Agriculture, Food and Rural Affairs Appeal Tribunal

1 Stone 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@omafra.gov.on.ca

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:

Eden Grove Municipal Drain

Township of Leeds and the Thousand Islands

Eden Grove Municipal Drain (RE) [Request for Review] 2006 ONAFRAAT 45

STATUTE:

Drainage Act

HEARING:

DATE OF DECISION:

December 20, 2006

2006-45

NEUTRAL CITATION:

2006 ONAFRAAT 45

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

AND IN THE MATTER OF: A request that the Agriculture, Food and Rural Affairs Appeal Tribunal review its decision dated July 5, 2006 on appeals by Geoff Bradley, Christine Bradley, Marjorie Tiemersma and Louise Tiemersma under Subsection 54(1) of the Drainage Act from the decision of the Court of Revision, by Mac Donnelly and Robert Carey under Subsection 48(1)(b) of the Drainage Act from the engineer’s report and by Paul Garrah under Subsections 48(1)(b) and 48(1)(c) of the Drainage Act from the engineer’s report on the Eden Grove Municipal Drain in the Township of Leeds and the Thousand Islands.

Before: Rod Stork, Chair

DECISION OF THE TRIBUNAL

The Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) was asked to review a decision it issued on July 5, 2005 with regard to appeals initiated under the Drainage Act related to a proposed drainage works – the Eden Grove Municipal Drain in the Township of Leeds and the Thousand Islands.

The requesting parties – Geoff Bradley, Christine Bradley, Marjorie Tiemersma and Louise Tiemersma – had appealed from the decision of the Court of Revision regarding the proportion of the costs of the proposed drainage works that was assessed to their properties. The Tribunal ordered that all proceedings with respect to the Report on the Eden Grove Municipal Drain be terminated and therefore did not rule on the requesting parties’ appeals.

Statutory Jurisdiction for a Review:

Section 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), as amended, grants to the Tribunal a discretionary power to review all or part of its own decisions and as part of such a review, the power to confirm, vary, suspend or cancel a decision.

The exercise of that power is conditional upon the Tribunal having provided for such a review in its own rules of procedure. The exercise of that power is also conditional upon the Tribunal determining that such a review is advisable.

The Tribunal’s Rules of Procedure

Pursuant to section 25.1 of the SPPA the Tribunal has established Rules of Procedure that includes Rule 29 which is entitled “Review of A Decision”.

A request for review of this nature must comply with the requirements of Rule 29.07 which is reproduced below.

29.07 A request for review of a final decision or order of the Tribunal shall,

(a) be in writing;

(b) state the interest of the requester in the subject matter of the appeal;

(c) state the reasons for requesting the review;

(d) state the desired outcome of the review;

(e) attach any documents which support the request;

(f) state the full name, mailing address, telephone number and facsimile number (if any) of the requester;

(g) if the requester has counsel or an agent, state the full name, mailing address and facsimile number (if any) of the counsel or agent; and

(h) be signed by the requester.

Additionally, in the determination whether it is advisable that the Tribunal conduct a review, guidance is provided by Rule 29.09 which provides as follows:

29.08 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.

The Tribunal rules also set out time limits in which requests for review may be made. Rule 29.10 and 29.11 state:

29.10 A request for review shall be filed within thirty calendar days of the date of the final decision or order.

29.11 A request for review received after the expiry of the thirty calendar day period may be considered if the Tribunal is satisfied that there is a good reason for the delay.

The Request for Review

The request for review was dated August 10, 2006. Mr. Donald Good, counsel to the requesting parties, indicated he did not receive the Tribunal decision until July 11, 2005, and due to his vacation schedule could not meet with his clients before August 4, 2006. He sought an extension in the time in which a request for review could be initiated.

The Tribunal notes that the request for review was initiated only a few days after the 30 day period and is satisfied that there was good reason for the delay.

The requesting parties sought a review of the Tribunal decision for the following reasons:

1. The Tribunal heard the above referenced late filed appeals under Section 48(1)(b)(c) of the Drainage Act (appeals by Mac Donnelly, Paul Garrah and Robert Carey).

2. These appeals challenged the validity of the Engineer’s Report and the Tribunal quashed said report.

3. The requesting parties had filed an appeal of the assessment schedule and this appeal became moot after the Tribunal quashed the Engineer’s Report.

4. The Tribunal ordered costs against the requesting parties. At no time did the requesting parties have an opportunity to address the issue of costs, particularly in relation to the late filed appeals rendering the appeal moot.

5. The requesting parties request the Tribunal allow the requesting parties to make submissions on costs.

In the consideration of the request for review I attended at the Tribunal office and considered the following materials:

• decision of the Tribunal dated July 5, 2006
• exhibits filed at the hearing in this matter held on May 11, 2006 and May 12, 2006
• request for review dated August 10, 2006

The Findings

The first three reasons for the objection to the decision of the Tribunal relate to its decision to hear late-filed appeals initiated under Section 48 of the Drainage Act and its subsequent decision to quash the engineer’s report, rendering the requesting parties’ appeals moot.

Section 100 of the Drainage Act allows the Tribunal to accept appeals initiated outside the time limits provided in the statute. It states:

Extension of time

100. 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; 2006, c. 19, Sched. A, s. 6 (12).

It is clear in the decision in question (Tribunal decision dated July 5, 2006) that Mr. Good raised his concern about the late-filed appeals as a preliminary matter, that the panel of the Tribunal that decided the matter took submissions on his request that it not hear those appeals and that it decided to proceed as it did. Section 100 of the Drainage Act gives the Tribunal the authority to extend the time in which an appeal may be initiated and it did so in this case. This panel of the Tribunal finds that the original panel did not make a material error of law in allowing these appeals to be heard.

The fourth and fifth reasons for the request for review relate to point 5 of the Tribunal order that:

“The Municipality’s costs to date shall be assessed as follows: Marjorie & Louise Tiemersma (Roll #’s 03502100 & 03502600) - $2,500.00 Geoff & Christine Bradley (Roll # 03501900) - $1,000.00 The balance shall be paid by general funds of the Municipality.”

At the hearing the engineer testified that the costs related to the project incurred by that date were in excess of $21,000.

Mr. Good argued in his request for review that the Tribunal made a cost award and the requesting parties were not given an opportunity to make submission with regard to costs to the Tribunal. He sought that opportunity on their behalf.

This panel of the Tribunal agrees that parties should be permitted to make submissions to the original panel on the question of the allocation of costs incurred by the Municipality related to the quashed engineer’s report. Parties will also be allowed to make submissions in reply to anything new and unexpected in another party’s submission on the question of the allocation of costs. As a matter of practicality, the submissions are to be made in writing.

ORDER OF THE TRIBUNAL

After careful consideration of the submissions made the Tribunal grants in part the request for review of the decision of the Tribunal dated July 5, 2006. The Tribunal orders that:

1. The original panel of the Tribunal be reconvened for the purpose of reviewing point 5 of the Tribunal order dated July 5, 2006. The review is to be limited to the consideration of the assessment of the costs incurred by the Municipality, as outlined in point 5 of the order (reproduced above).

2. All parties to the original proceeding are to be notified of the Tribunal’s intent to review point 5 of the order dated July 5, 2006.

3. The notice is to indicate that submissions on the matter are to be made in writing, but that if any party objects to the Tribunal reconsidering this matter by way of a written hearing, they are to object within three business days of receiving the notice of the proceeding. If the Tribunal receives an objection from a party to a proceeding who receives a notice of written hearing the Tribunal shall convert the hearing to an oral or electronic format if the objecting party satisfies the Tribunal that there is good reason for the format change.

4. If there is no objection to proceeding by way of a written hearing, or if the Tribunal determines there is no good reason for a format change, the parties shall make written submissions to the Tribunal, through the Clerk of the Municipality, on the issue of the allocation of costs. The Clerk of the Municipality is to copy all parties with all submissions received by a date to be specified in the notice.

5. Parties may file written replies to anything new and unexpected in the submissions of other parties, on the question of the allocation of costs, with the Tribunal, through the Clerk of the Municipality by a date to be specified in the notice.

6. Upon receipt of these submissions, the original panel of the Tribunal will review point 5 of its order dated July 5, 2006 and will issue a decision upon review in due course.

Dated at Guelph, Ontario this 29th day of September, 2006.