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:
Henry Municipal Drain
City of Port Colborne
Henry Municipal Drain (RE) 2007 ONAFRAAT 27
STATUTE:
Drainage Act
HEARING:
DATE OF DECISION:
November 26, 2007
2007-27
NEUTRAL CITATION:
2007 ONAFRAAT 27
DECISION OF THE TRIBUNAL
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: a request by the City of Port Colborne pursuant to Section 58(4) of the Drainage Act that the Agriculture, Food and Rural Affairs Appeal Tribunal amend the by-law, passed on August 14, 2006, to proceed with construction of the Henry Municipal Drain 2006.
Before:
Kirk Walstedt, Vice Chair
Appearances:
None
DECISION OF THE TRIBUNAL
The Tribunal’s procedures for a Written Hearing are governed by section 5.1 of the Statutory Powers Procedure Act R.S.O. 1990, c.S.22, as amended (SPPA) and by Rule 13 of the Tribunal’s Rules of Procedure.
Section 5.1 of the SPPA states as follows:
Written hearings
5.1(1) A tribunal whose rules made under section 25.1 deal with written hearings may hold a written hearing in a proceeding. 1997, c. 23, s. 13 (6).
Exception
(2) The tribunal shall not hold a written hearing if a party satisfies the tribunal that there is good reason for not doing so.
Same
(2.1) Subsection (2) does not apply if the only purpose of the hearing is to deal with procedural matters. 1999, c. 12, Sched. B, s. 16 (4).
Documents
(3) In a written hearing, all the parties are entitled to receive every document that the tribunal receives in the proceeding. 1994, c. 27, s. 56 (10).
Rules 13.01 and 13.02 of the Rules of Procedure for the Agriculture, Food and Rural Affairs Appeal Tribunal state as follows:
Holding a written hearing
13.01 The Tribunal may conduct any proceeding or part of a proceeding by means of a written hearing where requested to do so, or where it determines it is appropriate to do so.
Factors to be considered
13.02 In deciding whether to hold a written hearing the Tribunal may consider any relevant factors, including,
a. the suitability of the written hearing format to the subject matter of the hearing;
b. whether the credibility of any of the parties or witnesses is an issue;
c. the extent to which the facts of the matter are in dispute;
d. the extent to which the issues in dispute are questions of law;
e. the convenience of the parties;
f. the cost, efficiency and timeliness of the hearing format;
g. avoidance of unnecessary delay or a lengthy oral hearing;
h. the need to provide a fair and understandable process;
i. the desirability or necessity of public participation in or public access to the Tribunal's process; and
j. any other considerations affecting the fulfilment of the Tribunal's statutory mandate.
The request was considered in Maidstone, Ontario.
Background
The Henry Municipal Drain is located in the City of Port Colborne. Subsequent to the passing of the by-law authorizing the construction as outlined in the Engineer’s Report, prepared by J. Kuntze of K. Smart Associates Ltd., it was discovered that the report did not contain a description on how the final cost for the special assessments to the roads were to be determined. Although the required Addendum will not affect the total cost estimate or the assessments in the report, the city notes it will provide for a more equitable distribution of the final cost of the project.
The city, pursuant to Section 58(4) of the Drainage Act (the Act), is therefore requesting the Tribunal to issue an order permitting the required amendment to the report.
Statutory Context
Section 58 of the Act states as follows:
By-law may be passed
- (1) Where the council of an initiating municipality has adopted a report for the construction of a drainage works after the time for appealing has expired and there are no appeals or after all appeals have been decided, the council may pass a provisional by-law thereby authorizing the construction of the drainage works, and work may be commenced ten days after the by-law is passed if no notice of intention to make application to quash the by-law has been filed with the clerk of the council. R.S.O. 1990, c. D.17, s. 58 (1).
Quashing of by-law
(2) If no notice of intention to make application to quash a by-law is filed with the clerk of the council within ten days after the passing of the by-law or, where a notice of intention has been given, if an application to quash is not made to the referee within three months after the passing of the by-law, the by-law, or so much thereof as is not the subject of or is not quashed upon any such application, is valid and binding according to its terms, so far as it prescribes or directs anything within the proper competence of the council. R.S.O. 1990, c. D.17, s. 58 (2).
Repeal of by-law
(3) A by-law may be repealed at any time before the work is commenced and before any assessment has been levied against the land assessed, and in such case the council of the initiating municipality shall pay all expenses in connection therewith out of the general funds of the municipality. R.S.O. 1990, c. D.17, s. 58 (3).
Where error in report
(4) If, at any time after the by-law is passed and before any assessments are levied, a gross error in the report is found, the council of the initiating municipality may on notice to all persons assessed apply to the Tribunal to correct the error. R.S.O. 1990, c. D.17, s. 58 (4); 2006, c. 19, Sched. A, s. 6 (1).
Appeal to Tribunal
(5) Where the council does not proceed with reasonable dispatch with the construction of the work after passage of the by-law, a requisitioner or a petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area to be drained, the Minister may refer the matter to the Tribunal, and the Tribunal may direct the council to take such action as the council is authorized to take under this Act and as the Tribunal considers proper. R.S.O. 1990, c. D.17, s. 58 (5); 2006, c. 19, Sched. A, s. 6 (1).
Submissions
Information provided by the city in this matter is as follows:
Letter to Tribunal, dated August 21, 2007, requesting an Order to amend the By-law
Notice to property owners, dated July 19, 2007, for the Tribunal to amend the Engineer’s Report
Council Minutes of July 9, 2007, regarding public meeting on amendments required to the Engineer’s Report
Draft By-law to apply to the Tribunal for an Order to amend the Engineer’s Report
Report to council dated January 7, 2002, recommending the acceptance of the K. Smart Associates Ltd. proposal on Henry Drain 2006 construction
Engineering Report – Henry Drain 2006, dated April 24, 2006
Report to council dated May 16, 2006, recommending the acceptance of the Engineer’s Report
Minutes of the May 23, 2006 council meeting, accepting the Engineer’s Report
Court of Revision meeting minutes, dated June 20, 2006
By-law dated June 20, 2006, adopting the Engineer’s Report
Report to council dated July 9, 2006 regarding the adoption of the Engineer’s Report
Report to council dated September 7, 2006, regarding awarding of the Drain Construction Contract
The Findings
The Tribunal finds the City of Port Colbourne conducted an open and fair process, keeping the property owners apprised of the required amendments to the Engineer’s Report in a timely manner. The Tribunal is satisfied, following its review of the documentation provided by the City, that the Order requested is necessary and in the best interest of the City and the affected property owners.
Order of the Tribunal
After careful consideration of the submission made, the Tribunal orders: that the City amend Bylaw 4841/66/06 (Henry Municipal Drain 2006 Addendum No. 1) in such manner as is necessary in order to implement the Addendum Report prepared by J. Kuntze, P. Eng., dated May 30, 2007.
Dated at Maidstone, Ontario this 26th day of November 2007.