Paul Brown and Nancy Brown v. Municipality of Dutton/Dunwich, 2008 ONAFRAAT 25

Agriculture, Food and Rural Affairs Appeal Tribunal

1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1, chemin Stone Ouest 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: Brown/Iona Road Drain – Request for Review Municipality of Dutton/Dunwich Brown/Iona Road Drain (RE) – Request for Review 2008 ONAFRAAT 25

STATUTE: Drainage Act

HEARING: June 19, 2008

DATE OF DECISION: July 31, 2008

2008-25

NEUTRAL CITATION: 2008 ONAFRAAT 25

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

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Paul Brown and Nancy Brown, in Fingal, Ontario, under Subsection 48(1) of the Drainage Act from the engineer’s report on the Brown/Iona Road Drain in the Municipality of Dutton/Dunwich, Ontario.

AND IN THE MATTER OF: A request for review by the Municipality of Dutton/Dunwich of the Decision of the Tribunal dated June 19, 2008, made by letter dated July 16, 2008, under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure for the Tribunal.

Before: John O’Kane, Vice Chair

Appearances: None

DECISION OF THE TRIBUNAL

Robert Brown petitioned the Municipality of Dutton/Dunwich (the “Municipality”) under section 4 of the Drainage Act (the “Act”) to get a legal drainage outlet for 7.37 hectares of his land. The Municipality appointed a drainage engineer who delivered a drainage Report dated November 27, 2007 with recommendations for a municipal drain to address Robert Brown’s drainage issue. The drainage Report divided the proposed costs of building the drain among several properties.

Paul Brown and his wife Nancy, neighbours of Robert Brown, appealed from the drainage Report to the Agriculture Food and Rural Affairs Appeal Tribunal (the “Tribunal”) under section 48 of the Act. Paul and Nancy Brown’s appeal challenged:

1. the validity of Robert Brown’s petition;
2. that they would get any benefit from the drain;
3. the drainage engineer’s calculations for allowances and compensation; and,
4. the drainage engineer’s apportionment of the costs.

The Tribunal heard Paul and Nancy Brown’s appeal in Dutton, Ontario on May 22, 2008. The Tribunal released a written decision (the “Decision”) on June 19, 2008. The Tribunal dismissed Paul and Nancy Brown’s appeal except to the extent it directed:

(i) the drainage engineer to change the drainage Report to move a road crossing away from the base of a mature sugar maple tree (Order #2); and, (ii) the attendant costs be charged to the Municipality as a special benefit (Order #3).

On July 16, 2008, the Municipality wrote to the Tribunal seeking a review of the Decision.

Statutory Jurisdiction for a Review:

Section 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), as amended, grants the Tribunal a discretionary power to review all or part of its own decisions and as part of such a review, the power to confirm, vary, suspend or cancel a decision.

That power is conditional on the Tribunal having provided for such a review in its own rules of procedure. The exercise of that power is also conditional on the Tribunal deciding that such a review is advisable.

The Tribunal’s Rules of Procedure:

Under section 25.1 of the SPPA the Tribunal has set up Rules of Procedure (the “Rules”) that includes Rule 29 entitled “Review of A Decision”.

The Rules set up a process where the Tribunal first decides if a review is warranted and if so, an oral hearing is granted before a panel appointed by the Chair. That panel may, after hearing the review confirm, vary, suspend or cancel the decision under review.

The Tribunal Chair asked me to consider the Municipality’s request for a review and decide if the Tribunal should review the Decision.

Rule 29.09 guides my evaluation of this request. That rule grants me a wide discretion to 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.

The Process Employed:

Tribunal staff provided me with the following materials to consider:

• July 16, 2008 Letter from the Municipality requesting a review of the Decision;
• February 16, 2008 Notice of Appeal;
• April 1, 2008, Appellant’s statement;
• April 9, 2008 Notice of Hearing;
• June 19, 2008 Tribunal Decision;
• Notes of Tribunal staff from May 22, 2008 hearing;
• May 22, 2008 hearing exhibit list and the hearing exhibits.

Although the Rules allow me to consult with members of the Tribunal panel that made the Decision, in these circumstances I elected not to do so and was content to let the Decision speak for itself.

In considering this request for a review I did not invite submissions from any of the parties to the appeal.

The Municipality’s Review Request:

The July 16, 2008 letter from the Municipality asks the Tribunal to rescind Order #2 from the Decision.

My authority is not to consider the merits of that request but rather to consider, under Rule 29.09, whether appropriate circumstances exist to allow a review. If so, it would be up to a new panel appointed by the Chair to consider the merits of the request to rescind Order #2.

The Municipality supplied three enclosures in support of rescinding Order #2. I will treat those three enclosures as the Municipality’s reasons in support of its review request.

I will address the three enclosures listed below in order.

• July 9, 2008 letter from the Township of Southwold;
• Discussion paper by the drainage engineer (Beharrell, Cnossen and Clutterbuck);
• 13 photographs of the maple tree.

1. July 9, 2008 letter from the Township of Southwold

The letter is addressed to the Chief Administrative Officer of the Municipality. The letter advised that the Council of the Township of Southwold passed a resolution on July 7, 2008 supporting asking the Tribunal to review the Decision.

Under Rule 29.09 my discretion is wide. It allows me to consider, besides the (a)-(e) list, any relevant circumstances (my emphasis added).

Southwold’s support for seeking a review does not address any of the considerations set out in Rule 29.09 (a)-(e).

I find that Southwold’s support is not a relevant circumstance that in any way helps my consideration of the request for review.

2. Discussion paper by the drainage engineer

The drainage engineer suggested he was surprised by the Tribunal’s questions about moving the drain crossing further away from the sugar maple tree. He also indicated he was unprepared to deal with the issue because it was not part of Paul and Nancy Brown’s appeal.

The drainage engineer’s arguments do not persuade me that there is any significant new evidence which was not available at the hearing (Rule 29.09(a)). The arguments he makes now could have been made at the hearing.

The drainage engineer’s arguments do not persuade me that the Tribunal made a material error of fact or law such that the Tribunal would likely have reached a different decision (Rule 29.09(b)).

There is no information in the request for review about any person’s reliance on the Decision (Rule 29.09(c)). Therefore I treat this consideration as neutral in my assessment of the request for review.

There is no information in the request for review about how any person will be affected by the review process (Rule 29.09(d)). Therefore I treat this consideration as neutral in my assessment of the request for review.

The final consideration listed in Rule 29.09(e) requires balancing the public interest in finality of decision and the prejudice to the Municipality. As I read the drainage engineer’s arguments, the following are the points of prejudice:

• Moving the road crossing location penalizes the Municipality
• Moving the road crossing will involve two road excavations
• Moving the road crossing will increase the length of the road crossing
• Moving the road crossing will reduce the crossing drain capacity by 12%

I am not persuaded that these points, individually or taken together, are prejudice to the Municipality that outweigh the public interest in finality of Tribunal decisions. The first three bullets are increases in expense to the Municipality. In my view an increase in the cost of the drain applied as a special benefit to the Municipality does not, on its own, amount to prejudice. The last bullet is an abstract calculation without any suggestion that a 12% drop in capacity will compromise the road crossing or the drain. In my view that is not prejudice under Rule 29.09(e).

The considerations listed in Rule 29.09(a)-(e) are not an exhaustive list. However, I determined that the engineer’s arguments did not raise any other “relevant circumstances” to engage my discretion.

3. 13 photographs of the maple tree

The 13 photographs must be considered with the second last paragraph of the engineer’s written arguments taken from the discussion paper.

The suggestion was that the tree shows signs of interior rotting and it is located close to hydro lines.

Although not plainly stated I infer that the Municipality’s point is the tree is in poor condition and will face the continuing trauma of pruning. I also infer the Municipality’s point is that due to the tree’s condition, it is not worth the added expense to move the road crossing.

Based on my review of the May 22, 2008 Tribunal record and from my reading of the Decision, it is clear to me that the sugar maple tree was in issue at the hearing.

The evidence about the tree condition was available at the time of the original appeal hearing had the Municipality wanted to make use of it. I do not find the engineer’s submissions and the 13 photographs of the tree to be either “significant” or “new” evidence. Therefore I am not persuaded that I should exercise my discretion to grant a review of the Decision.

Summary and Conclusions:

The May 22, 2008 Tribunal Panel had the benefit of hearing the evidence and arguments first-hand. I did not have that same opportunity. The Tribunal made findings of fact that are supported by evidence. In these circumstances I am unable to second-guess their findings of fact.

It is plain to me that a sugar maple tree stands close to where the drainage engineer proposed a road crossing location. The tree is about 60 years old and still producing sap for maple syrup. Part of Paul and Nancy Brown’s appeal case was about that tree, the road crossing and proper compensation for their related losses.

The Tribunal decided Paul and Nancy Brown were not entitled to compensation for the potential damage to the tree when the parties accepted the road crossing could be moved away from the tree.

In all the circumstances I refuse to grant the Municipality’s request for a review of the Tribunal Decision.

Dated at Brampton, Ontario, this 31st day of July, 2008.