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:
Holland Marsh Drain – Request for Review Town of Bradford West Gwillimbury
Holland Marsh Drain (RE) - RFR 2010 ONAFRAAT 40
STATUTE:
Drainage Act
HEARING:
May 6, 2010
2010-40
NEUTRAL CITATION:
2010 ONAFRAAT 40
HOLLAND MARSH DRAINAGE SYSTEM
CANAL IMPROVEMENT PROJECT
REQUEST FOR REVIEW OF DECISION
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17
AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Barlow Square Inc., Sudbury; Martin and Maria Bonigut, Newmarket; and Henry Kedra, Guelph, under Subsection 48(1) of the Drainage Act from the engineer’s report and by Dorian and Elizabeth Milleman, Newmarket, under Subsection 54(1) of the Drainage Act from a decision of the Court of Revision, and by Lawrence and Connie Curtis, Bradford; and Ron Gleason, Bradford under Subsection 48(1) and 54(1) of the Drainage Act on the Holland Marsh Drainage System Canal Improvement Project initiated by the Town of Bradford West Gwillimbury.
AND IN THE MATTER OF: A request for review by Lawrence and Connie Curtis of the Decision of the Tribunal dated March 12, 2010 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
Appearances:
None
DECISION OF THE TRIBUNAL
Background to the Review Request
Lawrence and Connie Curtis are assessed landowners in the Holland Marsh Drainage System Improvement Project which was initiated by the Town of Bradford West Gwillimbury. The details of the project are outlined, in accordance with section 78 of the Drainage Act, in a Report dated January 16, 2009 prepared by K. Smart Associates Limited.
The report estimates the total cost of the project to be $26,385,640.00. The watershed comprises 28,853.8 hectares of land and roads with more than 7,000 properties in seven municipalities.
Following the adoption of the Report by the municipal council, nine property owners filed a total of 12 appeals with the Agriculture, Food and Rural Affairs Appeal Tribunal pursuant to section 48 and section 54 of the Drainage Act. A number of appeals were subsequently withdrawn, leaving five appeals for the Tribunal’s determination.
A duly constituted Tribunal held a four day hearing which concluded on December 9, 2009. The 39 page decision was issued on March 12, 2010.
In a letter dated April 13, 2010, Lawrence and Connie Curtis filed a Request for Review of the Decision pursuant to Rule 29 of the Tribunal’s Rules of Procedure.
The Tribunal’s Rules of Procedure
Pursuant to section 25.1 of the Statutory Powers Procedure Act, the Tribunal has established Rules of Procedure that includes Rule 29, which is entitled “Review of a Decision".
Rule 29.091 provides that in considering the advisability of a review, I can consider any relevant circumstance including those listed in subsections (a) to (e) of that Rule.
Although the Rules permit me to confer with the members of the appeal panel, I elected not to seek out their explanation, preferring to allow the decision to “speak for itself”.
In the course of my review, I considered the materials listed in the endnote2 which form part of the record of the proceedings under Rule 29.16.
Complaints Behind the Request for Review
It is the position of the Curtis’ that the Tribunal disregarded relevant evidence that resulted in the following:
Inadequate compensation for their land.
Inadequate compensation for the loss of income from their immature tree crop.
Increased cost with respect to the method used in relocating the berm.
Inadequate compensation for the 35,000 cubic meters of fill to be removed from their property.
Lack of control over the actions of the Joint Services Board and Third Party liability issues due to the relocation of the waterway.
Review Findings
Land Compensation
The Curtis’ state that the panel relied on the testimony of the Engineer over their testimony and therefore did not provide them with adequate compensation for the land involved in the project.
As stated in the decision, it is incumbent on the appellants to present cogent evidence when challenging allowances that they believe are too high or too low.
The panel heard the evidence of the Engineer who was qualified as an expert witness. He has over 40 years experience as a drainage engineer having completed more than 800 drainage reports. It is therefore understandable that the panel would place a great deal of weight on his testimony.
Although, the Curtis’ filed a letter with respect to the value of their land, there was no opportunity for the parties to cross examine the author. Therefore, the panel was unable to give any substantial weight to the evidence.
I can find no issue with the analysis and subsequent decision made by the Tribunal on this matter.
Tree Crop Compensation
The Tribunal heard the expert evidence of the Engineer as well as that of Jack Winkler who was qualified, with the consent of all parties, to give opinion evidence as an expert in forestry. In my review of the decision, and the evidence upon which it was based, I can find no support for the Curtis’ position that no consideration was given to their immature tree crop. The evidence in fact, is exhaustive with respect to the section 29 and section 30 allowances under the Drainage Act for damages that the Engineer implemented for all affected properties, including the lands owned by the Curtis’. The rates per acre used were based on the Engineer’s many years of experience in developing such allowances throughout the province with the inclusion of all relevant local data as well.
Although the Curtis’ provided their opinions with respect to the value of their trees, they did not bring forth any expert evidence to refute that of the Engineer who was qualified as an expert witness by all parties, including the Curtis’.
I can therefore find no basis for the Curtis’ position that no consideration was given with respect to the value of their immature tree crop.
Cost in Relocating the Berm
The Curtis’ contend it would be far more efficient to replace the existing berm as work progresses, while equipment and soil are readily available. Again, I can find no support for this argument in my review of the decision and the accompanying documentation. Other than their own testimony, the Curtis’ provided no convincing evidence, expert or otherwise, to refute the evidence of the Engineer that would convince me that the Tribunal did not make a sound and well reasoned decision based on the evidence before it.
Compensation for Fill
The Curtis’ state that they are not receiving fair compensation for the 35,000 cubic meters of fill to be removed from their property. The Tribunal accepted the expert evidence of the Engineer with respect to the process for replacing the existing berm, while, once again, no expert evidence was provided by the Curtis’ to convince the Tribunal that an acceptable alternative was preferred. In fact, it is clear that the Curtis’ property is being treated no differently than any of the other properties in the project.
I’ll now address the last two issues.
Joint Services Board and 3rd Party Liability
- Control of the Joint Services Board
As this was not an issue raised by the appellant at the Tribunal hearing, there is no basis for this to be legitimately dealt with as an issue in the Request for Review of the Decision.
- 3rd Party Liability issues with respect to the relocating of the waterway
As stated in the Decision, the Tribunal does not have jurisdiction to grant declaratory relief to decide third party liability issues, even if sufficient evidence had been presented to the Tribunal.
Review Findings
In deciding whether it is advisable to conduct a review of all or any part of the final decision, pursuant to Rule 29.09, I conclude the following.
The Curtis’ have not brought forward any significant new evidence which was not available when the original appeal was heard and;
The Tribunal did not make any material errors of law or fact such that the Tribunal would likely have reached a different decision.
Conclusion
In conclusion, I find that the Tribunal fairly analyzed the evidence before it. This resulted in a sound and well reasoned decision.
Decision of the Tribunal
I therefore find that the Tribunal’s March 12, 2010 decision was based on credible evidence and there is no basis for a Review in the context of Rule 29.09 of the Tribunal’s Rules of Procedure.
The request for review is hereby denied.
Dated at Maidstone, this 6th of May, 2010
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.
Tribunal Decision dated March 12, 2010
Request for Review dated April 13, 2010 from Lawrence and Connie Curtis
Exhibit 2 from Tribunal hearing – Report of the Engineer, K. Smart Associates Limited, dated January 16, 2009
Exhibit 2a from Tribunal hearing – Volumes 1 “Text” and 2 “Assessment Schedules”
Exhibit 2b from Tribunal hearing – Volume 3 “Drawings” and 4 “Specifications”
Exhibit 2c from Tribunal hearing – Enlarged drawing of “Land Owners within the Marsh, Town of Bradford West-Gwillimbury, Township of King”
Exhibit 2d from Tribunal hearing – “Separate Enclosure/Attachment Re Net Assessments/Out of Pocket Costs for Holland Marsh Drainage System Canal Improvement Project”
Exhibit 12 from Tribunal hearing – Submissions on behalf of Lawrence and Connie Curtis
Exhibit 13 from Tribunal hearing – “Appraisal of: Rural Property Part of Lot 9 Concession 3, Township of West Gwillimbury”, with cover letter dated May 29, 1989, certified on May 31, 1989
Exhibit 14 from Tribunal hearing – Remax reports
Exhibit 14a from Tribunal hearing – Printed report “Prepared by Diana Cairns” of “MLS#: N1545937”, of Lot 8&9 Fourth Line, Bradford, Ontario
Exhibit 14b from Tribunal hearing – Printed report “Prepared by Diana Cairns” of “MLS#: N1545950”, of 3202 Fifth Line, Bradford, Ontario
Exhibit 15 from Tribunal hearing - Letter from Diane Cairns, of RE/MAX OMEGA REALTY (1988) LTD., to Lawrence and Connie Curtis, dated October 27, 2009
Exhibit 16 from Tribunal hearing - Letter from Bauman Sawmill Inc., to K. Smart Associates Limited, dated July 22, 2008
Exhibit 17 from Tribunal hearing - Photograph of Curtis property, taken on October 28, 2009
Exhibit 18 from Tribunal hearing – Aerial photograph of Lawrence Curtis property, roll no. 020-005-00300
Exhibit 19 from Tribunal hearing – Colour photograph of Curtis property
Exhibit 20 from Tribunal hearing – Colour photograph of Curtis property
Exhibit 21 from Tribunal hearing – Enlarged drawing (compilation of parts of Figures 4,5,8,9,10 in Volume 2)
Exhibit 22 from Tribunal hearing – Colour photograph of bridge (Kingsley Bridge, with land acquired from McCallum)
Exhibit 23 from Tribunal hearing - Colour photograph of Town of Bradford West Gwillimbury staff
Exhibit 24 from Tribunal hearing - Colour photograph of Town of Bradford West Gwillimbury staff (taken by Art Janse)
Exhibit 25 from Tribunal hearing – “Lake Simcoe Levels” chart
Exhibit 26 from Tribunal hearing – Greenbelt Plan Map division and enlargement, Map 30, dated February 28, 2005
Exhibit 27 from Tribunal hearing – Excerpts from Town of Bradford West Gwillimbury Official Plan, Office Consolidation, October 1, 2002, pages 37 to 41, 48 to 51, 56, and Schedule A, Rural Land Use Plan
Exhibit 28 from Tribunal hearing – Excerpts from Town of Bradford West Gwillimbury Zoning By-Law
Pages 30 to 32, and 100
Town of Bradford West Gwillimbury Zoning By-Law Consolidation, by Ainley Consulting Engineers Planners
o Key Map
o Schedule (1)
o Schedule (2)
o Schedule (8)