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: Krueger Drain Town of Kingsville
Krueger Drain (RE) [Interlocutory Decision] 2006 ONAFRAAT 08
STATUTE: Drainage Act
HEARING: March 28, 2005
DATE OF DECISION: April 11, 2006
2006-08
NEUTRAL CITATION: 2006 ONAFRAAT 08
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by George Vanderbeke, Cottam, ON under Sections 48 and 54 of the Drainage Act from the engineer’s report and from the decision of the Court of Revision on the Krueger Drain in the Town of Kingsville.
Before: Kirk Walstedt, Vice Chair; Rod Stork, Chair; Ron Gelderland, Member
Appearances: Keith Vanderbeke, representing George Vanderbeke, assessed landowner Perry Dunmore, counsel to Township of Kingsville Gerard Rood, P. Eng., engineer who prepared the report William Tiessen, Pyramid Farms, assessed landowner William Neufeld, for Daniel Neufeld, assessed landowner Lawrence Trepanier, representing Elizabeth Trepanier, assessed landowner
INTERLOCUTORY DECISION OF THE TRIBUNAL
This matter was commenced in Kingsville, Ontario on March 28, 2005. Mr. George Vanderbeke appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act).
Ms. Linda Burling, Clerk, Corporation of the Town of Kingsville (the Municipality), performed the duties of the Clerk of the Tribunal.
Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the engineer’s report on the Krueger Drain prepared by N. J. Peralta Engineering Ltd., dated October 24, 2005 (the Report) parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.
Statutory Context
Subsection 48(1) of the Act states:
48(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) states:
54(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).
Evidence and Argument
The Tribunal heard opening statements from the parties and some testimony from Mr. Rood, the engineer, and from Mr. Keith Vanderbeke, representative of the appellant. One of the issues in dispute was the provision of allowances in the Report. Assessments were also under appeal. Mr. Keith Vanderbeke took the position that the allowances and assessments in the Report were incorrect, in part because the boundary between a property owned by Mr. George Vanderbeke and a property owned by Mrs. Elizabeth Trepanier was ambiguous and Mr. George Vanderbeke disputed the boundary line used by the engineer.
In the midst of his testimony, Mr. Keith Vanderbeke asked the Tribunal for an adjournment of the hearing and an order that the Municipality take the matter of the boundary dispute to the Superior Court of Justice, under the Boundaries Act. Mr. Keith Vanderbeke further argued that the cost of that application and a retracement survey be charged to the petitioners who sought the drain. Mr. Keith Vanderbeke argued that Mr. George Vanderbeke believed the Vanderbeke-Trepanier property line was 18-20 feet – east of the boundary line used by the engineer, and if he was correct then half of the allowances provided to the Trepanier property in the Report, should be directed to the Vanderbeke property instead.
Mr. Dunmore replied that the Municipality agreed with the appellant that disputes regarding the Boundaries Act were not within the Tribunal’s jurisdiction but he argued that the Drainage Act does not require the Municipality to make an application to the Court on a boundary dispute. He stated that as long as the engineer is clear that a boundary is reliable he can rely on that in his report. Mr. Dunmore pointed out that the engineer did obtain an opinion of a land surveyor, Andrew S. Mantha, O.L.S., and received his report dated February 11, 2005. Mr. Dunmore stated that this was the third finding which established the boundary line in the location used by the engineer. He argued that it was the responsibility of the appellant to make an application to the Court regarding the boundary, if he had evidence that it was not where it had been placed by the land surveyors.
Mr. Vanderbeke replied that none of the surveys referenced by Mr. Dunmore had been registered on title. He said he had hired a Mr. Clark to do a retracement survey, but that gentleman refused and was fired. He said it would take longer than 14 days to make an application to the Court.
Mr. Dunmore responded that there was no requirement to register the survey on the land titles.
Mr. Neufeld indicated there was no dispute over the boundary between the Neufeld and Tiessen lands.
The Findings
The Tribunal notes that Boundaries Act provides a mechanism for dispute resolution by a Director where doubt exists as to the true location on the ground of any boundary of a parcel of land. The Tribunal agrees with the submission of Mr. Dunmore that the landowner, Mr. George Vanderbeke, should bring the application to the Director, if he wants the question of the boundary to be definitively settled. Costs of an application made under the Boundaries Act are paid by the applicant, unless the Director orders otherwise. This is not a matter that can be determined by the Tribunal under the Drainage Act.
The Tribunal recognizes that landowners who require drainage through the proposed Krueger Drain will be disadvantaged by any delay in the proceeding before the Tribunal. However, the Tribunal agrees with the submission of Mr. Keith Vanderbeke that a change in the boundary of a magnitude of 18-20 feet would be relevant to the Tribunal’s hearing regarding the appropriate allowances to be assigned to each property. The Tribunal finds it is fair to allow Mr. George Vanderbeke a reasonable amount of time to challenge the boundary established in the report in the appropriate forum and will so order.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The hearing of these appeals is adjourned to a date to be determined.
Mr. George Vanderbeke is to provide proof to the Tribunal of his intention to initiate a proceeding under the Boundaries Act no later than Tuesday, April 18, 2006.
Mr. George Vanderbeke is to submit documentation of all actions taken by him to see his application completed under the Boundaries Act to the General Manager/Secretary of the Tribunal and the Clerk of the Municipality no later than July 17, 2006.
If this documentation is not received, the Tribunal will proceed to reschedule the hearing in this matter at its earliest convenience.
This panel is seized of the matter.
Dated at Essex, Ontario this 11th day of April, 2006