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, chemin Stone Ouest
Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Saxon Drain - Request for Review
Municipality of Southwest Middlesex
Saxon Drain - Request for Review (RE) 2007 ONAFRAAT 10
STATUTE:
Drainage Act
HEARING:
DATE OF DECISION:
March 28, 2007
2007-10
NEUTRAL CITATION:
2007 ONAFRAAT 10
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 December 20, 2006 on appeals by Tom Ward, Appin, Ontario and Jim Wolfe, Melbourne, Ontario under Section 48 of the Drainage Act from the engineer’s report on the Saxon Drain in the Municipality of Southwest Middlesex and by Tom Ward, Appin, Ontario, Kenneth E. Wilson, Appin, Ontario and Jim Wolfe, Melbourne, Ontario under Section 54 of the Drainage Act from a decision of the Court of Revision on the Saxon Drain in the Municipality of Southwest Middlesex.
DECISION OF THE TRIBUNAL
The Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) has been asked to reconsider its decision dated December 20, 2006 on appeals from the engineer’s report and the Court of Revision on the Saxon Drain in the Municipality of Southwest Middlesex.
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”. 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.
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 Findings
I have reviewed the original appeal, the information presented to the hearing, the original decision of the hearing panel and the information filed by various parties seeking a review of the decision rendered. Previously, Ms. Janet M. Gibbons, counsel for the applicants, Messrs. Wilson and Wolfe, had also asked for an extension of time to submit a request for review because of the manner in which the original decision was circulated by regular mail rather then by registered mail as the legislation stipulates. This request for extension was granted. In the ensuing documentation provided by Counsel on behalf of the applicants the reasons for the request for review were expanded upon. In addition Counsel also indicated that further information/evidence would be provided to the Tribunal on issues of concern by the applicants originating from the decision of the Tribunal. This would be done if the request was granted.
This decision on this matter was based on the request for review submitted January 26, 2007 by Ms. Gibbons which also contained material from Mr. K. R. McCutcheon, along with other documentation received from Valerie McGarry, Counsel for Mr. Ward and Mr. Ray Dobbin, Engineer, who prepared the original drainage report. An earlier request for review by Ms. Gibbons, dated January 19, 2007, was also considered.
Having given consideration to all these submissions my decision is not to grant the request for a review. My reasons for this decision are as follows.
Counsel for the Requestors of the Review, Janet Gibbons in a letter dated January 26, 2007 initially asks for a review of the decision rendered by the Tribunal dated December 20, 2006. This request is made on behalf of her clients Mr. Wilson and Mr. Wolfe who were two of the appellants in the matter at hand. Reasons for the request are provided by Ms Gibbons and have been carefully reviewed by myself. In her letter Ms Gibbons indicates that the Tribunal erred in a number ways in making their decision. Specifically the Tribunal erred in relying on evidence presented by Mr. John Kuntze. Furthermore it is stated by Ms Gibbons that Mr. Kuntze gave evidence on the height of a berm and new catch basin which were not part of the report. I fail to understand why that matter is being alleged. It appears that the Tribunal gave fair and equitable weighting to all the evidence presented and came to a fair and reasoned decision.
It is suggested that a different decision would have been rendered if Mr. Kuntze's evidence had been 'properly scrutinized.' I find no indication from the decision of the Tribunal that in fact all evidence presented was not 'properly scrutinized' in coming to the decision that the Tribunal did reach.
It is further pointed out that the Tribunal erred in determining that evidence given by Mr. Robinson and Mr. McCutcheon was based on assumption and not evidence. Once again I can find no indication that the Tribunal did not consider the information provided by Mr. Robinson and Mr. McCutcheon in any different matter then any other material presented at the hearing.
The last reason given for the request relates to the Tribunal not considering the 2001 engineer's report re: the drain under appeal. The matter under appeal relates to a 2006 engineer's report and it is my opinion that this report and the material contained within was what was under appeal. It is stated in the request for review that if both reports had been considered then a different decision might have been reached. I can find no indication from the Tribunal decision, that the information relevant to this hearing was not given due consideration.
The request for review then goes on to outline a series of amendments to the Tribunal Order of December 20, 2007.
In my opinion these requests are not relevant to a request for a review as they are asking for changes to an existing order rather then being relevant to a review request.
Counsel for the applicants ask that the appeal period from the Order of the Tribunal commence with the date of the Order issued upon the Review. It is my decision that there is no basis for a review of the decision rendered by the Tribunal and thus the original Order should stand.
Lastly Counsel for Mr. Wilson and Mr. Wolfe asks for the granting of costs relative to this request for Review. I do not see any specific reason for granting this request as I believe that the original hearing was carried out in a fair and equitable manner.
ORDER OF THE TRIBUNAL
After careful consideration of the additional evidence filed and the submissions made the Tribunal orders:
- The request for review of Agriculture, Food and Rural Affairs Appeal Tribunal decision dated December 20, 2006 by Kenneth E. Wilson and James E. Wolfe is denied.
Dated at Guelph, Ontario this 28th day of March, 2007.