Rose Beach Line Municipal Drain - RFR (RE), 2019 ONAFRAAT 8 — OAFRAAT | minicounsel

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2^nd Floor NW

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West, 2^e étage NW

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

Rose Beach Line Municipal Drain - RFR (RE) Municipality of Chatham-Kent

Rose Beach Line Municipal Drain - RFR (RE)

Drainage Act

April 8, 2019

DATE OF DECISION:

April 26, 2019

004RoseBeach19

2019 ONAFRAAT 08

ROSE BeaCH LINE MUNICIPAL DRAIN Municipality of Chatham-Kent

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

AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) under section 48 and section 54 of the Drainage Act with respect to the Rose Beach Line Municipal Drain Outlet Structure in the Municipality of Chatham-Kent.

AND IN THE MATTER OF a request by the Municipality of Chatham-Kent under Rule 29 of the Tribunal’s Rules of Procedure for a review of the Decision of the Tribunal issued January 23, 2018 and March 5, 2019.

Before:

John O’Kane, Vice-Chair

REQUEST FOR REVIEW DECISION

Overview

The Tribunal Chair appointed me to consider the Municipality of Chatham-Kent’s request to review the Rose Beach Line Municipal Drain decision of January 23, 2018 and March 5, 2019 and to determine whether a review is advisable in the circumstances.

I believe it advisable in these circumstances to allow a review to proceed.

While the Municipality cited several reasons to support its requested review, I remain unconvinced by most of its reasons of any material error of fact or law. There are however two areas of concern over procedural fairness issues.

Request to Review a Tribunal Decision - Generally

The Municipality requested a review under Rule 29 of the Tribunal’s Rules of Procedure.

Section 21.2 of the Statutory Powers Procedure Act is the source of the Tribunal’s jurisdiction to review its own decisions.

Rule 29 provides a time-limited opportunity for any party to request a review of a Tribunal decision.

While the Municipality’s request for review came long after the Tribunal released its January 23, 2018 Interim Decision, the request was within thirty days after the Tribunal released its March 5, 2019 Final Decision. In these circumstances, the Interim Decision culminated in the Final Decision and I am satisfied that is enough good reason for the Municipality to delay submitting its request for review until after the Tribunal had issued its Final Decision. I will refer to the Tribunal’s Interim Decision and Final Decision collectively as “The Decision”, unless the circumstances dictate otherwise.

In these circumstances, Rule 29 must be considered in the Drainage Act context which provides that Tribunal decisions are final, subject only to limited statutory appeal rights and judicial review of a decision under the Judicial Review Procedure Act.

Therefore, in the Drainage Act context where decisions of the Tribunal are final, granting a request to a review a Tribunal decision is an exception rather than the rule. If not, the legislature’s intended finality of Tribunal decisions would become undermined as would the parties’ right to finality of litigation.

Rule 29 does not contain a standard of review for me to apply when considering this request for review.

Rule 29 engages considering several factors. Those factors include jurisdiction, finality, prejudice and procedural fairness.

My authority under Rule 29 is to consider if a review is “advisable” and, in discharging that authority, Rule 29 contains broad language granting me wide discretion to consider any “relevant circumstances” including five factors in Rule 29.09:

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;

(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.

In considering a request for review I can consult with the members of the panel who participated in an impugned decision. I elected not to consult my Tribunal colleagues who participated in The Decision. I can also invite submissions from other parties to the appeal or elect not to invite submissions. I elected not to seek submissions from any other party.

I can also have regard for the hearing record. I elected not to have regard for the hearing record. I reviewed only these materials submitted with the Municipality’s request for review.

“Report of Rood Engineering Inc., being part of Exhibit 2 of the documents filed by Neil Rose, Appellant;”
“Order of the Superior Court dated March 28, 2017;”
“Interim Decision of the Tribunal dated January 23, 2018;”
“Report of Landmark Engineers Inc. dated October 29, 2018; and”
“Final Decision of the Tribunal dated March 05, 2019.”

My authority under Rule 29 results in either a recommendation that a review is advisable or that a review is not advisable. If I conclude that a review is advisable, the Tribunal Chair has the authority to determine the review hearing format and to assign a hearing panel, including the original hearing panel, to conduct the review hearing. The power of the panel assigned to conduct the review hearing includes the power to confirm, vary, suspend or cancel the decision under review.

Background

The Decision culminated the appeal hearings into a report of an engineer appointed by the Municipality under section 78 of the Act. The Municipality appointed John Spriet under section 78 to prepare a report (the “Spriet Report”) in response to the concerns of two landowners.

A report under section 78 relates to existing municipal drains where the Municipality responsible for maintaining and repairing the drainage works considers it appropriate to undertake prescribed projects for “the better use, maintenance or repair” of the drainage works.

The original Rose Beach Line Municipal Drain was constructed under a 1999 engineer’s report.

The Interim Decision makes several factual findings. These are my summary of the material findings:

There is a problem with the existing outlet of the Rose Beach Line Municipal Drain;
Under heavy rainfall conditions excessive flows from the outlet damage adjacent properties;
The damage includes deep pools and generally unsafe conditions at the beach location of the outlet;
The Municipality’s several attempts to correct the problem using concrete blocks at the outlet have been unsuccessful;
The drain outlet cannot handle the flows;
The Spriet Report recommended a steel sheet pile flume be constructed at the outlet to direct the flow closer to the edge of Lake Erie with a baffle at the end of the flume to minimize outlet blockages;
The Municipality did not produce documentary evidence to support its claim to have obtained agency approvals for the project;
Given the Municipality’s engineering evidence, this was not a rare and exceptional case requiring the Tribunal to craft a drain design solution;
The design structure in the Spriet Report needs to be reviewed by an engineer qualified in shoreline structural design issues to ensure the proposed flume and baffle are appropriate for local conditions;
The Municipality had to confirm approval of the proposed drainage works from the Department of Fisheries and Oceans, the Ministry of Natural Resources and Forestry, and the Lower Thames Valley Conservation Authority;
The existing four metre right of way extending to the edge of Lake Erie established by the 1999 report is, with some modifications, enough permanent access for construction and future maintenance on the drain and an additional right-of-way is not required.

The Interim Decision then made seven orders and concluded that after provision of “all reports, permits, approvals and revisions necessitated by the Interim Order . . . the Tribunal will issue a separate and final order to conclude this matter”.

The Municipality’s Request for Review

As part of its review request, the Municipality asks for:

a re-hearing before a different panel; and,
the re-hearing be accomplished by a review of the documents already received into evidence; and,
oral argument.

The Municipality also asserts that in its view “further oral testimony would add little to the process”.

Those aspects of the Municipality’s request would be up to the Tribunal Chair if a review were determined advisable since the Tribunal has both statutory jurisdiction and common law authority to control its own processes, including a review hearing.

Analysis of The Municipality’s Reasons

I will review the eight reasons the Municipality relied on to support its request for review and use the same order and numbering, however, the sub-titles are my own paraphrasing.

a) Receiving the Rood Report before the hearing

One reason advanced by the Municipality in its review request related to the hearing panel, before the hearing, receiving an opinion report from a professional engineer absent the formal qualification of the author of that report as an expert witness.

That report is described in the Municipality’s request for review as the “Report of Rood Engineering Inc., . . . being Part of Exhibit 2 of the documents filed by Neil Rose, Appellant”. For ease, I will call that report the “Rood Report”.

Expert reports typically contain an amalgam of fact-based evidence and opinion evidence. The expert opinion evidence is based on facts subject to independent proof, either by the expert or some other evidentiary source.

Opinion evidence is classic hearsay evidence and inadmissible in the courts. One exception to inadmissible hearsay opinion evidence in the courts is the opinion evidence of a properly qualified “expert”. The admissibility of expert opinion evidence is determined in a “mini hearing within a hearing” to determine if the expert is appropriately qualified by education, training and experience to develop the opinion.

While that admissibility paradigm typically applies rigidly in the court system, it does not always apply with that same rigidity before the Tribunal.

The Tribunal processes, established in its Rules of Procedure under the statutory authority of section 25.1 of the Statutory Powers Procedure Act include processes (my emphasis added):

for parties to exchange, and file with the Tribunal, all documents expected to be produced or entered as evidence at a hearing - Rule 20.01.
for parties to exchange, and file with the Tribunal, witness statements of each witness parties intend to call at the hearing – Rule 21.01 to 21.03.
for parties to exchange, and file with the Tribunal, written expert’s reports outlining the substance of the evidence the expert will give at the hearing – Rule 22.01.

Those Tribunal procedural rules exist within the substantive evidentiary context of section 15 and section 16 of the Statutory Powers Procedure Act.

Section 15 authorizes the Tribunal to admit as evidence at a hearing, whether proven under oath/affirmation or admissible as evidence in court any oral testimony and any document or other thing and authorizes the Tribunal to “act on such evidence”.

Section 16 grants the Tribunal discretion when noticing facts that may be judicially noticed and, to “take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge.”

In the section 16 context, I observe that the hearing panel comprised three experienced adjudicators, one a practicing civil litigation lawyer and law school professor, one a retired drainage engineer, and one a retired municipal administrator.

Under the Tribunal’s statutory authority and its Rules of Procedure, the panel’s receiving the Rood Report before the hearing, as part of the Appellant’s filings does not amount to an error in law.

Similarly, admitting the Rood Report into evidence at the hearing is not an error in law and does not violate procedural fairness.

b) The Appellant failed to call the author of the Rood Report and the Municipality was deprived the right to cross-examine the author

Another reason advanced by the Municipality in its review request related to the appellant not calling the author of the Rood Report to testify at the hearing and depriving the municipality the opportunity of cross-examining on the facts and opinions in the Rood Report.

The hearing strategy of parties in terms of which witnesses to call to testify or not and what evidence to challenge or not is up to them and not the Tribunal.

From my reading of The Decision, I conclude the Appellant who filed the Rood Report decided not to call the author to testify at the hearing. That strategy had risks for the Appellant related to the weight the Tribunal would attach to the contents of the Rood Report.

I agree with the Municipality’s view that the Appellant’s strategy not to call the author of the Rood Report deprived the Municipality the opportunity to cross-examine that author.

However, the real issue is whether being deprived of the opportunity to cross-examine the author of the Rood Report resulted in a breach of procedural fairness or if the Municipality was prejudiced by that deprivation. As developed further in these reasons, there was no breach of procedural fairness and there was no prejudice.

c) The Municipality did not challenge the Rood Report because it was not properly in evidence

Another reason advanced by the Municipality in its review request was that it did not challenge the facts and opinions in the Rood Report because it thought the Rood Report “was not properly in evidence”.

As already noted, I do not agree with the Municipality’s view that the Rood Report was “not properly in evidence”.

Under the Tribunal process established in its Rules of Procedure and under the substantive evidentiary context of sections 15 and 16 of the Statutory Powers Procedure Act, I have concluded the Rood Report was properly in evidence before the hearing Panel.

From my reading of the Interim Decision, I conclude the Municipality did challenge the facts and opinions of the Rood Report. The second full paragraph on page 20 of the Interim Decision contained the arguments of the Municipality about the author of the Rood Report not testifying and not subject to cross-examination and the Rood Report was “not reliable evidence and should not be considered”. While the Municipality may not have challenged the facts and opinions of the Rood Report by calling contradictory or challenging testimony, the Municipality did challenge the Rood Report in oral argument.

From my review of the Interim Decision, the hearing panel addressed the facts and opinions of the Rood Report under the heading “Findings” where they concluded:

“However, the Appellants failed to support their claims through sworn testimony by either a qualified drainage engineer or a reputable drainage contractor. . . . They did not provide the proper engineering evidence sufficient to challenge the Municipality’s Report or to offer engineering-based options upon which the Tribunal could base an alternative finding. . . . while this letter became part of the evidentiary record when it was entered as an exhibit as part of Peter Rose’s evidence with the consent of the Municipality’s counsel, no one called Mr. Rood as a witness. Without doing so, Mr. Rood could not be cross-examined by the Municipality and his evidence and credibility could not be tested by the Tribunal. As a result, the Tribunal could not place much weight on Mr. Rood’s letter.”

The hearing panel addressed the Municipality’s issues with the Rood Report appropriately by not placing weight on the Rood Report facts and opinions. The hearing panel’s discussion appropriately acknowledges the process limitations and substantive limitations related to the Rood Report. Thus, there was no procedural unfairness and no prejudice to the Municipality.

The hearing panel was charged with making findings of fact which involves weighing the evidence it received. I did not have the benefit of hearing the witness testimony or reviewing all the documentary evidence or hearing the oral arguments. In that context I am in no position on this review request to second guess the hearing panel’s determination about how much weight to give any piece of evidence or to disturb their findings of fact.

Regarding this aspect of the Municipality’s request for review I am not convinced the Municipality has shown any material error of fact or law in The Decision.

d) The Panel’s questioning of the Municipality’s witnesses demonstrate the Panel considered and placed reliance on the Rood Report

As part of my considering the Municipality’s review request, I have not been granted access to nor sought access to a voice recording of the hearing that was the subject of the March 28, 2017 consent Order of the Honourable Mr. Justice Bruce Thomas.

I have no means of evaluating the Municipality’s assertions that the hearing panel’s questioning of the Municipality’s witnesses “demonstrate the Panel considered and placed reliance on the Rood Report”.

However, for my consideration, I will assume that the Municipality’s assertion is accurate that the hearing panel’s questioning was shaped in part by the contents of the Rood Report.

Section 15 of the Statutory Powers Procedure Act gave the hearing panel the authority and discretion to both consider and place reliance on the Rood Report.

Since section 15 of the Statutory Powers Procedure Act expressly authorizes the hearing panel to admit as evidence “any document or other thing” and to “act on such evidence” had the hearing panel considered and relied on the Rood Report to inform their questions of the Municipality’s witnesses, their doing so would not rise to an error in law.

Given the hearing panel’s conclusions about the process issues and substantive frailties associated with the Rood Report and the absence of the hearing panel’s attaching any significant weight to the Rood Report, their use of the Rood Report to question the Municipal witnesses does not amount to an error in law.

e) The Final Decision reflects almost exactly the opinions of the Rood Report

The Final Decision contains parallels to the opinions of the Rood Report.

Those parallels are: setting aside the Spriet Report; making the Municipality bear the costs of the engineering work; and, using the existing access along or over top of the existing drain if any work is done.

Those parallels can be explained by at least two scenarios. The first is that the hearing panel did attach weight to the Rood Report and were influenced by its facts and opinions. The second is the hearing panel, with the benefit of the specialized expertise of a retired drainage engineer independently arrived at those parallel conclusions.

The former seems an improbable explanation, given the hearing panel’s discussion in its Interim Decision it was not giving weight to the Rood Report.

The latter seems the probable explanation since the hearing panel noted in its Interim Decision the Tribunal will “only impose a result of its own creation in the rarest and most exceptional of circumstances”. That comment recognizes that in section 16 of the Statutory Powers Procedure Act, the legislature authorized the Tribunal to notice technical facts, information or opinions within the scientific or specialized knowledge of its members.

Either explanation could engage procedural fairness issues.

In that context had the hearing panel been inclined either to independently arrive at its own views about the engineering of the projects or even if influenced by the opinions in the Rood Report, then from a procedural fairness perspective, the better course could have been to communicate to all parties about the hearing panel’s inclination and then allow all parties to address the hearing panel’s inclination.

I cannot conclude The Decision is wrong or even possibly wrong however this issue does engage a possible procedural fairness issue that warrants a review.

f) The Panel declined jurisdiction

The Interim Decision made factual findings and specific determinations about the appeals being dismissed and directing a supplemental report from a qualified coastal engineer of the project design in the Spriet Report.

After the coastal engineer’s report was produced as ordered the hearing panel did not continue the appeal hearing to consider the coastal engineer’s report or allow the parties to examine or cross-examine the coastal engineer on the facts and opinions of that report.

After the coastal engineer’s report was received and considered, the Tribunal issued its Final Order that granted the appeals and set aside the Spriet Report.

From a procedural fairness perspective, the better course after receiving the coastal engineer’s report, and any other materials the hearing panel directed produced, such as the written approvals of the Department of Fisheries and Oceans, the Ministry of Natural Resources and Forestry and the Lower Thames Valley Conservation Authority could have been to provide all parties the opportunity to, at a minimum, make submissions about whether to resume the hearing to allow examination or cross-examination on that hearing material.

I cannot conclude The Decision is wrong or even possibly wrong however this issue does engage a possible procedural fairness issue that warrants a review.

g) The Panel’s use of the coastal engineer’s report

The Municipality’s review request asserts that “obviously” the hearing panel used the costal engineer’s report as “cover to implement the recommendation of the” Rood Report.

Nothing supports that assertion and it is not at all “obvious”.

The hearing panel had the legislative authority and the technical and scientific expertise to arrive at its own independent conclusions about any shortcomings in the Spriet Report and to devise the appropriate directions and orders, including revising the project design, ordering a supplemental report from a coastal engineer, directing revisions to assessments and addressing the engineering costs of the project.

It defies common sense that the hearing panel would need the “cover” of the coastal engineer’s report to exercise its statutory authority and I am not convinced of this aspect of the Municipality’s review request.

h) The Municipality cannot maintain the drain because it lacks specifications

The Rose Beach Line Municipal Drain has existed since the 1999 report under the Drainage Act. The existing drain was constructed to the plans and specifications of that 1999 report. The Municipality had to maintain the drain to those original specifications that included an access right of way for maintenance.

The discussion of the evidence in the Interim Decision reveals that since the drain was constructed based on the 1999 report there have been challenges and limitations with maintaining the open channel, and challenges addressing the flow velocity at the drain outlet, and challenges to restore and maintain the beach structure beyond the end of the drain outlet.

The challenges and limitations that the Municipality focused on in this aspect of its review request were all pre-existing challenges and limitations related to the 1999 report and construction.

Nothing in The Decision altered the existing 1999 drain specifications.

I am not convinced this aspect of the Municipality’s review request rises to a material error of fact or law.

Conclusion

In these circumstances, based on the two areas where I identify possible procedural fairness issues, I consider it advisable that a review hearing be conducted orally by a panel designated by the Tribunal Chair.

Dated at Collingwood, Ontario this 26^th day of April, 2019.