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 Courriel: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Purbrook Drain (RE) Townships of Severn and Oro-Medonte
Purbrook Drain (RE)
STATUTE:
Drainage Act
HEARING:
October 4, 2017
DATE OF DECISION:
November 15, 2017
008Purbrook17
NEUTRAL CITATION:
2017ONAFRAAT17
PURBROOK DRAIN
Townships of Severn and Oro-Medonte
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 Oscar and Ida Fiorese of Downsview, Ontario and Charleen and Garry Johnston of Orillia, Ontario under section 54 of the Drainage Act with respect to the Purbrook Drain in the Townships of Severn and Oro-Medonte.
Before:
Glenn Walker, Vice-Chair, Jim McIntosh, Vice-Chair and Ron O’Connor, Member
Appearances:
Oscar Fiorese, Appellant
Charleen Johnston, Appellant
Michael Gerrits, P. Eng., Engineer who prepared the report
DECISION OF THE TRIBUNAL
Background
The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in the Township of Severn on October 4, 2017 to hear appeals under Section 54 of the Drainage Act (“Act”) with respect to the Purbrook Drain (the “Purbrook Drain”). The originating engineer’s report (“Noront Report”) was dated January 14, 1981 for the Purbrook Drain. An Engineer’s Maintenance Report (“Report”), dated March 7, 2017 was prepared by R. Dobbin Engineering Inc., (“Dobbin”) and signed by Michael Gerrits, P.Eng., (“Engineer”).
Sharon Goerke, Clerk of the Township of Severn performed the duties of Clerk of the Tribunal.
Preliminary Matters
Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to the hearing. Mr. Doug Brandon and Mr. Mike Vandergeest, landowners requested and were given the opportunity to make statements to the Tribunal.
Both the Township of Severn and Township of Oro-Medonte filed Affidavits of Service, dated September 28, 2017 as proof that all parties had been served with the Notice of Hearing.
Mr. Fiorese requested to make an audio recording of the hearing. After considering the factors set out in Rule 17.05 of the Rules of Procedure of the Tribunal, the Tribunal denied this request on the basis that the recording was unnecessary and would not be in the best interest of justice in the circumstances.
The Tribunal then restated the order of the Tribunal made on September 6, 2017 confirming that since these were appeals from a Report made pursuant to Section 76 of the Act, appeals under section 47 and 48 of the Act referred to in the notices of appeal were not applicable, and both appeals would be treated as Section 54 appeals relating to changes to the assessments of the appellants.
Finally, the validity of the Section 76 Report was confirmed. Permission was granted to the Township of Severn to appoint an Engineer pursuant to Section 76 of the Act by Order of the Tribunal dated July 26, 2016. The Report was dated March 7, 2016 which pre-dated the authorization. The Engineer confirmed that the date of the report was a typographical error and that the Report should have been dated March 7, 2017.
Evidence and Submissions
Oscar Fiorese, Appellant
Oscar Fiorese gave evidence on behalf of himself and his wife, Ida Fiorese.
Mr. and Mrs. Fiorese purchased the subject property, being the east one-half of Lot 12, Concession 2, in the Township of Severn, and consisting of 100 acres more or less, (the “Fiorese lands”) in 1973. The property fronts on an unopened road allowance between Concessions 2 and 3. The lands are not used for agriculture as the owners have no access to them by way of a municipal road. At the time they were purchased the lands were zoned as “Rural Protected”.
The report was prepared by Noront Engineering Ltd. and dated, January 14, 1981. In the Noront Report, the Fiorese lands were assessed $3,280.00 for benefit and $1,830.00 for outlet. Mr. Fiorese appealed his assessment to the Ontario Drainage Tribunal (the predecessor of this Tribunal) and as a result of the appeal his assessment was reduced to $1,987.00 for benefit and $1,405.00 for outlet.
The following is an excerpt from the decision of the Ontario Drainage Tribunal dated September 18, 1981:
“The assessment of Oscar Fiorese presented a different problem. He had been assessed benefit assessment of Three Thousand, Two Hundred and Eighty Dollars ($3,280.00) on a landlocked farm which he purchased several years ago for Seven Thousand Dollars ($7,000.00). Since the purchase the land had been zoned “Environmental Protection” (OS3) which would not allow a single structure to be erected even for farming purposes. The land was effectively frozen in its natural state and it could be argued reasonably that the construction of dykes and drainage ditches was proscribed without the approval of the Conservation Authority. Mr. Fiorese had attempted to have the zoning changed to Agriculture with a negative result.
Ironically, Mr. Fiorese was being assessed on a drainage project, the main purpose of which was agriculture. The benefit assessment ascribed could only be interpreted as primarily related to prospective agriculture use. Mr. Fiorese, however, had been denied Agricultural Zoning by the same Municipal Authority which now proposed a benefit assessment which could only be substantiated by future agricultural use. The Tribunal was of the opinion that such assessment was unreasonable at least until such time as Mr. Fiorese was granted a change of zoning. Its decision reflected this point of view.”
The Fiorese lands are now designated as conservation lands and are exempt from the payment of municipal taxes and drainage assessments.
On cross-examination, Mr. Fiorese admitted that the state of the land and its use have not changed since 1981.
Charleen Johnston, Appellant
Mrs. Johnston gave evidence on behalf of herself and her husband, Garry Johnston.
Mr. and Mrs. Johnston are the owners of 2555 Townline, being part of the west one-half of Lot 12, Concession 1, in the Township of Severn and consisting of 50 acres more or less (the “Johnston lands”). They are appealing the benefit assessment on the grounds that they see no benefit to them from the Purbrook Drain. The property in question is made up of marginal, rocky pasture land on the north side of the drain and environmentally protected swamp bush on the other side of the drain. She stated that there has been no improvement to the land as a result of the creek being changed to a drain and that they have not experienced any of the supposed benefits that the land is being assessed for. She also argued that the “Todgham Method” should have been used to determine the assessment.
Michael Gerrits, P. Eng., Engineer who prepared the report
The Engineer stressed that this is a Section 76 report and that he worked from the 1981 Noront Report to revise the assessments in it to reflect the many subdivisions of land within the watershed. None of these subdivisions affected the subject properties. The Engineer stated that he did not use the “Todgham Method”, which is not the only method used to calculate assessments, but instead attempted to interpret the method used in the Noront Report. It was the opinion of the Engineer that both appellants received benefit from the Purbrook Drain. In the subject Report, the Engineer kept the assessments for the subject lands in the same proportion as in the Noront Report, as amended by the Tribunal, in view of the fact that there had been no changes in the state or use of these lands since that report.
Decision with respect to the Fiorese Appeal
The Tribunal finds that the appellants are receiving a benefit. They have not established any change in the circumstances of the subject lands since the Noront Report or provided any cogent reason why this Tribunal should make a decision that is different from the one made in 1981 by the Ontario Drainage Tribunal based on the same circumstances, there being no intervening change in the law or the Act during that period of time. The appellants are in essence attempting to re-litigate the 1981 appeal. The Ontario Drainage Tribunal determined that there was a benefit and the question of benefit cannot be raised on an appeal from a Section 76 report. For these reasons the appeal is dismissed.
Decision with respect to the Johnston Appeal
The Johnston appeal is also dismissed for the same reasons as given above in the Fiorese appeal. In this respect, there has been no change in the state or use of the subject lands since the Noront Report.
Decision with respect to Costs
The Municipality has requested costs against Mr. and Mrs. Fiorese. The Engineer stated that their appeal was without merit and that it would be unfair to put the costs of this hearing on the backs of the others assessed on this drain, especially in view of the fact the Mr. and Mrs. Fiorese will not be paying any part of the assessment. He requested that they pay a portion of the costs incurred in the amount of $5,709.76. The Municipality did not request costs against Mr. and Mrs. Johnston.
Mr. and Mrs. Fiorese also requested costs against the Municipality in the amount of $11,400.00 to cover the cost of their research for this hearing.
The Tribunal has the authority to make an award of costs against a party pursuant to Rule 28.04 of its Rules of Procedure. The party against whom costs are awarded must have acted “clearly unreasonably, frivolously, vexatiously or in bad faith”.
Conduct that relates to the subject matter of the proceeding is not a basis for an award of costs under the Tribunal’s Rules or section 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c.22. (Chesterman Farm Equipment Inc. v. CNH Canada Ltd., 2016 ONSC 698 (Divisional Court). It is only conduct during the proceedings which would attract an award of costs.
The Tribunal finds that this is not a case for the award of costs in favour of either the Municipality or Mr. and Mrs. Fiorese. Neither party has established that the other has acted in a manner that is clearly unreasonable, frivolous, vexatious or in bad faith during the proceedings.
Order of the Tribunal
The Tribunal therefore orders
The appeal of Mr. and Mrs. Oscar Fiorese under Section 54 of the Act is hereby dismissed.
The appeal of Mr. and Mrs. Garry Johnston under Section 54 of the Act is hereby dismissed.
That the non-administrative costs of the Township incurred with respect to this appeal shall form part of the cost of the drainage works, and such costs shall include the Engineer’s fees and expenses for preparing the report, as well as the Engineer’s fees and expenses for preparing for and attending the hearing.
There shall be no other Order as to costs and all parties shall be responsible for their own costs.
Dated at Ridgetown, Ontario this 15^th^ day of November, 2017.