OAFRAAT 2017

The Township of Wainfleet applied to the Agriculture, Food and Rural Affairs Appeal Tribunal for permission to complete a new engineering report for the Consolidated South Wainfleet Drain under Section 76 of the Drainage Act.

The current assessment schedule, based on a 1969 report, did not accurately distribute maintenance costs among the branch drains.

The Tribunal found that the request met the requirements of the Act and granted permission to appoint an engineer to procure a new report to vary the assessments.

The appellant appealed the engineer's report for the McNain Municipal Drain Improvements under sections 48(1) and 54(1) of the Drainage Act.

The appellant challenged the design of a drop structure on their property, the damage allowances, and the assessments levied against them, including a Section 24 Special Benefit assessment for additional engineering costs.

The Tribunal granted the appeals in part, ordering minor modifications to the drop structure design and reducing the Section 24 Special Benefit assessment from $60,000 to $30,000, finding that the improved design also benefited upstream lands.

The Tribunal dismissed the appellant's requests for damage allowances and changes to the Benefit/Outlet cost split.

The appellant appealed under section 48(1) of the Drainage Act, seeking the removal of 'Branch A' from the engineer's report for the proposed Hartman-Lindsay Municipal Drain.

The appellant argued that his existing private tile system was sufficient and proposed constructing an earth berm instead.

The Tribunal dismissed the appeal, finding that the private tile main was inadequately sized to accommodate surface and subsurface flows, and that Branch A was necessary to protect downgradient lands from surface water ponding.

The Tribunal ordered the provisional by-law amended to include a Hickenbottom inlet on Branch A.

The appellant dairy farmer appealed a decision of the Director of Regulatory Compliance of the Dairy Farmers of Ontario, seeking $40,000 in compensation for lost milk sales and expenses after inspectors issued a compliance order suspending his milk marketing due to unsanitary conditions.

The Tribunal dismissed the appeal, finding it lacked statutory jurisdiction under the Milk Act or the Ministry of Agriculture, Food and Rural Affairs Act to award monetary compensation.

Furthermore, the Tribunal found that the inspectors acted reasonably and within their broad regulatory authority when they accessed the farm without consent and downgraded the milk classification based on elevated bacterial levels and observed unsanitary conditions.

Several landowners requested a review of the Tribunal's Amended Decision regarding the Switzer and McLean Switzer Municipal Drains.

The applicants challenged the Tribunal's order that 50% of the engineering costs up to the first published report be levied against the governing by-laws of each drain, arguing the costs should be borne solely by the landowner who initiated the request under section 78 of the Drainage Act.

The Vice-Chair denied the requests for review, finding no significant new evidence or material error of law or fact.

The Vice-Chair affirmed that the Tribunal has discretion under section 48 to determine the portion of costs to be borne by affected landowners, and that the original panel's allocation was reasonable.

The appellant moved to adjourn the hearing of an appeal under the Drainage Act on the grounds that four witnesses were out of the country and that a Constitutional Question was pending before the Superior Court.

The Tribunal dismissed the motion, finding that the appellant had not taken steps to summon the witnesses or provide evidence of their necessity, and that the Constitutional Question related to a distinct legal issue that did not operate as an automatic stay of the Tribunal proceedings.

The Chicken Farmers of Ontario (CFO) brought a motion under s. 16(4) of the Ministry of Agriculture, Food and Rural Affairs Act to dismiss the appellant's appeal.

The CFO argued the appellant had knowledge of the impugned by-laws for more than one year and that the appeal was frivolous, vexatious, or not made in good faith.

The Tribunal dismissed the motion, finding that the appeal challenged the CFO's legal authority to enact the by-laws, and that using s. 16(4) to shield potentially unlawful by-laws from review was not the legislature's intent.

The appellants appealed their drainage assessments for the Purbrook Drain under section 54 of the Drainage Act.

The appellants argued they received no benefit from the drain, noting their lands were zoned for environmental protection and could not be farmed.

The Tribunal dismissed the appeals, finding that the appellants were attempting to re-litigate a 1981 decision of the Ontario Drainage Tribunal and had failed to establish any change in the state or use of their lands since that time.

Requests for costs by both the municipality and the appellants were denied, as neither party's conduct during the proceedings was unreasonable, frivolous, vexatious, or in bad faith.

The appellants, owners of three adjacent residential properties, appealed the City of Port Colborne's decision to refuse their petition for drainage works under the Drainage Act.

The appellants experienced surface water drainage issues in their rear and side yards, which they attributed to a drainage swale and fencing on neighbouring properties.

The City's Drainage Superintendent testified that the issues stemmed from the flat grading of the appellants' properties and landscaping alterations, rather than a failure of the municipal drainage system.

The Tribunal dismissed the appeals, finding that the appellants failed to provide expert evidence demonstrating that a drainage works project was viable or that their petition met the statutory thresholds required under Section 4 of the Drainage Act.

The appellants appealed the decision of the reconvened Court of Revision regarding the amended assessment schedule for the repair and improvement of the Southwest Branch of the Shepley Drain.

The appellants argued that the watershed limits and resulting assessments on their property were incorrect.

The Tribunal found the engineer's methods and the resulting amended assessments to be technically sound and equitable, dismissing the appeal and confirming the amended assessments.

The appellant appealed the quality of construction, design, and assessment of the Darmar-Tamlin Municipal Drain under the Drainage Act.

The Tribunal reviewed several specific issues regarding the drain's branches, manholes, and ditch inlets.

Relying on the uncontradicted expert evidence of the project engineer, the Tribunal approved several field changes, including extending a branch drain to the appellant's property line and removing an orifice plate, but largely confirmed the original design and revised assessment schedules.

The Tribunal declined to award costs to the appellant, finding no bad faith or unreasonable conduct by the municipality.

The appellant operated a meat processing business at a permanent location and sold products from a mobile trailer at farmers' markets and events.

The Ministry detained his meat products, alleging he operated an unlicensed meat plant.

The appellant appealed the Director's disposal order, claiming the 'food service exemption' under the Meat Regulation.

The Tribunal found that over 50% of the appellant's total business sales were meals or meal portions for immediate consumption, qualifying the business for the exemption.

The appeal was allowed and the Director's disposal order was revoked.

The municipality sought costs against the appellant following the dismissal of his appeal regarding a municipal drain.

The municipality argued the appellant's conduct was frivolous and vexatious.

The Tribunal found no evidence to substantiate that the appellant acted in a clearly unreasonable fashion, noting that part of his appeal had actually been granted.

The request for costs was denied.

The City of Sarnia applied to the Tribunal under section 58(4) of the Drainage Act to amend a by-law governing the Clark Drain and Branches.

During construction of a pump station, asbestos was discovered in the existing building, leading to delays and a redesign that replaced the planned building with an outdoor station and weatherproof enclosures.

The Tribunal found that the modifications did not negatively impact the drainage works' capacity or cost apportionment, and granted the application to amend the by-law to reflect the as-constructed drawings.

The appellant appealed an engineer's report regarding the Darmar-Tamlin Municipal Drain under the Drainage Act.

At the start of the hearing, both parties noted that the adopted report was missing several mandatory elements, including a watershed map, stamped drawings, cost estimates, and a maintenance schedule.

The Tribunal found that these omissions constituted a significant error that failed to comply with section 8 of the Act.

Relying on its broad powers under section 51(1), the Tribunal issued an interim order adjourning the hearing and referring the report back to the engineer with specific directions to revise it to include the omitted items.

The Tribunal also extended the appellant's time to appeal under sections 48 and 54 to cure any process defects.

The applicant municipality applied to the Tribunal under section 58(4) of the Drainage Act to amend a bylaw for a municipal drain.

During construction, existing utilities were found in different locations than shown on the original plans, necessitating design changes in the field.

The Tribunal found the modifications did not negatively impact the drain's functionality, level of service, or cost, and ordered the bylaw amended to incorporate the as-built drawings.

The appellant appealed his drainage assessment under the Drainage Act, arguing that his land's designation as a provincially significant wetland constituted a change in use warranting a reduction in his assessment.

The Tribunal dismissed the appeal, finding that the appellant did not meet the statutory threshold for an appeal because his assessment amount had not changed.

In the alternative, the Tribunal held that a change in environmental designation did not constitute a change in the extent to which the lands used the drainage works.

Requests for abandonment of the drain and future damages were also dismissed for lack of jurisdiction and failure to follow statutory procedures.

The appellant appealed an engineer's report for a municipal drain under the Drainage Act, raising concerns about ditchbank erosion, pesticide buffer zones, and historical notes on the drainage drawings.

The Tribunal granted the appeal in part, ordering the municipality to seed the ditchbanks to prevent erosion.

However, the Tribunal dismissed the request to relocate the drain, finding it was not a sensitive freshwater habitat requiring pesticide buffer zones, and retained the historical notes on the drawings with minor wording modifications.

Several landowners appealed an Engineer's Report proposing the enclosure of portions of the Switzer Drain and McLean Switzer Drain.

The Tribunal found that the proposed drainage works were primarily designed to accommodate one landowner's request to close a drain, which would reduce the functionality and capacity of the municipal drain for upstream properties.

The Tribunal held that the Engineer failed to meet his duties under section 11 of the Drainage Act by proposing impractical and technically flawed works that did not adhere to the Drainage Guide for Ontario.

The Engineer's Report was set aside and the adopting by-law was ordered repealed.

The appellant appealed the assessment for the Miller Drain 2016 under section 54(1) of the Drainage Act, seeking to have the assessment reduced or altered.

The appellant had requested that the open ditch crossing his property be enclosed.

The appointed engineer prepared a report recommending the enclosure of the drain on the appellant's property and assessed the costs accordingly.

The appellant argued the costs should be dealt with as in the past but provided no details on an acceptable assessment.

The Tribunal accepted the engineer's evidence that the assessments were fair and reasonable, noting the report reflected the appellant's request and a prior Tribunal order.

The appeal was dismissed.