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:
Mindemoya Drain and Yonge Street Reconstruction - Decision of Motion Hearing Municipality of Central Manitoulin
Mindemoya Drain and Yonge St. Reconstruction (RE) Motion 2010 ONAFRAAT 20
STATUTE:
Drainage Act
HEARING:
July 9, 2010
July 9, 2010
2010-20
NEUTRAL CITATION:
2010 ONAFRAAT 20
MINDEMOYA DRAIN AND YONGE STREET RECONSTRUCTION
DECISION OF MOTION HEARING
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Perry Anglin, Mindemoya, Ontario under Section 48(1) of the Drainage Act from the engineer’s report and under Section 54(1) of the Act from a decision of the Court of Revision; and by Lois Lockhart, and Maja Mielonen, Mindemoya, Ontario under Section 48(1) of the Drainage Act from the engineer’s report on the Mindemoya Drain and Yonge Street Reconstruction, in the Municipality of Central Manitoulin.
AND IN THE MATTER OF: a Pre-Hearing Conference pursuant to Rule 24 of the Tribunal’s Rules of Procedure;
AND IN THE MATTER OF: the hearing of a motion by Perry Anglin pursuant to Rule 25 of the Tribunal’s Rules of Procedure;
Before: Susan Whelan, Vice-Chair; Jack Young, Vice-Chair; Sharon Weitzel, Member
Appearances:
Perry Anglin – Appellant and landowner Aimee Anglin – Spouse of Appellant Lois Lockhart - Appellant and landowner Maja Mielonen - Appellant and landowner Denise Deforge – Deputy Clerk for Municipality Richard Stevens – Reeve of Municipality John Kuntze – Engineer, K. Smart Associates Limited
POSTPONEMENT MOTION
The Tribunal held a Pre-Hearing Conference by telephone on July 9, 2010. The Appellant, Mr. Perry Anglin moved to postpone the hearing scheduled for July 28th and 29th, 2010, pursuant to Rule 25 of the Tribunal’s Rules of Procedure.
SUBMISSIONS OF THE PARTIES
The Tribunal heard from all parties participating in the pre-hearing conference concerning the postponement of the hearing.
Mr. Anglin submitted that the hearing should be postponed until completion, public presentation, and a reasonable period for assessment, of a drainage engineer’s report pursuant to a petition under the Drainage Act by the roads superintendent and Jeff Tuerk of Mindemoya. He raised a number of concerns about proceeding with the hearing on July 28 and 29, 2010 due to a neighbouring drainage project, the short timeframe that would be provided to him to review information to be presented at an information meeting on July 14 concerning the proposed Tuerk Drain, and the possibility of having to obtain expert advice with respect to the work proposed on the Tuerk Drain project in the midst of vacation season. In addition, during Mr. Anglin’s opening statement, he advised that he was informed yesterday that he has a health issue that requires immediate attention, and he is waiting for a priority surgical date that is expected to be arranged in July.
The Tribunal heard from Mr. Kuntze, on behalf of the Municipality, that the drainage meeting on July 14, 2010, will provide further information about the proposed Tuerk Drain project, and should address a number of Mr. Anglin’s concerns. In addition, a separate Engineer’s Report on the proposed Tuerk Drain project, once considered by the Municipality, would provide an opportunity for anyone to have input into that project during the consideration and appeal process. Mr. Kuntze also noted that Mr. Anglin had not formally petitioned the Municipality to connect his property to the Mindemoya and Yonge Street Drain Reconstruction.
The Tribunal heard from Maja Mielonen, also a landowner and party to the hearing, who felt the hearing should proceed since a lot of time had already been spent on the Mindemoya Drain matter.
With respect to Mr. Anglin’s recent medical issues, all parties were of the view that it would be beneficial for Mr. Anglin to be able to participate in the hearing. Mr. Kuntze and Reeve Stevens, on behalf of the Municipality, suggested that they would defer to the Tribunal on this matter, but also suggested that there be a delay in the required filing of documents to July 14, 2010.
ANALYSIS AND FINDINGS
In analyzing the material Mr. Anglin presented to justify a postponement of the hearing, the Tribunal did not feel his concerns relative to the proposed Tuerk drainage project, or inability to obtain expert advice due to vacation season, were sufficient reasons to grant an adjournment. However, the Tribunal is concerned that the very recent news of Mr. Anglin’s medical condition that requires immediate surgery, would likely interfere with his ability to prepare for and participate in the hearing scheduled for July 28 and 29, 2010. In view of the fact that Mr. Anglin is to undergo surgery as soon as it can be arranged this month, for medical reasons, the Tribunal will order that the hearing be postponed.
ORDER OF THE TRIBUNAL
Therefore, the Tribunal Orders:
That the hearing scheduled for July 28th and 29th, 2010, is hereby postponed to September 1st and 2nd, 2010.
That all parties submit their documents for the hearing by dates in August which will be specified in a notice for the rescheduling of the hearing.
Dated at Amherstburg, Ontario this 9th day of July, 2010