrect findings or relied upon incorrect or potentially fraudulent evidence in deciding this matter.

My reading of the Tribunal decision of April 30, 2004 is that it did give further consideration to Point 4 of its Order dated December 11, 2003 and that, having considered the matter, decided to revoke this portion of its Order.

I find it would not have been appropriate for the Tribunal to hear additional evidence regarding damage to the Leddy property due to insufficient outlet as the Tribunal does not have jurisdiction to award damages in this regard. The panel hearing the appeals acted correctly in not accepting this evidence.

ORDER OF THE TRIBUNAL

After careful consideration of the submissions made the Tribunal orders:

1. That the request filed by Philip Cornish, on behalf of Ken Leddy, for a review of a decision of the Tribunal dated April 30, 2004 be denied.

2. No order is made as to costs.