Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal@omafra.gov.on.ca
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal@omafra.gov.on.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Dean Drain Township of Brooke-Alvinston
Dean Drain (RE) [Request for Review] 2006 ONAFRAAT 27
STATUTE:
Drainage Act
HEARING:
August 10, 2006
2006-27
NEUTRAL CITATION:
2006 ONAFRAAT 27
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: A request from R. & B. (Bud) Kelly that the Agriculture, Food and Rural Affairs Appeal Tribunal review a decision dated, May 17, 2006, pursuant to Rule 29 of its Rules of Procedure.
Before: Jack Young, Vice Chair
DECISION OF THE TRIBUNAL
The Agriculture, Food and Rural Affairs Appeal Tribunal (the "Tribunal") received a request for a review of its decision of May 17, 2006 regarding appeals from the engineer's report and Court of Revision on the Dean Drain. The Chair of the Agriculture, Food and Rural Affairs Appeal Tribunal assigned the task of considering this request for review to this Vice Chair of the Tribunal. In the course of this review this Tribunal spoke to two of the Members on the original panel of the Tribunal that made the decision.
Background
The Dean Drain is a project initiated under the Drainage Act (the "Act") in the Township of Brooke-Alvinston (the "Municipality") by a report dated October 18, 2005 (the "Report") prepared by Raymond Dobbin, P.Eng., (the "Engineer").
The Tribunal heard an appeal on this project initiated under Sections 48 and 54 of the Act on March 30, 2006 and issued a decision dated May 17, 2006 (the "Decision"). R.& B. Kelly (the "Appellant") by way of letter dated June 14, 2006, requested that the Tribunal review this Decision.
The Tribunal heard the merits of Mr. Kelly's appeal under Subsections 48(1)(b) and 48(1)(c) from the engineer's report and Subsection 54(1) of the Drainage Act from the decision of the Court of Revision on the Dean Drain in the Township of Brooke-Alvinston. All assessed landowners were party to the appeal.
Request for Review
The Tribunal's Rules of Procedure Provide for requesting a review of its decisions and the evaluation of a request for review under its Rule 29. Subsection 29.09 of the Tribunal Rules of Procedure reads as follows:
Evaluation of a request for review
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.
Mr. Kelly's request for review is summarized as follows:
- He was not permitted to view and comment on some of the photographs that were submitted to the Tribunal at the hearing.
- There was misunderstanding of some of the verbal evidence presented at the hearing.
- The evidence summary of some the testimony at the hearing did not accurately reflect the verbal evidence to the person testifying.
- The Tribunal did not consider the design changes he requested
- The Tribunal ignored the changes in the watershed as evidenced by the photos in his exhibits.
- The Tribunal denied corrections to assessments that he had requested.
The Findings
This Tribunal has reviewed the 13 page request for review dated June 9, 2006 presented by the Appellant as well as the Decision dated May 17, 2006 along with the Exhibits (the "Exhibits") that were presented at that hearing. This Tribunal relied on sub rule 29.09 of the Tribunal's Rules of Procedure in making this decision. This Tribunal finds that no significant new evidence that was not available at the time of the appeal was presented. This Tribunal was not persuaded that the original panel made an error of law or fact which would have caused it to make a different decision.
This Tribunal has considered the apparent "misunderstandings" identified by the Appellant and the allegations that the written decision does not accurately reflect the verbal testimony. Firstly, the wording of the evidence in the Decision was prepared from notes made during the hearing and not from verbatim recording of the evidence. Secondly, the panel members made their decision immediately following the hearing based on their notes and the verbal testimony that they had just heard. The written version of the evidence was summarized at a later date. This Tribunal does not consider that any changes are warranted for this reason as the summary of evidence could not materially affect the Decision.
Many of the items in the Appellant's request for review referred to items that were considered at the hearing and dealt with in the Decision. As there was no new evidence presented that was not available before the hearing, these items were not considered to trigger a review in accordance with Section 29 of the Tribunal Rules.
The Appellant disputes the location of the watershed and the area contributing runoff from the various properties. The Exhibits and the Decision indicate that this item received a great deal of consideration at the hearing. No new evidence has been presented to warrant a review of this item. This Tribunal has however reviewed the topographic plan prepared for the Engineer using GPS equipment. This Tribunal notes that the land in the south half of Lots 4 & 5 of Con 3 is relatively flat and that it is difficult to precisely locate watershed limits on this type of land. The original panel of the Tribunal accepted the watershed limits in the Report and as shown on the topographic drawing in Tab 2 of Exhibit 4 of the Exhibits. There was no definitive information, either topographic or otherwise, presented to challenge this watershed. The pictures presented by the Appellant in Exhibits 1,2 & 3 of the Exhibits were all taken adjacent to the road and do not provide useful evidence of the watershed limit approximately 1,500 feet to the north. It should be noted that neither the Engineer nor the Appellant presented any evidence with respect to the watersheds of adjacent drainage projects to the north of this project. This Tribunal has reviewed the calculation of the watershed area of each of the subject properties and finds the areas shown in the Report to be consistent.
The Appellant expressed concern that he did not have the opportunity at the hearing to closely examine the photos (Exhibit 11) that were presented by the Municipality near the end of the hearing. This Tribunal finds that the Municipality should have provided copies of these photos to the Appellant at the hearing. This Tribunal has examined the photos in Exhibit 11 and feels that many of the photos duplicate the evidence presented by the Appellant in Exhibits 1, 2 & 3. There does not appear to be any additional evidence in these photos that would have affected the Decision.
The Appellant asked for a review of the matter of Assessments. Section 29 of the Tribunal Rules does not permit the review of assessments in the absence of any new evidence or an error of fact or law. This Tribunal is not persuaded that any such evidence was provided or any such error was made. It should be noted that Section 101 of the Drainage Act states that Tribunal decisions on assessment appeals under Section 54 are final.
In reviewing the Exhibits presented to the hearing and the summary of the evidence, it appears that the material presented was very extensive. The evidence seems to have been well addressed. The original panel of the Tribunal presented detailed findings and a number of options for the Appellant to exercise should he wish to request additional modifications. There is also a time frame to request these modifications so that the project can be implemented. This Tribunal will order that the appellant has ten days from the date of this decision to exercise the options outlined in the original order of the Tribunal, dated May 17, 2006.
There are a number of common sense items that can be worked out between the landowners and the Drainage Superintendent either before or during construction. These should not require Tribunal direction.
Decision and Reasons
After carefully considering the material presented, this Tribunal has decided that the request for review is denied for the reasons apparent in the findings above.
ORDER OF THE TRIBUNAL
The Tribunal orders as follows:
- That the request for review the Agriculture, Food and Rural Affairs Appeal Tribunal decision dated May 17, 2006 by R. & B. Kelley is denied.
- The Appellant, R. & B. Kelly is allowed 10 days from the date of this decision to exercise the options allowed him in Items 2,6 & 10 of the Order of the Tribunal dated May 17, 2006.
Dated at Gravenhurst, Ontario this 10th day of August, 2006.