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

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Marr Municipal Drain 2011 Improvement Municipality of Central Elgin

Marr Municipal Drain (RE) 2012 ONAFRAAT 19

STATUTE: Drainage Act

HEARING: June 27, 2012

DATE OF DECISION: July 25, 2012

2012-19

NEUTRAL CITATION: 2012 ONAFRAAT 19

MARR MUNICIPAL DRAIN 2011 IMPROVEMENT

Municipality of Central Elgin

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 Shawn Parkins, of Port Stanley, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Marr Municipal Drain 2011 Improvement in the Municipality of Central Elgin.

Before: Kirk Walstedt, Chair; Enio Sullo, Vice-Chair; Sharon Weitzel, Member

Appearances:

Shawn Parkins – Appellant

J.R. (Jeff) Dickson, R.J. Burnside & Associates Ltd. – Engineer who prepared the Report

Lloyd Perrin – Director Physical Services for the Municipality

Geoff Brooks – Manager of Transportation and Drainage for the Municipality

DECISION OF THE TRIBUNAL

This hearing was held in the Council Chambers, Municipality of Central Elgin, (the Municipality) in St. Thomas, Ontario on June 27, 2012. Shawn Parkins appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54(1) of the Drainage Act (the Act) from a decision of the Court of Revision held on November 28, 2011 on the Engineer’s Report titled Marr Municipal Drain 2011 Improvement dated September 8, 2011 (the Report), prepared by R.J. Burnside & Associates Ltd. and signed by J.R. (Jeff) Dickson, P.Eng (the Engineer).

Dianne Wilson, Deputy Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

Background

The Report was prepared pursuant to Section 78 of the Act in response to a request for improvements to the drain by Shawn Parkins, owner of 297 Carlow Road, in the Village of Port Stanley. The work proposed by the Report consists primarily of erosion mitigation measures on the open drain located on the Parkins property near the outlet of the Marr Municipal Drain (the Drain) into Kettle Creek. According to the Report, the watershed for the Drain comprises approximately 125 hectares of lands and roads within the Village of Port Stanley and the Township of Southwold. The Engineer’s estimated cost of the project is $63,500.

Preliminary Matters

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to this hearing. The Clerk of the Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with a notice of hearing dated April 17, 2012.

At the start of the hearing, Mr. Dickson stated that there were a number of corrections that he wanted to make to the Report, which he said included some typographical errors in the text of the Report plus a number of edits to the Schedules of Assessment. He said that the edits to the Schedules of Assessment involved changes in ownership of certain lands as well as some changes in agricultural designations. Mr. Dickson explained that the errors were discovered after he delivered his Report to the Municipality on September 9, 2011, and that the corrected Report and Schedules of Assessment were distributed to the landowners prior to the consideration of the Report by the Municipal Council. Accordingly, he said that Council adopted the corrected version of the Report. However, he noted that the Report provided to the Tribunal did not have the revisions. Mr. Dickson assured the Tribunal that the corrections to the Schedule of Assessment had no impact on his assessment logic and did not result in any assessment changes to anyone.

Mr. Dickson submitted a series of 7 corrected pages to his Report, comprised of pages 15 and 16, of Schedules of Assessment C1, C2, C3, D1, D2 and D4, which were entered into evidence as Exhibit 2. In response to questions from the Tribunal, Mr. Dickson pointed to the following corrections contained in Exhibit 2:

• the municipal address for the Appellant’s (Parkins) property corrected from 293 Callow Road to 297 Callow Road throughout the Report;
• a reference to the year 2001 on page 6 of the Report corrected to 2011;
• in Schedule C1, the property description for S.R. Parkins & W.E. Wilson expanded with “Pt. 13 & 14 RP117, 293 Carlow Road”;
• in Schedule C1 the affected area for the Parkins property corrected from 0.5 hectares to 0.81 hectares;
• in Schedule C2, two properties (Goodhue and Chestnut Grove Farms) have been combined;
• in Schedule C2, several property ownership changes made;
• a number changes to agricultural designations made throughout the schedules;
• one property that was in the Township of Southwold moved to the Village of Port Stanley; and,
• the total affected areas for the Township of Southwold and Village of Port Stanley adjusted to account for the corrections noted above.

Challenged by the Tribunal, Mr. Dickson stood by his statement that the corrections had no impact on his assessment logic and did not cause any changes to the assessments, despite that in the case of the Parkins property, the affected area increased from 0.50 to 0.81 hectares. Mr. Dickson said that he “worked the number so the assessments would not change”.

Responding to further questions from the Tribunal, Mr. Dickson acknowledged that he did not include a drawing or map with his Report that showed the overall drainage boundary, roads, properties, the names of the assessed parties and other pertinent information. He also acknowledged that he did not carry out his own research into changes in the watershed such as the drainage boundary, affected land areas, changes in ownership, property amalgamations and other relevant information required to complete the schedules of assessment. Instead, he said that he relied on the previous engineer’s reports for both this information and the assessments.

Mr. Perrin remarked that Mr. Dickson’s statements that the revised version of the Report was distributed to the landowners and was then adopted by Council, were incorrect. In fact, he said that only the revisions to pages 15 and 16 were made and that none of the corrections to the Schedules of Assessment (C and D) were made. Therefore, he said that the original Schedules of Assessment (without the corrections), as provided to the Tribunal, were the ones distributed to the landowners and adopted by Council.

In view of Mr. Perrin’s statements, and responding to questions from the Tribunal, Mr. Dickson agreed that his proposed corrections to the Schedules of Assessment may not have been previously circulated to the landowners and may not have been adopted by the Municipal Council.

Mr. Parkins interjected that the copy of the drainage Report that he received did not contain a section on future maintenance and that the section on maintenance as it appears in the current version of the Report, was added later. Responding to questions from the Tribunal, Mr. Parkins stated that he received two different versions of the Report. Mr. Perrin clarified that an advance copy of the Report was indeed distributed directly to Mr. Parkins who was an employee of the Municipality and that the advance copy was distributed only to Mr. Parkins and not to any of the other landowners.

Oral Order of the Tribunal With Reasons

Following a break in the hearing to consider the evidence, the Tribunal rendered the following oral decision:

“We are setting the Report aside. The reasons are as follows and will be set out in detail in our written decision:

1. The Engineer did not comply with the Act in researching the ownership of the lands and the affected areas;

2. The Engineer relied solely on the Municipality’s information with respect to the land use instead of making his own determination;

3. The preliminary Report was distributed to Mr. Parkins bringing into question the independence of the Engineer under Section 11 of the Act;

4. Following the submission of the Report to the Municipality, the Engineer submitted amendments. There is no provision in the Act for such an action; and,

5. The Tribunal does not accept the Engineer’s explanation that his proposed changes to the affected areas do not affect the final assessments.

Since both the Engineer and the Municipality failed to comply with the provisions of the Act on these issues, the Tribunal orders that the costs to submit a new report and the costs associated with this hearing shall not be borne by the assessed landowners.”

In view of the verbal decision to set the Report aside, the hearing was brought to a close without hearing the appeal by Shawn Parkins.

Post-Hearing Submission

The Tribunal received a letter from Mr. Perrin dated June 27, 2012, on the same day as the hearing, after the hearing had concluded. The letter is appended hereto as Schedule 1. Among other things, Mr. Perrin’s letter states that:

“…the information that was provided to the panel by the Municipality as Exhibit 2 was incorrect and therefore was unnecessary. In fact, the report… had the correct property ownership referenced in the Report with the correct land areas for the properties assessed. We can also confirm that this same report was mailed to all assessed properties…Finally, I would confirm that the Provisional bylaw references the assessed landowners that were identified in the Report…”

Findings on Post-Hearing Submission

The Tribunal has reviewed Mr. Perrin’s complete post-hearing submission and has concluded that the new information contained therein could affect the appropriateness of the oral order issued at the hearing on June 27, 2012. Therefore, the Tribunal will, on its own motion, be reviewing its oral order of June 27, 2012.

ORDER OF THE TRIBUNAL

The Tribunal orders that a hearing be convened to hear arguments and evidence on Mr. Perrin’s post-hearing submission and its effect on the Tribunal’s oral order of June 27, 2012. The appeal by Shawn Parkins will follow the same day, if appropriate considering the arguments and evidence regarding Mr. Perrin’s post-hearing submission and its impact on the oral order.

Dated at Maidstone, Ontario this 25^th day of July, 2012.