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
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL: West Luther Drain 63 Branches A & A1 Township of Wellington North
West Luther Drain (RE) 2009 ONAFRAAT 05
STATUTE: Drainage Act
HEARING: 2009-05
NEUTRAL CITATION: 2009 ONAFRAAT 5
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 the Grand River Conservation Authority (GRCA), under Section 49 of the Drainage Act, from the report of the engineer “on the ground that the drainage works will injuriously affect a scheme undertaken by the authority under the Conservation Authorities Act”, on the West Luther Drain 63, Branches A & A1 in the Township of Wellington North.
AND IN THE MATTER OF: a Pre-hearing Conference pursuant to Rule 24 of the Tribunal’s Rules of Procedure, to be held for the purpose of determining:
a) identification of parties and other interested persons and the scope of their participation in the hearing; b) issues related to disclosure and the exchange of information; c) identification and simplification of issues; d) procedural issues including the dates by which any steps in the proceeding are to be taken or begun and the date on which the hearing will begin; e) identification of facts or evidence that may be agreed upon; f) settlement of any or all of the issues in dispute; g) the possibility of obtaining admissions which may facilitate the hearing; h) the estimated duration of the hearing; and i) any other matters which may assist in the just and most expeditious disposition of the appeal.
Before: Gene Trotman, Vice Chair
Appearances: Guildford Deverell, counsel for the Township of Wellington North, the respondent Garth J. Noecker, Drainage Superintendent for the Township Izaak de Rijcke, counsel for the Grand River Conservation Authority (GRCA), the appellant Martin Neumann, representative of the GRCA Peter T. Fallis, counsel for Alfred Wilson, the petitioner Alfred Wilson, the petitioner
FACTS
From the documentation and oral submissions presented to the Tribunal the following pertinent facts emerged:
On February 4, 2008, Alfred and Doreen Wilson of the Township of Wellington North, petitioned pursuant to Section 4 of the Drainage Act, for improved drainage to part of lot 10, Concession 10 in the Township of Wellington North. As a consequence, an engineer, K. Smart, was appointed pursuant to Section 8 of the Drainage Act, to make an examination respecting the requested drainage and prepare a report which had to include "plans profile and specifications of the drainage work including a description of the drainage." In effect “to provide for improved drainage for part of lots 10 and 11, Concession 10 (formerly West Luther Twp) in the Township of Wellington North.”
In the process of preparing the Engineer's Report, an on site meeting was conducted on March 20, 2008. The land owners within the West Luther Drain 63, which commenced in Concession 10, the Township, the Grand River Conservation Authority (GRCA), and the Department of Fisheries and Oceans were all notified of the on-site meeting regarding the petition and were duly represented.
The Engineer's Report dated August 20, 2008 was provided and it recommended that work should be done on a branch by branch and property by property basis as follows: (a) Branch A- A. Wilson (Roll No. 15-197); (b) Branch A1-A. Wilson (Roll No. 15-197); and (c) G. Trask (Roll No. 15-196). Branches A and Al were part of the West Luther Drain 63.
By document dated October 24, 2008, the GRCA, owner of the Luther Marsh Conservation Area, launched an appeal under Section 47 of the Drainage Act to the Referee against the Engineer’s Report on the grounds, among others, that "The Report of the Engineer does not comply with the requirements of the Drainage Act,.." that "The Drainage Engineer has assumed that water needs to be drained from the lands of the petitioner in order to properly drain those, and other, lands."
Section 47 of the Drainage Act states: "Any owner of land or public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that it does not comply with the requirements of this Act or that the engineer has reported that the drainage works cannot be constructed under section 4… may appeal to the referee…”
On the same aforesaid date of October 24, 2008, the GRCA launched another appeal pursuant to Section 49 of the Drainage Act against the Engineer’s Report. That Section provides: “Where the proposed drainage works is to be undertaken within a watershed in which a conservation authority has jurisdiction, the authority may appeal from the report of the engineer to the tribunal on the ground that the drainage works will injuriously affect a scheme undertaken by the authority under the Conservation Authorities Act..."
The grounds for the Section 49 appeal, among others, are: (a) "The proposed works which are to be constructed will injuriously affect a scheme undertaken by GRCA, namely the Luther Marsh Conservation Area..." (b) "The proposed works will injuriously affect the Luther Marsh Conservation Area because the quality of water is undetermined and the only known fact is that the water will be the result of an industrial process..."(c) "The quantity of the water proposed to be discharged into the Luther Marsh Conservation Area... is undetermined…” (d) "The proposed works will have an injurious effect on adjacent aquifers and hydrogeology which arc connected to the Luther Marsh Conservation Area..." (e) “The proposed work will have an injurious effect on the wetlands and ecology of Luther Marsh Conservation Area which is designed as a Provincially Significant Wetland…”
By document dated November 18, 2008, the Petitioner, through his lawyer, requested a Pre Hearing Conference pursuant to Rule 24 of the Tribunal's Rules of Procedure with respect to the Section 49 appeal.
Counsel for the appellant, the GRCA, informed the Tribunal by letter dated January 26, 2009 that "Since ...the order dated January 16, 2009 made by the office of the Drainage Referee makes it clear that the appeal under Section 47 will be proceeding before the Referee under the Act, it will be the position of GRCA as Appellant in respect of both Appeals that the continuation of the hearing before the Drainage Tribunal is premature.” The following reasons were advanced for this conclusion: (a)“The appeal before the Drainage Referee under Section 47 may result in the alteration or significant change of the Engineer’s Report by the Drainage Referee. (b) The Drainage Referee “may declare the report as so deficient and lacking in jurisdiction as to declare the drain to not proceed at all”. (c) “Under these circumstances, the appeal before the Tribunal under Section 49 would be speculative and hypothetical in that it would be predicated on the basis of a Drainage Engineer’s Report which is still subject to change, in fact cancellation.”
The counsel for GRCA emphasized that its position at the Pre Hearing Conference and before the Tribunal will be that the appeal under Section 49 be adjourned until the appeal under Section 47 has been concluded. He further submitted that GRCA was not in a position to proceed with the Pre Hearing Conference and contended that “to be forced to proceed is to proceed and move forward in a speculative environment.” Guildford Deverell, counsel for the Township of Wellington North, contended that the Pre Hearing Conference was not premature as he needed to know the scope of the Section 49 appeal.
Peter Fallis, counsel for the Petitioner, opposed the submission that the Pre Hearing Conference was premature because, in his view, the Section 49 appeal does not deal with the merits of the Engineer's Report, but the ground for the appeal. He added that "if the 47 appeal were successful, where the report were determined by the Referee to be void or not properly prepared, then there would be no report and no drain; and there would be nothing in this appeal to be concerned about." He added, however, that the Petitioner is "entitled to know the grounds for the appeal; what is the scheme that is undertaken by the GRCA."
On behalf of the Township of Wellington North, Mr. Guildford Deverell submitted that he needed to know the scope of the appeal in as much as Section 49 is based on the report which "deals with environmental matters…quality matters, quantity matters...and would like to get some sense...as to how far we go in all those issues."
THE ISSUE
Whether there is any need for a Pre Hearing Conference pertaining to the Section 49 appeal at this time.
DECISION OF THE TRIBUNAL
Given that the Section 47 appeal is being dealt with by the Referee, and because the legality of the Engineer's Report is being called into question, it would be premature to proceed with another appeal under Section 49 in which that report remains questionable. I agree with Mr. Fallis’ conclusion that, "if the 47 appeal were successful, where the report were determined by the Referee to be void or not properly prepared, then there would be no report and no drain and there would be nothing in this appeal to be concerned about..." That being the case, it makes eminently good sense to await the decision in the Section 47 appeal before undertaking a Pre Hearing Conference relevant to another appeal in which the same Engineer's Report features prominently, but under a cloud as to its legality.
Order of the Tribunal
As the decision reached in this matter is that the Pre Hearing Conference is premature, it is hereby ordered that it be postponed sine die subsequent to the outcome of the Section 47 appeal.
Dated at Ottawa, Ontario, this 13th day of March, 2009