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 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
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:
Pike Creek Drain (RE) - Sood Property Request for Review Town of Lakeshore
Pike Creek Drain (RE) Request for Review 2014 ONAFRAAT 3
STATUTE:
Drainage Act
HEARING:
January 16, 2014
2014-03
NEUTRAL CITATION:
2014 ONAFRAAT 3
PIKE CREEK DRAIN (SOOD PROPERTY) 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 Survashi Sood of Maidstone, Ontario under Sections 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 Pike Creek Drain (Sood Property) in the Town of Lakeshore.
AND IN THE MATTER OF: A request for review by the Town of Lakeshore Middlesex of the decision of the Tribunal dated September 30, 2013 under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure for the Tribunal.
Before: John O’Kane, Vice-Chair
DECISION OF THE TRIBUNAL
Background to the Review Request
The Town of Lakeshore (the “Town”) seeks a review of the Tribunal’s decision dated September 30th, 2013 under Rule 29 of the Tribunal’s Rules of Procedure.
While the Rules provide that a request for such a review must be made within thirty calendar days of the date of the decision, the Town’s request was made to the Tribunal substantially after thirty days1. However, Rule 29.11 gives the Tribunal discretionary jurisdiction in some circumstances to consider a late request. In the circumstances of this case, the Chair of the Tribunal considered the Town’s late request and exercised his discretion to grant an extension of time to file the request for review and assigned the review request to me. Therefore, the request for review is properly before me.
Requests for Review Under The Tribunal’s Rules of Procedure
Pursuant to section 25.1 of the Statutory Powers Procedure Act (“SPPA”), the Tribunal established Rules of Procedure including Rule 29 “Review of A Decision”.
Tribunal decisions are final and subject only to statutory appeal rights and judicial review by the law courts.
Therefore, the Tribunal’s Rules permitting requests for review are an exceptional process and my considering a request for review must balance the principle of finality with other principles such as procedural fairness and prejudice.
Sub-rule 29.09 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.
My role is to evaluate the request for review, not to conduct the review. The question I must answer is not whether the decision is wrong or even probably wrong but rather, whether I am convinced, on a balance of probabilities, that the decision is possibly wrong and therefore merits a fuller review. If, based on these listed evaluation criteria, I was satisfied that a review was advisable, I have the power to grant the request for review, in whole or in part, with or without conditions and directions.2 If I were to grant a review, the procedure for such a review is set out in Rules 29.24 to 29.26 and the Chair would appoint a panel to hear the review.
The Pike Creek Drain
The Pike Creek Drain is an open channel approximately 13,900 metres long draining 3,480 hectares (8,600 acres) into Lake St. Clair. On January 30th, 2012, the Soods, whose property backs onto the Pike Creek Drain, made a request to the Town to repair the failing Creek bank.
On January 31, 2012, the Town accepted the Sood’s request and appointed Dillon Consulting Limited to prepare a drainage report under section 78 of the Drainage Act (the “Act”). The ultimate report (the Engineer’s Report) was dated September 25th, 2012 and signed by Tom Marentette, P.Eng.
Section 78 of the Act authorizes a municipality that is responsible for a municipal drain to undertake a project for, among other things, reconstructing embankments or other protective works in conjunction with a municipal drain. The project must be completed in accordance with a report prepared by an engineer appointed by the municipality. The provisions of the Act with respect to petition drains and appeals apply to maintenance and repair work under section 78.
Survashi Sood appealed to the Tribunal under Sections 48(1) and 54(1) of the Act and the Tribunal heard those appeals on July 9th, 2013.
Mrs. Sood appealed under section 54 from the Court of Revision that had confirmed the assessments made in the Engineer’s Report (who pays for what). Mrs. Sood asserted that her property was being assessed for too much of the costs of the proposed works.
Mrs. Sood appealed under section 48 asserting that:
- the benefits to be derived from the proposed works were not commensurate with the estimated costs;
- the proposed works should be modified; and,
- the compensation or allowances proposed in the Engineer’s Report were inadequate or excessive.
The Tribunal granted the appeals and set aside the Engineer’s Report.
Issues Raised by the Town
The Town’s review request cites eight reasons in support of a review. What follows is my summary of the essence of those eight grounds:
The Town cites the lack of any reference to section 48 and section 54 of the Act in the Tribunal’s reasons.
The Tribunal exceeded its jurisdiction by setting aside the engineer’s report.
The Tribunal erred in considering the Town’s compliance with the notice requirement in section 78(2) of the Act as part of its decision. In addition, the Tribunal made a factual error in determining when the process commenced under section 78.
The Tribunal erred in making the finding that the engineer had a cavalier attitude toward the provisions of the Act.
The Tribunal erred in concluding that it is the Engineer’s responsibility to determine the source of a drainage problem and provide a design to take water to a sufficient outlet where it will do no further damage in the future.
The Tribunal erred in finding that all aspects of the final design of a retaining wall should be included as part of an Engineer’s Report.
The shortcomings the Tribunal found in the Engineer’s Report were minor in nature and did not warrant the Tribunal setting aside the Engineer’s Report.
Mrs. Sood altered the drain bank without appropriate permissions from either the Town or the conservation authority.
Discussion
In my view, the Town’s focus in these listed grounds is on sub-rule 29.09 (b) that the Tribunal made material errors of law or fact and, if the Tribunal had not made such errors, it would likely have reached a different decision.
The other review criteria listed in Rule 29.09 do not feature significantly, if at all, in the Town’s request for review.
I propose to deal with the listed grounds grouped as errors of law and errors of fact.
Errors of Law:
The Act does not require that the Tribunal make any specific reference to the appeal sections (sections 48 and 54 in this case) in its reasons for decision. The Town provided no legislative or jurisprudential authority in support of its assertion that the Tribunal’s failure to mention the appeal sections amounts to some error of law.
Therefore, the Town has not satisfied me that the Tribunal made an error of law in these circumstances. (Town’s ground 1.)
The Act does give jurisdiction to the Referee in some circumstances and to the Tribunal in other circumstances. Additionally, in some circumstances the Referee exercises appellate jurisdiction over the Tribunal. However, it is apparent from reading sections 106(2) and section 101 of the Act that in the case of an appeal under either sections 48 or 54, as was the case here, the Referee exercises no jurisdiction and the decision of the Tribunal is final. The Tribunal’s powers in such an appeal are set out in section 51 as follows.
On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, may make any such order and direct such things to be done as are authorized by this Act and as it considers proper to carry out the purposes of this Act.
That statutory language expresses that the Tribunal exercises a broad jurisdiction in appeals under section 48 and 54. If an Engineer’s Report prepared under the Act contained errors, the appointing municipality has the power to refer the report back to the engineer for correction (section 57). The language of section 51 defining the Tribunal’s powers would explicitly include that same power to address errors in an Engineer’s Report. Implicit in the power to refer a report back to the engineer is the power to set aside the report in appropriate circumstances. That reflects a practical reality that in circumstances where the Tribunal considers that the level of errors is so significant or so many, it might be appropriate to direct the engineer to go back to square one to start the report over.
In its findings, the Tribunal characterized the relief sought by Mrs. Sood as:
The Appellant is seeking to have the Report rejected and set aside ... based on the defects identified with the Report...
In its ultimate determination, the Tribunal found “deficiencies in the Report” that left the Tribunal “no alternative but to set aside the Report”.
Therefore, the Town has not satisfied me that the Tribunal had no jurisdiction to set aside the Engineer’s Report in these circumstances. (Town’s ground 2)
The Town asserted that the Tribunal’s focus on subsection 78(2) of the Act that prohibits the Town appointing an engineer until thirty days after giving the conservation authority notice of the proposed works was erroneous because that provision is procedural in nature.
In my view, the Tribunal correctly determined that the Act requires the Town to give the conservation authority notice of works proposed under section 78. Even if characterized as “procedural only” that notice is a statutory requirement. The Act does not give the Town, the Engineer or the Tribunal authority to waive that statutory requirement.
Therefore, the Town has not satisfied me that the Tribunal erred in law in that determination. (Town’s ground 3)
The Town asserted that the Tribunal erred in its determination on page 17 that it is the Engineer’s responsibility to determine the source of the problem and design a solution to take the water to a sufficient outlet because this was a repair and maintenance issue under section 78, rather than a petition drain under section 4.
Subsection 78(3) provides that:
The engineer has all the powers and shall perform all the duties of an engineer appointed with respect to the construction of a drainage works under this Act.
To me, that subsection makes it clear that even in a repair and maintenance situation, the Engineer has the power and the duty to determine the area to be drained and to design a way to take the water to a sufficient outlet. In my view, that translates to determining the source of the water that is causing the damage to the drain banks and designing a solution that protects the integrity of the drain.
Therefore, the Town has not satisfied me that the Tribunal erred in law in that determination. (Town’s ground 5)
The Town asserted that the Tribunal erred in its determination of page 17 that the landowner is entitled to know exactly what work is being proposed for the property to resolve the drainage problem.
That passage from page 17 of the decision was made in the context of the Tribunal accepting the evidence of Mrs. Sood’s witness about the Engineer’s Report and the Tribunal’s specific findings that the Engineer’s Report specifications were “unclear about the work to be completed” and that there were “insufficient details provided to complete the construction of the retaining wall.”
Subsections 8(1)(a)(b) are clear that the engineer must prepare plans, profiles, specifications and estimates of the proposed works. There is nothing in the Act that authorizes the engineer to do less than that. Additionally, from a procedural fairness perspective, any landowner who is subject to the process of the Act should know, in detail, what is going to happen on their land.
The Town has provided no authority, statutory or jurisprudential, in support of its assertion that the Engineer’s Report only need provide a “design basis” which can then be “customized” during the construction phase.
Therefore, the Town has not satisfied me that the Tribunal erred in law in that determination. (Town’s ground 6)
The Town asserted that in respect of the Tribunal’s identification at page 18 of the deficiencies or errors in the Engineer’s Report, that those matters were minor in nature and that taken individually or collectively, those matters did not justify setting aside the Engineer’s Report and that those issues could have been adequately addressed by some other means.
The Tribunal did not, as suggested declare the Engineer’s Report invalid. Rather, due to deficiencies and errors in the Report, the Tribunal set aside the Engineer’s Report.
The Town’s assertion suggests that there was an alternative remedy that the Tribunal could have granted, based on those findings. The Town is probably correct about there being alternative remedies available to the Tribunal. Section 51 of the Act supports a very broad discretion in the Tribunal to fashion a remedy “as it considers proper to carry out the purposes of this Act”. However, just because the Act confers broad remedial discretionary jurisdiction, that does not mean the Tribunal’s choice of remedy in these circumstances is wrong.
The Town has offered no authority in support of its assertion that a different remedy is more appropriate. It has offered no authority suggesting that the remedy granted by the Tribunal was an error in law or otherwise.
Therefore, the Town has not satisfied me that the Tribunal erred in law in that determination. (Town’s ground 7)
The Town asserted that the Tribunal’s “small mention” of Mrs. Sood’s attempts at remedial work on her property and the drain bank, without the appropriate approvals from either the Town or the conservation authority was some sort of “validation” of those actions.
The Tribunal devoted an entire paragraph of its decision on page 18 to this issue and, in my view, made a clear and correct finding about the extent of its jurisdiction in the context of the unauthorized work completed by the Soods. The Tribunal’s decision communicated clearly that it was not “validating” the Soods’ unauthorized attempts at remedial work.
Therefore, the Town has not satisfied me that the Tribunal erred in law in that determination. (Town’s ground 8)
Errors of Fact:
Review requests based on alleged errors of fact are, in my view, especially difficult. The Tribunal panel was present and heard the witnesses first hand and considered the documentary evidence in the context of that oral testimony.
I now come to the review exercise without the benefit of a transcript of the oral evidence and with only a paper record consisting of the hearing decision, the hearing exhibits, the written hearing arguments and the review request submissions. In these circumstances, I am much poorer equipped than the original panel to make determinations about the Tribunal’s findings of fact.
The Town asserted that the Tribunal erred in its determination that the section 78 process commenced with the Town receiving notice January 30th, 2012 and appointing the Engineer one day later on January 31st, 2012, rather than determining that the section 78 process commenced with notice given “in late 2011”.
As I review the paper record, I note that the first paragraph of the Engineer’s Report dated September 25th, 2012, reports that the “municipality received a request on the 30th January 2012 from Mr. Ashook Sood.... to repair the embankment of the Pike Creek Drain in the rear yard of the property. Council accepted the request under Section 78...and on the 31st January 2012 appointed Dillon Consulting Limited to prepare a report.”
As noted, I have no transcript of the oral evidence but on page 2 of the Town’s written “Closing Arguments” (which are not evidence), the following passage refers to the oral evidence of Ms. Fiorito: “the Conservation Authority indicated it was aware of the need for drainage works in December of 2011.”
That Engineer’s Report reference and that reference to Ms. Fiorito’s evidence suggest the Tribunal had evidence that was ambiguous if not somewhat contradictory about when the conservation authority knew that work was needed on the drain. However, when the conservation authority knew is not a requirement under the Act. Section 78(2) mandates a municipality not to appoint an engineer until thirty days after giving a conservation authority notice of proposed work. After hearing all the evidence, the Tribunal made the following finding of fact at page 16:
The Municipality does not dispute that the section 78 request was received on January 30, 2012 and that the engineer was appointed on January 31, 2012.
Based on that finding of fact, the Tribunal made the following observation on that issue at page 18:
The Tribunal notes that the Municipality failed to provide the required thirty (30) days notice to ERCA prior to the appointment of the Engineer, contrary to the provisions of section 78(2) of the Act.
In my view, there was evidence before the Tribunal that could result in those findings of fact. Therefore, the Town has not satisfied me that the Tribunal made an error of fact. (Town’s ground 3)
The Town asserted that there were no statements in evidence or findings to support the Tribunal’s characterization of the Engineer’s attitude toward the provisions of the Act as “cavalier”.
As I read that passage at page 18 of the decision, it appears to me that the Tribunal has listed in bullet form, deficiencies or errors in the Engineer’s performance of the statutory duties imposed under the Act. As I track through those bulleted points, I note that they relate to the Engineer’s obligations under section 8 (report requirements – plans, profiles and specifications of the drainage works), section 9 (on site meeting, determining area requiring drainage) section 8 (assessments assessed against every parcel of land and road allowance for benefit, outlet liability and injuring liability), section 11 (nature of engineer’s duties) and section 13 (nature of the engineer’s surveying duty). All of those statutory duties are incorporated, in the circumstances of this case, by subsection 78(3) of the Act. Therefore, it appears to me that the Tribunal did make findings that the Engineer’s Report in several instances deviated from the statutory duties. The Act does not give the Engineer the power to pick and choose from the statutory duties. That is the context for the Tribunal’s observation about the Engineer’s attitude.
In my view, there was evidence before the Tribunal which could support a finding of a cavalier attitude. In these circumstances, the Town has not satisfied me that the Tribunal’s observation about the Engineer’s attitude was an error in fact. (Town’s ground 4)
Findings
After considering the review materials filed by the parties, the paper record of hearing exhibits and the written hearing arguments, and the Tribunal decision dated September 30th, 2013, I am not convinced, on a balance of probabilities, that the decision is possibly wrong and therefore the decision does not merit a fuller review.
Tribunal Order
The Town’s request for review is hereby denied.
Dated at Brampton, Ontario, this 16th day of January, 2014