Agriculture, Food and Rural Affairs Appeal Tribunal

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

APPEAL: Szeder Drain, Township of Chapple NEUTRAL CITATION: 2013 ONAFRAAT 11 STATUTE: Drainage Act HEARING: August 28, 2013 DATE OF DECISION: August 30, 2013

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 Stefan Szeder of Emo, Ontario under Section 48(1)(d) of the Drainage Act from the Engineer’s Section 40 Report with respect to the Szeder Drain in the Township of Chapple.

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 purposes of determining: a) the location of hearing; b) the estimated duration of the hearing; c) dates for the hearing; d) identification of facts or evidence that may be agreed upon; e) issues related to disclosure and the exchange of information; and f) any other matters which may assist in the just and most expeditious disposition the appeal.

Before: John O’Kane, Vice-Chair; Enio Sullo, Vice-Chair; Tim Mousseau, Member

Appearances via conference call: Stefan Szeder – appellant Paul Courey – counsel for appellant Valerie M’Garry – counsel for the Municipality John Kuntze, K. Smart Associates Limited - Engineer who prepared the Report Peggy Johnson – Clerk for the Township of Chapple

DECISION OF THE TRIBUNAL

This pre-hearing conference was held by conference call on August 28th, 2013.

Nature of the Appeal

The appeal before the Tribunal is under subsection 48(1)(d) of the Drainage Act (the Act) by Mr. Stefan Szeder who appeals from the report of the Engineer made under section 40 of the Act. That section 40 report concluded that the drain, petitioned by Stefan Szeder, his father and the municipality, could not be constructed.

The Parties and Participants

Therefore, the parties to this appeal are the municipality and Stefan Szeder. Unlike an appeal under section 48(1)(a) related to the benefits of the drain or an appeal under section 48(1)(b) that the design of a drain should be modified or an appeal under section 54 related to assessments made by the engineer, there are no other landowners directly affected by the section 40 report and, therefore, the typical Tribunal procedural order making all assessed landowners parties to the appeal has not, and will not be made in the context of this appeal.

In the event that either party believes that some other person should be a party to this appeal, that party should make the appropriate motion to the Tribunal, on notice to the proposed party and the current parties.

In the event that any person believes that they should be made a party to this appeal, that person should make the appropriate motion to the Tribunal, on notice to all parties.

In the event that any person wishes to be a participant in the appeal hearing, without becoming a party to the appeal, that person should notify the parties and the Tribunal office of the nature of their interest in the appeal and the nature of their proposed participation in the appeal hearing.

Agreed Statement of Facts

Mr. Courey, for the appellant, and Ms. M’Garry, for the respondent, agreed that some of the evidence on this appeal can be efficiently tendered by way of an agreed statement of fact. The Tribunal endorses that approach and encourages counsel for the parties to continue to develop such an agreed statement of fact in respect of all non-contentious evidence.

The Appeal Hearing

Mr. Szeder proposed that the hearing be held in Guelph while the municipality proposed that the hearing be held in the Township of Chapple.

The parties argued balance of convenience and access to justice as considerations for the appropriate hearing venue.

Ms. M’Garry directed the Tribunal to two decisions of Justice Borins in Chippewas of Sarnia Band v. Canada and Laurin v. Favot for the proposition that the hearing should be held in the Township of Chapple, the jurisdiction where the property is located. Justice Borins’ analysis in both cases was based on the Rules of Civil Procedure and turned on a balance of convenience analysis that, in those cases, favoured the jurisdiction where the property in issue was located.

In proceedings under the Act, convention may favour holding a hearing in the municipality where the property is situated; however, that convention has not become an absolute rule.

In fact, section 98(4) of the Act gives the Tribunal jurisdiction to hold its hearings in any place in Ontario and in more than one place at the same time.

The access to justice issue in these circumstances clearly favours Mr. Szeder’s choice of venue since he is a party to the appeal. The access to justice considerations raised by the municipality do not relate to any party, but to possible participants. In the event there are any landowners in the municipality who are interested in becoming participants, the Tribunal will have alternate mechanisms to provide such possible participants with a means to participate.

The balance of convenience considerations also favours Mr. Szeder’s choice of venue. His counsel, the municipality`s counsel, the engineer, representatives of the Ministry of Agriculture and Food and the Ministry of Rural Affairs who may be called as witnesses , are all located in southern Ontario. While not a significant consideration, all members of this panel are resident in southern Ontario. Of all those involved in this appeal there is just Mr. Szeder and the municipal clerk located in the Township of Chapple. From a cost perspective, in these particular circumstances, it makes more practical sense that two people from northern Ontario travel to southern Ontario for the hearing, rather than more than six people travel to northern Ontario for the hearing.

Therefore, the Tribunal grants Mr. Szeder’s request that the hearing take place in Guelph.

The parties agreed that five hearings days would be required and the parties and counsel are all available for five days the week of November 25th, 2013.

Examinations for Discovery

The Tribunal also granted Mr. Szeder’s request for an order for examination for discovery.

Therefore, Mr. Szeder will have an opportunity to examine the municipality for discovery and the municipality will have an opportunity to examine Mr. Szeder for discovery.

Mr. Courey advised that some of the evidence needed to make his client’s case resided with one or more agencies or ministries that have had some peripheral involvement and that he wished the Tribunal to make an order today making those entities parties to facilitate his client obtaining the necessary evidence. The Tribunal suggested to Mr. Courey that should he wish to add parties, he do so by the appropriate motion, on notice to those proposed parties.

As an alternative to Mr. Courey`s request, the Tribunal granted leave to the parties to conduct examinations of witnesses in advance of the appeal hearing pursuant to Tribunal Rule 26.02 (e). The Tribunal directed Mr. Courey and Ms. M’Garry to prepare the appropriate summonses and the Tribunal will issue those summonses to facilitate Mr. Courey and Ms. M’Garry participating in such examinations of witnesses before the appeal hearing.

Order of the Tribunal

1. The parties to this appeal are Stefan Szeder and the Township of Chapple.

2. The appeal hearing in this matter is set for five consecutive hearing days commencing November 25th, 2013 to be held in Guelph, Ontario at the Tribunal’s hearing room at 1 Stone Road.

3. In respect of the appellant’s request for discovery under Tribunal Rule 26:

a. The parties may conduct examinations for discovery of each other.

b. The parties are hereby granted leave to conduct examinations of witnesses before the commencement of the hearing, under Rule 39.02 of the Rules of Civil Procedure.

c. The parties are at liberty to request the appropriate summonses to secure the attendance of witnesses to be examined pursuant to Tribunal Rule 26.02(e).

d. Both parties are entitled to notice of and participation in any examination of witnesses pursuant to Tribunal Rule 26.02(e).

4. The current Tribunal panel will remain seized of this matter.

Dated at Brampton, Ontario this 30th day of August, 2013.