Bibeau-Pilon Drain (RE) – Request for Review, 2008 ONAFRAAT 2

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:

Bibeau-Pilon Drain – Request for Review

Township of Brethour

Bibeau-Pilon Drain (RE) – Request for Review 2008 ONAFRAAT 02

STATUTE:

Drainage Act

HEARING:

December 6, 2007

DATE OF DECISION:

January 4, 2008

2008-02

NEUTRAL CITATION:

2008 ONAFRAAT 02

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 Township of Brethour for a review of a decision of the Tribunal dated December 6, 2007, from an appeal by Bruce Mills of Belle Vallee, Ontario under Section 48(1)(b) of the Drainage Act and an appeal by J. D. Wilkinson of Belle Vallee, Ontario under Section 54 of the Drainage Act on the Bibeau-Pilon Drain in the Township of Brethour.

Before:

Kirk Walstedt, Vice Chair

Appearances:

None

DECISION OF THE TRIBUNAL

This request was considered in Maidstone, Ontario, on Thursday, January 3, 2008.

Statutory Context

The Tribunal’s procedures for Review of a Decision are governed by Rule 29 of the Tribunal’s Rules of Procedure.

Rule 29.09 sets out the criteria to be used in evaluating a Request for Review.

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.

Submissions

Letter dated December 13, 2007, from the Township of Brethour.

Background

In a letter dated December 13, 2007, the Township of Brethour formally requested the Tribunal review its December 6, 2007, Decision with respect to the equal sharing of costs between the Township of Brethour and the Township of Casey for the costs related to the deletion of the Branch “C” portion of the drainage project.

The Township states in part,

“…If Mr. Mills had asked then for Branch “C’ to be deleted at the time of the consideration of the report, and if council had agreed , he would have been assessed the engineering costs associated with Branch “C” to that point since it was his request the work occur. It is not fair to then have it deleted by the Tribunal with no costs to Mr. Mills.

Council does not think it fair to now assess these costs to the two Municipalities. After discussing this with the engineer, Mr. Ken Smart, he also concurs.”

The Township has not provided any additional material in support of its position.

The Findings

In considering a request for review of a decision, it is important for the Tribunal to consider any relevant circumstances including the criteria set out in s. 29.09 of the Tribunal’s Rules of Procedure.

The following factors are of key importance:

(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 have reached a different decision;

In reviewing the submissions received from the Township, it is clear its argument is not based on either of these criteria. The Township’s position is that it is an issue of fairness due to the fact that Mr. Mills, the petitioner, was not assessed the costs for the portion of the drainage works that the Tribunal ordered to be abandoned. In its decision the Tribunal found that the Township council should have sent the Engineer’s Report back for revision and recirculation, as the objectives of the Report had changed over time. This was not done and council proceeded with the project.

The Tribunal has wide discretion when a matter is brought before it, and the issue of fairness is always paramount during its deliberations. In reviewing the decision at hand, I am satisfied that the Tribunal took all of the relevant facts into account when it determined that the costs for the deletion of Branch “C” should be borne equally by the two Townships. Despite the fact that Mr. Mills was the initial petitioner, the Tribunal found it was clear there was a lack of timely maintenance on the drain by the Townships. This was no doubt partially responsible for Mr. Mills’ action to petition the drain out of repair. With that being said, I believe the Tribunal dealt with all parties in a fair and equitable manner and therefore, there are no viable grounds on which to proceed to a formal review of the December 6, 2007, Decision of the Tribunal.

Order of the Tribunal

After careful consideration of the submissions made, the Tribunal orders that the request for a formal review of the Tribunal’s December 6, 2007, Decision is not warranted, and is therefore denied.