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:

Niece Municipal Drain (RE) [Request for Review] City of Port Colborne

Niece Municipal Drain (RE) [Request for Review]

STATUTE:

Drainage Act

HEARING:

N/A

DATE OF DECISION:

February 23, 2018

005Niece17

NEUTRAL CITATION:

2018ONAFRAAT02

Niece Municipal DRAIN PETITION

City of Port Colborne

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 Linda and Dustin Niece, Maaike Langenberg, and Sylvia Smith in Port Colborne, Ontario and Jeff Dickson, OSPE Land Drainage Committee with respect to the Niece Municipal Drain Petition in City of Port Colborne.

Before:

Jeffrey J. Hewitt, Vice-Chair

REQUEST FOR REVIEW DECISION

Background

This is a request that the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) review the Decision issued on November 14, 2017. Requests for review were submitted by Linda and Dustin Niece, Maaike Langenberg, and Sylvia Smith. Further, Jeff Dickson on behalf of the Ontario Society of Professional Engineers’ Land Drainage Committee has also requested a review of this decision.

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 Powers 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.

Summary of the Decision:

Maaike Langenberg, Linda and Dustin Niece, and Sylvia Smith (the Appellants) of Port Colborne, Ontario, experienced drainage issues in the side and rear-yards of their homes in a residential subdivision. In an attempt to remedy those drainage issues, they petitioned the City of Port Colborne for drainage, pursuant to Section 4 of the Drainage Act. On the recommendation of the Drainage Superintendent, the City Council refused to accept the petition and the Appellants appealed to the Tribunal seeking a reversal of that Refusal Decision.

After hearing evidence in this matter, the Tribunal dismissed the appeal on the basis that the Appellants did not call any evidence to demonstrate that they could achieve the statutory thresholds for a drainage petition under Section 4 of the Drainage Act, which would result in a legally valid petition.

Basis of the Review Requests:

The Appellants’ Request for Review

The Appellants have framed their Request for Review on the basis of the Tribunal’s Rule 29.09(a), set out above, stating that they are submitting new evidence which was not available at the Hearing in the first instance, and that this new evidence would have allowed the Tribunal to reach a different decision.

The new evidence upon which the Appellants rely is a memo prepared by John Kuntze, P.Eng., of K. Smart Associates Ltd. Mr. Kuntze has experience with drains and the application of the Drainage Act. The substance of Mr. Kuntze’s memo centres around the earlier Tribunal decision of the Comazzolo Drain (RE) 2007 ONAFRAAT 1, 2007 ONAFRAAT 01, in which the Tribunal dealt with a similar suburban drainage issue and ordered the City of Welland to both accept the drainage petition and appoint an engineer. It appears that the Comazzolo decision was not put before the Tribunal when it decided the Appellants’ matter and therefore it was not considered; Mr. Kuntze, and therefore the Appellants, believes this would cause the Tribunal to reach a different decision.

Using the Comazzolo decision as its foundation, the Kuntze Memo takes issue with the Tribunal’s decision on the following points:

• The Tribunal Decision required the Appellants to provide evidence that the Appellants could achieve the statutory thresholds for a drainage petition under Section 4 of the Act. According to Mr. Kuntze, there is no indication in Section 4 or 5 of the Act requiring such evidence.

• Under the Act, the Tribunal is not involved in determining the area requiring drainage or the validity of the petition, as such falls within the jurisdiction of the Drainage Referee under Section 106 of the Act.

• The Tribunal Decision required the Appellants to provide evidence about how the Drainage Act process would or could address their drainage issues. According to Mr. Kuntze, there is no indication in Section 4 or 5 of the Act requiring such evidence.

• The Tribunal Decision required the Appellants to provide evidence about a proposed drain design or the proposed cost of such a drain and how such cost would be apportioned among the benefitting properties. According to Mr. Kuntze, doing so would appear to go against the intent of the Act.

The Ontario Society of Professional Engineers Land Drainage Committee’s Request for Review

Requests for review of a Tribunal’s decision are rare. Requests for review by a non-party are even more rare. However, under Rule 29.05, “Any person, other than a party to an appeal, may request the Tribunal to review a final decision or order with leave of the Tribunal.” In the normal course, an entity wishing to request a review would first have to request leave to do so; the Ontario Society of Professional Engineers (“OSPE”) has not done so.

When granting leave, the Tribunal would consider whether the applying party had a valid basis or reason for being granted standing in a matter. OSPE has not directly done so, although its reason can be inferred from the substance of its appeal. Given OSPE’s position, as set out below, and given that the Appellants have requested this review, I would grant OPSE leave in the circumstances.

OSPE’s grounds to request a review somewhat mirror those set out by the Appellants in the Kuntze Memo. OSPE disagrees with the following conclusions reached by the Tribunal in the first instance:

• The decision explicitly states that, when appealing under Section 5(2) of the Drainage Act, it becomes the appellant’s burden to provide evidence of the validity of the position. OSPE is unaware of any provision in the Act that would make this true. While OSPE states that it is reasonable to expect that any municipality may require such proof of validity prior to accepting a petition, it has a concern that a municipality may use the lack of proof to avoid Drainage Act procedures.

• The decision implies that, prior to a petition being accepted by municipal council, it may be required that the petitioner show: the petition to be valid, the proposed design of the drainage solution to be complete, the estimated costs of the drain be determined, and the assessment of costs be determined. OSPE is unaware of any provision in the Act that would require these steps.

• The decision implies that, through a municipality’s decision to not proceed under Section 5(1) of the Drainage Act, the responsibilities and duties of the engineer may be reallocated to the petitioner.

Analysis:

As a starting point, I find that the Appellants have not met the test for requesting a review of the Tribunal’s decision. The basis of their request is that there is significant new evidence which was not available at the hearing, such evidence being the Luntz Memo which in essence is recitation of the Comazzolo case. The failure to put a case before the Tribunal does not lead to an argument of “new evidence”. Case law is not evidence. Even if it was acceptable to argue that this case should be before the Tribunal, there was no reason why it was not put before the Tribunal in the first instance. Matters are to have finality and are not to be re-argued if and when a decision comes to light.

Further, under our administrative tribunal system, a decision of one panel of a Tribunal, while it may be persuasive, is not binding on another Tribunal.

Nevertheless, I am prepared to consider whether the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different decision pursuant to Rule 29.09(b).

The Tribunal dismissed the Appellant’s appeal as it was not convinced by the evidence that there was a valid petition before the Council of the City of Port Colborne in the first instance and before the Tribunal on appeal. It stated that the statutory thresholds for a drainage petition under Section 4 of the Drainage Act, which would result in a legally valid petition, had not been proven. Specifically, the Tribunal stated that the Appellants failed to show:

• The area requiring drainage

• That the petition was signed by a majority in number of property owners in the area requiring drainage; or

• That the petition was signed by owners, representing at least 60 percent of the hectarage in the area requiring drainage.

Mr. Kuntze and the OSPE state that there is no requirement to prove a legally valid petition under the Act. However, that is not accurate. Section 4 of the Act states:

4(1) A petition for the drainage by means of a drainage works of an area requiring drainage as described in the petition may be filed with the clerk of the local municipality in which the area is situate by,

(a) the majority in number of the owners, as shown by the last revised assessment roll of lands in the area, including the owners of any roads in the area;

(b) the owner or owners, as shown by the last revised assessment roll, of lands in the area representing at least 60 per cent of the hectarage in the area;

(c) where a drainage works is required for a road or part thereof, the engineer, road superintendent or person having jurisdiction over such road or part, despite subsection 61(5)

(d) where a drainage works is required for the drainage of lands used for agricultural purposes, the Director. R.S.O. 1990, c. D.17, s. 4 (1).

Section 4 establishes the parameters by which the drainage by petition process commences. A key consideration is to have the support of those affected by proposed drainage works, which is the threshold set by Sections 4(1)(a) (“a majority in number”) and (b) (“at least 60 percent of the hectarage”). However, in order to know the “majority” and the “hectarage”, one must also know the “area requiring drainage”. These are the statutory thresholds set by the legislature and identified by the Tribunal necessary for a legally valid petition. It is quite proper for a council or this Tribunal to not proceed with a petition if there is no proof of its validity.

While it may be accurate to say a municipality may reject a petition on the basis of lack of proof of its validity, a municipality appears to have the discretion to accept a petition and allow the process to unfold in the normal course and one would hope that it does so operating in good faith. However, it need not follow that process if the petition is not valid in the first instance.

Therefore, I find that the Tribunal did not make an error of fact or law when it decided the petition in question did not meet the statutory threshold set out in Section 4(1) of the Act.

OSPE and Mr. Kuntze have raised concerns about the following paragraph from the Tribunal’s decision and its impact on future petitions:

The appellants did not call any evidence about how the Drainage Act processes would or could address their drainage issues. The appellants did not call any evidence about a proposed drain design or the proposed cost of such a drain and how such cost would be apportioned among the benefitting properties. That sort of evidence would typically come from a drainage engineer or a drainage contractor.

Given that the Tribunal dismissed the appeal on the basis of failure to prove the statutory thresholds under Section 4 of the Act, this paragraph has no impact on the outcome of the decision. While the Tribunal may have benefited from having this information, it is what is known in law as obiter, meaning it was said “in passing”.

Decision

For the reasons set out herein, the Requests for Review of both the Appellants and the OSPE are hereby denied; the Tribunal’s decision dated November 14th, 2017 stands.

As a concluding note, nothing in the Tribunal’s decision precludes or otherwise prohibits the Appellants from presenting a valid petition that is one that meets the statutory thresholds of Section 4 of the Drainage Act, to the Council of the City of Port Colborne to address the drainage issues that the Tribunal acknowledged existed.

Dated at Tecumseh, Ontario this 23rd day of February, 2018