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 Email: AFRAAT@ontario.ca

Guelph ON N1G 4Y2 Tél. : 519 826-3433, Téléc. : 519 826-4232 Courriel : AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Fourth Concession Drain East and Cutoff Drains, Town of Lakeshore

Fourth Concession Drain East and Cutoff Drains, Town of Lakeshore (RE) 2015ONAFRAAT22

STATUTE:

Drainage Act

HEARING:

N/A

DATE OF DECISION:

October 19, 2015

2015-22

NEUTRAL CITATION:

2015ONAFRAAT22

FOURTH CONCESSION DRAIN EAST AND CUTOFF DRAINS

TOWN OF LAKESHORE

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 Gordon and Mary Lachine, St. Joachim, Ontario under Sections 48(1) and 54(1) of the Drainage Act from the Report of the Engineer and the decision of the Court of the Revision; by Charles and Theresa Martinu, and Rob and Jacqueline Pawlowski, St. Joachim, Ontario under Section 48(1) of the Drainage Act from the Report of the Engineer; and by Andrew and Sandra Pedden, St. Joachim, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Reconsidered Drainage Report for the Fourth Concession Drain East and Cutoff Drains (South, North & Outlet) in the Town of Lakeshore.

AND IN THE MATTER OF: A request for review by the Town of Lakeshore of the decision of the Tribunal dated February 18, 2015 under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure for the Tribunal.

Before: Paula Lombardi, Vice-Chair

DECISION OF THE TRIBUNAL

Background to the Review Request

The Town of Lakeshore (“Town”) seeks a review of the Tribunal’s decision dated February 18, 2015 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 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 Tribunal considered the Town’s late request and exercised its discretion to grant an extension of time to file the request for review.

The Town has requested a review of a decision made by the Tribunal on February 18,

2015 with respect to the June 4, 2014 Reconsidered Drainage Report for the Fourth Concession Drain East and Cutoff Drains (South, North and Outlet). This drainage report that is the subject of the request for review will be referred to as the “2014 Report.²”

The Tribunal’s decision was issued following a hearing that was held on January 19, 2015.

The appeals heard by the Tribunal panel were pursuant to sections 48(1) and 54(1) of the Drainage Act.

After reviewing at some length the evidence heard, the Tribunal found that the estimated cost of the proposed drainage project was not commensurate with the benefits to be derived from the drainage works and set aside the report. There were a number of ancillary matters covered by the Tribunal’s order, including that the cost of the report be borne by the Town.

Requests for Review Under The Tribunal’s Rules of Procedure

In accordance with section 25.1 of the Statutory Powers Procedure Act (“SPPA”), the Tribunal established its Rules of Procedure (“Rules”) including Rule 29 that applies to a “Review of a Decision”.

Tribunal decisions are final and subject only to statutory appeal rights and judicial review by the courts. The Town’s request for review of the Tribunal’s decision is governed by Rule 29.

Rule 29 that allows a request for review of a Tribunal decision represents an exceptional process and the consideration of a request for review must balance the principle of finality with other principles such as procedural fairness and prejudice.

The Town’s request for review satisfies the requirements of Rule 29.07. The appellants have been provided with a copy of the request for review and have been provided with an opportunity to respond. The Town replied to the appellants’ submissions. In this request for review, the Tribunal has considered all of this material.

This Tribunal has been tasked with deciding, pursuant to Rule 29.09, whether it is advisable to conduct a review of all or any part of a final decision or order (“Review Tribunal”). If the Review Tribunal concludes after reviewing all of the information and evidence that a review is warranted, there will be a new hearing of the appeals by a different panel of the Tribunal than heard the case in January 2015. If the answer is no, then that is the end of the matter and the February 18, 2015 Tribunal decision is final.

In deciding whether it is advisable to conduct a review, the Review Tribunal is to consider any relevant circumstances including those set out in Rule 29.09

Rule 29.09 states:

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.

Again, it is the Review Tribunal’s role to evaluate the request for review, not to conduct the review of the decision itself. The question that is before the Review Tribunal is not whether the decision is wrong or even probably wrong but rather, whether the Review Tribunal is convinced, on a balance of probabilities, that the decision is possibly wrong and therefore merits a fuller review. If, based on the consideration of the relevant circumstances, including but not limited to the circumstances set out in Rule 29.09, the Review Tribunal is satisfied that a review is advisable the Review Tribunal has the power to grant the request for review, in whole or in part, with or without conditions and directions.³

For the reasons set out in detail below, the Review Tribunal has decided that it is not advisable to conduct a review of the February 18, 2015 Tribunal decision. The errors of law would not have resulted in the Tribunal making a different decision and, in accordance with Rule 29.09(b); neither of the errors of law warrants a review of the decision.

The Fourth Concession Drain East and Cutoff Drains

The Fourth Concession Drain East is a 1.34 kilometre long open municipal drain that has existed along the west side of Essex County Road 31 prior to 1969. The Fourth Concession Drain appears to be on the road allowance. The drainage area is approximately sixty (60) hectare or one hundred and forty-eight (148) acres in size and includes parts of Lots 12 and 13 in Concessions 4 and 5, and part of Lot 14 in Concession 4, all situated in the geographic Township of Rochester, Town of Lakeshore. The Fourth

Concession Drain East flows northerly and outlets to the Baseline Municipal Drain, which is located just south of Essex County Road 42 (formerly King’s Highway 2) in the hamlet of St. Joachim.

The fundamental decision made by the original panel of the Tribunal is that the estimated cost of the drainage project proposed in the 2014 Report was not commensurate with the benefits to be derived. This conclusion is supported by the evidence.

A detailed summary of the evidence is found in the February 18, 2015 Tribunal decision. The salient elements of the evidence before the Tribunal are set out in more detail below.

The last report on the drain was prepared by C.G.R. Armstrong in 1969. It specified the improvement of the then existing open ditch for its entire length, and the installation of five (5) new access culverts on the west side of Essex County Road 31 where fourteen (14) severed residential lots were located. As the Tribunal noted in its decision of February 2015, the drain appears to be located on the road allowance.

In 1993, Todgham and Case were instructed to prepare a revised assessment schedule for the Armstrong report having regard for the increased number of severed lots abutting the road. The Todgham and Case report was completed under section 76 of the Drainage Act so no work was done on the drain at that time. The panel observed that:

The Todgham and Case Associates Report, in conjunction with the Armstrong Report of 1969, seem to provide everything that was necessary to maintain this drain for 15 years, especially specifications and maintenance assessment methods for the numerous access culverts.

In 2000 there was a report by Peralta Engineering under section 78 of the Drainage Act that permitted the closing of a portion of the drain in front of six (6) residential properties and the lowering of the access culvert at one of these properties. This drainage work was entirely at the cost of the residential property owners. The Peralta Engineering report provided that maintenance of crossings were to remain as found in the 1993 Todgham and Case Report.

The Tribunal panel hearing the evidence in January 2015 found that:

There was no evidence before this Tribunal involving complaints concerning the current condition of the drain – no drainage outlet problems, no flooding problems, no significant standing water problems, and no erosion problems.

The Tribunal’s decision reflected that the appellants, in their evidence, had identified minor issues about which they made no complaints. The panel heard evidence from the Drainage Superintendent and from Dennis McCready, P.Eng., the engineer, neither of whom described problems with the operation of drain. With maintenance work from time to time, the drain was working acceptably to those who relied upon it for drainage.

In July 2008, the owner of one (1) of the residential lots requested replacement of an access culvert. Rather than proceeding with the culvert replacement using the Armstrong Report as supplemented by the 1993 Todgham and Case Report, the Town appointed Dillon Consulting Limited to prepare a report under section 78 of the Drainage Act.

The engineering work completed by Dillon Consulting seemed to take on a life of its own and evolved into a Four Hundred Thousand Dollars ($400,000) reconfiguration project (as set out in the 2014 Report) for the drain constructed under the Armstrong Report in 1969. The 2014 Report also included specifications and cost assessments for culverts not being replaced as part of the proposed drainage works so they can be replaced at some point in time in the future as a maintenance project by the Drainage Superintendent, without having to retain an engineer.

The February 18, 2015 decision of the Tribunal describes at length the process leading to the adoption of the 2014 Report and the proposed drainage project contemplated by it. The request for a culvert replacement morphed into a significant and costly reconstruction project for a municipal drain which had operated without material problems or complaint for decades.

The Tribunal’s conclusion that there was little benefit to be derived from the proposed drainage works at great expense is supported by the evidence the panel heard in January 2015.

Issues Raised by the Town and Tribunal’s Response

The Town’s review request cites fourteen reasons in support of a review. The following is a summary of the Town’s grounds for a review and the Review Tribunal’s response to each ground:

1. The first ground raised by the Town is that there is a benefit to having design and assessment details for future culvert replacements and that the cost of the future culvert replacement will be less under the 2014 Report than under the Armstrong Report as supplemented by the 1993 Todgham and Case Report. This submission is not “significant new evidence which was not available at the time of the original appeal” to quote Rule 29.09(a). The information was available at the time of the January 2015 hearing. It may be that the point was not made to the Tribunal at the time of the hearing but it certainly could have been. The public interest in finality of decisions outweighs the benefit of allowing the Town to re-open its case and make submissions that were either not made to the Tribunal at the time of the hearing or,

if made, were not sufficiently persuasive to warrant comment in the Tribunal’s

decision of February 18^th.

2. The Town states that there is a benefit as rip-rap proposed in the 2014 Report is more economical than vertical walls as specified by the 1993 Todgham and Case Report. Again, this submission is not “significant new evidence which was not available at the time of the original appeal” as required by Rule 29.09(a). The information was available at the time of the January 2015 hearing. Again, the public interest in finality of decisions outweighs the benefit of allowing the Town to re-open its case and make submissions that were either not made to the Tribunal at the time of the hearing or, if made, were not sufficiently persuasive to warrant comment in the Tribunal’s decision of February 18^th.

3. The Town says that regard should be had to the interests of the non-appellant owners of properties assessed into the drain. The implication is that the residents who accepted the 2014 Report outweigh the interests of the appellants and that this should be respected by the Tribunal. However, the evidence before the Tribunal was that, with maintenance work from time to time, the drain was working acceptably to those who relied upon it for drainage. Based on that evidence, the Tribunal concluded that there was little benefit to be gained by reconfiguring the drain at an estimated cost in the order of $400,000. Just because the non-appellant land owners affected by the 2014 Report did not appeal nor appear before the Tribunal does not alter the Tribunal’s determination that they would be paying a considerable amount of money for very little benefit. Having made that determination, the Tribunal exercised its jurisdiction under subsection 51 of the Drainage Act to set aside the 2014 Report.

4. The Town submits that the twenty-three (23) other properties affected by the 2014 Report who choose not to appeal should be treated as being at least as persuasive as the evidence of the appellants. This submission is similar to item 3 above and the Review Tribunal’s comments are the same.

5. The Town submits that the hearing panel of the Tribunal, in its February 18, 2015 decision, did not undertake a substantial review of the benefits and that the panel relied upon anecdotal evidence of the appellants. The hearing panel had the evidence of the Drainage Superintendent and of Dennis McCready, P.Eng., the engineer from Dillon Consulting, in addition to the evidence of the appellants. As previously noted, neither of the Drainage Superintendent nor Mr. McCready gave evidence of any problems with the operation of the drain. With maintenance work from time to time, the drain was working acceptably to those who relied upon it for drainage, including the Municipality as the road authority.

The evidence before the Tribunal is that the Drainage Superintendent had worked up from a clerk in the municipality’s drainage department to Assistant Drainage Superintendent to Drainage Superintendent. The Drainage Superintendent was in a position to know if there were problems with the drain and no evidence was presented that there were any. Mr. McCready came to the project in its later stages. Mr. McCready was assigned by Dillon Consulting following the departure from Dillon Consulting of the engineer originally assigned. Mr. McCready’s public involvement was at the Court of Revision in August 2014. That said, Mr. McCready testified that he reviewed all of the previous reports and he would have had access to the file notes of his predecessor at Dillon Consulting. Mr. McCready gave no evidence of any problems with the operation of the drain. As for the Tribunal review of the benefits of the 2014 Report, that appears to be a reflection of the scarcity of evidence of the benefits of the project contemplated by the 2014 Report as compared to the status quo.

6. The Town made a submission about the engineering costs and explains how they are in line with the industry norm if the cost of the future replacement of fifteen (15) culverts were taken into account. This submission is not “significant new evidence which was not available at the time of the original appeal” as required be Rule 29.09(a). The information was available at the time of the January 2015 hearing. It may be that the point was not made to the Tribunal at the time but it could have been. According to Rule 29.09(e) the public interest in finality of decisions outweighs allowing the Town to re-open the case it could have made at the time of the hearing or, if made, was not sufficiently persuasive to warrant comment in the February 18^th decision. In any case, regardless, if there was a different finding of fact arising from this submission it would not likely have resulted in a different decision being made by the Tribunal than the fundamental decision that the estimated cost of the drainage project proposed in the 2014 Report was not commensurate with the benefits to be derived.

7. The Town submits that the hearing panel of the Tribunal preferred the anecdotal evidence of a discontented ratepayer to the expert engineering opinion evidence of Mr. McCready, the engineer. On the question of the cost of the proposed drainage project the panel accepted Mr. McCready’s estimate that the cost would be in the order of $400,000. On the question of the benefit of the proposed drainage project as compared to maintaining the status quo, as mentioned, the hearing panel had the evidence of the Drainage Superintendent and of Dennis McCready, P.Eng., in addition to the evidence of the appellants. Neither of the Drainage Superintendent nor Mr. McCready gave evidence of problems with the operation of existing drain. The evidence was that, with maintenance work from time to time, the existing municipal drain was working acceptably to those who relied upon it for drainage.

The February 18, 2015 Tribunal decision does not prefer lay person evidence to Mr. McCready’s in matters of engineering. The decision does not reject the engineering of the drainage project as proposed in the 2014 Report; the decision is that the costs of that proposed drainage project are not commensurate with the benefits to be derived. If there is any guidance to be taken from the decision with respect to the administration of the Drainage Act in Ontario is that it is important for municipalities and drainage engineers to balance, at an early stage in the process, the drainage purpose to be achieved and the costs of doing so; there must be proportionality between the drainage purpose and the cost.

8. The Town made a submission about ratepayer consent being required in connection with a drainage project under the section 78 of the Drainage Act. While there may be a legal error on this point in the February 18, 2015 decision of the Tribunal, the error is not such that it would have resulted in a different decision of the Tribunal. This error in law, which is discussed in more detail below, would not likely have resulted in a different decision than the fundamental decision of the Tribunal that the estimated cost of the drainage project proposed in the 2014 Report was not commensurate with the benefits to be derived as required by Rule 29.09(b).

9. The Town’s request for review goes into detail about a proposal advanced by the Tribunal panel during the hearing in January 2015 relating to backfilling a portion of the existing drain in order to correct a grade issue, a proposal with which Mr. McCready disagreed with in his evidence. However, no order was made by the Tribunal in its February 18, 2015 decision relating to any type of backfilling that may have been suggested and/or recommended by the panel members during the January hearing.

10. The Town submits that Order No. 5 of the Tribunal’s decision that the Town obtain a brief engineer’s opinion on the adequacy of the temporary new access culvert at the former J. Mailloux property is not in accordance with the provisions of the Drainage Act. Order No. 5 states:

The Town shall obtain a brief engineer’s opinion on the adequacy of the temporary new access culvert installed at the former J. Mailloux property, as related to the Todgham and Case Associate Report, and, if necessary, have the culvert removed and replaced, entirely at the cost of the new owner of the former J. Mailloux property, including any engineering fees.

The Tribunal’s jurisdiction for this order is found in subsection 51(1) of the Drainage Act that states:

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 such order and direct such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act.

The process leading to the 2014 Report started in July 2008 with a request for replacement of an access culvert to an existing residential property. Three years later, in July 2011, Mr. Mailloux obtained a severance to create a new residential lot for which he required a culvert over the drain for access. In order to get his building permit, a temporary culvert was installed and to be replaced depending upon the outcome of the Drainage Act process being undertaken by Dillon Consulting pursuant to section 78 of the Drainage Act. Unlike the original 2008 replacement request which could have been completed using the Armstrong Report as supplemented by the 1993 Todgham and Case Report, the Mailloux request for a new culvert access crossing was not contemplated in 1993. Had the 2014 Report proceeded, the Mailloux culvert would have been accommodated as part of the proposed drainage project. With the 2014 Report being set aside, provision needed to be made for the Mailloux culvert. That is the purpose of the Tribunal’s Order No. 5

The Review Tribunal is of the opinion that, fairly interpreted, what is intended by the Order is an adaptation of the exercise undertaken in 2000 by Peralta Engineering under section 78 of the Drainage Act that permitted the closing of a portion of the drain in front of six (6) residential properties. This work was completed entirely at the cost of the residential property owners. The Peralta Engineering report provided that maintenance of crossings were to remain as found in the 1993 Todgham and Case Report.

11. The Town’s submissions in support of a review that it is preferable to have the cost of culvert replacement for each of the appellants under the 2014 Report as compared to culvert replacement under the Armstrong Report as supplemented by the 1993 Todgham and Case Report is not accepted. In each case the conclusion is that it will be more expensive under the prior drainage reports. This submission is similar to the Town’s prior submissions that are based on information that was available at the time of the January 2015 hearing. It may be that the point was not made to the Tribunal at the time of the hearing but it could have been. Again, to paraphrase Rule 29.09(e) the public interest in finality of decisions outweighs allowing the Town to re-open the case it could have made at the time of the hearing or, if made, was not sufficiently persuasive to warrant comment in the Tribunal’s February 18^th decision.

12. The Town submits that it is important that a drain be looked at comprehensively when an engineer is appointed under section 78 of the Drainage Act and not be limited to issues of concern to a ratepayer requesting an improvement. The February 18, 2015 Tribunal decision does not make any suggestion to the contrary. It is important for municipalities and drainage engineers to balance, at an early stage in the process, the drainage purpose to be achieved and the costs of doing so; there must be proportionality between the drainage purpose and the cost. In this case, on the evidence presented, very little drainage purpose was to be achieved by an expenditure of approximately $400,000.

13. A variation of the Town’s submission about a drain being looked at comprehensively after an engineer is appointed under section 78 of the Drainage Act, is the submission that, limiting the scope of the engineer’s review to those matters of concern to the ratepayer initiating a section 78 improvement process compromises the engineer’s duties under the Drainage Act and the ability of a municipality to administer the Drainage Act. The Town’s submission speaks of the checks and balances in the Drainage Act both before a report is adopted by Council as well as the appeal processes thereafter. The appeal process, of course, includes subsection

48(1) (a)⁴ of the Drainage Act. Again, there is a need to find a balance and proportionality between the comprehensive drainage purpose to be achieved and the costs of doing so.

The Tribunal decision does not derogate from the independence and discretion of the engineer appointed under the Drainage Act nor does it undermine a municipality’s ability to administer the Drainage Act. However, both the engineer and the municipality should be mindful of subsection 48(1)(a) of the Drainage Act which allows landowners to file appeals if they are of the view that they are being burdened with expensive drainage projects that are out of proportion to the drainage purpose to be served.

14. The final submission by the Town is that the 2014 Report should not be set aside at the request of a few when the “vast majority” of those assessed into the proposed drain did not appeal. The submission is that the vast majority are asking for the improvements reflected in the 2014 Report. The evidence before the Tribunal was that there was one request for replacement of a culvert in July 2008 and a request for a new culvert in July 2011.

The appellants gave evidence that they had no difficulty with replacing culverts but did not understand why such an extensive and expensive project was being proposed when the request, in the first instance, was to have an access culvert replaced and, with maintenance work from time to time, the existing drain was working acceptably to those who relied upon it for drainage. While the lay appellants did not quote subsection 48(1)(a) of the Drainage Act, the gist of their concern is that the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof. The Town’s submission that the appellants’ objections could be dealt with in a more focused fashion than setting aside the 2014 Report misses the more wide-ranging implication of their evidence and appeals.

The Town’s submission that the setting aside of the 2014 Report will only result in undesirable delay in the project, presumes that the Town will resurrect the set-aside drainage project with a new process under section 78 of the Drainage Act. That is certainly the Town’s right. Hopefully this case will be a cautionary experience for the Town and any engineer it may appoint that they will have regard for the purpose and intent of the Drainage Act and will find a balance and proportionality between a drainage purpose to be identified after a comprehensive review of the existing drain and the cost of achieving that purpose.

Errors of Law:

The Review Tribunal notes two errors in law in the February 18, 2015 decision. However, neither of these errors would have resulted in a different decision than the fundamental one that the estimated cost of the drainage project proposed in the 2014 Report was not commensurate with the benefits to be derived. As a result, in accordance with Rule 29.09(b), neither of these errors warrants a review of the decision.

For the purpose of this consideration, the Review Tribunal is of the opinion that the errors should be identified and discussed.

Consultation Before Appointment of Engineer

The Town’s submissions suggest that the Tribunal decision specified ratepayer consent before proceeding under section 78 of the Drainage Act. The Tribunal decision speaks of prior consultation with property owners not their consent to proceeding under section 78. The Tribunal stated in its decision: “The Tribunal questions why the Town retained an engineer to prepare a new report under Section 78 of the Act apparently without fully consulting all the property owners in advance.”

It should be noted that for a municipally initiated section 78 process, a pre-appointment consultation may be an option, particularly if there is a question about the need for a drain improvement. Usually, if the process is municipally initiated, a drainage problem has been identified, often related to roads, that cannot be cured by maintenance and repair. In that case, no prior public consolation is required before the appointment of an engineer. After the appointment of the engineer, the Drainage Act provides an opportunity for those affected to be involved at on-site meetings; in addition, seasoned drainage engineers will include extensive consultation as part of the investigation leading to a report.

The Drainage Act contemplates that the few, even just one, have a right to drainage over the objections of, say, a majority in a drainage area who may prefer not to contribute to the cost of managing the down-stream drainage problem created by water running off their land or a landowner who does not want the inconvenience of drainage works running across their property. Drainage under the Drainage Act is not a majority rule proposition.

Similarly, the Review Tribunal has reservations about the polling exercise or show-of-hands voting that occurred at the August 6, 2013 Drainage Board consideration of Dillon Consulting’s Preliminary Report. It is important at such meetings to have a thorough canvassing of opinions, issues and concerns but, at the end of the discussion and debate, it is Council’s decision and not something to be delegated to the gallery via a show of hands vote.

Municipal Responsibility for Maintenance

The Tribunal decision says, in the context of grades in the existing drain not being consistent with the drain profile, “However, Section 74 of the Act is clear on this matter; the municipality is responsible for maintenance and repair of drains. Accordingly, it would seem that the Town is the responsible party.”

While maintenance and repair of municipal drains is the responsibility of the municipality, that is only part of the story. Section 79 is the rest of the story.

The effect of subsection 79(2) of the Drainage Act is that a municipality is not liable for any damages for non-repair of a drain until after the municipality has been provided forty-five (45) days’ notice of the non-repair and given an opportunity to complete the repairs. Subsection 79(1) provides for recourse to the Referee if the repair is not made after the forty-five (45) days’ notice is provided.

Taken together, the scheme of the Act is that, if those on a drain do not ask for a repair to avoid the assessed cost of doing so, they are entitled to avoid the cost but cannot complain of the consequences of the non-repair, at least not until the forty-five (45) days’ notice of the issue is given to the municipality.

This is not to say that a municipality cannot undertake maintenance and repair on its own initiative. That seems to be the practice in the Town of Lakeshore. However, according to the evidence of the Drainage Superintendent, the Town appears to be reactive rather than proactive when it comes to maintenance and repair. In this case, there is no evidence that this particular section of the drain is the subject of the municipally initiated maintenance and repair.

As indicated above, neither of these errors would have resulted in a different decision than the fundamental one made by the Tribunal being that the estimated cost of the drainage project proposed in the 2014 Report was not commensurate with the benefits to be derived. As a result, in accordance with Rule 29.09(b), neither of these errors warrants a review of the decision.

Therefore, the Town has not satisfied the burden of showing that the Tribunal erred in law in such a manner that it would impact the outcome of the Tribunal’s decision resulting in a different decision.

Errors of Fact:

Review requests based on alleged errors of fact are particularly difficult. The Tribunal panel was present and heard the witnesses first hand, had an opportunity to ask questions, and considered the documentary evidence in the context of that oral testimony.

The Review Tribunal conducts its request for review 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, on a request for review the Review Tribunal is considerably lesser equipped than the original panel to make determinations about the Tribunal’s findings of fact.

As discussed in detail in the response to each of the Town’s grounds for a request for review, the Review Tribunal does not find that the panel rendering the decision made an error of fact.

Findings

After considering the request for review filed by the Town, the paper record of the hearing and exhibits, the Tribunal decision dated February 18, 2015, the review submissions filed by the other four parties, and the reply filed by the Town of Lakeshore, the Review Tribunal is not convinced, on a balance of probabilities, that the decision is possibly wrong and, therefore, concludes that the decision does not merit a fuller review.

Tribunal Order

The Town’s request for review is hereby denied.

Dated at London, Ontario, this 19^th day of October, 2015.

Footnotes

1. 1Rule 29.10
2. 2The 2014 Engineer’s Report was prepared by Dillon Consulting Ltd. and is the Reconsidered Drainage Report for the Fourth Concession Drain East and Cutoff Drains (South, North & Outlet) in the Town of Lakeshore and the subject of the hearing resulting in the Tribunal’s decision of February 18, 2015
3. 3Rule 29.22 & 29.23
4. 448(1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on grounds that, (a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof; … may appeal to the Tribunal, …