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:
Tavistock Drain
Township of East Zorra-Tavistock
Tavistock Drain (RE) 2007 ONAFRAAT 12
STATUTE:
Drainage Act
HEARING:
April 13, 2007
DATE OF DECISION:
April 17, 2007
2007-12
NEUTRAL CITATION:
2007 ONAFRAAT 12
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: A request by Reid Harper and Mary Lou Schwartzentruber, Tavistock, Ontario that the Agriculture, Food and Rural Affairs Appeal Tribunal extend the time in which they may initiate an appeal under the Drainage Act from the engineer’s report and the decision of the Court of Revision for the Tavistock Municipal Drain 2006 in the Township of East Zorra - Tavistock.
Before:
Kirk Walstedt, Vice-Chair
DECISION OF THE TRIBUNAL
This request was considered in Maidstone, Ontario on Friday, April 13, 2007. Reid Harper and Mary Lou Schwartzentruber are assessed landowners on an engineers report on the Tavistock Municipal Drain 2006 in the Township of East Zorra-Tavistock (the Municipality). They sought to appeal the engineer’s report and the decision of the Court of Revision on the Tavistock Municipal Drain to the Agriculture, Food and Rural Affairs Appeal Tribunal (The Tribunal) and asked the Tribunal to extend the deadline in which they could make an appeal.
Statutory Context
Section 100 of the Drainage Act (the Act) states:
Extension of time
- 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
- (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
- (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 in this matter was:
Tavistock Flood Prevention Working Group July 26, 2006 Public Information Meeting Notice and Agenda
Tavistock Flood Prevention Working Group Notice Public Information Meeting dated October 17, 2006
Notice to Assessed Owners dated December 12, 2006 re: Filing of Engineer’s Report
Open House Special Council Meeting Notice dated January 10, 2007
Notice of February 21, 2007 Court of Revision dated January 11, 2007
Correspondence to the Appeal Tribunal dated March 23, 2007 stating the appellants’ appeal was received on March 22, 2007.
Submissions
Reid Harper and Mary Lou Schwartzentruber submitted their request to the Tribunal through the Clerk of the Municipality and it was received by way of facsimile transmission on April 4, 2007.
In the letter dated March 30, 2007, the applicants state: “Please accept our request for an extension to the appeal date. Our letter was received late by the Township office. We weren’t aware of the March 5th deadline for the appeal of the engineer’s report. Our letter dated March 9th was postmarked March 13th, but received by the Township office on March 23rd.
Thank you for your consideration.”
The Findings
The Tribunal finds the appellants were 17 days late in filing their appeal from the Municipality’s decision to accept the engineer’s report which it made on January 10, 2007. The appellants indicated they “weren’t aware of the March 5th deadline for the appeal of the engineer’s report”. Their letter was dated March 9, 2007 was postmarked March 13, 2007 and was received by the Municipality on March 23, 2007.
Despite the argument that they were not aware of the March 5th deadline, it is the Tribunal’s position that the Municipality met the legislative requirements for providing notice of the meeting where the engineer’s report was considered. Not only did every household receive a mailed notice of the meeting, the Municipality also advertised the meeting in the community newspaper. In addition the Municipality mailed a copy of the approval by-law with the notice of the Court of Revision. The notice clearly stated the 40 day appeal period for filing an appeal with respect to the engineer’s report.
ORDER OF THE TRIBUNAL
After careful consideration of the submissions made the Tribunal orders:
The deadline for initiating an appeal will not be extended in this instance.
Dated at Maidstone, Ontario this 17th day of April, 2007.