Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2nd Floor NW
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West, 2e 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
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Esseltine Municipal Drain (RE) Town of Kingsville
Esseltine Municipal Drain (RE)
STATUTE:
Drainage Act
HEARING:
May 21, 2019
May 21, 2019
006EsseltineRFR19
NEUTRAL CITATION:
2019 ONAFRAAT 09
ESSELTINE MUNICIPAL DRAIN Town of Kingsville
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) under section 54(1) of the Drainage Act by John Fittler and Jennifer Fittler with respect to the Esseltine Municipal Drain in the Town of Kingsville.
AND IN THE MATTER OF a request by John Fittler and Jennifer Fittler under Rule 29 of the Tribunal’s Rules of Procedure for a review of the Decision of the Tribunal issued April 15, 2019.
Before: John O’Kane, Vice-Chair
REQUEST FOR REVIEW DECISION
Overview
The Tribunal Chair appointed me to consider the request for review of John Fittler and Jennifer Fittler to review the Esseltine Municipal Drain decision of April 15, 2019 and to determine whether a review is advisable in the circumstances.
In these circumstances, I do not believe it advisable to allow a review to proceed.
Request to Review a Tribunal Decision - Generally
Section 21.2 of the Statutory Powers Procedure Act is the source of the Tribunal’s jurisdiction to review its own decisions.
Rule 29 of the Tribunal’s Rules of Procedure provides a time-limited opportunity for any party to request a review of a Tribunal decision.
However, Rule 29 must be considered in the Drainage Act (the “Act”) context which provides in section 101 that Tribunal decisions are final, subject only to limited statutory appeal rights and judicial review of a decision under the Judicial Review Procedure Act (bold emphasis added).
The Legislature’s use of the word final in section 101 incorporates a common law concept of finality of litigation that means disputes must, at some point, come to an end.
That context informs my view that granting a review of a final decision is an exceptionality, otherwise the legislature’s direction of finality in section 101 of the Act would become meaningless.
Rule 29 of the Tribunal’s Rules is silent about the standard of review applicable when considering a request for review but lists five non-exhaustive factors:
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.
The language of Rule 29 engages 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 those five factors of Rule 29.09.
Background
The Esseltine Drain decision dated April 15, 2019 related to appeals to the Tribunal under section 48 and section 54 of the Act from an Engineer’s Report commissioned under section 78 for repairs and improvements to an existing municipal drain.
John Fittler and Jennifer Fittler appealed to the Tribunal under section 54 of the Act about the apportionment of the estimated costs of the drainage work that were assessed against their lands.
The Fittlers’ appeal to the Tribunal was their second appeal about assessments as their first appeal had been to the Court of Revision.
The April 15, 2019 Tribunal decision dismissed the Fittlers’ appeal and confirmed the assessments in the Engineer’s Report.
The Fittlers’ request for review cites four issues that they frame as a series of questions that they require the Tribunal to answer. Those questions do not address or engage the five factors of Rule 29 in any meaningful way.
In those questions the Fittlers seek to re-argue their assessment appeal before me. Rule 29 is not an opportunity for dissatisfied parties to re-argue their case.
The essence of the Fittlers’ request for review is summarized in the following passage. “The reasons sent to me by the tribunal do not address all that I presented at the hearing and are therefore incomplete.”
There is no requirement that the Tribunal Decision address “all” that the Fittlers presented at the hearing.
The April 15, 2019 Tribunal Decision reflects that the hearing panel heard competing evidence about, among other things, the bush area on the Fittler property, soil types, and associated run-off factors. That competing evidence was from, for example, Mr. Fittler and a professional engineer qualified by the Tribunal to give expert evidence. The April 15, 2019 Decision reflects that the hearing panel preferred the evidence of the engineer that the assessments were fair and reasonable.
The Fittlers have not put forward any significant new evidence which was not available at the time of the hearing.
The Fittlers have not satisfied me of any material error of fact or law in the Tribunal decision.
The Legislature directed in section of 101 of the Act that decisions of the Tribunal under section 54 about assessments are final. The Fittlers have failed to satisfy me of anything so exceptional that they should be granted an opportunity to overturn that finality principle and give them a third argument of their appeal.
Conclusion
In these circumstances, I do not consider it advisable that a review hearing be permitted.
Dated at Collingwood, Ontario this 21st day of May, 2019.