Agriculture, Food and Rural Affairs Appeal Tribunal
1Stone 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:
Branconnier Drain – Request for Extension
Branconnier Drain – Request for Extension (RE) 2007 ONAFRAAT 13
STATUTE:
Drainage Act
HEARING:
April 27, 2007
DATE OF DECISION:
May 1, 2007
2007-13
NEUTRAL CITATION:
2007 ONAFRAAT 13
BRANCONNIER DRAIN
REQUEST FOR EXTENTION OF TIME IN WHICH TO INITIATE AN APPEAL
MUNICPALITY OF CHATHAM-KENT
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: A request by Rheal and Claire Branconnier, St. Charles, 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 for the Branconnier Drain in the Municipality of St. Charles.
Before:
Kirk Walstedt, Vice Chair
DECISION OF THE TRIBUNAL
This request was considered in Maidstone, Ontario on Thursday, April 27, 2007. Rheal and Claire Branconnier are assessed on a recent engineer’s report on the Branconnier-Grant Drain “D” in the Municipality of St. Charles (the Municipality). They sought to appeal quality of construction of the drainange work on the Branconnier-Grant Drain “D” 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 64 of the Act states:
The Background
Information provided by the Municipality, by way of electronic mail, in this matter was:
Letter dated February 4, 2007 from Rheal and Claire Branconnier to the Municipality, requesting an appeal to the Drainage Tribunal under Section 64 of the Drainage Act.
E-mail dated February 3, 2007 from Sid Vander Veen (OMAFRA) to Rheal and Claire Branconnier re: Drain Maintenance work
Letter dated April 23, 2007 from Conrad Bedard to the Municipality of St. Charles re: Agreement with Appeal request.
Submissions
Rheal and Claire Branconnier submitted their request to the Tribunal through the Municipality.
In the Letter dated February 4, 2007, the applicants state:
“Re: Branconnier-Grant Drain “D”
Since July 2005, we believe that we had exhausted all our avenues in respect to the dispute regarding the damage we had incurred when the Municipality contracted the cleaning of this Drain in December, 2004.
I was fortunate throught The Cattlemen Associations’ president who took it upon himself to discuss this matter with Julie Poirier Mesinga OMAF office in Verner, ON. Last week Julie called us to get more information on our dispute. Julie referred us to Sid Vander Veen, Drainage Coordinator located in Guelph, ON. During our telephone conversation he explained that if we were not satisfied and suffered damage we could apply to the Drainage Tribunal.
This is my request to apply for an appeal to the Drainage Tribunal under Section 64 of the Drainage Act.
The reason we are over the one year appeal is because it was not until the spring of 2005 did we become aware that the Municipality had ordered a contractor to enter our property in December 200 to perform this work. We also have made every attempt to resolve this problem they are as follows:
Spoke to Garth Noecker on several occasions to discuss our complaint. He even had a local engineer visit the site, the work was not properly done therefore further work had to be done in the summer of 2006
Mayor Fernand Bidal (at the time) visited the site and was disgusted with garbage disposed of in the hay field on our property, such as tires, plastic pails, broken beer bottles, cement blocks etc.
We procured the services of Desmarais, Keenan Lawyer, in the name of Kelly Gravelle who was referred to us by the firm saying she was very knowledgeable in Municipal affairs. She was unsuccessful in even getting a reply to her letter dated February 13th to the municipal office. After a second attempt she id receive a forward letter from Garth Noecker by the Municipality.
The Damage we are seeking is the sum of $1 800 as described in the letter of February 13 for the lost rental revenue, removal of garbage, legal fees, damage to tenant farmer equipment and loss of hay.
We were never made aware of the appeal process and this is why we were not able to apply before this date.
Sid Vander Veen has informed me to make my request through the Municipal office and if no action is taken he would intervene on my behalf so I can exercise my rights.
I wish to have the cooperation of the Municipality in requesting this appeal. I am also enclosing a copy if the information I have just received for Sid Vander Veen so there will be no delay in processing my request.
The Findings
The Tribunal finds that the appellants were late in filing their appeal with respect to the quality of construction of the completed drainage works. As the Municipality id not submit any documentation to the Tribunal with respect to the appellant’s request, the Tribunal relies solely on the facts as set out in the appellants’ February 4, 2007 letter. In this letter, the appellants provide a chronology of the actions they undertook in their attempt to resolve their complaint with respect to the construction of the drain. In light of the actions taken by the appellants, and the Municipality’s inability of satisfactorily resolve the complaint, it is the position of the Tribunal that the appellants be granted leave of Section 64 of the Act and be permitted to file their 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 1st day of May , 2007.