Dykeman Pumping Works Drain (Re), 2007 ONAFRAAT 5

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:

Dykeman Pumping Works Drain - Request for Review

Municipality of Chatham-Kent

Dykeman Pumping Works Drain (RE) – Request for Review 2007 ONAFRAAT 05

STATUTE:

Drainage Act

HEARING:

DATE OF DECISION:

March 6, 2007

2007-05

NEUTRAL CITATION:

2007 ONAFRAAT 05

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

AND IN THE MATTER OF: Requests by Scott Kilbride and Sylke Kilbride, Wallaceburg, Ontario, Keith Kilbride and Jessie Kilbride, Port Lambton, Ontario and Eric Allear and Sue Allear, Wallaceburg, Ontario that the Agriculture, Food and Rural Affairs Appeal Tribunal review a Tribunal decision dated October 31, 2006, with respect to appeals from the decision of the Court of Revision and from the Engineer’s Report on the Dykeman Pumping Works Drain in the Municipality of Chatham-Kent. Requests for Review are considered pursuant to Rule 29 of its Rules of Procedure

Before: Jack Young, Vice Chair

DECISION OF THE TRIBUNAL

The Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) received three requests that it review its decision of October 31, 2006 regarding appeals initiated by Tony Dobbelaar, Lloyd DeBot, Arthur Seys, Albert DeBot and Robert Stewart under Section 54 of the Drainage Act from a decision of the Court of Revision and under Subsection 48 (1) (b) of the Drainage Act from the Engineer’s Report on the Dykeman Pumping Works Drain in the Municipality of Chatham-Kent.

The three undated requests for review were all received in the Tribunal office on November 30, 2006. Submissions on the requests for review signed by the five appellants were received by the Tribunal on December 28, 2006. A response to these submissions by the six landowners requesting the review was received in the Tribunal office on January 15, 2007.

The requests for review were considered by a Vice Chair of the Agriculture, Food and Rural Affairs Appeal Tribunal.

Background

A brief summary of the chronology of this project is as follows:

• The engineers report on the project was filed on June 6, 2005
• The provisional bylaw was adopted and the assessments were altered by the Court of Revision
• The Tribunal heard appeals on March 31, 2006 and issued a decision on May 1, 2006
• Requests were made to have the first Tribunal decision reviewed and a decision dated August 11, 2006 provided for the hearing to reconvene to hear further evidence.
• The Tribunal hearing continued on September 19, 2006 and it issued a decision dated October 31, 2006
• Further requests for review were received at the Tribunal office on November 30, 2006.

A more detailed background is contained in the Tribunal decisions dated May 1 and October 31, 2006.

Request for Review

The Tribunal’s Rules of Procedure Provide for requesting a review of its decisions and the evaluation of a request for review under its 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.

Statutes referred to

Subsection 14(6) of the Ministry of Agriculture, Food and Rural Affairs Act outlines the requirements for a quorum. It states:

Quorum

(6) Subject to subsection (6.1), two members of a panel appointed in accordance with clause (3) (a) constitute a quorum and are sufficient for the exercise of all jurisdiction and powers of the Tribunal. 1999, c. 12, Sched. A, s. 20 (8).

Barrister and solicitor required

(6.1) Where a panel of the Tribunal hears proceedings under the Crop Insurance Act (Ontario), 1996 or the Drainage Act, one of the members of the panel and one of the members constituting a quorum of the panel shall be a barrister and solicitor entitled to practise in Ontario. 1999, c. 12, Sched. A, s. 20 (8).

Section 99 of the Drainage Act states:

Proceeding commenced by notice

99.In any application, appeal or reference to the Tribunal, the action shall be commenced by serving notice upon the council of the initiating municipality and the clerk shall forthwith record the notice and except as otherwise provided send a copy of the notice to the Tribunal and to all persons assessed for the drainage works. R.S.O. 1990, c. D.17, s. 99; 2006, c. 19, Sched. A, s. 6 (1).

Section 11 of the Drainage Act states:

Duties of engineer

11.The engineer shall, to the best of the engineer’s skill, knowledge, judgment and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person, perform the duty assigned to the engineer in connection with any drainage works and make a true report thereon. R.S.O. 1990, c. D.17, s. 11.

Section 39 of the Drainage Act states:

Time for filing report

39. (1) The engineer shall file the report with the clerk of the initiating municipality as soon as it is completed or in any event within six months after the appointment of the engineer or within such further time as may be extended before or after the expiry of such six-month period by the council of the municipality by resolution. R.S.O. 1990, c. D.17, s. 39 (1).

Engineer may forfeit compensation

(2) Where, after thirty days notice by council, the engineer neglects to make a report within the time limited by or extended under this section, the engineer shall forfeit all claims for compensation for the work done upon the drainage works, and the council of the local municipality may appoint another engineer. R.S.O. 1990, c. D.17, s. 39 (2).

By-law not invalid by reason report not filed

(3) A by-law passed by the council of any local municipality for the construction of a drainage works under this Act shall not be quashed by reason only that the report of the engineer was not filed within the time limited by or extended under this section. R.S.O. 1990, c. D.17, s. 39 (3).

Section 54 of the Drainage 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); 2006, c. 19, Sched. A, s. 6 (1).

Notice

(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal. R.S.O. 1990, c. D.17, s. 54 (2); 2006, c. 19, Sched. A, s. 6 (1).

Procedure

(3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final. R.S.O. 1990, c. D.17, s. 54 (3); 2006, c. 19, Sched. A, s. 6 (6).

The Issues

The requests for review of the Tribunal decision were based on the grounds that are summarized as follows:

1. The Tribunal did not appoint a panel that was knowledgeable of the rules, regulations and procedures for a hearing of this type.

2. The notice of the continuation of the hearing was not delivered to all parties within the prescribed time.

3. The protocol as to who was allowed to present testimony at the second day of the hearing was unfair to the parties involved.

4. A registered letter dated August 22, 2006 requesting reconsideration of the Tribunal decision dated Aug 11, 2006 was not considered.

5. A panel of two does not constitute a quorum.

6. The clerk did not notify all of the assessed landowners of the Oct 18, 2005 appeal to the Tribunal when it was received.

7. The Engineer failed to perform his duties as set out in Section 11 of the Drainage Act.

8. The engineers report is not valid because it was not filed within six months from the date of appointment in accordance with Section 39 of the Drainage Act.

The Findings

I have reviewed the material relevant to the hearings as well as the supporting documents, the requests for review and the replies. In addition, I have consulted with the panel members on the issue as to who was allowed to present testimony on the second day of the hearing.

There are a number of items in the requests for review that are beyond the guidelines for review set out in Rule 29, Subsection 29.09 of the Rules of Procedure however I will provide answers to many of the concerns outlined.

My findings are as follows and are related by number to the issues listed above.

1. The appointment of panel members is the prerogative of the Tribunal Chair. Members of the Tribunal are appointed by Order in Council by the Lieutenant Governor in Council upon the recommendation of the Minister. It is a long standing principle that parties do not have input in the selection of panel members for a Tribunal hearing.

2. The evidence with respect to the notice for the second day of the hearing indicates that there was considerable difficulty in selecting a time for the hearing to accommodate all parties. The documents indicate that the municipal clerk made a sincere concerted effort to insure that the parties were informed of the time of the hearing both by mail and personal phone calls. Mr. Kilbride stated that he received his mailed notice on September 8, well in advance of the September 19 hearing date. It should be noted that Subsection 54(2) of the Drainage Act provides that only the appellants are required to have the 10 days notice of the hearing. There is no evidence to indicate that any party suffered any significant inconvenience with the delivery of the notice of hearing.

3. There was some confusion throughout the process with respect to who was allowed to present testimony. Only parties to a hearing are allowed to present their case. Subsection 54(3) of the Drainage Act provides that the appeal to the Tribunal is a new hearing. As such the decision of the Court of Revision is stricken and all evidence is considered as new by the Tribunal. Members of the Court of Revision do not have party status and do not defend their decision. The Tribunal decision dated August 11, 2006 provided for Mr. Kilbride and Mr. Cadotte to present additional evidence however the notice of hearing sent by the Clerk for the September 19, 2006 hearing stated that all parties could “participate fully”. This allowed all parties to present their concerns to the hearing. Mr. Kilbride stated that he acted “on behalf of the ratepayers of the Kilbride Drain” however no written authorization was provided by the landowners to do so. Each of the parties had the opportunity to participate at the hearing. It is my understanding that none of the other parties had concerns with respect to the hearing notice or the opportunity to participate at the hearing. There is no evidence to indicate that any party was treated unfairly.

4. The registered letter dated August 22, 2006 is a request for further consideration as well as a request for the Tribunal to order further engineering data for the requester. Mr. Stork granted the first request and the hearing was ordered to be continued on a second day. Tribunal decisions are based on evidence presented at open hearings where the evidence is subject to cross examination. Mr. Kilbride had the opportunity to present engineering information to challenge the Engineer’s evidence by obtaining outside professional advice and additional mapping information available from aerial photography. Mr. Stork stated in his response dated September 7 that the second day of the hearing was the venue to consider his concerns. That was the opportunity for Mr. Kilbride to present his case fully.

5. With respect to the required number of members at a hearing, Subsection 14(6) of the Ministry of Agriculture and Rural Affairs Act states that a panel of two members constitutes a quorum. One member of the Tribunal panel was a lawyer entitled to practice in Ontario and therefore the panel was properly constituted.

6. Section 99 of the Drainage Act provides for notification of the assessed parties when an appeal is submitted to the Tribunal office. Any concern with respect to this notification it should have been addressed on the first day of the hearing. There is no evidence to indicate that this could have any bearing at this late date.

7. Mr. Kilbride stated that the Engineer did not meet his obligation to carry out his professional duties as outlined in Section 11 of the Drainage Act. This severe allegation, made without factual evidence, is beyond the jurisdiction of the Tribunal. While there was a request made for the Engineer to provide detailed elevations of part of the watershed, there was no evidence presented to challenge that the Engineer did not follow an accepted practice in considering the characteristics of the watershed.

8. Subsection 39(1) of the Drainage Act provides that the engineering report be provided within six months. It is evident that the Engineer did not meet this timeline however the Municipality did not terminate the engineer’s appointment on the project. Subsection 39(3) provides that the bylaw can not be quashed due to late filing of the report. Once again this situation, if it was an issue, should have been raised early in the proceeding at the meeting to consider the report. There is no evidence to indicate that this could have any bearing at this late date.

In summary, I find that there is insufficient evidence to warrant reconsideration of the Tribunal decision dated October 31, 2006.

Decision and Reasons

After carefully considering the material presented, this Tribunal has decided to deny the requests for review.

The reasons for this decision are outlined in the findings above.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. The undated requests for review by Scott Kilbride and Sylke Kilbride, Keith Kilbride and Jessie Kilbride, and Eric Allear and Sue Allear received by the Tribunal Office on November 30, 2006 are denied.

2. The Order of the Tribunal dated October 31, 2006, shall stand.

Dated at Port Charlotte, Florida this 6th day of March, 2007.