Howe Drain 2014 (Re), 2015 ONAFRAAT 16

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

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

APPEAL: Howe Drain 2014 - Motion for Party Status (RE) Township of Zorra

Howe Drain 2014 (RE) 2015ONAFRAAT16

STATUTE: Drainage Act

HEARING:

DATE OF DECISION: August 7, 2015

2015-16

NEUTRAL CITATION: 2015 ONAFRAAT 16

MOTION FOR PARTY STATUS

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 Howe Farms (Ontario) Ltd. (Gordon Howe), in Embro, Ontario, under Section 45(2) of the Drainage Act from a decision of Council to not adopt the Engineer’s Report on the Howe Drain 2014 in the Township of Zorra.

AND IN THE MATTER OF: The hearing of a motion by the Upper Thames River Conservation Authority pursuant to Rule 25 of the Tribunal’s Rules of Procedure seeking to be added as a party to the appeal.

Before: John O’Kane, Vice-Chair; Ed Dries, Member; Brenda Lammens, Member

Appearances:

Timothy Price, Counsel for Upper Thames River Conservation Authority

Peter Pickfield, Counsel for Township of Zorra

Valerie M’Garry, Counsel for Appellant

Gordon Howe, Representing appellant

DECISION OF THE TRIBUNAL

The Tribunal has no jurisdiction in these circumstances to consider the appeal of Howe Farms (Ontario) Ltd. (“Howe”) under section 45(2) of the Drainage Act.

The Engineer’s Report was considered by Township Council on June 2^nd, 2015 and by Resolution #03-06-15, Council referred the Report back to the Engineer.

Such a referral is contemplated under section 57 of the Drainage Act, but the Act does not give an appeal right to the Tribunal where a Report is referred back to the Engineer.

The materials filed by Howe raised what is essentially a challenge of the validity of the Township Council referral resolution made on June 2^nd, 2015.

Under section 106(1)(b) of the Act, the Drainage Referee has exclusive jurisdiction to determine the validity of, or to confirm, set aside or amend any resolution of a council relating to drainage works under the Act.

Therefore, in these circumstances, pursuant to section 119 of the Act, the Tribunal transfers the issue raised by Howe regarding the validity of the Township Council’s June 2^nd, 2015 resolution #03-06-15 to the Drainage Referee.

The Tribunal also directs that Howe file a fresh appeal document before the Drainage Referee articulating its challenge of the Resolution.

As a result of the Tribunal’s jurisdictional ruling, the motion made by the Upper Thames River Conservation Authority for party status in the appeal before the Tribunal is academic. Upon receiving the Howe fresh notice of appeal to the Referee, the Conservation Authority will have its opportunity to seek party status before the Referee, if it considers it appropriate.

ORDER OF THE TRIBUNAL

The Howe Farms (Ontario) Ltd. challenge of the validity of the June 2^nd, 2015 Resolution #03-06-15, made by the Council of the Township of Zorra is hereby transferred to the Drainage Referee.

Dated at Brampton, Ontario this 7^th day of August, 2015