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 – Pre-Hearing Conference Municipality of Central Elgin
Marr Municipal Drain 2011 (RE) PHC 2012 ONAFRAAT 27
STATUTE:
Drainage Act
HEARING:
September 5, 2012
September 10, 2012
2012-27
NEUTRAL CITATION:
2012 ONAFRAAT 27
MARR MUNICIPAL DRAIN 2011 IMPROVEMENT
Municipality of Central Elgin
Pre-Hearing Conference Decision
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.
AND IN THE MATTER OF: A Pre-hearing Conference pursuant to Rule 24 of the Tribunal’s Rules of Procedure, to be held for the purpose of:
a) Considering a request by the Municipality of Central Elgin to have the report of the Engineer referred back to the Engineer for reconsideration; and
b) any other matters which may assist in the just and most expeditious disposition of the appeal.
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 Municipality
Geoff Brooks - Manager of Transportation and Drainage for Municipality
Dianne Wilson - Deputy Clerk
DECISION OF THE TRIBUNAL
This pre-hearing conference was held by conference call on September 5, 2012.
Background
The Engineer’s Report titled Marr Municipal Drain 2011 Improvement dated September 8, 2011 (the Report), was prepared by R.J. Burnside & Associates Ltd. and signed by J.R. (Jeff) Dickson, P.Eng (the Engineer). The Report was initiated pursuant to Section 78 of the Drainage Act (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.
The Tribunal conducted a hearing on the appeal by Shawn Parkins on June 27, 2012 and rendered an oral order setting the Report aside. Following the hearing, the Municipality made a written submission to the Tribunal casting doubt on some of the key evidence presented by the Engineer and the Municipality at the hearing. Considering the Municipality’s post hearing submission, the Tribunal issued the following written order on July 25, 2012:
“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.”
By way of a letter dated August 27, 2012, signed by Mr. Lloyd J. Perrin, Director of Physical Services, the Municipality made a request to the Tribunal to allow Council to refer the Report back to the Engineer for reconsideration.
Issue
Should the report of the Engineer be referred back to the Engineer for reconsideration as requested by the Municipality?
Evidence
Referring to his letter dated August 27, 2012, Mr. Perrin stated that Council for the Municipality is requesting the Tribunal’s permission to allow the Report to be referred back to the Engineer for reconsideration under Section 57 of the Act, rather than have it set aside. He said that at the hearing of June 27, 2012, the Tribunal had noted that “the engineer did not comply with the Act in researching the ownership of lands and affected areas”; and, “the Engineer relied solely on the Municipality’s information with respect to the land use instead of making his own determination…” Mr. Perrin explained that Council would like to ensure that the Report is complete with the required overall drainage plan for the works, which was identified as missing from the Report by the Tribunal at the hearing of June 27, 2012.
The Appellant, Mr. Shawn Parkins, stated that he had no objections to having the Report being referred back to the Engineer for reconsideration.
Findings
The Tribunal finds that the request by the Municipality to refer the Report back to the Engineer for reconsideration is reasonable under the circumstances. Since the Appellant consented to have the Report referred back to the Engineer, the Tribunal will dismiss his appeal and will not proceed with a further hearing as ordered in the written decision of July 25, 2012.
ORDER OF THE TRIBUNAL
The Tribunal orders as follows:
The Municipality of Central Elgin shall refer the Report back to the Engineer for reconsideration pursuant to Section 57 of the Act.
The appeal by Mr. Shawn Parkins is dismissed.
The costs of this hearing as well as the June 27, 2012 hearing shall not be borne by the assessed landowners.
Dated at Maidstone, Ontario this 10^th^ day of September, 2012.