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:
Dingle Creek Municipal Drain (RE) Notice of Motion Hearing County of Norfolk
Dingle Creek Municipal Drain (RE) Notice of Motion Hearing
STATUTE:
Drainage Act
HEARING:
November 15, 2017
DATE OF DECISION:
November 23, 2017
007DingleCreek15
NEUTRAL CITATION:
2017ONAFRAAT19
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Joan Free, Helene Zorad, Marilyn Gillespie-Burleson of Simcoe, Ontario and El-Ahmed Orchard Ltd. of Ancaster, Ontario under sections 48 and 54 of the Drainage Act with respect to the Dingle Creek Municipal Drain in the County of Norfolk.
AND IN THE MATTER OF: An Adjournment request filed by David Free representing Appellant, Joan Free on November 15, 2017.
Before:
Paula Lombardi, Vice-Chair; Ed Dries, Vice-Chair and Tim Mousseau, Member
Attendance:
David Free, representative for Joan Free, Appellant
Marilyn Gillespie-Burleson, Appellant
Mark Abradijan, Council for Norfolk County, Respondent
Charles Livermore, Ross & McBride LLP
Bill Mayes, Drainage Superintendent, Norfolk County
Bill Dietrich, P.Eng., Engineer who wrote the report
Paul Courey, Council for the Engineer
Greg Nancekivell, Project Manager, Dietrich Engineering
MOTION DECISION OF THE TRIBUNAL
Adjournment Motion
The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a Motion Hearing by telephone on November 22, 2017 at 9:00 a.m. Mr. David Free, representing the Appellant, Ms. Joan Free, moved to adjourn the hearing scheduled for November 27 and 28, 2017, pursuant to Rule 25 of the Tribunal’s Rules of Procedure.
Preliminary Matter
At the onset on the motion hearing, Mr. Courey requested confirmation that Ms. Free had signed a letter of authorization for Mr. Free to act on her behalf. The Tribunal confirmed the appropriate documentation has been received.
Mr. Free questioned Mr. Courey’s involvement in today’s motion hearing and argued Mr. Courey failed to file the appropriate motion materials and therefore, should not participate in this motion for adjournment. Mr. Courey responded that he advised the parties of his intention to file a motion to be heard at the start of the hearing. Mr. Courey confirmed that he acts on behalf of Mr. Dietrich, P. Eng., who wrote the report for Dingle Creek Drain and represented Mr. Dietrich at both the Divisional Court and Drainage Referee hearings. For these reasons, Mr. Courey requested that the Tribunal allow him to participate in the adjournment request.
As the Tribunal indicated in the Notice of Motion, the purpose of the telephone conference was to hear submissions on the motion for adjournment brought by Mr. Free. The Tribunal grants Mr. Courey standing as it relates to the motion for adjournment and confirmed that the Tribunal will hear submissions with respect to his motion regarding standing in the hearing on the merits at a later date.
Submissions of the Parties.
The Tribunal heard from all parties participating in the motion relating to Mr. Free’s request for an adjournment of the hearing scheduled for November 26 and 27, 2017.
David Free, representing appellant Joan Free submitted that the hearing should be adjourned for three reasons. The first, related to the application of the Limitations Act. The Tribunal indicated that the Limitations Act argument was a substantive issue to be heard at the hearing of the matter. Mr. Free confirmed that the Limitations Act would not be addressed as part of his adjournment request. The second basis for Mr. Free’s adjournment was on the basis that four witnesses are unable to attend as they are out of country. Thirdly, Mr. Free requested that the hearing be adjourned until the disposition of the Constitutional Question currently before with the Superior Court.
Mr. Free indicated that there are four individuals, who he would like to call as witnesses to the hearing. Mr. Free could not provide the names of all of these witnesses. The witnesses are allegedly out of town or out of the country for significant periods of time. However, Mr. Free confirmed that he had not taken any steps as set out in the Tribunal’s rules to obtain a summons to ensure the attendance of the witnesses at the hearing. Mr. Free expressed concern that the information sent to him by the Tribunal has either not been received or received late. Notwithstanding Mr. Free did confirm receipt of the Tribunal’s information at the start of November and has still failed to take any steps to obtain a summons for, or notify, the witnesses.
Mr. Free confirmed that a motion concerning the Constitutional Question with respect to section 47 of the Drainage Act will be heard in February, 2018. Mr. Free stated that it is his understanding that any matters before the Drainage Referee should be completed prior to matters proceeding before the Tribunal continues with the appeal proceedings. Mr. Free requested that on this basis the Tribunal’s hearing on the merits of Ms. Free’s appeal be adjourned until after the Constitutional Question is finally resolved.
Mr. Abradijan on behalf of Norfolk County submitted that Ms. Free has had ample opportunity to summon witnesses, provide information regarding their necessity at the hearing, confirm their whereabouts, or provide reasons for their inability to attend. Ms. Free has had communication from, and access to, Tribunal processes and requirements, including the most recent letter of November 16, 2017. Mr. Abradijan indicated that there has been no evidence put forward with respect to the necessity for the witnesses, the evidence each will bring forward, or confirmation of a request to the Tribunal for summonses.
Mr. Abradijan confirmed that the proceedings before the Drainage Referee are concluded. The Acting Drainage Referee dismissed Mr. Free’s application and appeal to the Referee. That decision was appealed by Mr. Free to the Divisional Court. The oral reasons for judgement from Divisional Court were provided on June 6, 2017 dismissing Mr. Free’s appeal. That June 6, 2017 decision of the Divisional Court has not been appealed and therefore the matter before the Drainage Referee has been concluded. The Constitutional Question only involves the Ministry of the Attorney General. This is a separate and distinct proceeding. Mr. Courey submitted that Mr. Free misinformed the Tribunal by indicating in a letter on November 14, 2017 that the constitutional challenge is proceeding. Mr. Courey indicated that the Ministry of the Attorney General has brought a motion to dismiss Mr. Free’s application which is scheduled to be heard on February, 2018. Mr. Abradijan took the position that that the proceeding under Section 47 does not pertain to the appeals currently before this Tribunal.
Mr. Courey on behalf of Mr. Dietrich, supports the position of the County of Norfolk. On the issue of the Constitutional Question Mr. Courey clarified that the appeal to the Drainage Referee was launched by Mr. Free and the decision was denied. Ms. Free has never made an appeal to the Referee and is out of time to do so. If for any reason Mr. Free’s application regarding the Constitutional Question succeeds that does not undo the decision of the Drainage Referee. The decision of the Drainage Referee is final and as a result the Tribunal should proceed with the hearing.
Mr. Courey also submitted that there is an onus on Mr. Free to provide evidence that the witnesses who he maintains are unavailable for the hearing have some information that he can extract from them and cannot get from anywhere else in support of his client’s case. Mr. Courey indicated that Ms. Free’s appeal relates to engineering evidence and that these witnesses are not material to her appeal unless they can provide engineering testimony. Notwithstanding, no evidence has been provided indicating why they are pertinent to the hearing or the steps taken by Mr. Free to contact the witnesses prior to this motion for adjournment.
Mr. Courey made a request for the Tribunal to consider whether a stay for the purposes of the Statutory Powers Procedure Act (SPPA) applies. Section 25 of the SPPA states that an appeal from a decision of a tribunal to a court or other appellant body operates as a stay unless the tribunal, court or other appellant body orders otherwise or the application of a regulatory instrument provides to the contrary. It is the opinion of the Tribunal that the Constitutional Question currently before the courts relates to an entirely different matter and as a result does not automatically stay the matter currently before the Tribunal. This is supported by the fact that the June 2017 decision of the Drainage Referee is final and was not appealed by Mr. Free.
The Constitutional Question currently before the court relates to a distinct legal question and does not involve similar questions of fact, law or policy to the appeal currently before the Tribunal. As the matters relate to different issues the Tribunal is not exercising its discretion under section 9.1(1) of the SPPA to stay the hearing of the appeal under the Drainage Act.
Ms. Marilyn Gillespie-Burleson identified an issue regarding the dimensions of the frontage of her property shown on one of the plans. The Chair requested that Mr. Abradijan, Mr. Dietrich and Mr. Mayes speak with her independent of the motion hearing to resolve this matter. The parties agreed to speak after the telephone conference. Ms. Gillespie-Burleson then left the teleconference call without any further comment on the adjournment.
When asked for any reply, Mr. Free did not provide any further comments regarding the necessity of each witness to the hearing or the reason for the delay in contacting the witnesses. Mr. Free indicated that he did not get information until November 9, 2017. However, no evidence was provided to support his statement. The Tribunal notes that its Rules of Procedure are easily accessible from the internet and Mr. Free could have contacted the Tribunal via email or telephone to request a copy of the Rules of Procedure. Mr. Free states that the Constitutional Question currently before the court incorporates the matters heard by the Drainage Referee. Mr. Free also indicated that people in the area are heading south for the winter months and this has removed the opportunity for them to participate in this proceeding. In Mr. Free’s opinion, this is of public interest.
ANALYSIS AND FINDINGS
The Tribunal finds that the issue of when Ms. Free received the documentation from the Tribunal is not pertinent to the stay request for the following reasons: there was no evidence provided by Mr. Free to confirm that any attempt had been made to contact the witnesses, in fact Mr. Free could not remember all of their names; at no time did Mr. Free contact the Tribunal directly to request summonses of witnesses; and, Mr. Free provided no indication of an attempt to follow the Tribunal’s Rules of Procedure.
All landowners assessed in the Engineer’s Report have been provided with the Notice of Hearing, are aware of the date scheduled and are provided with an opportunity to participate in the hearing.
The Divisional Court decision of June 6, 2017 is determinative of the matters before the Drainage Referee matter and has not been appealed.
The Constitutional Question that has been advanced relates to a different question of fact, law and policy and does not operate as a stay of the appeal before the Tribunal
Order of the Tribunal
The Tribunal hereby orders:
The motion for adjournment is dismissed.
The hearing will proceed as scheduled starting Monday, November 27, 2017 at 9:00 a.m. at the Council Chambers, Norfolk County Administration Building, Governor Simcoe Square, 50 Colborne Street South, Simcoe, Ontario.
Any preliminary motions shall be heard at the onset of the hearing.
Dated at London, Ontario this 23rd day of November, 2017.