Maurice and Karen Belisle v. Town of Lakeshore, 2015 ONAFRAAT 24

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:

Ruscom River Outlet No. 8, Town of Lakeshore

Ruscom River Outlet No. 8, Town of Lakeshore (RE) 2015ONAFRAAT24

STATUTE:

Drainage Act

HEARING:

October 20, 2015

DATE OF DECISION:

November 10, 2015

2015-24

NEUTRAL CITATION:

2015ONAFRAAT24

MOTION FOR EXTENSION TO APPEAL

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 Maurice and Karen Belisle, of Leamington, Ontario, under Section 54 of the Drainage Act from their assessment on the Ruscom River Outlet No. 8 drainage works.

AND IN THE MATTER OF: The hearing of a motion filed by Maurice and Karen Belisle on September 10, 2015, for an extension of time to appeal, pursuant to Section 100 of the Drainage Act and Rule 25 of the Tribunal’s Rules of Procedure .

Before: Harold McNeely, Vice-Chair

Appearances by Conference Call:

Paul Courey, Counsel for Maurice and Karen Belisle

Maurice Belisle, appellant

Jim Renick, Counsel for the Town of Lakeshore

Jill Fiorito, Drainage Superintendent, Town of Lakeshore

DECISION OF THE TRIBUNAL

This motion was heard by conference call on October 20, 2015.

In their motion, the Belisles were seeking an extension of time for filing an appeal under Section 54 of the Drainage Act with respect to their assessment as set out in the Engineer’s Report for the Ruscom River Outlet No. 8 drainage works dated October 21, 2014.

Overview/Facts:

1. In 2014, the County of Essex started the process under the Drainage Act to have the Town of Lakeshore acquire legal status to a number of outlets which included the outlet, now known as the Ruscom River Outlet No. 8, and which runs along one side of Maurice and Karen Belisle’s property.

2. This outlet existed as a private drain prior to the preparation of the Report of Shane McVitty, P. Eng who had been appointed to carry out the study required by the Drainage Act. However, the existing corrugated steel pipe showed signs of deterioration and McVitty recommended the replacement of the pipe as part of the improvements to the drain.

3. The Belisles disputed McVitty’s recommendation that the entire corrugated pipe required replacement, and disputed the benefit assessment of $8,500 contained in the Report. Their objection was voiced at the preliminary consideration of the Report and at the Court of Revision.

4. Notwithstanding their objection, the Report was approved by the Town of Lakeshore and the Court of Revision rejected the Belisles’ appeal at a hearing held on December 8, 2014.

5. Under Section 54(1) of the Drainage Act, the Belisles had until December 29, 2014 to appeal to the Tribunal.

6. The cost arrived at by the enginer to carry out the work was estimated at $37,428.00. The outlet assessment imposed on the Belisle Property in the Report is $137.00 and the benefit assessment is $8,560.00. The Belisles admit they were aware of the deadline to appeal the decision of the Court of Revision to the Tribunal.

7. In his Affidavit dated September 10, 2015, Maurice Belisle explains the applicant’s rationale in deciding not to appeal as follows:

8. I knew that I could appeal to the Tribunal from that Decision and I considered doing so. However, when I looked at the cost of filing an appeal and having representation, both legal and engineering, it was apparent to me that even if my appeal succeeded that I would accomplish very little on a net basis. Accordingly, I decided to let the matter go.

9. On May 25, 2015, the Drainage Superintendent for the Town of Lakeshore advised the assessed owners that the lowest tender of $55,775.00 for the project represented a 149% increase of the cost estimated by the engineer and a meeting of the Drainage Board was convened for June 10 to allow the assessed owners to comment.

10. The Belisles attended this meeting and repeated their objections, particularly as it relates to the benefit assessment. At this meeting, the Board gave its approval for the project to proceed as tendered.

11. The Belisles have stated that had the tendered amount been known during the time allowed for appeal, they would have appealed to the Tribunal because the cost benefit of a successful appeal would have made the appeal worthwhile.

12. On June 5, 2015, a letter was sent by the Belisle’s lawyer to the Town of Lakeshore proposing that negotiations take place between the Town and the Belisles with a view of arriving at a resolution of their differences without the expense of a Tribunal hearing. In her affidavit of October 8, 2015, Jill Fiorito states that she advised Mr. Belisle that he could forward a letter to the Town requesting an extension of time to appeal the decision of the Court of Revision, and asked that the letter be presented within one week of the Drainage Board meeting. This letter would be forwarded to the Tribunal. There was no response to this offer.

13. On September 10, 2015, the Town received a Notice of Motion from the Belisle’s solicitor applying to the Tribunal under section 100 of the Drainage Act for an extension of time to file an appeal pursuant to section 54(1).

14. The following sections of the Drainage Act are relevant on the hearing of this Motion:

Extension of Time

Section 100: The Tribunal, in any case that it considers proper, may extend the time otherwise limited for application, appeal or reference.

Appeal to Tribunal

Section 54(1): Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal.

Meeting to Consider Contract Price

Section 59:

“(1) Where the contract price exceeds 133 per cent of the engineer’s estimate of the contract price, the council of the initiating municipality shall call a meeting in the manner prescribed by section 41, and sections 41, and sections 42 and 43 apply with necessary modifications.

(2) If at the close of the meeting the petition contains a sufficient number of names to comply with section 4, the council may proceed with the construction of the drainage works.”

Submissions by the Belisles

14. On behalf of the Belisles, Mr. Courey asks the Tribunal to extend the time to appeal for the following reasons:

A. Rule 1.07 specifies that the rules of the Tribunal shall be liberally interpreted to obtain the most just, most expeditious and most cost effective determination of every appeal before the Tribunal. I should follow this guideline in deciding this application.

B. There is no emergency which requires immediate action by the Town. The present private drain functions adequately.

C. The Town could proceed to do the work this fall to take advantage of the amount tendered if it has concerns over a subsequent increase for the cost of this project.

D. The engineer underestimated the costs in his Report and this lower estimate is what caused the Belisles to not appeal within the 21 day time limit under Section 54(1). Had the actual cost been known, the Belisles would have appealed before December 29, 2014.

E. Notwithstanding the wording of Section 54(1) that the time to appeal is 21 days from the decision of the Court of Revision, the Tribunal should use its discretion and consider June 10, 2015 as the actual date since the cost of the project exceeds 133 % of the estimated cost and the project is not finalized until the meeting of June 10 takes place.

F. The 90 day delay from June 10 to September 10, 2015 should not be a factor. It did not cause any prejudice to anyone. In any event, Counsel states such delay was attributed to his busy schedule and should not be visited on the Belisles.

G. While acknowledging that the Belisles were under an obligation to act promptly, their objection to the project and particularly to the benefit attributed to their property was known by the Town and the Tribunal should take into consideration that this is essentially an issue of access to justice and a denial of the appeal would reflect badly on the principal of maintaining the integrity of the administration of justice.

Submissions by the Town of Lakeshore

15. On behalf of the Town, Jim Renick presented the following arguments:

A. The time to file the appeal should be computed from December 29, 2014 and not June 10, 2015.

B. The Belisles made a conscious decision not to appeal, and were aware of the time limit to appeal the decision.

C. On June 10, 2015 the Belisles were told by the Drainage Superintendent that they could forward a letter to the Town of Lakeshore requesting an extension of time to appeal. No response was received until September 10, 2015.

D. There is a need for certainty in the process under the Drainage Act which involves several land owners and the Municipality.

E. Had the tender price been below 133%, there would have been no need to hold the June 10 meeting, the project could have proceeded as tendered, and the Belisles would have been with no recourse.

F. The monetary difference to the Belisles’ assessment between 133% and 149% is not sufficient to support the Belisles’ argument that the tendered amount represents a substantial increase to them.

G. There has been no evidence in the form of an engineer report or a report from a contractor having experience in this type of construction presented by the Belisles to either support their objection, or to call into question the McVitty report and the assessment. Therefore, the applicants have failed to establish that they have an arguable case on the merits.

H. The Belisles’ share of the additional costs for the engineer’s participation in an appeal, the legal costs and expenses, as well as the costs of the appeal, all of which would likely be passed on to the assessed owners will likely offset any savings for the Belisles, or will result in the same end result for the Belisles. These additional costs will likely be divided also among the assessed owners who have not appealed. This would be unfair to them.

I. The Tribunal’s Decision in Bellcraft Beach Drainage and Pumping System 2001 ONAFRAAT 37, 2001 ONAFRAAT37 should be applied in dismissing the Belisles’ application.

The Issue

16. The issue to be decided in this motion is whether in the circumstances of this case, an extension ought to be granted for the Belisles to file an appeal under Section 54 of the Drainage Act.

Analysis

17. In the Bellcraft Decision, Vice Chair Andrew Osyany set out a number of considerations the Tribunal should review in a request made under Section 100. These are the following:

A. How long is the delay?

B. What are the reasons for the delay?

C. What are the issues raised by the Applicant?

D. What is the likelihood of the Applicant’s success on the merits?

E. What other remedies are available to the Applicant?

F. What are the cost implications?

G. What are the implications to the integrity of the system?

18. The Bellcraft decision also emphasizes that the discretion given to the Tribunal should be expressed in a manner that is fair to the applicant and to the assessed owners on the drain.

19. I will now turn to considering the appeal in light of the factors suggested by the Tribunal in Bellcraft.

How Long is the Delay

20. Section 54(1) is clear and states that the time to appeal is calculated from the date the Court of Revision rendered its decision. The last day for appeal was December 29, 2014. Therefore, the delay in this application is in the order of eight months. It is a lengthy delay, notwithstanding the rationale invoked by the Belisles in support of their original decision not to appeal.

The Reasons for the Delay

21. The Belisles’ decision not to appeal is said to be based on the economics, that is, the cost of proceeding to appeal would outweigh the benefit of a lower assessment. Some of the acceptable reasons outlined by Vice Chair Osyany relate to owner’s absence from the area, lack of knowledge of the proceedings or construction taking place, illness “or some external circumstance interfering with the applicant’s ability to comply with the statutory requirement”. (Emphasis by me) None of these factors come into play in this case. The applicants made a conscious decision, admittedly based on an estimate which is lower than the tendered price. But, as argued by the Town, the additional cost of the appeal apportioned to the Belisles could eat up any potential gains by a lower assessment and will impact other assessed owners.

The Issues Raised By the Applicant

22. The applicants dispute the benefit assessment to their property since there is already a covered drain and also question that the existing corrugated pipe requires replacement. Although that is their personal view, they have not provided any report or evidence to support their position.

The Likelihood of the Applicant’s Success on the Merits

23. As stated above, while the applicants have expressed their opinions regarding the drain and the benefit to them, there has been no evidence provided which contradicts the engineer’s reasons for the assessments. The onus was on the applicants to establish that they have an arguable case, and in my view, they have failed to do so.

Other Remedies Available to the Applicant

24. Neither party addressed this criteria in their presentations and is therefore not a factor in my analysis.

What are the Cost Implications

25. The Town has argued that there will be the additional costs of the engineer’s preparation and attendance on an appeal and other costs passed on to the applicants and other assessed owners if this matter goes to appeal.

The Implications For the Integrity of the System

26. This project involves several landowners. As stated by Vice Chair Osyany, an application that would delay the work should be examined more rigorously than one which does not impact on the completion or functioning of the drains. Since there is no report or evidence to support the Belisles’ position, I am of the view that they have not satisfied the onus of demonstrating that the delay will not prejudice other landowners affected by the project. The Town cannot be faulted in its decision to await a response from the Belisles before authorizing the work to proceed. As stated in the Bellcraft decision, there must be finality to the decisions which affect several landowners, and the interests of the other owners must also be considered.

27. There is no right of appeal to the Tribunal as a result of a municipality calling a meeting under Section 59 of the Act to deal with the fact that a contract price exceeds the Engineer’s estimated price of a drainage works.

28. The opportunity for landowners to file appeals concerning assessments is first, to the Court of Revision under Section 52 of the Act and second, to the Tribunal under Section 54 of the Act arising from the decision of the Court of Revision. The deadline date to appeal to the Tribunal was December 29, 2014. The usual grounds for asking leave to file a late appeal were enumerated by Vice Chair Osyany and the grounds invoked by the Belisles are not based on circumstances beyond their control. Mr. Belisle acknowledged that he knew he could appeal to the Tribunal from the Court of Revision’s decision and considered doing so; however, in his final analysis, he made a conscious decision to not proceed. Furthermore, he has not brought sufficient evidence to convince me on the balance of probabilities that he has an arguable case on the merits.

ORDER OF THE TRIBUNAL

The Motion by Maurice and Karen Belisle to extend the time to appeal is denied.

Dated at Ottawa, Ontario this 10th day of November, 2015.