Agriculture, Food and Rural Affairs Appeal Tribunal

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

APPEAL: Coleman Municipal Drain – Request for Review Municipality of North Perth

Coleman Drain (RE) – Request for Review 2009 ONAFRAAT 31

STATUTE: Drainage Act

HEARING: DATE OF DECISION: February 10, 2009 2009-31

NEUTRAL CITATION: 2009 ONAFRAAT 31

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: Requests for review by Thomas Gibson; Doug Johnston, Maplevue Farms Inc.; and Finlay and Edith McCormick dated October 31, 2008, November 3, 2008 and November 4, 2008 respectively of the Decision of the Tribunal dated October 8, 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

Background to the Review Request

Findlay and Edith McCormick, Mapleview Farms Inc. (Doug Johnston), and Tom Gibson all own land that drains into the Coleman Municipal Drain. Because water from their lands flows into the Drain, they all pay a contribution toward the construction and maintenance of the Drain.

The Drain, which originated in 1913, was extended and improved during 2007.

The McCormicks appealed about the quality¹ of the 2007 drain work and, following a hearing in July 2008, this Tribunal released a written Decision on October 8th, 2008.

Since the Tribunal released its Decision, the McCormicks, Doug Johnston and Tom Gibson all asked for a review of the Decision.²

The Complaints behind the Review Requests

The review requests raised four issues with the Decision: “significant new evidence”, “material errors of fact and law”, “bias and conflict of interest”, and “unfair allocation of the Municipality’s appeal hearing costs”.

The McCormicks assert:

• there is “significant new evidence” in the materials they filed in support of a review; and,
• the Decision contains “material errors” of “fact and law”; and,
• a reasonable apprehension of bias and conflict of interest.

Doug Johnston asserts:

• the allocation of costs in the Decision discriminates against him as an innocent landowner; and,
• the McCormicks’ appeal was frivolous and they ought to bear all the costs of the appeal.

Tom Gibson asserts:

• the allocation of costs in the Decision is unconscionable; and,
• because of the McCormicks’ unreasonable conduct, they ought to bear all the costs of the appeal.

“Cost Allocations”

The Decision directed that the Municipality’s engineering and legal costs for the hearing, to a maximum of $4,000, was proportionately shared among the properties assessed under the Drain.

Both Doug Johnston and Tom Gibson complain about the way the Decision treated that $4,000. They both believe they should not bear any part of that $4,000 cost allocation. They say the McCormicks should bear all the Municipality’s engineering and legal costs for the appeal hearing.

The legislation treats engineering and legal costs associated with a Tribunal appeal hearing as part of the costs of the drainage works.³ All assessed properties then share those costs according to the assessment schedule created by the Drain Engineer.

That legislative direction contains an exception, “except where otherwise provided . . . by a decision on an appeal”. That wording gives the Tribunal discretion to deal with the costs associated with an appeal hearing.

The Tribunal created Rules of practice and procedure that address, among other procedural issues, awarding costs.⁴

In the Decision, the Tribunal Panel dealt with the Municipality’s additional legal and engineering costs in Issue #7. The Panel considered Rule 28 and set out an understandable and logical explanation for its Decision on allocating the appeal costs; in part to the McCormicks; and, in part to the Drain.

Neither Doug Johnston nor Tom Gibson presented any “significant new evidence” on this issue of cost allocation that was not available at the original hearing.

I am unable to see any material error of fact or law such that a different panel would likely have reached a different conclusion. The Tribunal Panel’s decision on the cost allocation was a fact driven exercise of their discretion to deal with appeal costs.

“Significant New Evidence”

The McCormicks supplied a DVD with their review request. The DVD contained a number of documents, photographs and video footage. I reviewed the DVD contents as part of the consideration of the review request. The DVD contents primarily related to Issues #2 and #3 from the Decision. Those issues concerned the McCormicks’ assertion that defective or improper construction of the Drain caused a reverse grade condition in their private drainage tile upstream of the catch basin at Stn. 318, and a reverse grade condition in the Drain, downstream of the catch basin.

The DVD contents were not reviewed, however, to determine if they added support to the McCormicks’ case as originally presented at the July 24th, 2008 appeal hearing. That is not part of the considerations in a review request.

The significant new evidence test under the Tribunal’s Rules relates to evidence that was not available at the time of the original appeal hearing. To satisfy this part of the test the McCormicks must demonstrate the evidence on their DVD (1) is significant; (2) is new; and (3) was not available for the original hearing.

All the documents and most of the photographs on the DVD precede the July 24th, 2008 Tribunal hearing on the Drain.

The exception are seven photographs taken in October 2008 and a video, presumably taken around that same time, since certain of the photographs are argued as illustrating related outlet tile and basin sump reference levels.

However, there is no explanation in the McCormicks’ review request about why the documents and photographs that pre-date the appeal hearing were not available for that hearing.

Although seven photographs and the video are from after the July 24th, 2008 hearing, it is apparent that this evidence relates to the drain condition that could have been assembled as part of the McCormicks’ case in July 2008. The written submissions for the request argue that these seven photographs and video support the McCormicks’ arguments at the appeal hearing in July; that is the reverse grade condition upstream and downstream of the catch basin at Stn. 318.

In my view, the review request process is not to give appellants a second chance to make a better case. If that was the intention of Rule 29, there would never be any finality to the appeal process. The McCormicks could have assembled and presented similar evidence as on the DVD at the July 24th, 2008 hearing.

Therefore, I find that the evidence relied on now by the McCormicks is not significant or new. Additionally, I am not satisfied that the evidence was not available for the July 24th, 2008 appeal hearing.

“Material Errors of Fact and Law”

The McCormicks’ request for review asserts the Tribunal made errors of fact and law dealing with Issue #4 from the Decision (Reverse Grade at Connection to Stn. 318) and Issue #6 (Unregistered Easement Drain).

Issue #4:

The Tribunal concluded that although the McCormicks raised a concern about a reverse grade at the connection, they had provided no evidence to support the concern. In addition, the Drain Engineer testified the Drain was built according to the approved elevation profile.

The Tribunal Panel can only act on the evidence presented to them. In the circumstances, given the absence of evidence at the hearing to support the McCormicks’ concern, and the contrary evidence from the Engineer, the Panel could not reach any other conclusion.

I am not convinced that the Tribunal Panel made any error of fact or law about Issue #4, such that the Tribunal would likely have reached a different conclusion.

Issue #6:

The Tribunal ruled it did not have jurisdiction to deal with claims about private drain rights.

Under the legislation, existing private drains frequently become part of municipal drains.⁵

However, in this case, a private drain that crossed Lot 62 was not part of the original Drain. In the 2007 Engineer’s Report for the extension and improvement of the Drain, the private drain was not incorporated as part of the municipal drain.

Therefore, the Tribunal Panel was confronted with the McCormicks arguing they had certain rights related to a private drain. However, the private drain was no part of the Drain. The Drainage Act is the source of the Tribunal’s jurisdiction. The Act does not give the Drain Engineer or the Tribunal any jurisdiction to decide the legal rights related to private drains. The proper forum for private drain disputes is the law courts.

Therefore, the Tribunal Panel made no error of fact or law when it concluded it had no jurisdiction to deal with issues over private drain rights.

The McCormicks suggest the Tribunal Panel did not allow them to argue the “fundamental question” they brought to the Tribunal. They state that “fundamental question” as:

What remedy was appropriate when the Municipality through its engineer illegally destroyed during construction an unregistered prescriptive easement drain across Lot 62 that was protected by the Real Property Limitations Act, s. 31?

If that was the McCormicks’ “fundamental question”, the Tribunal Panel was, in my view, correct to conclude it had no jurisdiction to deal with that question.

“Reasonable Apprehension of Bias and Conflict of Interest”

Allegations of bias and conflict of interest are not set out as considerations for a review request under Rule 29.09.

Despite Rule 29.09’s silence on such allegations, it does provide that the “Tribunal may consider any relevant circumstances including”, before setting out the list of considerations. I interpret the Legislature’s intention from those quoted words that in a review request, I can look beyond the listed considerations.

Allegations of bias and conflict of interest are serious. In our legal system, parties have a right to a decision from impartial and unbiased decision makers. That principle is at the foundation of the integrity and efficacy of the administrative justice system.

The McCormicks suggest there is some bias or potential bias because one of the Tribunal Panel members is a professional engineer as is the Drain Engineer. Their suggestion is that collegiality among professions can lead to bias and conflict of interest. They offer no evidence of bias or conflict of interest; they merely raise the ugly spectre of bias and conflict of interest, without more.

The McCormicks suggest the Tribunal Panel relied on the final nature of their decision to escape their legal obligation to act judicially. Again the McCormick’s offer no evidence to support the bald assertion. The McCormick’s position ignores the reality that Tribunal decisions are not final. The law courts always remain as the constitutional safety net to conduct judicial review any tribunal decision.

The McCormicks argue, in the context of their submissions on bias and conflict, that the Tribunal Panel’s cost award was not based on fact or law. I have already reviewed that the legislation and the Tribunal’s Rules empower the Tribunal with discretion to award costs. The Tribunal Panel heard the evidence first hand and made findings of fact that formed the basis for its discretionary cost award. The McCormicks may reasonably disagree with the outcome, but they are incorrect to suggest the cost award did not rely on “fact or law”.

Beginning at page 9 of their written submission, the McCormicks cite four “representative examples” of the “alleged operation of bias”.

“Decision, page 9, paragraph 5, sentence 1:”

This example does not raise anything new. The passages have been cut and pasted out of the text from pages 3-4 of the McCormicks’ submission. The argument does not provide evidence of bias or conflict of interest.

“Decision, page 10, paragraph 7 and continued onto page 11, paragraph 1:”

This example does not raise anything new. The passages have been cut and pasted out of the text from page 7 of the McCormicks’ submission. The argument does not provide evidence of bias or conflict of interest.

“Decision, page 11, paragraphs 2 and 3:”

This example does not raise anything new. The passages have been cut and pasted out of the text from pages 7-8 of the McCormicks’ submission. The argument does not provide evidence of bias or conflict of interest.

“Decision, page 11, paragraph 4:”

This example does not raise anything new. The passages have been cut and pasted out of the text from page 8 of the McCormicks’ submission. The argument does not provide evidence of bias or conflict of interest.

After considering the McCormicks’ submissions on the alleged “bias and conflict of interest”, I find there is no evidence to support the allegations. The arguments of the McCormicks do not persuade me there is anything to these allegations other than unsupported innuendo.

Conclusion

Therefore, I refuse to grant the McCormicks and Doug Johnston and Tom Gibson request for a review of the Decision.

Dated at Brampton this 10th day of February, 2009

64. 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.

29.04 The Tribunal may review a final decision or order at the request of a party to an appeal or on its own initiative. 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.

73(1) Except where otherwise provided in this Act or by a decision on an appeal, the cost of any application, reference or appeal and the cost of temporary financing for the construction, improvement, repair and maintenance of a drainage works, shall form part of the cost of the drainage works.

28.01 Where a party believes that another party has acted clearly unreasonably, frivolously, vexatiously or in bad faith considering all of the circumstances, it may ask for an award of costs. 28.02 The Tribunal may make a costs award for conduct at any time during a proceeding. 28.03 The Tribunal may deny or grant the request or award a different amount. 28.04 Clearly unreasonable, frivolous, vexatious or bad faith conduct can include, but is not limited, to: a. Failing to attend a hearing event or to sending a representative when properly given notice, without contacting the Tribunal; b. Failing to give notice or adequate explanation or lack of co-operation during pre-hearing proceedings, changing a position without notice, or introducing an issue or evidence not previously mentioned; c. Failing to act in a timely manner or to comply with a procedural order or direction of the Tribunal where the result was undue prejudice or delay; d. Conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events; e. Failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper; f. Failing to make reasonable efforts to combine submissions with parties of similar interest; g. Acting disrespectfully or maligning the character of another party; and h. Knowingly presenting false or misleading evidence. The Tribunal will consider the seriousness of the misconduct. If a party requesting costs has also conducted itself in an unreasonable manner, the Tribunal may decide to reduce the amount awarded. (The Tribunal will not consider factors arising out of a mediation or settlement conference except where, for example, it finds that a request for change to a settlement is unreasonable.)

31. Where an existing drain that was not constructed on requisition or petition under this Act or any predecessor of this Act is incorporated in whole or in part in a drainage works, the engineer in the report shall estimate and allow in money to the owner of such drain or part the value to the drainage works of such drain or part and shall include such sum in the estimates of the cost of the construction, improvement, repair or maintenance of the drainage works.

Footnotes

1. 1Section 64, Drainage Act, R.S.O. 1990, c.D.17, as amended
2. 2Rules of Procedure for the Agriculture, Food and Rural Affairs Appeal Tribunal
3. 3Section 73(1), Drainage Act, R.S.O. 1990, c.D.17, as amended
4. 4Rules of Procedure for the Agriculture, Food and Rural Affairs Appeal Tribunal
5. 5Section 31, Drainage Act, R.S.O. 1990, c.D.17, as amended