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:
Clear Creek Drain
Township of South-West Oxford
Clear Creek Drain (RE) 2008 ONAFRAAT 09
STATUTE:
Drainage Act
HEARING:
March 31, 2008
DATE OF DECISION:
April 1, 2008
2008-09
NEUTRAL CITATION:
2008 ONAFRAAT 09
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: requests by Donkelman Farms (H. Kremers), Jan Noorland, Jeroen van Ham, Jack van Ham, Arnold Ypma, Otto Zondag, in Tillsonburg, Ontario, and by the Township of South-West Oxford, in Mount Elgin, Ontario, to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 100 of the Drainage Act, for an extension of time beyond that stipulated in Section 64 of the Drainage Act, respecting the quality of construction of the drainage works conducted pursuant to the engineer’s report on the Clear Creek Drain in the Township of South-West Oxford.
Before:
Gene Trotman, Vice Chair
These requests were considered in Ottawa, Ontario, on the 31st Day of March, 2008.
THE FACTS
The Clear Creek Drain is located in the County of Oxford. It was constructed pursuant to the engineer’s report dated August 12, 2002 prepared by E. Paul Elston, P.Eng. of R. J. Burnside & Associates Limited. Construction took place between July 25 and August 5, of 2003, and the Completion Certificate was issued on August 22, 2003.
In spring of 2007, discussions took place between the drainage superintendent for the Township of South-West Oxford (the Township) and other parties involved, regarding problems they observed with the drain. At that time, an investigation also took place which involved an attempt to identify and fix the problems observed.
In November of 2007, a meeting took place between Council for the Township and landowners to determine whether a problem still existed, at which time, landowners expressed their desire for a warranty on this drain, and its removal and reinstallation.
Landowners then received the recommendation to request an extension of time from the Tribunal under Section 100 of the Drainage Act (the Act), to have an appeal heard by it pursuant to Section 64 of the Act, regarding the quality of construction of the drainage works in question.
A letter from the Clerk-Treasurer for the Township, dated January 10, 2008, was forwarded to the Tribunal together with attachments pertaining to requests for an extension of time from six (6) assessed landowners, one (1) staff member for the Township and one (1) Council Member for the Township to launch an appeal to the Tribunal respecting their dissatisfaction with the quality of the construction of the Clear Creek Drain under Section 64 of the Act.
STATUTE INVOKED AND CONSIDERED
Section 100 of 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."
Section 64 of the Act states:
Appeal by owner of land
- "Any owner of land dissatisfied with the quality of the construction of a drainage works constructed under this Act may, at any time during construction or up to one year from the date of completion of the drainage works as certified by the engineer or a drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated. R.S.O. 1990, c. D.17, s. 64; 1998, c. 18, Sched. A, s. 1 (3); 2006, c. 19, Sched. A, s. 6 (1)."
INFORMATION PROVIDED TO THE TRIBUNAL BY THE TOWNSHIP
They are as follows:
Eight (8) requests for an extension of time to appeal to the Tribunal under Section 64 of the Act, dated between November 27, and December 3, 2007;
Six (6) letters from assessed landowners, dated January 31, 2008;
A letter from Bill Freeman, Road Superintendent for the Township, received by the Tribunal on February 22, 2008;
The engineer’s report, prepared by E. Paul Elston, of R. J. Burnside & Associates Limited, dated August 12, 2002; and
Copies of nine (9) photos of the drain, taken in November of 2007.
THE FINDINGS
The Tribunal finds that the preponderance of information and documentation submitted leads it to conclude that there is genuine dissatisfaction with the quality of the construction of the Clear Creek Drainage works and thus the drainage works itself, and as a consequence makes the following Order.
ORDER OF THE TRIBUNAL
The Tribunal hereby orders:
That the requests by Donkelman Farms (H. Kremers), Jan Noorland, Jeroen van Ham, Jack van Ham, Otto Zondag, Arnold Ypma, and the Township of South-West Oxford, for an extension of time to initiate an appeal under Section 64 of the Drainage Act on the Clear Creek Drain, are hereby granted.
The appeal to the Tribunal respecting this matter shall be duly filed within forty (40) working days commencing April 1, 2008.
Dated at Ottawa, Ontario this 1st day of April, 2008.