Agriculture, Food and Rural Affairs Appeal Tribunal
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales
1 Stone Road West / 1, chemin Stone Ouest Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca
APPEAL: Coleman Municipal Drain Coleman Municipal Drain (RE) – Pre Hearing Conference 2008 ONAFRAAT 22
STATUTE: Drainage Act
HEARING: July 17, 2008
2008-22
NEUTRAL CITATION: 2008 ONAFRAAT 22
DECISION OF THE TRIBUNAL RE: APPLICATION FOR AN ORDER FOR DISCOVERY
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 Finlay and Edith McCormick, in Listowel, Ontario, under Section 64 of the Drainage Act from the quality of construction of the works under the engineer’s report on the Coleman Municipal Drain in the Municipality of North Perth.
AND IN THE MATTER OF: A Hearing to be held by the Agriculture, Food and Rural Affairs Appeal Tribunal in this matter on Thursday, July 24, 2008, commencing at 9:00 a.m. in the Council Chambers, Office of the Municipality of North Perth, 330 Wallace Avenue North, Listowel, Ontario.
AND IN THE MATTER OF: a Pre-hearing Conference pursuant to Rule 24 of the Tribunal’s Rules of Procedure, held for the purpose of the hearing by the Tribunal of an application for an order for discovery, pursuant to Rule 26 of the Tribunal’s Rules of Procedure.
Before: Kirk Walstedt, Chair
Appearances: Roderick McCormick, representing the appellants Finlay McCormick, appellant Andrew Osyany, counsel for the Municipality of North Perth Thomas Gibson, landowner Doug Johnston, landowner
AUTHORITY OF THE TRIBUNAL
The pre-hearing motion was heard by the Tribunal pursuant to its Rule 24.01 of its Rules of Procedure for the Agriculture, Food and Rural Affairs Appeal Tribunal, made pursuant to Section 25 of the Statutory Powers Procedure Act.
Rule 24.01 states that “The Tribunal at the request of any person or on its own initiative, may direct the parties to an appeal and their counsel or agent, as the case may be, to attend one or more pre-hearing conferences for the purpose of considering any matter related to the appeal…”
Rule 26.01 states that “A party to an appeal may apply to the Tribunal for an order for discovery”.
Section 25 states that “A tribunal may make rules governing the practice and procedure before it.”
HEARING OF THE MOTION
The Pre-hearing Conference with respect to the application was conducted by way of teleconference on July 17, 2008. The Affidavit of Roderick McCormick called for the production of the following information and documents:
- Engineer’s notes, J. Dickson, P.Eng. (for work performed and billed under R.J. Burnside and Associates Limited Invoices MSW110760-1 and MSW110760-2)
- Digital audio recording of the voice mail message that Rod McCormick left on the telephone number extension, (519) 941-5331, for T. Pridham, P.Eng. R.J. Burnside and Associates Limited on the morning of January 11, 2007
- Engineer’s notes, T. Pridham, P.Eng., R. J. Burnside and Associates Limited (onsite meetings)
- Engineer’s notes, T. Pridham, P. Eng. R. J. Burnside and Associates Limited (construction phase)
- Engineer’s field survey data, T. Pridham, P. Eng., R. J. Burnside and Associates Limited
- Engineer’s time sheets, T. Pridham, P. Eng, R. J. Burnside and Associates Limited (construction phase, April 24, 2007)
- Drainage machine (licence number 728) computer meta data, Kuepfer Farm Drainage Limited.
FINDINGS
With regards to the request to disclose the above items, the Tribunal finds the following:
- Engineer’s notes, J. Dickson, P.Eng. (for work performed and billed under R.J. Burnside and Associates Limited Invoices MSW110760-1 and MSW110760-2 (Item #3 of the Affidavit)
The engineer’s notes are an important part of the process that leads to the production of the Report of the Engineer and later to the construction of the drain. The Tribunal agrees that the request for these notes is reasonable and appropriate.
- Digital audio recording of the voice mail message that Rod McCormick left on the telephone number extension, (519) 941-5331, for T. Pridham, P.Eng. R.J. Burnside and Associates Limited on the morning of January 11, 2007 (Item #4)
Mr. Osyany testified that no such recording exists. Mr. Rod McCormick indicated he was satisfied with this explanation.
- Engineer’s notes, T. Pridham, P.Eng., R. J. Burnside and Associates Limited (onsite meetings) (Item #5)
As with the notes prepared by J. Dickson, these notes are also an important part of the process leading to the construction of the drain. The Tribunal supports the request for these notes as reasonable and appropriate.
- Engineer’s notes, T. Pridham, P. Eng. R. J. Burnside and Associates Limited (construction phase) (Item #6)
A copy of these hand written notes has been provided to Mr. Rod McCormick by the municipality, however the quality of the copy is poor and difficult to read. While a request by Mr. McCormick that a typed transcript of the notes was found by the Tribunal not to be reasonable, the author of the notes, Mr. T. Pridham, will be available for cross examination during the hearing scheduled for July 24, 2008. Mr. McCormick was satisfied that he would be able to ask Mr. Pridham for clarification of the notes at that time.
- Engineer’s field survey data, T. Pridham, P. Eng., R. J. Burnside and Associates Limited (Item #7)
Mr. Osyany testified that the only related data that exists is to be found in the Tribunal evidence book prepared for the hearing. No other such data exists. Mr. Rod McCormick was satisfied with this explanation.
- Engineer’s time sheets, T. Pridham, P. Eng, R. J. Burnside and Associates Limited (construction phase, April 24, 2007) (Item #8)
Mr. Osyany testified that any pertinent records have already been included in the Tribunal evidence book prepared for the hearing. No other such data exists. Mr. Rod McCormick was satisfied with this explanation.
- Drainage machine (licence number 728) computer meta data, Kuepfer Farm Drainage Limited. (Item #9)
Mr. Osyany testified that Kuepfer Farm Drainage Limited advised that the drainage machine in question does not generate such data. Mr. Rod McCormick indicated that he was satisfied with this explanation.
ORDER OF THE TRIBUNAL
The Tribunal hereby orders that six copies of:
a) The Engineer’s notes of J. Dickson, P. Eng; and,
b) The Engineer’s notes of T. Pridham, P. Eng (on-site meetings),
as requested by Roderick McCormick on behalf of the appellants, Mr. Finlay McCormick and Ms. McCormick, in the Affidavit dated July 3, 2008, be delivered to the Clerk of the Municipality of North Perth, 330 Wallace Avenue North, Listowel, Ontario, N4W 3G9 no later than Noon, on Tuesday, July 22nd, 2008. Any party wishing to receive a copy of the notes shall make arrangements with the Clerk.
Dated at Maidstone, Ontario, this 17th day of July, 2008