Miller Drain (RE) Request for Review, 2011 ONAFRAAT 7

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph ON N1G 4Y2 Tel: 519 826-3433, Fax: 519 826-4232 Toll Free: 1 888 466-2372 Ext. 6-3433 Email: appeals.tribunal.omafra@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1, chemin Stone Ouest Guelph ON N1G 4Y2 Tél. : 519 826-3433, Téléc. : 519 826-4232 Sans frais : 1 888 466-2372 poste 6-3433 Courriel : appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Miller Drain – Request for Review Municipality of Southwest Middlesex

Miller Drain (RE) Request for Review 2011 ONAFRAAT 07

STATUTE: Drainage Act

HEARING: In writing

DATE OF DECISION: February 17, 2011

FILE NO.: 2011-07

NEUTRAL CITATION: 2011 ONAFRAAT 7

MILLER DRAINAGE WORKS 1969

REQUEST FOR REVIEW

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 Rein Minnema of Glencoe, Ontario under Subsection 48(1) and 54(1) of the Drainage Act from the Engineer’s report and from a decision of the Court of Revision on the Miller Drainage Works 1969 in the Municipality of Southwest Middlesex.

AND IN THE MATTER OF: A request for review by the Municipality of Southwest Middlesex of the Decision of the Tribunal dated November 8, 2010 under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure for the Tribunal.

Before: Jack Young, Vice-Chair

DECISION OF THE TRIBUNAL

Background to the Review Request

This decision is based on a review of the documents submitted for the Miller Drainage Works 1969 Drain hearing held November 2, 2010, and the request for review submitted by the Municipality, dated December 7, 2010. No oral evidence was given.

The Miller Drainage Works 1969 was originally constructed subsequent to 1969.

The Municipality received a request in 2005 for repair and improvement under section 78 of the Drainage Act. A preliminary report dated February 10, 2006 recommended the replacement of a section of the open drain portion of the project with a covered drain along with a swale over the drain to accommodate excess surface water. On January 27, 2009, the Council of the Municipality decided that it was not proceeding with the project.

A second request for improvement was made on the same date, which resulted in a final report dated May 30, 2009, which was subsequently amended at the request of Council to a report dated November 8, 2009.

An appeal was made to the Tribunal and a hearing was held in the Council Chambers of the Municipality of Southwest Middlesex in Glencoe, Ontario on November 2, 2010. Mr. Rein Minnema appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Section 48(1) and 54(1) of the Drainage Act (The “Act”) from the Engineer’s Report (the “Report”) dated November 8, 2009, and from a decision of the Court of Revision dated April 13, 2010. The Report was prepared by Raymond Dobbin, P.Eng. (the “Engineer”) under Section 78 of the Act.

The Tribunal issued a decision in this matter on November 8, 2010.

The Tribunal received a Request for Review of this decision, dated December 7, 2010 from the Municipality of Southwest Middlesex (the Municipality) under 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 (“SPPA”), the Tribunal has established Rules of Procedure (“Tribunal’s Rules”) that includes Rule 29 which is entitled “Review of A Decision”. Subsection 29.09 of the Tribunal Rules of Procedure reads as follows:

Evaluation of a request for review

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.

In addition, Rules 29.21 and 29.22 read as follows:

29.21 The Tribunal shall not accept any further submissions without its permission.

29.22 A request for review may be granted in whole or in part.

Reasons behind the Request for Review

The Request for Review submitted by the Municipality was in three parts.

In the first part, the Municipality stated that they were not prepared at the hearing “to defend the 2007 decision (by Council) to take no action on a report (the Preliminary Report) resulting from his (Mr. Minnema’s) 2006 petition for a closed drain”.

The second part provided a cost/benefit analysis using “Engineer’s cost estimates” from both the Preliminary Report and the Final report on the Miller Drain.

The third part dealt with cost implications of the drainage works and requested “….that the Tribunal rescind its order and require the appointment of an independent engineer….”.

All of the above complaints are very general in nature and difficult to categorize within the items of Rule 29.09

Findings

To determine if the Municipality should have anticipated the design of the project to be discussed at the hearing, and therefore be prepared to discuss it, the events leading up to the hearing will be reviewed.

Section 48(1)(b) of the Drainage Act states as follows:

“48. (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(b) the drainage works should be modified on grounds to be stated;

may appeal to the Tribunal ….”

The appellant’s letter of appeal dated May 4, 2010 states “

“I am appealing the following:

1. The changes to the report
2. The costing of the culvert
3. The lack of erosion protection at the head of the drain”

The Municipal Clerk acknowledged in her letter dated May 17, 2010, to the Tribunal office that “the first and third (items) are under Section 48 of the Drainage Act …”

The “Notice of Hearing” prepared by the Tribunal Office setting out the date and place of the hearing clearly states that the Mr. Minnema was appealing “under Subsection 48(1) and 54(1) of the Drainage Act…”.

These actions clearly indicate that evidence would be introduced at the hearing under Section 48 of the Act with respect to the Engineer’s Report.

In reviewing the documents submitted for the hearing, it is evident that Mr. Minnema wishes to have a closed drain on his property in Lot 12. This request was first evident six years ago at the site meeting for the preliminary report. The preliminary report provided three alternatives for a closed drain along with cost estimates. When the Municipality arbitrarily decided, on January 27, 2007, not to proceed with the project, Mr. Minnema replied immediately with a request for an alternative design. At the site meeting on March 26, 2009, Mr. Minnema once again requested the closed drain alternative; however, the Engineer reported that Council accepted the access culvert alternative contrary to his request. Mr. Minnema made it known that he was unhappy having been forced to accept the access culvert alternative. This is evident from the e-mail dated February 3, 2010 and the letter from the Municipality dated February 8, 2010.

Considering the above actions by the appellant, the Municipality should not have been surprised to have the closed drain alternative brought forward under Section 48 of the Act at the Tribunal hearing. It should be noted that section 48 provides the mechanism for appellants to raise engineering issues.

Item 2, and the first part of Item 3 of the Municipality’s letter of December 7, 2010, is an attempt to re-introduce evidence and re-argue evidence that was submitted at the hearing. This is not permitted under Rule 29.21 and will not be considered in evaluating this Request for Review.

This is a very small project with proposed construction on only parts of two properties. The cost estimates of the various alternatives were contained in the preliminary and final reports. The Municipality had an Engineer to advise them. While the Municipality’s Request for Review stated that they were not prepared to discuss the closed drain alternative at the hearing, they gave no indication of what additional preparation may have been necessary nor what new information, if any, they had that would have caused the Tribunal to make a different decision, nor identified any errors of fact or law.

I therefore do not accept the arguments in Items 1 and 2 in the Request for Review dated December 7, 1010.

With respect to the Municipality’s request in Item 3, I note the following. The Engineer in his letter to the Municipality dated January 14, 2007 states:

“In my opinion, the best solution is the installation of a tile drain generally following the existing channel with outlets for surface water and extending from the outlet of the existing tile portion of the Miller Drainage Works and the McTaggart McLean Drain downstream to Longwoods Road.”

It does not appear that the Engineer ever changed this opinion; however, the Municipality refused to accept it.

In accordance with Rule 29.18 of the Tribunal Rules of Procedure, I directed the Tribunal office, by letter dated February 3, 2011, to request written submissions from Mr. Minnema and Mr. Semowoniuk with respect to the issue of whether a new engineer should be appointed to prepare a final report, or if Mr. Ray Dobbin should be appointed.

Mr. Minnema stated that he “had no problem to have Mr. Ray Dobbin being appointed to prepare a final report”. Mr. Semowoniuk stated that he “had no confidence in his handling of this issue from the onset” and “that Mr. Raymond Dobbin should be replaced”.

In response to these submissions, in an undated letter received by the Tribunal on February 14, 2011, the Municipality stated that “Southwest Middlesex would prefer, in the interests of fairness and accountability, to proceed with an engineer who had the confidence of both of the major contributors on the drain”.

The Tribunal, in its decision of November 8, 2010, found “that the Engineer allowed himself to be unduly influenced by Council and failed to exercise independent judgment in preparing his final reports, including the current Report.” Consequently, the Engineer appears to have permitted himself to be influenced by the Municipality in carrying out his obligation of being independent under Section 11 of the Act.

To now allow Mr. Dobbin to continue to prepare a final report, may create the perception that such a report may also not meet the requirement of Section 11 of the Act. I am therefore of the opinion an error was made in the Tribunal decision in not requiring the appointment of a new engineer to prepare a final report.

The Municipality has also contributed to the problems of this drainage project. The material provided indicates that the upstream owner, Mr. Semowoniuk had little difficulty having the access culvert on Mr. Minnema’s property approved by the Municipality. His request for having this proposed access culvert enlarged was also readily approved. On the other hand the requests by the appellant, Mr. Minnema were rejected even though the tile drain with overflow swale was the design recommended by Mr. Dobbin.

In order to avoid the continuation of the actions of these parties, I will accept the request in Item 3 of the Request for Review in part, with respect to the appointment of a new engineer to complete the project.

This project was initiated in October 2005 under Section 78 of the Act. Since then there have been both preliminary and final reports. Both of these reports have been referred back to the Engineer at least once. There have been numerous council meetings, courts of revision, meetings with land owners, onsite meetings and a Tribunal hearing. It is time to move this project along.

The result of this Request for Review is that there is only one issue – that being the appointment of an engineer to complete the report. In order to proceed in the most expedient and cost effective manner and to avoid another hearing on this issue, I will order that the Municipality appoint a new engineer to complete this project.

I therefore endorse the Tribunal Decision and Order dated November 8, 2010, with the exception of the appointment of Mr. Raymond Dobbin as the Engineer, for the reasons stated above.

Tribunal Order

The Tribunal hereby orders as follows:

1. That the Request for Review is denied except as follows.

2. That paragraph 3 of the Tribunal Order dated November 8, 2010 be amended to delete “the Municipality shall appoint the Engineer, Mr. Raymond Dobbin," and be replaced with “the Municipality shall appoint a new Engineer”…

The last line of paragraph 3 shall read: “The process following the appointment of the new engineer shall be in accordance with the Act”.

3. The Tribunal Order dated December 16, 2010 which placed a “stay” on point #3 of the Tribunal’s decision order dated November 8, 2010 pending a decision arising from a review, is hereby rescinded.

Dated at Gravenhurst, Ontario, this 17th day of February, 2011