Foster Drain (RE) Request for Review, 2009 ONAFRAAT 33

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

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

Guelph (Ontario) N1G 4Y2 Tél. : (519) 826-3433, Téléc. : (519) 826-4232 Courriel : appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Foster Municipal Drain - Request for Review Beckwith Township

Foster Drain (RE) Request for Review 2009 ONAFRAAT 33

STATUTE:

Drainage Act

HEARING:

DATE OF DECISION:

September 3, 2009

2009-33

NEUTRAL CITATION:

2009 ONAFRAAT 33

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

AND IN THE MATTER OF: An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by John Campbell and Karen Campbell, Carleton Place, Ontario, under Sections 48 and 54 of the Drainage Act from the decision of the Court of Revision and the engineer’s report on the Foster Municipal Drain in Beckwith Township.

AND IN THE MATTER OF: A request for review by John Campbell of the Decision of the Tribunal dated September 5, 2003 under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure for the Tribunal.

Before:

Kirk Walstedt, Chair

DECISION OF THE TRIBUNAL

Background to the Review Request

This decision is based on written submissions only from the parties. No oral evidence was given.

John Campbell owns land that drains into the Foster Municipal Drain. He therefore pays a contribution toward the construction and maintenance of the Drain.

The Foster Drain was established in 1969 and originally drained 914.4 acres. In 2001 additional lands were added resulting in a drainage area of 1170.2 acres.

In October 2002, an engineer’s report was completed at the direction of the Beckwith Township Council. Mr. Campbell appealed the Township’s adoption of the Drainage Report and the subsequent decision of the Court of Revision to the Tribunal under Sections 48 and 54 of the Drainage Act. A three day Hearing concluded on June 5, 2003 and the Tribunal released its written Decision on September 5, 2003.

In a letter dated July 2, 2009, almost six years after the release of the Decision, John Campbell requested a Review of the Tribunal’s Decision pursuant to Rule 29 of the Tribunal’s Rules of Procedure.

Complaints Behind Request for Review

The key reason given for the request for review was that there was significant new evidence that was in the Township’s possession prior to the Hearing but was not presented to the Tribunal. In addition, Mr. Campbell lists the following complaints as issues upon which the Decision of the Tribunal should be reviewed:

“The failure of the Township to:

1. Properly administer the Drainage Act.

2. Properly investigate and use other Provincial investigative resources relative to the initial illegal drains and the mischief to the Township’s repair.

3. Fully, consider and utilize the information within the Foster drain file in assessing a proper course of action and in assessing landowner benefit.

4. Ensure that it’s contractor(s) engaged in on site fulsome consultation with all affected landowners in accordance with the Act.

5. Fully disclose all information and contents of the Foster Drain file during proceedings.” [sic]

Issue - Claim of Significant New Evidence

John Campbell submitted an engineer’s letter that was prepared for the Township by Totten Sims Hubicki Associates in 1994 and a Memorandum to the Township’s CAO from McIntosh Perry Consulting dated May 1, 2001. He notes that this information was in the possession of the Township, yet it was not presented or referenced at the any point by the Township during the Tribunal hearing. As a result, he contends that these two documents highlight the Township’s failure to appropriately administer the Drainage Act.

In addition to the Campbell submissions, a number of assessed landowners as well as the Township, forwarded letters and additional documentation to be considered in the request for a review of the Tribunal’s 2003 decision.

Of note is the July 2009 letter from the Township’s CAO, Cynthia Moyle. Ms. Moyle states that the “new evidence” Mr. Campbell refers to was submitted to the Tribunal at its 2003 hearing and is referenced on page 9 of the Decision.

Mr. Serge Pharand and Mr. James Foster, assessed landowners on the drain, support the Township’s submission that the aforementioned Totten Sims Hubicki and McIntosh correspondence were part of the official record and therefore considered by the Tribunal.

The “significant new evidence” test under Rule 29.09(a) of the Tribunal’s Rules of Procedure relates to significant evidence that was not available at the time of the original hearing.

It is my view that John Campbell is incorrect in his assertion that the documents he refers to were not considered by the Tribunal in its Decision. In his July 27, 2009 replies to the submissions of the Township of Beckwith and the assessed landowners, Mr. Campbell even acknowledges that the report by Totten Sims Hubicki Associates was not “new evidence” at the 2003 Tribunal hearing.

The Decision itself is detailed and well reasoned. Exhibits for the Hearing totalled 39 documents dating from as early as 1968, a year before the drain was officially established under the provisions of the Drainage Act. My review of the exhibit list from the 2003 hearing shows that the Totten Sims Hubicki report was put before the Tribunal as Exhibit 33. The contents of the documents by Totten Sims Hubicki Associates was also reflected in the consideration of the evidence. This is identified on page 9 of the 2003 Decision.

My review of the Decision and the submissions before me supports the position of the Township and the previously referenced assessed landowners that the content of the documentation which Mr. Campbell considers “significant new evidence” was in fact presented, reviewed and considered by the Tribunal in its Decision.

I therefore find that the evidence relied upon by John Campbell is not “significant new evidence” which may persuade me to constitute a new panel to conduct a review of the Tribunal’s 2003 Decision. Rule 29.10 of the Tribunal’s Rules of Procedure require that requests for reviews of Tribunal decisions be filed within thirty calendar days of the date of the final decision. Extensions may be granted under Rule 29.11 where there is “good reason for the delay”. As there is no significant new evidence to be considered, there is also no good reason for Mr. Campbell’s nearly six year delay in requesting his review and, therefore, an extension shall not be granted. This finding alone is sufficient to deny the request for a review. However, I will address Mr. Campbell’s additional issues.

Additional Issues – Claims Regarding the Actions of the Township

My findings with Mr Campbell’s complaints relative to the actions of the Township are as follows:

1. Municipalities in the province of Ontario do not “administer” the Drainage Act.

2. The allegations that the Township did not properly investigate… “the initial illegal drains and mischief to its repair” are matters that could have been presented as evidence by Mr. Campbell at the 2003 Hearing.

3. The issue of the Township not utilizing the information in the Foster Drain file has been addressed under the heading “Claim of Significant New Evidence”, above.

4. It is clear from my review of the 2003 Decision that the issue raised by Mr. Campbell of the contractor(s) not consulting with all affected landowners was addressed by the Tribunal in the Decision. Reference is made to the statement on page 8 “Mr. Cormier said he had tried to accommodate the landowners’ preference with regard to the outlet of the drain but said that the landowners did not maintain a consistent position and ultimately did not agree….” On page 14 the Decision reads, “Mr. Deverell submitted the landowners had tried to reach an amicable solution but Mr. Campbell had monopolized the engineer’s time and increased the cost of the project.” On page 15 the Decision reads, “The engineer consulted with the landowners over and over again…” These references suggest to me that consultations did take place with respect to this drainage project.

5. The allegation of the Township not disclosing all information in the Foster Drain file has been addressed under the heading “Claim of Significant New Evidence”, above.

Other Reasons

In addition to the above noted reasons and the consideration of Rules 29.09(a), 29.10 and 29.11 of the Tribunal’s Rules of Procedure, Rule 29.09 also notes that the matter of reliance upon a final decision, as well as the effect that the Review process has on any party or person, may also be considered in deciding whether a Review is warranted.

It has been six years since the Decision was issued by the Tribunal in 2003. It is clear from a number of the submissions that I’ve received that many of the affected landowners on this drain, as well as the Township, have relied on the Decision and life has gone on. The process leading up to the 2003 Hearing was costly. The lengthy Hearing added to the expense incurred by the Township and the affected landowners.

An additional Hearing, which in my view is unwarranted, would only consume more time and financial resources for all of those involved.

In his request for review, John Campbell also asks for support for a Review by the Drainage Referee of the $1,000.00 penalty imposed upon him for illegally filling in a drainage works. I will not make a finding on this request as the Tribunal has no jurisdiction to interfere with a decision of the Drainage Referee.

Conclusion

Therefore, I refuse to grant John Campbell’s request for a review of the Tribunal’s 2003 Decision.

Dated at Maidstone, this 3rd day of September, 2009