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:
Switzer and McLean Switzer Municipal Drain RFR (RE) Municipality of Southwest Middlesex
Switzer and McLean Switzer Municipal Drain RFR (RE)
STATUTE:
Drainage Act
HEARING:
DATE
DATE OF DECISION:
December 5, 2017
010 Switzer17
NEUTRAL CITATION:
2017ONAFRAAT20
SWITZER DRAIN AND MCLEAN SWITZER DRAIN Municipality of Southwest Middlesex
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: Request for Review to the Agriculture, Food and Rural Affairs Appeal Tribunal by Rein Minnema, Graham McLean, John Walsh and John and Helen Walsh with respect to the Switzer and McLean Switzer Municipal Drain in the Municipality of Southwest Middlesex.
Before:
Harold McNeely, Vice-Chair
REQUEST FOR REVIEW DECISION
Background
This is a request that the Tribunal review the Amended Decision issued on May 23, 2017. Requests for review were submitted by Rein Minnema, John Walsh, John and Helen Walsh and Graham McLean.
The Rein Minnema (“Minnema”) Request
The grounds cited by Minnema in a fax sent to the Tribunal on May 18, 2017 to support his request for review are the following:
Hereby I am appealing the decision on both hearings
-Based on documents provided for the hearings;
-Based on documents collected after the hearings.
No additional documents or submissions have been filed by this Applicant supporting his request for review.
The Request of John Walsh, John Walsh and Helen Walsh and Graham McLean, (“the other Applicants”)
The other Applicants’ request is directed at paragraphs 2 and 3 of the Tribunal’s Order.
These are the following:
50% of all work related to the project up to and including the publication of the first published report dated February 26, 2016 and the attendance of the Engineer at the meeting to consider this report on March 10, 2016 shall be levied against the current governing by-law on the Switzer Drain;
50% of all costs related to this project up to and including the publication of the first published report dated February 26, 2016 and the attendance of the Engineer at the meeting to consider this report on March 10, 2016 shall be levied against the governing by-law on the McLean Switzer Drain.
Following receipt of the other Applicants’ request for review on June 22, 2017 the Tribunal received additional submissions from them on July 30, 2017. These submissions can be summarized as follows:
The costs related to the project are not clear;
The costs should not be assessed against the owners who objected to the project and were successful in their opposition because;
A) It was expected that the petitioner would be liable for these;
B) The Engineer’s report was set aside by the Tribunal because it was not impartial, technically flawed and failed to comply with the Drainage Act;
In the alternative, these Applicants request the costs should be capped;
They seek an Order that no further petition under the Drainage Act be considered to enclose the Switzer and McLean Switzer Drains on the Minnema property and that local erosion issues be addressed immediately.
The Role of the Chair and Vice Chair on a Request for Review
It should be emphasized that orders issued by the Tribunal are to be considered final orders unless there exists limited circumstances set out in Rule 29.09 of the Tribunal’s Rules of Procedure or in the Statutory Power Procedure Act to support a review. Rule 29.09 sets out the circumstances to be considered by the Tribunal in deciding whether a review of a Tribunal’s decision is justified. The rule provides as follows:
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.
Upon receipt of a request for review, the Vice-Chair should evaluate the request for review and not conduct the review. If, based on the consideration of the relevant circumstances, including but not limited to the circumstances set out in Rule 29.09, the Tribunal finds that a review is advisable, the request for review should be granted. In the event a review is granted, the procedure applied to such a review is set out in Rules 29.23 to 29.26 and the Tribunal directs that a re-hearing on the matter be held.
Analysis:
The Minnema Request for review
The request filed by the Rein Minnema does not address or identify any relevant circumstances including those specifically outlined in Rule 29.09. Furthermore, his request does not set out the reasons for seeking the review, nor does it attach any new documents to support the request. In the Tribunal’s opinion, this request for a review is not well founded.
The Request for Review of the other Applicants
The drainage work proposed by Ray Dobin arose out of a request by Rein Minnema to the municipality under Section 78 of the Drainage Act (“Act”). Such a request is not unusual and does not need the support of other landowners. However, affected land owners are given an opportunity to make comments at a site meeting. Furthermore, if a report of an engineer is prepared pursuant to a request under Section 78, it should be noted the Municipality appoints the engineer and this is without the petition required by Section 4 [see Sec 78 (1)]. With regard to objections raised by the other Applicants that the costs related to this project are not clear and should be capped, it is standard practice to have the Municipality calculate the costs related to the project following the Tribunal’s decision based on the directions set out in the Tribunal’s Order. Therefore, the costs will be determined and assessed in keeping with the Tribunal Decision.
There is no provision in the Act that makes the person making the request under Section 78(1) solely responsible to pay the costs for this study. With regard to the other Applicants’ submission that these costs should be assessed against Minnema, the Tribunal made a finding that Minnema availed himself of his rights under the Act when requesting the closed drain which resulted in the Municipality being required to hire an engineer. Furthermore, Section 48 of the Act provides that the Tribunal may determine the portion of costs to be borne by the various affected land owners. The determination of costs is also a discretionary right given to the Tribunal. In my view, it was reasonable for the panel hearing this appeal to come to the Orders in paragraph 2, 3 and 4 of its Amended Decision.
With regard to the services supplied by Ray Dobin, and while the Tribunal’s decision was critical of his analysis and conclusions, he supplied services, identified deficiencies further to the mandate he received from the Municipality and from all indications, acted in good faith.
After reviewing the evidence, the Tribunal concluded that the costs incurred for the engineering services, up to and including the adoption of the final report on March 16, 2016, were appropriate and should be divided equally between the governing by-laws of both drains. This is a reasonable conclusion given the nature of this project. It was suggested that the costs be capped at the level of a typical planning for a municipal drain clean out. However, there is no recognized unit of measurement known as a typical planning cost for a municipal drain clean out in Ontario.
Finally, with regard for an order that “no further requests to enclose the Switzer and McLean Switzer drains on the Minnema property be considered”, the Tribunal cannot grant this request. If any request is presented to the Municipality by any landowner affected by these drains, it will be up to the Municipality to consider the request in the light of all the circumstances, including the Tribunal’s amended Decision of May 22, 2017 and to determine whether to proceed with the measures required by Section 78. If there are maintenance issues currently, or in the future, these should be dealt with under the appropriate section of the Act.
Decision
For the reasons outlined above, the requests for review by Rein Minnema , John Walsh, John and Helen Walsh and Graham McLean are denied and the Tribunal’s Amended Decision of May 23, 2017 stands.
Dated at Ottawa, Ontario this 5th day of December, 2017