Whispering Pines Municipal Drain (Re), 2012 ONAFRAAT 28

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: AFRAAT@ontario.ca

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Whispering Pines Municipal Drain Norfolk County

Whispering Pines Municipal Drain (RE) 2012 ONAFRAAT 28

STATUTE:

Drainage Act

HEARING:

DATE OF DECISION:

September 14, 2012

2012-28

NEUTRAL CITATION:

2012 ONAFRAAT 28

Whispering Pines Municipal Drain Norfolk County

IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: An application to the Agriculture, Food and Rural Affairs Appeal Tribunal by Norfolk County under Section 58(4) of the Drainage Act to correct errors in the engineer’s report for the Whispering Pines Municipal Drain in Norfolk County.

Before:

John O’Kane, Vice-Chair; Enio Sullo, Vice-Chair

DECISION OF THE TRIBUNAL

Norfolk County (the Municipality) applied to the Agriculture, Food and Rural Affairs Appeal Tribunal for an order under Section 58(4) of the Drainage Act (the Act) to amend By-Law No. 2011-72 to correct the Whispering Pines Municipal Drain report.

This application was considered by way of a written hearing. Although given notice, no party, other than the Municipality, made submissions to the Tribunal on the application.

Background

The Whispering Pines Municipal Drain report (the Report) was prepared by G. Douglas Vallee Limited (the Engineer), dated April 26, 2011. The provisional by-law was passed by the Municipality on May 24, 2011.

Statutory Context for the Application

Section 58(4) of the Act provides:

Where error in report

(4) If, at any time after the by-law is passed and before any assessments are levied, a gross error in the report is found, the council of the initiating municipality may on notice to all persons assessed apply to the Tribunal to correct the error. R.S.O. 1990, c. D.17, s. 58 (4); 2006, c. 19, Sched. A, s. 6 (1).

The Issue

The issue before the Tribunal is, should the Tribunal correct the Report?

The Evidence

By way of a letter dated July 27, 2012, the Municipality identified the following gross errors in the Report:

“Drainage Report

1. Page 12 – Missing Engineer’s signature

2. Page 12 – Missing Engineer’s seal, signature and date

Final Drawing – Drawing 01-Project No. 10-003

1. Stamp area that reads “PRELIMINARY not to be used for construction” shall be removed

2. Engineer’s seal shall be placed in the stamp area and include signature and date”

In addition to the July 27, 2012 letter, the Municipality provided the following documents, in support of the application:

1. Engineer’s Report dated April 26, 2011, containing gross errors noted above;

2. By-law 2011-72 pertaining to the Report;

3. Letter sent by the Municipality to the Engineer dated June 4, 2012 that the Report as adopted by Council was not signed or sealed;

4. Response letter from the Engineer to the Municipality dated June 18, 2012 requesting that an application be made to the Tribunal under Section 58(4) of the Act;

5. Administrative report to Council dated July 3, 2012 recommending that Council make application to the Tribunal under Section 58(4) of the Act;

6. Council Resolution 26 dated July 3, 2012 approving the administrative report of the same date;

7. Letter from the Municipality dated August 3, 2012 confirming that no assessments have been levied; and,

8. List of assessed landowners that were provided a copy of the application to the Tribunal.

Analysis and Findings

The Report submitted by the Engineer was not signed and it did not carry the Engineer’s seal. The plan and profile drawing appended to the Report was also not signed nor sealed by the Engineer. In addition, the plan and profile drawing was clearly marked “Preliminary not to be used for construction”.

In these circumstances, the Tribunal has no jurisdiction to correct any of the “errors” because, in our view, the Report is not a “report” under the Act. Since there is no “report” under the Act, the Tribunal has no jurisdiction under section 58(4), including no jurisdiction to create a “report” where one does not exist.

The Municipality’s application, in effect, asks that the Tribunal create a report under the Act. While the Tribunal understands the factors motivating the Municipality’s application, as explained in these reasons, it is without the jurisdiction to grant the application.

Under the Act, a report is defined in section 1 to mean an “engineer’s report containing the information specified in section 8.” “Engineer” is also defined in section 1 to mean “an engineer registered under the Professional Engineer’s Act or a surveyor registered under the Surveyor’s Act, or a partnership, association or corporation holding a certificate of authorization” under either of those two statutes.

The responsibilities of the “engineer” under the Act are assigned to two specific professionals; the professional engineer or the professional surveyor. As a result, that engages consideration of the professional responsibility requirements of those two self-governing professions. Both professions are governed by legislative regimes that prescribe specific requirements for reports and plans and surveys. In our view, the legislature’s definition of engineer in the Act incorporates by reference those prescribed requirements for reports, plans and surveys, into the Act.

Reports must be signed by the professional and embossed with the professional’s seal or contain a prescribed certification.

Section 53 of Ontario Regulation 941, made under the Professional Engineer’s Act provides that:

Every holder of a licence, . . . who provides to the public a service that is within the practice of professional engineering shall sign, date and affix the holder’s seal to every final drawing, plan, report or other document prepared . . .” (Emphasis added)

Similarly, section 4 of Ontario Regulation 216/10, made under the Surveyor’s Act, requires a surveyor’s report to contain a declaration that “shall be signed and dated by the licensed member”.

Those regulatory provisions governing professional engineers and professional surveyors require a level of formality that includes the professional’s signature and seal in the case of an engineer, and a signature and certification in the case of a surveyor. That same level of formality is incorporated into the Act in respect of the requirements for a report. Without those formal requirements, there is no “report” under the Act.

ORDER OF THE TRIBUNAL

The application by the Municipality to amend By-Law No. 2011-72 to provide for corrections to the Whispering Pines Municipal Drain report is denied.

Dated at Brampton, Ontario this 14th day of September, 2012.