OAFRAAT 2019

Several landowners appealed the assessments and allowances in the Engineer's Report for the South Innisfil Creek Drain Improvement under the Drainage Act.

The appellants argued that their assessments were too high, that the municipality should bear more costs due to past lack of maintenance, and that the drain improvements would not benefit them until downstream culverts were replaced.

A golf course owner appealed the allowance for loss of access, arguing it should cover four bridges instead of one.

The Tribunal dismissed the assessment appeals, finding the engineer's allocations fair and reasonable.

However, the Tribunal allowed the golf course's appeal in part, increasing the allowance for one bridge from $41,600 to $137,500 based on expert evidence, while agreeing that only one bridge should be funded by the drain.

The applicant, a farmer, applied to the Agriculture, Food and Rural Affairs Appeal Tribunal for a religious exemption from registering his farm and making a mandatory payment to a farm organization.

The Tribunal applied a three-pronged test derived from labour relations case law to determine if the objection was based on genuinely held religious beliefs.

While finding the applicant's beliefs were genuinely held, the Tribunal concluded they were primarily philosophical rather than religious, and that the actual cause of the application was to avoid the administrative burden of requesting an annual refund.

The application was dismissed.

The Dairy Farmers of Ontario (DFO) brought a motion to define the scope of a statutory stay arising from an appeal by Skotidakis Goat Farm against a DFO decision imposing retroactive assessments and other penalties.

The Tribunal held that the statutory stay did not suspend DFO's regulatory authority to conduct ongoing inspections and audits outside the scope of the appealed decision.

Applying the RJR-MacDonald test, the Tribunal also ordered the Appellants to preserve original production records and post financial security of approximately $3.3 million (representing two months of average milk purchases) pending the final disposition of the appeal.

Several landowners appealed the Engineer's Report for the Filsinger Municipal Drain under sections 48 and 54 of the Drainage Act.

The appellants challenged the inclusion of certain lands in the watershed, the scope and cost of the proposed drainage work, the right-of-way allowances, and the assessment calculations.

The Tribunal dismissed the section 48 appeals regarding the watershed and drainage work, finding the existing drain was in poor condition and the proposed work was necessary.

The Tribunal allowed Tyson Kraemer's section 48 appeal in part, increasing his right-of-way allowance.

The Tribunal also allowed the section 54 appeals in part, adjusting the maintenance assessments for the upstream reach of the closed drain, but otherwise accepted the Engineer's assessment calculations.

The Attorney General brought a motion to strike portions of the UFCW's affidavit evidence-in-chief on the first day of a scheduled constitutional challenge hearing.

The Tribunal dismissed the motion, finding it was brought too late and would unnecessarily disrupt the hearing schedule.

The Tribunal noted its broad discretion under section 15 of the Statutory Powers Procedure Act to admit evidence that might be inadmissible in court, and stated that issues of reliability and weight could be addressed during the hearing.

The Attorney General moved to strike portions of the UFCW's affidavit evidence-in-chief on the first day of a constitutional challenge hearing before the Agriculture, Food and Rural Affairs Appeal Tribunal.

The Tribunal dismissed the motion, finding it was brought too late and would disrupt the hearing schedule.

The Tribunal also noted its broad discretion under section 15 of the Statutory Powers Procedure Act to admit evidence that might be inadmissible in a court of law, leaving issues of reliability and weight for later determination.

The Appellant appealed a director's decision that conditionally restored its meat plant operating licence following a provisional suspension.

The suspension was issued after the Appellant's principal refused to allow a Ministry inspector to conduct a random inspection of the meat plant, claiming it was closed.

The Tribunal found that the inspector's attempts to conduct random inspections were reasonable and necessary for food safety.

The Tribunal restored the licence but imposed stricter conditions than the director, including a requirement for a pre-start-up inspection and 24-hour advance notice to the Ministry before any processing occurs.

Following the dismissal of the applicants' claim regarding a turn-key installation of a new milk dairy parlour, the respondent requested $15,000 in costs.

The respondent argued the applicants acted unreasonably, frivolously, vexatiously, or in bad faith by pursuing the application despite a signed release and by alleging the respondent caused a mastitis outbreak in their herd.

The Tribunal denied the request for costs, finding that the applicants had a genuine belief that the release was unenforceable and that the respondent's actions caused the mastitis outbreak, and therefore did not act in bad faith.

The appellant appealed the quality of construction of a drainage works under section 64 of the Drainage Act.

The appeal was dismissed because the appellant failed to prove the drain was not constructed as designed.

The respondent municipality subsequently sought costs.

The Tribunal found the appellant's conduct unreasonable and frivolous, noting she presented no engineering evidence and attempted to relitigate decided issues.

The Tribunal ordered the appellant to pay $6,638.40, representing 80% of the municipality's costs, with the remainder apportioned to the drain.

The applicants, dairy farmers, sought $150,000 in compensation from a farm equipment dealer under the Farm Implements Act, alleging that defective milking and stabling equipment caused mastitis and elevated somatic cell counts in their herd.

The Tribunal found no proven causal link between the equipment and the herd's health decline.

Furthermore, the Tribunal upheld a settlement release signed by the parties, rejecting the applicants' arguments that it was signed under duress or voided by the respondent's subsequent breach of its confidentiality clause.

The application was dismissed.

The Appellants appealed a decision classifying their farm as unsanitary non-Grade A and shutting it off from the milk market after they refused to allow a Grade A inspection.

The Respondent brought a motion to refuse to hear the appeal under subsection 16(4) of the Ministry of Agriculture, Food and Rural Affairs Act, arguing it was frivolous, vexatious, and not made in good faith.

The Tribunal found the appeal had no legal merit, as market access requires compliance with inspection laws, and was brought for the improper purpose of harassing officials.

The Tribunal refused to hear the appeal and awarded $7,500 in costs against the Appellants for their unacceptable conduct.

The appellant appealed the allocation of $15,000 in engineering costs assessed against his property for a proposed improvement to a municipal drain.

The appellant had requested the improvement but later withdrew the request.

The municipality then instructed its engineer to prepare a report under section 40 of the Drainage Act stating the works were not required, resulting in additional costs.

The Tribunal found that the initial $9,000 in engineering work benefited all properties in the watershed and should be assessed against the drain under the existing by-law.

The Tribunal further held that the municipality erred in directing a section 40 report, and ordered the remaining $6,000 to be paid out of the municipality's general funds.

The Town of Fort Erie applied to correct an engineer's report regarding the Zavitz Municipal Drain.

The Tribunal previously granted the appeal, ordered amendments to the report, and awarded compensation to a landowner, Mr. Clee, for property damage.

In this costs decision, the Tribunal determined the apportionment of costs.

The Tribunal awarded Mr. Clee his legal and consulting fees, and awarded the Town its engineering costs for the amended report.

The Tribunal ordered the City of Port Colborne to pay these costs out of its general funds, finding that the City's Drainage Superintendent caused the significant errors and that assessing the costs against the watershed would be inappropriate.

The applicant municipality sought an extension of time under section 100 of the Drainage Act to apply for a review of an engineer's account under section 72.

The account had been paid in 2016, but a 2017 Tribunal decision heavily criticized the engineer's report.

The municipality delayed until December 2018 to seek the extension.

The Tribunal denied the extension, finding no exceptional circumstances to justify the delay between the 2017 decision and the 2018 application, and concluding that the balance of prejudice favoured the respondent engineer.

The applicants requested a review of a final Tribunal decision that dismissed their appeal regarding the apportionment of costs for repairs to a municipal drain.

The Vice-Chair considered the request under Rule 29 of the Tribunal's Rules of Procedure and section 101 of the Drainage Act.

Finding no significant new evidence or material error of law or fact, and emphasizing the statutory principle of finality, the Vice-Chair concluded it was not advisable to permit a review hearing.

The Municipality of Chatham-Kent requested a review of the Tribunal's Interim and Final Decisions regarding the Rose Beach Line Municipal Drain.

The Municipality raised several grounds, including the Tribunal's handling of an expert report and alleged procedural unfairness.

The Vice-Chair found no material errors of fact or law but concluded that a review was advisable due to two possible procedural fairness issues: the Tribunal potentially arriving at independent engineering conclusions without allowing parties to address them, and the Tribunal issuing a Final Decision based on a newly ordered coastal engineer's report without resuming the hearing for examination or submissions.

The initiating municipality applied to the Tribunal under section 58(4) of the Drainage Act to correct gross errors in an engineer's report for a municipal drain.

The proposed modifications included upgrading two culverts, adjusting a trail grade line, and relocating the working platform to the north side of the drain.

A landowner objected to the relocation of the working platform, as the municipality's drainage superintendent had already improperly directed a contractor to clear trees on his property contrary to the original approved report.

The Tribunal approved the engineering modifications as they did not adversely affect the drain's capacity.

However, the Tribunal ordered the municipality to pay the landowner $8,000 in compensation for the unauthorized removal of his tree buffer, which is not to be assessed to the drain's cost.

The appellants appealed the Engineer's Report for the repair and improvement of the Esseltine Drain under sections 48 and 54(1) of the Drainage Act.

The appellants, who own agricultural properties, argued that the proposed drainage works provided no benefit to their lands and that their assessments were disproportionately high compared to the urban and greenhouse developments contributing to the increased water flow and erosion.

The Tribunal accepted the evidence of the respondent municipality's engineers, finding that the assessments were calculated using standard methodologies and were fair and reasonable.

The Tribunal concluded there was no evidence to support modifying the Engineer's Report or the assessments, and dismissed the appeals.

The appellant appealed under section 64 of the Drainage Act, expressing dissatisfaction with the quality of construction of the Mullen Drain.

The appellant raised concerns regarding silt fencing, debris, ditch bottom elevations, standing water, and other construction details, but provided no engineering evidence.

The Tribunal accepted the expert evidence of the drainage engineer that the drain was constructed according to the plans and specifications and was performing as designed.

The appeal was dismissed as the appellant failed to prove the drainage works were not constructed as designed.

The appellants appealed the proposed construction of an outlet structure for the Rose Beach Line Municipal Drain under the Drainage Act.

Following an interim decision requiring the Municipality to obtain an independent engineering report, the Municipality submitted a report from Landmark Engineers Inc. The Landmark Report identified significant shortcomings in the original Spriet Report's design, noting risks of damage from wave and ice forces and potential impacts on longshore sediment transport.

Given the substantial revisions required to address these issues, the Tribunal allowed the appeals, set aside the Spriet Report, and ordered the Municipality to bear its own engineering and legal costs.