Elaine Heyink v. Municipality of Chatham-Kent, 2007 ONAFRAAT 11

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@omaf.gov.on.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal@omaf.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Burns Drain – Request for Review

Municipality of Chatham-Kent

Burns Drain (RE) – Request for Review 2007 ONAFRAAT 11

STATUTE:

Drainage Act

HEARING:

April 5, 2007

DATE OF DECISION:

April 11, 2007

2007-11

NEUTRAL CITATION:

2007 ONAFRAAT 11

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

AND IN THE MATTER OF: A request by Elaine Heyink, Blenheim, Ontario that the Agriculture, Food and Rural Affairs Appeal Tribunal extend the time in which she may initiate an appeal under the Drainage Act from the engineer’s report and the decision of the Court of Revision for the Burns Drain in the Municipality of Chatham-Kent.

Before:

Kirk Walstedt, Vice Chair

DECISION OF THE TRIBUNAL

This request was considered in Maidstone, Ontario on Thursday, April 5, 2007. Mrs. Heyink is a landowner assessed on a recent engineer’s report on the Burns Drain in the Municipality of Chatham-Kent (the Municipality). She sought to appeal the engineer’s report and the decision of the Court of Revision on the Burns Drain to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) and asked the Tribunal to extend the deadline in which she could make an appeal.

Statutory Context

Section 100 of the Drainage Act (the Act) 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.

Subsection 48(1) of the Act states:

Appeal to Tribunal

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) of the Act states:

Appeal to Tribunal

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).

The Background

Information provided by the Municipality, by way of electronic mail, in this matter was:

• A brief overview of Mrs. Heyink’s assessment and the results of the Court of Revision held on January 1, 2007 and February 22, 2007.

Submissions

Mrs. Heyink submitted her request to the Tribunal by way of electronic mail. Her submission was:

We have recently had a death in the family as well as other situations. There are various issues with the Burns Drain that we feel truly need to be addressed by the Drainage Tribunal. I sincerely hope that you will consider my desire for a chance to appeal. I have previously sent appeals to the Notice of the Court of Revision in the correct time frame and have attended 90% of the meetings regarding the Burns Drain. For some reason, with the funeral, 21 days came and passed quicker that I realized and I did not get a chance to submit my appeal to you in that time frame. It has been 28 days and I am asking you to allow me to appeal the decision by the Chatham-Kent Drainage committee.

Paul Courey, lawyer for Mr. Schives the petitioner, submitted an unsolicited brief in opposition to an extension of the appeal deadline on his client’s behalf. His submission was:

This relatively small project has been ongoing for a long time. The report was considered on May 17, 2006, Sept. 20, 2006 and Dec. 20, 2006. Mr. and Mrs. Heyink participated throughout.

The Court of Revision was held on Jan. 17, 2007 and Feb. 21, 2007. Again, Mr. and Mrs. Heyink participated or had the opportunity to do so.

The Notice of Court of Revision clearly states the time limit for appealing decisions of the court. The Heyinks appear to be competent people and are closely allied with their neighbors, Mr. and Mrs. Horton in their views of this project. It is difficult to imagine that they were not knowledgeable of the time limit for appeals. Only minimal effort is required to protect the time limit and, not withstanding any personal challenges, one would think that a basic notice of appeal could have been delivered within the time limit.

Mr. Schives cannot grow a crop on his land as the situation exists. If there is an appeal to the tribunal, he will not likely be able to plant a crop again this year. The harm to him vastly out weighs the relatively minor inconvenience and expense to Mr. and Mrs. Heynick.

The thrust of the objects to the construction by Mr. and Mrs. Heyink was that the Schives land could be drained to a different outlet. The engineer, repeatedly at the meetings to consider the report, explained that he had investigated those possible alternatives and found them to be unworkable. He presented his calculations and the results of his survey, all of which seemed to make a great deal of sense to everyone in attendance except Mr. and Mrs. Heyink, who steadfastly refused to accept the numbers.

At the Court of Revision Mr. and Mrs. Heyink offered little evidence to support their appeal and at least in my view, their objection was reduced to a claim that they should pay little or nothing and others, particularly Mr. Schives, should pay most of the cost. Once again the engineer gave a detailed explanation of his calculations of assessment, which were accepted by all those involved except Mr. and Mrs. Heyink.

After the first sitting of the court, the assessments of Mr. and Mrs. Heyink, and others, were reduced somewhat, but that seems to have fallen short of satisfying them.

In my view there is little or no chance of success by them on an appeal. The project cost will be driven up by the cost of the hearing. More importantly, the project will be delayed. Because of the approaching planting season, Mr. Schives’ ability to earn income from his land is very much in question.

I believe that the tribunal is obliged to consider submissions for any affected party to grant an extension.

The tribunal appears to have a practice of dealing with such requests internally without the advantage of hearing from other affected parties. The policy causes me some concern from the perspective of natural justice or the lack of it. In any event, Mr. Schives became aware of this request only by accident and has asked me to intervene to the degree possible.

Please ensure that this correspondence is part of the record and considered by the tribunal in deciding whether to grant the extension.

The Findings

The Tribunal finds that Mrs. Heyink was seven days late in filing her appeal from the decision of the Court of Revision.

Mrs. Heyink indicated she was aware that there were deadlines for filing her appeal, but was unable to meet them due to a “death in the family as well as other situations.”

Despite the argument from the Municipality and Mr. Courey that the extension of time to submit an appeal should not be granted, it is the Tribunal’s position that the death of a family member is often, if not always, a very traumatic event. It is therefore quite understandable that Mrs. Heyink could easily have lost track of time, thus missing the deadline to submit her appeal.

Although it is important to respect the appeal process established in the legislation, it is also important to respect that extenuating circumstances can arise where a property owner is not able to adhere to the timelines set out in the legislation. This is no doubt the rationale behind the authority given to the Tribunal in Section 100 of the Drainage Act where the Tribunal can, in any case it considers proper, extend the time to submit an appeal.

ORDER OF THE TRIBUNAL

After careful consideration of the submissions made the Tribunal orders:

The deadline for initiating an appeal be extended to 14 days from the date of this decision.

Dated at Guelph, Ontario this 11th day of April, 2007.