Baer Municipal Drain (Re), 2011 ONAFRAAT 4

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, chemin Stone Ouest

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca www.omafra.gov.on.ca/english/tribunal

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca www.omafra.gov.on.ca/french/tribunal

Baer Municipal Drain Town of Fort Erie

Baer Municipal Drain (RE) 2011 ONAFRAAT 4

Drainage Act

January 26, 2011

DATE OF DECISION:

February 3, 2011

2011-04

2011 ONAFRAAT 4

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 Fred and Moira Daubert; Karin Gagne; Barbara and Andy Huard of Ridgeway, Ontario; and Joseph Pruyn of Sherkston, Ontario under Subsection 54(1) of the Drainage Act from the decisions of the Court of the Revision on the Baer Municipal Drain in the Town of Fort Erie.

Before:

Kirk Walstedt, Chair; Enio Sullo, Member; Tim Mousseau, Member

Appearances:

Fred and Moira Daubert – appellants

Ed Dykstra – representative for Karin Gagne, appellant

Barbara and Andy Huard – appellants

Joseph Pruyn - appellant

Paul Smeltzer – Engineer who prepared the Report

Brett Ruck – Drainage Superintendent for the Municipality

DECISION OF THE TRIBUNAL

This hearing was held in the Council Chambers of the Town of Fort Erie in Fort Erie, Ontario, on January 26, 2011. Fred and Moira Daubert, Karin Gagne, Barbara and Andy Huard, and Joseph Pruyn appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Subsection 54(1) of the Drainage Act from decisions of the Court of Revision on the Baer Municipal Drain (the Drain) dated December 16, 2010.

Margarete Taddeo, Records Management Assistant for the Town, performed the duties of the Clerk of the Tribunal.

Preliminary Issue

At the commencement of the Hearing, the Tribunal raised an issue with respect to the legal status of the Engineer’s Report titled “Baer Municipal Drain – Final Engineer’s Report, Town of Fort Erie”, dated April 2010 (the Report) before it. The Report was prepared by Paul Douglas Smeltzer, an Engineer with Amec Earth and Environmental, Burlington, Ontario.

The Report was provided to the Tribunal by the Municipality as part of the evidence its representatives and the appellants would be relying on at the Hearing. The Report had been circulated, considered by Council and adopted by municipal by-law.

It was apparent in reviewing the Report that it had not been signed by the Engineer and did not have the required Engineer's seal on neither the text portion of the Report nor the drawings appended thereto. It was also apparent that the said drawings were still a “work in progress”.

The Tribunal, therefore, requested submissions from the Municipality and the appellants with respect to their position on this matter.

Paul Smeltzer testified that the Report received by the Tribunal was not in fact the report that the Town had most recently dealt with. He stated that the final report dealt with by council was dated September 2010, which he proceeded to file as an exhibit at the Hearing. He noted that the September 2010 report was a result of the initial meeting of the Court of Revision wherein it was decided that the report required changes to the drawings and the assessments. Mr. Smeltzer testified that despite the fact that he did make the required amendments, and that the September report was circulated, he did not sign and seal this report until January 25, 2011, one day prior to this Hearing.

Brett Ruck, Drainage Superintendent for the Town of Fort Erie, testified that the Council for the Municipality did in fact initially rely on the unsigned and unsealed April 2010 Report which they considered and adopted on July 12, 2010. He said Council subsequently passed the required by-law at its July 19, 2010 meeting, and the Court of Revision met on August 11, 2010 to hear objections with respect to the assessments set out in the Report. As a result of objections received, Mr. Ruck stated that the Court of Revision referred the Report back to the Engineer to make adjustments to the drawings and assessments. He testified that the changes made resulted in the September 2010 report which was re-circulated to the assessed landowners. The Court of Revision met again on December 16, 2010 to hear appeals with respect to the assessments in the revised September 2010 report. Mr. Ruck confirmed that the September 2010 report was also unsigned and unsealed by the Engineer when it was circulated.

No other parties came forward to testify or present evidence with respect to this issue.

Findings

The reports that were circulated and considered by Council do not contain the signature and seal of an engineer. It was also apparent that the drawings appended to the April 2010 Report were still a “work in progress”. We consider this to be a very serious issue. The entire process leading to the appeals before the Tribunal is therefore flawed. The proper administration of justice is paramount to the Tribunal and we see it as our duty to ensure it is carried out.

Despite the fact that the Engineer provided a signed and sealed copy of a subsequent report dated September 2010, which he testified is in every respect identical to the unsigned and unsealed September 2010 report circulated and subsequently brought to the municipal Council, this does not change the fact that the Town, at the beginning of the process that led to this Hearing, circulated the unsigned and unsealed April 2010 Engineer’s Report to the landowners, and that the Town Council also considered, adopted and passed a by-law based on this same unsigned and unsealed April 2010 Report. Accordingly, the Tribunal finds that the Report was not a true report under the Drainage Act and will therefore order that the April 2010 Engineer’s Report that council adopted in July 2010 be set aside.

As the Tribunal’s decision is to set aside the Report, the appeals before the Tribunal at this Hearing are therefore moot and cannot be addressed.

The Drainage Act process for adopting the new report should be followed. This includes the appeal opportunities as outlined in the Act.

ORDER OF THE TRIBUNAL

The Tribunal Orders as follows:

The Engineer's Report titled “Baer Municipal Drain – Final Engineer’s Report, Town of Fort Erie”, dated April 2010 is hereby set aside.

Dated at Maidstone, Ontario this 3rd day of February, 2011