Joan Free v. County of Norfolk, 2018 ONAFRAAT 11

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 – RFR (RE) County of Norfolk

Dingle Creek Municipal Drain - RFR

STATUTE:

Drainage Act

HEARING:

November 27, 2017

DATE OF DECISION:

July 27, 2018

013Dingle-RFR18

NEUTRAL CITATION:

2018 ONAFRAAT 11

IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: The Dingle Creek Municipal Drain in the County of Norfolk.

AND IN THE MATTER OF: A Request for Review by Joan Free of the May 31, 2018 decision of the Agriculture, Food and Rural Affairs Appeal Tribunal.

Before:

John O’Kane, Vice-Chair

REQUEST FOR REVIEW OF DECISION

The Request for Review:

Joan Free appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) under Section 48 of the Drainage Act¹.

Following a hearing on November 27, 2017, the Tribunal dismissed Mrs. Free’s appeal in written reasons for decision released on May 30, 2018, and subsequently amended on May 31, 2018².

Section 48 of the Drainage Act gives a landowner affected by a drainage works a right to appeal to the Tribunal if the landowner is dissatisfied with the “report of the engineer”.

In her section 48 appeal to the Tribunal, Mrs. Free asserted that the “benefits of the proposed drainage works” were “not commensurate with the estimated costs” and that “the proposed drainage works should be modified on the grounds to be stated”.

The section 48 appeal right, therefore, engages consideration of the “report of the engineer” about proposed “drainage works” and it is that consideration that informs the Tribunal’s appeal jurisdiction.

I make that point about the Tribunal’s section 48 appeal jurisdiction because it is that same jurisdictional context that shapes my jurisdiction in Joan Free’s request to review.

Mrs. Free filed a request for review of the “conduct of the proceedings and decision known as the Proposed Dingle Creek Municipal Drain . . . ”.

The Drainage Act creates several steps or processes that can be considered “proceedings” and those can include: a petition or requisition for drainage; municipal council appointment of an engineer to consider the petition; associated public meetings; an engineer’s report that includes design of drainage works, the estimated cost and the apportionment of those estimated costs among properties (assessments); municipal council by-laws implementing the engineer’s report; raising legal issues to the Drainage Referee; appeals related to assessments to the Court of Revision; appeals related to design issues and cost/benefit issues to the Tribunal; appeals from the Court of Revision to the Tribunal; and, in some instances, appeals from the Tribunal to the Drainage Referee, and appeals from the Drainage Referee to the Divisional Court.

The Tribunal is a creation of the legislation and has the authority and powers conferred on it through legislation, which in this context means the Drainage Act and the Statutory Powers Procedure Act.

The “conduct of proceedings” as addressed throughout much of Mrs. Free’s request for review related to matters that had little if anything to do with Mrs. Free’s section 48 appeal before the Tribunal.

As explained below, my authority is limited to considering the request to review the Tribunal’s decision to dismiss Joan Free’s appeals (emphasis added).

The Drainage Act provides that the Tribunal decision in a section 48 appeal is final. The operation of sections 101, 106 (2) and 121 make clear that section 48 appeal decision are not subject to appeal³. The operation of those three sections of the Drainage Act reflect the “finality” principle in litigation matters, which means that legal proceedings should not go on forever and at some point, there must be finality. In these circumstances, the legislature has decided that, in the context of a section 48 appeal, finality occurs with the Tribunal’s disposition of a section 48 appeal. There are two exceptions to that “finality” in circumstances such as these. The one exception is an application to the Divisional Court for judicial review of a Tribunal decision under the Judicial Review Procedure Act⁴. The other exception is that created for a review under the Statutory Powers Procedure Act⁵ and the Tribunal’s Rule 29. The request for review process is an extraordinary process that could delay achieving finality and therefore must be considered accordingly.

In a request for review, the onus is on the requesting party to put forward relevant circumstances, including evidence to support the request. Mrs. Free has failed to persuade me that the Tribunal’s dismissal decision should be reviewed and accordingly, for the following reasons, I decline to grant Mrs. Free’s request to allow a review to proceed.

Authority to Review Tribunal Decisions:

Section 21.1 of the Statutory Powers Procedure Act, (the “SPPA”) authorizes the Tribunal to review all or part of its own decisions if the Tribunal has created rules dealing with reviews (emphasis added).

The Tribunal has implemented the review authority granted by the SPPA in Rule 29 of its Rules of Procedure.

The Tribunal’s Rules establish a process whereby the Tribunal Chair or a Vice-Chair considers the request for review of a decision to decide “whether a review should be conducted”.⁶

The review contemplated in the SPPA and in the Tribunal’s Rules is the review of a “decision”.

The Tribunal Chair appointed me to consider Joan Free’s request for review and to determine whether a review was advisable in the circumstances.

If I considered a review was advisable in the circumstances, the Tribunal Chair would appoint a new hearing panel to conduct the review⁷. Such a review, if considered advisable, could take the form of a re-hearing of Joan Free’s section 48 appeal.

Rule 29.09 contains broadly framed criteria, allowing me to consider “any relevant circumstances”, including the five listed in subsections (a) through (e) when evaluating a request for review:

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.

Joan Free’s Request for Review:

Joan Free’s request for review did not address any of the five “relevant circumstances” set out in Tribunal Rule 29.09.

Instead, Joan Free’s request for review generally asserted that the Tribunal conducted an “unlawful” hearing and that “unlawfulness” was particularized in the request for review by the following circumstances/issues:

1. Statute of limitations:

a. Proceedings should not have been started.

b. Should have been no public meeting to accept the engineer’s report.

c. Should not have been a municipal council by-law.

2. Improperly prepared drainage petition.

3. The Tribunal ignoring argument and evidence.

4. Compromised Tribunal hearing members:

a. The Tribunal was biased.

b. The Tribunal was prejudiced.

c. The Tribunal ignoring its Rules.

d. The Tribunal violating the Members’ Code of Conduct.

5. The Tribunal ignoring procedural fairness.

6. False and libellous statements by the Tribunal.

7. The Tribunal’s unjust cost award.

8. The Tribunal failed to address the conduct of counsel for Dietrich Engineering during the hearing and at a public meeting of May 12, 2015.

9. The Tribunal violating the Charter of Rights and Freedoms.

While Rule 29.09 does not necessarily contain an exhaustive list of relevant circumstances that the Chair or a Vice-Chair might consider in a request for review, the circumstances or issues raised by the requester Joan Free must nonetheless be “relevant circumstances”.

I observe that the list of circumstances/issues raised in Joan Free’s request for review reveals that Mrs. Free is endeavouring to re-try or re-argue her section 48 appeal hearing in the guise of a request for review. In this regard, I make the point that a request for review is not an opportunity for re-arguing or re-hearing an appeal.

The Issues/Circumstances Raised by Joan Free:

1. Issues 1 (a), (b) and (c) related to the validity of several Drainage Act processes can be conveniently addressed together.

Joan Free argued that the “proceedings should have not ever been started since the statute of limitations has significant passed”. (sic)

In this same context, Joan Free argued that the petition was not “legal and viable” and that the municipal council should not have held a “public meeting to accept the engineer’s report”, or allow “two readings of the bylaw”. Mrs. Free complained about the “conduct of the municipality in the context of it authority to use a 12 year old, improperly prepared petition to commence municipal drain proceedings.” (sic)

From this argument, I understand Mrs. Free’s “limitation” issue is that too much time had passed between the date(s) the petition(s) were filed and the “public meeting” and the “bylaw”.

As noted in the Tribunal’s Amended Decision, there were five petitions made under the Drainage Act as follows:

• June 8, 2005 – Dingle Creek lower reach

• June 27, 2006 – Dingle Creek upper reach

• June 27, 2006 – Dingle Creek Branch 1

• April 4, 2007 – Dingle Creek Branch 2

• November 2, 2007 – Highway No. 3 main drain, Branches 1 and 2

I take Joan Free’s reference to the statute of limitation as meaning the Limitations Act, 2002.

The Limitations Act, 2002 contains at section 2 the following description of what matters the Limitations Act, 2002 applies to – this “Act applies to claims pursued in court proceedings . . . “. The Limitations Act, 2002 defines “claims” to mean “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.” The Limitations Act, 2002 establishes a basic two-year limitation period that begin to run from the date the “claim was discovered”.

I do not interpret that a petition for drainage under the Act to be a “claim” under the meaning of the word “claim” in the Limitations Act, 2002, nor do I interpret the Tribunal’s proceedings to be “court proceedings” as referred to in the Limitations Act, 2002.

The Drainage Act creates a process whereby property owners who wish to create or improve drainage on their property, can apply to the local municipal council via a petition for drainage. Joan Free’s arguments do not point to any sections of the Drainage Act acting as a time limit on when property owners can or cannot apply to the local municipal council via a petition for drainage.

Joan Free’s arguments do not point to any sections of the Drainage Act that support her view that a legislated time limit had expired between the date(s) of the petition(s) to the date of the public meeting or to the passage of the by-law.

While the Drainage Act establishes times for taking certain steps in the various processes, none of those times appear to me to be relevant in the context of Joan Free’s section 48 appeal or in this request for review. As previously noted in these reasons, a section 48 appeal to the Tribunal relates to the “engineer’s report” and not to the many other Drainage Act processes that may have lead up to the “engineer’s report”, or that follow an “engineer’s report” that has been adopted and implemented.

Joan Free’s request to review failed to produce any significant new evidence in respect of the Limitation Act, 2002 issue.

Joan Free’s request to review has not convinced me that the Tribunal made any material error of fact or law in its May 31, 2018 Amended Decision in respect of the Limitation Act, 2002 issue.

Therefore, I am not satisfied that Joan Free’s issues 1 (a), (b) and (c) raise any relevant circumstances that warrant granting her request for review of the Tribunal’s May 31, 2018 Amended Decision.

2. Improperly Prepared Drainage Petition.

This assertion flows from Joan Free’s argument as quoted in Issue 1, together with additional assertions related to the form of the petition not being proper and not containing “individual and discreet” acknowledgment and consent of personal liability.

Joan Free argued that the form used for the petition(s) affects the validity of the petition(s). In these circumstances, I disagree with Joan Free. However, I add the caveat that issues related to the validity of a petition for drainage do not fall within the Tribunal’s jurisdiction in a section 48 appeal and therefore in a request for review arising from the Tribunal’s section 48 appeal decision, my authority is similarly limited. Despite that, given the nature and scope of Joan Free’s request for review, I will comment further.

Section 4 of the Drainage Act contains the requirements for a petition relevant to this request for review that include:

• “an area requiring drainage as described in the petition”

• the petition be filed with the clerk of the “local municipality in which the area is situate”

• the petition be from “the majority in number of the owners” in “the area”, or

• the owner(s) “representing at least 60 per cent of the hectarage in the area”

• the petition be signed by those owner(s)

I note that between 1990 and November 21, 2012, the form of a drainage petition by a person was Form 3 under Regulation 274, R.R.O. 1990. With the repeal of Regulation 274, the Legislature enacted Ontario Regulation 381/12 on November 21, 2012. Under Ontario Regulation 381/12, the content of drainage petitions was significantly enhanced, including an acknowledgment by petitioners of their personal liability for costs in the event they withdraw their names from the petition and as a result, the petition ceased to be valid.

All five of the drainage petitions noted above were made well before Ontario Regulation 381/12 was enacted. There is nothing in Ontario Regulation 381/12 to suggest that it applies retroactively to the drainage petitions made between 2005 and 2007 that initiated the drainage works that were the subject of Joan Free’s appeal under section 48 of the Drainage Act.

In any event, section 9 of the Drainage Act dictates that it is the duty of the engineer appointed by the municipality to determine “whether the petition complies with section 4” and where the engineer’s opinion is the petition is compliant, the engineer “shall proceed to prepare a report”.

Therefore, under the Drainage Act, the engineer has the authority and the duty to determine whether a petition has been properly prepared.

A challenge to the validity of a petition as determined by the engineer does not lie to the Tribunal but rather lies before the Drainage Referee under subsection 106(1)(b) of the Drainage Act that provides that “the referee has original jurisdiction to determine the validity of, or to confirm, set aside or amend any petition . . . relating to a drainage works under this Act . . .”.

Therefore, in the context of this request for review of the Tribunal’s section 48 appeal decision, the issue Joan Free raised about the validity of the petition(s) is outside the Tribunal’s jurisdiction.

Joan Free’s request to review failed to produce any significant new evidence in respect of the validity of the petition(s) issue.

Joan Free’s request to review has not convinced me that the Tribunal made any material error of fact or law in its May 31, 2018 Amended Decision in respect of the validity of the petition(s) issue.

Therefore, I am not satisfied that Joan Free’s issue 2 raises any relevant circumstances

that warrant granting her request for review of the Tribunal’s May 31, 2018 Amended Decision.

3. The Tribunal Ignoring Argument and Evidence.

Joan Free’s request for review asserts that “substantial reasons for the appeal were provided in advance of the hearing . . .” and that “constitutes argument and evidence in common law and has been ignored”.

In support of those assertions, Joan Free listed five documents that she argued were part of her “substantial reasons” for the appeal that were ignored by the Tribunal. In addition, Mrs. Free makes several references to the record or the recording of the Tribunal hearing.

On the first point, pursuant to Tribunal Rule 29.16⁸, I have obtained and reviewed the relevant components of the documentary hearing record that includes hearing exhibits #7 and #8 filed during the evidence of David Free on November 27, 2017 as well as the five documents listed on page 2 of Joan Free’s request for review. In addition, I have obtained and listened to the audio recording of the hearing. I did not, as part of considering Mrs. Free’s request for review, consult with the members of the Tribunal who participated in the appeal hearing.

From my review of the relevant documentary hearing record, and from my listening to the audio recording⁹ of the hearing, I am not convinced by Joan Free’s assertions that her “evidence and argument” was ignored. It is apparent from my review of that material and the Tribunal section 48 appeal decision that Joan Free’s “evidence and argument” was received and considered by the Tribunal hearing panel.

It is also apparent to me from the Tribunal’s section 48 appeal decision that it accorded little to no weight to the “evidence and argument” of Joan Free. While Joan Free may disagree with the Tribunal hearing panel’s assessment and weighing of that evidence, Joan Free has not produced in this request for review any significant new evidence which was not available at the time of the appeal that convinces me that the Tribunal hearing panel’s assessment and weighing of that evidence was wrong or unreasonable in the circumstances.

The essence of this aspect of Joan Free’s request for review is that she is seeking from me a re-hearing or re-trial of her section 48 appeal but with a different result. As noted previously in these reasons, a request for review under Tribunal Rule 29 is not an opportunity for a re-hearing.

Joan Free’s request to review has not convinced me that the Tribunal made any material error of fact or law in its May 31, 2018 Amended Decision in respect of the issue that the Tribunal hearing panel ignored evidence and argument.

Therefore, I am not satisfied that Joan Free’s issue 3 raises any relevant circumstances that warrant granting her request for review of the Tribunal’s May 31, 2018 Amended Decision.

4. Issues 4 (a), (b), (c) and (d) about bias, prejudice, ignorance of Tribunal Rules, common law and the Code of Conduct can be conveniently addressed together.

Joan Free’s assertion in this regard is that “all of these proceedings have been bias and prejudice ignoring the Rules of the Tribunal, common in law in principles procedural fairness and the Drainage Act of Ontario” (sic).

I discern that the essence of that contention is that the Tribunal hearing members compromised the impartiality required of administrative decision-makers.

In partial support of this issue(s), Joan Free refers to the “patently false statements” that Tribunal members made with respect to “a vexatious conduct of the David Free” (sic). David Free is Joan Free’s spouse. David Free represented Joan Free at the Tribunal hearing and was the primary witness on behalf of Mrs. Free as well as her advocate during the section 48 appeal hearing. Joan Free did not attend the Tribunal hearing of her section 48 appeal and did not testify at the appeal hearing.

In addition, Joan Free’s request for review makes nineteen assertions in a bulleted format as if those assertions were facts or findings. Several of those assertions contain the words “should be” or something similar. It is apparent from my review of those nineteen assertions that Mr. and Mrs. Free do not have a good grasp of what is “evidence” or what is a “fact”. In a legal proceeding, parties put forward evidence, typically documentary evidence and oral testimony. Assertions like “storm water . . . should be redirected . . .”, “. . . storm water detention systems/ponds should have flow restriction . . .”, “the Engineer has chosen a design that is contrary to good engineering . . .”, “the municipal drain is not necessary . . .”, “the municipality is abusing the municipal drain process . . . “, “Mr. Verspagen is not permitted as a witness . . .”, are not evidence, they are argument or submissions. In the context of this request for review, those assertions certainly communicate the Frees’ displeasure and disagreement with the Tribunal decision, but they fail to reach the level of evidence and they do not become “facts” simply because Mr. and Mrs. Free believe them.

The decision maker, in this case the Tribunal, considers the evidence of the witnesses and makes findings of “fact”.

The Tribunal hearing panel made findings of fact that David Free’s conduct during the November 27, 2017 hearing was “unreasonable, frivolous or vexatious”.

The appeal hearing audio recording revealed David Free as argumentative, disrespectful and not prepared to abide by rulings and directions of the Vice-Chair who was chairing the appeal hearing. For example:

• during a preliminary motion made on behalf of Joan Free to file additional hearing documents the Tribunal granted the motion but took pains to explain to David Free the nature and extent of the Tribunal’s section 48 appeal jurisdiction and how much of what was contained in Joan Free’s Notice of Appeal and hearing documents was outside the Tribunal’s jurisdiction. In response, David Free began to argue with the Vice-Chair about the law as it related to the Limitations Act. When the Vice-Chair reiterated the ruling regarding jurisdiction as it related to the Limitations Act, David Free responded: “so there is no law”.

• early in David Free’s evidence, he was making assertions and submissions about the invalidity of the petition(s) and the limitations issue. The Respondents objected. The Vice-Chair made a ruling sustaining the Respondents’ objections and directing David Free not to pursue matters that were outside the Tribunal’s jurisdiction. David Free’s response to the Vice-Chair was “you don’t want the truth”.

• later in the hearing, David Free began making assertions about how the owners’ rights of appeal in respect of an environmental appraisal under section 6(3) of the Drainage Act had been “usurped” by the municipality. The Respondents objected. The Vice-Chair made a ruling sustaining the Respondents’ objections and explained to David Free that the appeal hearing was a section 48 appeal and issues related to an environmental appraisal were not before the Tribunal on appeal.

• David Free then again attempted to raise the issue of the validity of the petition(s) by asserting that “people were duped” and “didn’t have a good understanding” about the petition(s). The Respondents objected. Once again, the Vice-Chair sustained the objection and for what was at least the third time in the hearing, explained to David Free about the scope of the Tribunal’s authority in a section 48 appeal and directed that he focus his evidence and argument on section 48.

• during cross-examination, David Free refused to answer a question and began bickering with counsel about the nature of a section 48 appeal. The Vice-Chair ruled that the question was proper and directed David Free to answer, to which he replied, “I’m walking out”.

• David Free then argued with the Vice-Chair that the question was “not germane” to the appeal. The Vice-Chair reminded David Free that he had made very serious allegations in his evidence and submissions and directed that he answer the question. David Free responded to the Vice-Chair saying “serious – who died?”

• the cross-examination continued into the area of David Free’s role as both witness and advocate on behalf of Joan Free. It was clear even on the audio recording that David Free did not like that line of questioning. When asked about a letter sent to Joan Free in the days before the hearing and about Mrs. Free making a choice to have David Free attend as both witness and advocate, he refused to answer the question and asserted “I have to seek legal counsel” to answer.

• when asked to confirm that Joan Free’s appeal was not made under section 54 of the Drainage Act, David Free refused to answer yes or no and simply repeated: “you have all the documentation”. When the Vice-Chair directed that David Free answer he responded by saying “you know what, this is a game” and you have “turned this into an absolute joke” by “allowing this jerk here”.

• the response about the “jerk” was referring to counsel who was at that time conducting the cross-examination. When again directed by the Vice-Chair to answer the question to confirm that Joan Free’s appeal was not under section 54, David Free’s answer was “you’ll have to ask her”.

• at that point in the cross-examination, counsel observed that David Free was holding his telephone in his hand and counsel asked, “are you recording this proceeding?”. Again, David Free’s answer was “I don’t have to answer that”. The Vice-Chair interjected to direct David Free to answer. He responded by saying “you know what”, “you can have a look”. David Free then said, “this is a joke” and “you should be ashamed” and at that point in the cross-examination, David Free left the hearing room and did not return.

The Tribunal has the power to control its own process and that includes the conduct of appeal hearings. As part of that authority, the Vice-Chair who is chairing the hearing has the authority to consider objections and make rulings and give the participants directions to facilitate the hearing process. Having heard the audio recording, I do not find the Vice-Chair’s rulings in the circumstances to be unreasonable, unfair, biased, prejudiced or in ignorance of the common law, the Tribunal Rules or the Members’ Code of Conduct.

In this request for review, Mrs. Free has not produced any significant new evidence in respect of this issue and instead, is relying on the audio recording of the section 48 appeal hearing and reiterating arguments and submissions made at the hearing and in written submissions filed after the hearing.

The audio recording of the hearing does nothing to provide any evidentiary support for this aspect of Joan Free’s request for review.

The written submissions filed after the hearing do nothing to provide any evidentiary support for this aspect of Mrs. Free’s request for review.

Joan Free’s request to review has not convinced me that the Tribunal made any material error of fact or law in its May 31, 2018 Amended Decision in respect of the issue that the Tribunal hearing panel was biased, prejudiced, ignored the common law, ignored the Tribunal’s Rules, or ignored the Members’ Code of Conduct.

Therefore, I am not satisfied that Joan Free’s issue 4 raises any relevant circumstances that warrant granting her request for review of the Tribunal’s May 31, 2018 Amended Decision.

5. The Tribunal ignored procedural fairness.

Procedural fairness is a common law concept. It means that in matters affecting the rights of people, the process must be fair. The aspects of procedural fairness may be greater or lesser depending on the rights in issue. Some of the aspects of procedural fairness include the right to know the case to be met and the right to respond to that case. These rights are enjoyed by all parties to a legal proceeding. However, a right to participate in the process and be heard is not a right to have one’s views accepted. It is apparent from the Joan Free request for review and from the hearing evidence, submissions and audio recording that Mr. and Mrs. Free incorrectly equate procedural fairness with the Tribunal accepting their views.

The Tribunal has animated the common law procedural fairness concept in its Rules of Procedure. It is apparent from listening to the audio recording that Mr. and Mrs. Free did not follow the Tribunal’s Rules in respect of delivering hearing materials in advance and in accordance with the schedule set by the Tribunal and did not deliver witness statements in advance of the hearing as directed by the Tribunal.

Apart from the vague assertions in the request for review of a breach of procedural fairness, Joan Free has not produced any evidence in support of those vague assertions.

Mrs. Free did point to what she asserted was a breach of Tribunal Rule 22 related to expert witnesses.

The audio recording reveals that the Tribunal heard testimony from two professional engineers who were each qualified as experts to give expert opinion evidence in their respective disciplines. William Dietrich was one of the engineers qualified as such by the Tribunal. Brian Verspagen was the second of the engineers qualified as such by the Tribunal. Both Mr. Dietrich and Mr. Verspagen gave a mix of testimony based on their observations, measurements and analysis as well as their expert opinion evidence.

Mrs. Free’s assertion about the Tribunal Rule 22 is misguided. Her appeal under section 48 of the Drainage Act was an appeal from the Engineer’s Report dated April 4, 2014. She clearly had the report of the only experts testifying at the hearing well in advance of the November 27, 2017 hearing. As confirmed in the evidence of both Mr. Dietrich and Mr. Verspagen, they both contributed to the development of the Engineer’s Report.

Mrs. Free’s request for review also made some arguments related to the rules governing professional engineers, however, those rules are outside the Tribunal’s jurisdiction and therefore I do not consider those rules to be a relevant consideration in a request for review under the Tribunal’s Rule 29.

In this request for review, Mrs. Free has not produced any significant new evidence supporting the assertion that the Tribunal hearing panel committed a breach of procedural fairness. In my view, the hearing panel extended Mr. and Mrs. Free several indulgences. Those indulgences were in direct response to Mr. Free’s and Mrs. Free’s conduct in the proceedings that were procedurally unfair to the other parties.

Joan Free’s request to review has not convinced me that the Tribunal made any material error of fact or law in its May 31, 2018 Amended Decision in respect of the assertion that the Tribunal breached procedural fairness.

Therefore, I am not satisfied that Joan Free’s issue 5 raises any relevant circumstances that warrant granting her request for review of the Tribunal’s May 31, 2018 Amended Decision.

6. False and libellous statements by the Tribunal.

The Tribunal has no jurisdiction over libel. Libel is a civil wrong that is actionable in the Superior Courts.

Accordingly, I have no jurisdiction in a request for review under the Tribunal’s Rule 29 to consider assertions that the Tribunal made libellous statements.

In terms of Joan Free’s assertion that the Tribunal made “false” statements in its decision, it is incumbent on Joan Free in her request for review to provide evidence to support that assertion. Joan Free’s request for review does not provide any evidence that the Tribunal made any “false” statements in it decision.

In this respect, Joan Free’s assertions relate to the Tribunal’s findings that David Free’s conduct was, among other things, vexatious. I have already indicated that based on my review of the audio recording of the Tribunal hearing, that finding related to Mr. Free’s conduct was entirely reasonable.

Joan Free’s request to review has not convinced me that the Tribunal made any material error of fact or law in its May 31, 2018 Amended Decision in respect of the “false and libellous statement” issue.

Therefore, I am not satisfied that Joan Free’s issue 6 raises any relevant circumstances that warrant granting her request for review of the Tribunal’s May 31, 2018 Amended Decision.

7. The Tribunal’s unjust cost award.

Joan Free asserts that the cost award made against her due to the conduct of David Free was unjust because the costs of the entire proceeding involving several appellants were imposed solely on her.

The Tribunal awarded the County costs of $12,500.00 against a request for $40,750.01 in actual legal costs.

The Tribunal awarded Dietrich Engineering costs of $10,000.00 against a request for $58,102.02 in actual costs.

It is apparent that the Tribunal did not award the costs of the entire proceeding against Joan Free.

The Tribunal’s written reasons go into several pages of analysis and explanation about why, in this hearing’s circumstances, it determined that a cost award was warranted.

In this request for review, Mrs. Free has not produced any significant new evidence in respect of the costs award issue.

The audio recording of the hearing does nothing to provide any evidentiary support to this aspect of Joan Free’s request for review and in my view the audio recording that captures the conduct of David Free provides full support for the Tribunal’s cost award.

Joan Free’s request to review has not convinced me that the Tribunal made any material error of fact or law in its May 31, 2018 Amended Decision in respect of the cost award.

Therefore, I am not satisfied that Joan Free’s issue 7 raises any relevant circumstances that warrant granting her request for review of the Tribunal’s May 31, 2018 Amended Decision.

8. The Tribunal failed to address the conduct of counsel for Dietrich Engineering.

Mrs. Free’s assertions in this regard relate initially to an interaction between David Free and counsel for Dietrich Engineering that allegedly occurred in a public meeting in the Norfolk County Council Chambers on May 12, 2015.

Joan Free’s Notice of Appeal under section 48 of the Drainage Act is dated June 11, 2015.

I observe that the Tribunal’s jurisdiction is first engaged almost a month after the alleged interaction and only in the context of an appeal under section 48 of the Drainage Act. I make that observation to communicate to Mr. and Mrs. Free the nature of the Tribunal’s jurisdiction generally involves three elements: party jurisdiction, subject matter jurisdiction and remedy jurisdiction. In this context I would add a fourth element, and that is temporal jurisdiction.

I reviewed the video statement evidence of Joan Free and John Hawkins on YouTube since they were included in Joan Free’s request for review. Both statements were apparently made in 2016, in respect of events of May 12, 2015. That evidence about this alleged interaction on May 12, 2015 is entirely irrelevant to the proceedings before the Tribunal.

If, as Mrs. Free’s request for review asserts, Mr. Free believed that he was the victim of an assault in May 2015, he had available avenues to pursue with the appropriate policing agencies.

Therefore, in terms of temporal jurisdiction, subject matter jurisdiction and remedy jurisdiction in relation to any alleged assault in May 2015, the Tribunal does not have any jurisdiction. The Tribunal had no jurisdiction in respect of that issue at its November 27, 2017 hearing or in its May 31, 2018 decision dismissing Joan Free’s section 48 appeal.

Accordingly, in the context of Joan Free’s request for review of the Tribunal’s May 31, 2018 decision, I similarly have no jurisdiction to deal with any alleged interactions that happened in May 2015.

While not very clear in Joan Free’s request for review, there seems to be an intimation that there was some conduct by counsel for Dietrich during the Tribunal hearing that was a continued “assault on the integrity of the process as evidence by his questions and demeanour.” (sic) Mrs. Free goes on to assert that she had a valid objection to the participation by Dietrich’s counsel.

Dietrich Engineering and William Dietrich made a preliminary motion to the Tribunal hearing panel to make Mr. Dietrich and the engineering firm parties. The basis of the motion arose from allegations made in Joan Free’s section 48 Notice of Appeal that asserted, among other things that “the engineer is in violation of section 11 of the Drainage Act having taken direction and favoured the municipality to the detriment of the residents . . .”.

After hearing evidence and argument on that preliminary motion, including David Free’s objections to the motion, the Tribunal granted Dietrich and Dietrich Engineering party status.

There is nothing in the audio recording of the Tribunal hearing that supports Joan Free’s veiled assertion of a “continued assault.”

If the complaint is not referring to an actual assault but rather a metaphorical assault arising from counsel’s cross-examination of David Free, my observation is that in that context, Mr. Free is the author of those cross-examination events by his continued refusal to answer questions, by his argumentative responses, by his non-responsive answers, by his refusal to abide by and follow the Vice-Chair’s rulings, and by his chastising of the Tribunal panel, process and counsel with, among other things, “so there is no law”, “you don’t want the truth”, “I’m walking out”, “serious – who died?”, “I have to seek legal counsel”, “you know what, this is a game”, you have “turned this into an absolute joke”, “this is a joke”, “you should be ashamed”.

In this request for review, Mrs. Free has not produced any significant new evidence in respect of this issue and instead, is relying on the audio recording of the section 48 appeal hearing and two unsworn video statements related to events the pre-date the Tribunal hearing by over two years.

Neither the audio recording of the hearing nor the video statements of Joan Free and John Hawkins do anything to provide any evidentiary support to this aspect of Joan Free’s request for review.

Joan Free’s request to review has not convinced me that the Tribunal made any material error of fact or law in its May 31, 2018 Amended Decision in respect of this issue.

Therefore, I am not satisfied that Joan Free’s issue 8 raises any relevant circumstances that warrant granting her request for review of the Tribunal’s May 31, 2018 Amended Decision.

9. The Tribunal violating the Charter of Rights and Freedoms

Joan Free’s request for review in this context arises from David Free’s cross-examination when counsel asks him about holding his telephone in his hand and whether he is “recording” the hearing. The exchanges between David Free, counsel and the Tribunal Vice-Chair have been previously set out in these review reasons and need not be repeated here.

The Tribunal’s Rule 17.01 prohibits recording a Tribunal hearing without authorization from the Tribunal.

The Tribunal Vice-Chair’s inquiry relating to a possible breach of Rule 17.01 was completely appropriate as part of the Tribunal’s power to control its own process.

As revealed in the audio recordings, David Free’s phone was “locked” and accordingly, no determination was made that he had breached Rule 17.01. More importantly in the context of this Charter allegation, none of David Free’s private information on that phone was accessed.

In this request for review, Mrs. Free has not produced any significant new evidence in respect of this issue.

The audio recording of the hearing does nothing to provide any evidentiary support to this aspect of Joan Free’s request for review.

The written submissions filed after the hearing do nothing to provide any evidentiary support to this aspect of Mrs. Free’s request for review.

Joan Free’s request to review has not convinced me that the Tribunal made any material error of fact or law in its May 31, 2018 Amended Decision in respect of the Charter breach issue.

Therefore, I am not satisfied that Joan Free’s issue 9 raises any relevant circumstances that warrant granting her request for review of the Tribunal’s May 31, 2018 Amended Decision.

Conclusion

In all the circumstances there is no merit in any of the assertions contained in Mrs. Free’s request for review. There is no reliable or credible evidence that supports any of her assertions and there is certainly no significant new evidence which was not available at the time of the original appeal hearing. In my view, the Tribunal did not make any material errors of fact or law.

Mrs. Free’s request for review did not include any evidence or arguments related to the circumstances/issues of any party relying on the Tribunal’s decision. Similarly, Mrs. Free’s request for review did not include any evidence or arguments related to the extent to which any party will be affected by the review process. Finally, Mrs. Free’s request for review did not include any evidence or arguments related to weighing the finality of the Tribunal’s decision with any alleged prejudice to Mrs. Free. In my view and in the circumstances of this case, the public interest in finality is outweighed by any prejudice to Joan Free.

Accordingly, for all the reasons outlined herein, I deny Joan Free’s request for review.

Dated at Collingwood, Ontario this 27th day of July, 2018.

Section 106(2) Subject to section 101, the referee has jurisdiction to hear appeals from any decision or order of the Tribunal and for such purpose may make any order that the Tribunal might have made and may substitute his or her opinion for that of the Tribunal. Section 121 Except as otherwise provided in this Act, the decision of the referee or acting referee may be appealed to the Divisional Court within thirty days after the filing thereof with the local registrar of the Superior Court or within such further time as the referee or Divisional Court may allow.

Footnotes

1. 1Drainage Act, R.S.O. 1990, Chapter D.17, as amended
2. 2The amendment to the Tribunal’s reasons for decision does not appear to be material to Mrs. Free’s Request for Review and therefore throughout, I will refer to the amended decision as the decision.
3. 3Section 101 In any application, appeal or reference under sections . . . 48 . . . the decision of the Tribunal is final.
4. 4R.S.O. 1990, c.J.1
5. 5R.S.O. 1990, c.S.22
6. 6Rule 29.13 The Chair of the Tribunal, or a Vice-Chair designated by the Chair, shall consider each request for review of a final decision or order and decide whether a review should be conducted.
7. 7Rule 29.25 A review shall be conducted by a panel of the Tribunal designated by the Chair.
8. 8Rule 29.16 The Chair, Vice-Chair or other member or members of the Tribunal who considers a request for review may have regard to the record of the hearing of the appeal or motion in addition to any material filed by the requester and any other party to the appeal.
9. 9The quality of the audio recording in places is variable. The Tribunal members use the audio recording to supplement their bench notes. The audio recording is not intended to be an official “record” of the proceeding. Pursuant to Tribunal Rule 16, parties to a hearing before the Tribunal can elect to privately hire a verbatim court reporter to record the hearing and produce verbatim transcripts.