Agriculture, Food and Rural Affairs Appeal Tribunal

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1 Stone Road West, 2nd Floor NW Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

1 Stone Road West, 2e étage NW Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: AMENDED Rose Beach Line Municipal Drain – Review Hearing (RE) Municipality of Chatham-Kent

AMENDED Rose Beach Line Municipal Drain – Review Hearing (RE)

STATUTE: Drainage Act

HEARING: March 16, 2020

DATE OF DECISION: March 16, 2020

008RoseBeachRFR19

NEUTRAL CITATION: 2020 ONAFRAAT 04

ROSE BEACH LINE MUNICIPAL DRAIN - REVIEW HEARING 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: A Review of a Decision of the Agriculture, Food and Rural Affairs Appeal Tribunal dated March 5, 2019 with respect to the Rose Beach Line Municipal Drain – Outlet Structure in the Municipality of Chatham-Kent.

AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by:

1. Peter James and Anje Rose – s.48 and s.54
2. Peter James Rose – s. 48 and s. 54
3. Peter James Rose, Anje Rose and Shea-Lynn Vandergriendt – s. 48 and s. 54
4. Donald Neil Rose and 2152269 Ontario Limited – s. 48 and s. 54
5. Donald Neil Rose, Barbara Jean Rose and 2152269 Ontario Ltd – s. 48 and s. 54
6. Donald Neil Rose – s. 48 and s. 54
7. Donald Neil Rose and Barbara Jean Rose – s. 48 and s. 54
8. Mark Grimsteed and Peggy Grimsteed – s. 48
9. Terry Bachus and Pamela Bachus – s. 48 and s. 54
10. Teresa Wood and Edward Wood – s. 48 and s. 54
11. Jennifer E. Eskritt-Verwegen – s. 48 and s. 54

under identified sections of the Drainage Act with respect to the Rose Beach Line Municipal Drain – Outlet Structure in the Municipality of Chatham-Kent.

Appearances: Daniel M. Krutsch, P. Eng. Paul Courey, counsel for the Municipality of Chatham-Kent Peter Rose, Appellant Jennifer E. Eskritt-Verwegen, Appellant Pamela Bacchus, Appellant Anje Rose, Appellant Neil Rose, Appellant

Before: Harold McNeely, Vice-Chair; Jim McIntosh, Vice-Chair; Sarah Judd, Member.

AMENDED DECISION

This Review Hearing, requested by the Municipality of Chatham-Kent (the “Municipality”), follows the Decision of Vice-Chair John O’Kane dated April 26, 2019 in which he identified issues of procedural fairness outlined in his Decision. He ordered that a Review Hearing be conducted by the Tribunal.

In preparation for the Review Hearing, the Review Panel granted leave to the Municipality to have a summons issued to the coastal engineer, David Krutsch, to secure his attendance at the Review Hearing. The Municipality declined to do so. The Municipality’s Counsel advised that “the hearing should be only about submissions as to what is properly before the Review Panel as evidence and the conclusions that should be drawn from that evidence, having regard to applicable law”. The Tribunal then caused a summons to be issued and sent to David Krutsch to have him attend the Review Hearing.

In his Decision, Vice-Chair O’Kane thoroughly reviewed the Interim and Final Decisions and summarized the Hearing Panel’s material findings. He also identified the Municipality’s arguments and his analysis of each of these arguments. The Review Panel is required to carry out its own independent analysis of the representations submitted by the Municipality at the Review Hearing.

THE RULES

The following Rules of Procedure (“Rules”) of the Tribunal apply to a review that has been granted in whole or in part.

29.23 If the Tribunal decides to review one of its decisions or orders, it may attach conditions, add other parties or make procedural directions to govern the review process.

29.24 Unless otherwise ordered, a review of a decision or order of the Tribunal shall be conducted orally.

29.26 On a review, the Tribunal may confirm, vary, suspend or cancel the final decision or order under review.

For ease of reference, we have reproduced below the relevant sections of the Drainage Act and the Statutory Powers Procedure Act which have a bearing on this Review Hearing and on the Decisions under review.

THE DRAINAGE ACT (the “Act”)

The Act defines the role of the Tribunal in appeals and the powers granted to the Tribunal to carry out its mandate are stated in various sections.

Section 48 (1) of the Act defines the drainage work issues which can be appealed to the Tribunal.

48. (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed, may appeal to the Tribunal, and in every case a notice of appeal shall be served within 40 days after the sending of the notices under section 40 or subsection 46(2), as the case may be.

Section 51(1) of the Drainage Act deals with the powers of the Tribunal;

51. (1) On any appeal or reference to the Tribunal under this act, the Tribunal shall hear and determine the matter and, where not so provided, may make such order and direct such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act. R.S.O. 1990, c. D.17, s. 51; 2006, c. 19, Sched. A, s.6(4).

Assessment appeals are governed by Section 54.

Appeals to Tribunal

54. (1) Any part to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal.

Procedure

54. (3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final.

Finally, Section 98(4) gives the Tribunal the additional power to obtain reports in the following terms:

Proceedings of Tribunal

98. (4) The Tribunal may,

(b) Procure reports from engineers and other professional persons in order to assist the Tribunal in reaching a decision.

STATUTORY POWERS PROCEDURE ACT (the “SPPA”)

15. (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and,

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

16. A tribunal may, in making its decision in any proceeding,

(a) take notice of facts that may be judicially noticed; and,

(b) take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge. R.S. O. 1990, c. S.22, s. 16.

REPRESENTATIONS OF THE MUNICIPLAITY AT THE REVIEW HEARING

The following are the representations of the Municipality at the Review Hearing:

1. The Hearing Panel relied on the report of Gerard Rood which was not properly entered into evidence at the Hearing. The Municipality was also denied the opportunity of cross-examining Gerard Rood. The Hearing Panel should have completely ignored the Gerard Rood report, since it was not in evidence at the Hearing. The Review Panel should also ignore the Rood Report.

2. In the absence of engineering evidence to support the Appellants’ position, the Hearing Panel drew conclusions “out of the air”.

3. The Tribunal exceeded its jurisdiction by ordering the Municipality to provide all interested parties and the Tribunal with any and all approvals and permits or in the alternative a letter stating that a permit or approval is not required, from Fisheries and Oceans Canada, the Lower Thames Valley Conservation Authority and the Ontario Ministry of Natural Resources and Forestry stating or otherwise indicating that the proposed outlet structure may proceed as designed in the Spriet Report.

4. The Tribunal should have accepted, and not questioned in its decision, that the Municipality had agency approvals. The Municipality produced the approvals following the Interim Decision and the Hearing Panel nevertheless set aside the Spriet Report.

5. In its Final Decision, the Hearing Panel failed to explain why they went from one position in its Interim Decision of dismissing the Appeals and directing amendments and corrections to the Spriet Report to the opposite decision of allowing the Appeals and setting aside the Spriet Report.

6. The Hearing Panel exceeded its jurisdiction in ordering the preparation of a report by an engineer qualified in the design and construction of structures located in coastal situations.

7. The Review Panel should not have summoned David Krutsch to testify at the Review Hearing.

STANDARD OF REVIEW

Before addressing the reasons submitted by the Municipality for the review, it is necessary to consider the standard of review applicable to this review.

While the review process resulting from a Request for Review under Rule 29 is not an appeal to a higher level on the judicial ladder, the role of the Review Panel is similar to the role of an appellate court in carrying out a judicial review.

The Supreme Court of Canada in Canada v. Vavilov [2019] SCC 65 (“Vavilov”) recently provided clarification on the standard of review to be applied to administrative decisions in Canada.

At paragraph 16 of the decision, the court sets out “a revised framework for determining the standard of review a court should apply when the merits of an administrative decision are challenged. It starts with a presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions.”

The Court then goes on to outline in the following paragraph of the decision when the presumption can be rebutted.

17The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision. The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. The general rule of reasonableness review, when coupled with these limited exceptions, offers a comprehensive approach to determining the applicable standard of review. As a result, it is no longer necessary for courts to engage in a “contextual inquiry” (CHRC, at paras. 45-47, see also Dunsmuir, at paras. 62-64; McLean, at para 22) in order to identify the appropriate standard.

The Vavilov decision then goes on to comment on the duty of procedural fairness. At paragraph 77 of the decision, the majority states “[t]he duty of procedural fairness in administrative law is eminently variable, inherently flexible and content specific.”

At paragraph 81 of the decision the Court states “reasons facilitate judicial review by shedding light on the rationale for a decision.” It also states that in conducting its reasonableness review, the reviewing court should be guided by the following principles:

83It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: at para 28; see also Ryan, at paras. 50-51. Instead, the reviewing court must consider only whether the decision made by the administrative decision maker – including both the rationale for the decision and the outcome to which it led – was unreasonable.

In referring to Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 SCR 90 (“Dunsmuir”), the Court goes on to state at paragraph 84 that “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with a “specified attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion.”

The Vavilov decision also recognizes that in making decisions, the administrative tribunal may apply its institutional expertise and experience to the task.

The following observations of the court in Vavilov are also relevant to our review:

92Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge – nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields or experience and expertise, and this may impact both the form and content of their reasons. These differences are not necessarily a sign of an unreasonable decision – indeed, they may be indicative of a decision maker’s strength within its particular and specialized domain. “Administrative justice” will not always look like “judicial justice” and reviewing courts must remain acutely aware of that fact.

93An administrative decision maker may demonstrate through its reasons that a given decision was made by bringing that institutional expertise and experience to bear: see Dunsmuir, at para. 49. In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. This demonstrated experience and expertise may also explain why a given issue is treated in less detail.

94The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency. Opposing parties may have made concessions that had obviated the need for the decision maker to adjudicate on a particular issue; the decision maker may have followed a well-established line of administrative case law that no party had challenged during the proceedings; or an individual decision maker may have adopted an interpretations set out in a public interpretive policy of the administrative body of which he or she is a member.

Several Ontario decisions issued before the Vavilov decision apply the standard of reasonableness in varying context. In the recent Ontario Court of Appeal decision of Ontario (Minister of Finance) v. AXA Insurance, 143 OR 3rd at page 10, Justice van Rensburg, in commenting on the reasonableness standard, states at paragraph 35: “This requires an examination of the reasonableness of the original decision.” At paragraph 39 of the same decision, she then goes on to state as follows:

The Supreme Court directs that in reviewing a decision for reasonableness, the Court must recognize that certain questions may give rise to a number of possible, reasonable conclusions. A court conducting a review for reasonableness must inquire into the qualities that make a decision reasonable, including both the process of articulating the reasons and the outcomes”.

The Court of Appeal decision of CNH Canada Ltd. v. Chesterman Farm Equipment Ltd., 2018 ONCA 637 was an appeal from a decision of the Divisional Court resulting from the judicial review of a decision of this Tribunal. At paragraphs 39 and 40 of the decision, Justice Miller states:

39. Under the administrative law framework, a tribunal’s interpretation of its home statute and statutes closely connected to its function is presumptively reviewed on a reasonableness standard, even where there is a statutory right of appeal on a question of law[…]

40. The reasonableness standard of review recognizes that tribunals have a margin of appreciation within the range of acceptable and rational solutions[.]

The reasonableness standard of review is also applied in the Court of Appeal decision of Gilmor v. Nottawassaga Valley Conservation Authority 2017 ONCA 414. At paragraph 36 of the decision, Justice Huscroft in referring to decisions of the Supreme Court of Canada states: “In a series of cases, the Court has established that the reasonableness standard applies presumptively when a tribunal is interpreting its own statute or statutes that are closely related to its function.”

In paragraph 63 and 69 of the Vavilov decision, the Court identifies five situations in which a derogation from the presumption of reasonableness review is warranted. This appeal does not fall within any of the category of cases described by the Court.

Guided by the Vavilov decision and the decisions of the Ontario Courts referred to above, we are of the view that the presumption of reasonableness applies to our review of the Interim and Final Decisions since as stated in Vavilov, there is no clear indication of legislative intent that the reasonableness standard does not apply, and this is not the type of legal question to which the standard of correctness applies, such as a constitutional question, a question of law of importance to the legal system as a whole or a question of jurisdictional boundaries between administrative bodies.

THE COASTAL ENGINEER

The Interim Decision directed the Municipality as follows:

2. The Municipality shall retain an independent, third-party professional engineer qualified in the design and construction of structures located in coastal situations, such as Rose Beach, and obtain from that third-party professional engineer a stamped report confirming that:

(i) the proposed structure is adequate for its intended purposes;

(ii) the proposed structure will withstand the year-round natural forces of the lake within the structure’s natural life; and,

(iii) the proposed structure will not damage or contribute to damage to adjacent properties once constructed as proposed.

Copies of the said stamped report shall be provided to the Tribunal and all interested parties. In its final order, the Tribunal will advise as to how the cost of this third-party report is to be charged.

The Municipality retained David Krutsch of Landmark Engineers Inc. to prepare this report. Following receipt of the coastal engineer’s report (the “Landmark Report”), it was provided to the parties. However, the hearing was not reconvened to give the parties an opportunity to examine or cross examine the engineer on his report. This was one of the factors leading Vice-Chair O’Kane to conclude that a Review Hearing was justified.

The Municipality argues that the Hearing Panel exceeded its jurisdiction in ordering the preparation of a report by an engineer qualified in the design and construction of structures located in coastal situations.

It is helpful to review the historical context and statutory framework of the Tribunal. The predecessor of the Tribunal, called the Ontario Drainage Tribunal, came into being in 1975. At that time, the Legislature decided to remove the primary responsibility for adjudication of municipal drainage issues from the Courts and to confer that responsibility to a specialized tribunal. Panels of the Tribunal appointed to hear proceedings under the Drainage Act are composed of a barrister and solicitor entitled to practice in Ontario, an engineer who has acquired experience in drainage and one additional member. As observed by Vice-Chair O’Kane in his decision, the Hearing Panel in this matter was composed of a barrister and solicitor, a retired engineer and a retired municipal administrator.

We are of the view that the Municipality’s objection is not well founded. The panel members who presided over the Hearing had determined that they required the expert evidence of a coastal engineer to properly adjudicate on the issues. Section 98(4)(b) of the Act clearly gave the Hearing Panel the authority to request the coastal engineer’s report to assist it in reaching a decision. There is no error on the part of the Hearing Panel in ordering the Municipality to procure the Landmark Report. The Tribunal did not exceed its jurisdiction.

Rules 29.23 and 29.26 confer a wide mandate on the Review Panel in conducting the Review Hearing.

In order to remedy this issue of procedural fairness, and because the Municipality had declined to have a summons issued to David Krutsch to attend the Review Hearing, the Review Panel directed that a summons be issued to this witness to secure his presence at the Review Hearing.

Paul Courey, Counsel for the Municipality, objected to having Mr. Krutsch give evidence at the Review Hearing. He argued that in issuing a summons to David Krutsch, the Tribunal had exceeded its jurisdiction and was abandoning its role of adjudicator for the role of investigator. In support of his argument, he referred to the Divisional Court decision of Universal Workers Union v Ontario Human Rights Commission 2006 CanLII 126 (Ont SCDC) and quoted the following passage from the decision:

14The Code allocates the carriage of the proceedings before the Tribunal to the Commission as a party. It is thus for the Commission to call the witnesses which it believes will establish the facts on which the Tribunal can find for the complainant. It will then be for the respondents to call the witnesses to establish their case. This process is one of the fundamental parts of our justice system. The parties diligently present all the material facts which will support their respective positions and will receive a dispassionate and impartial consideration from the trial judge. A trial is not a scientific inquiry conducted by the trial judge as research director: it is a forum for providing justice to the litigants. The centrality of the adversary system is not confined to trials but is inherently part of administrative hearings as well: Hurd v. Hewitt. That was a case of a judicial review of the decision of a university grievance committee in which the Court of Appeal stressed that such hearings invariably are disputes between parties: there is a lis to be decided. Under our system, the driving force in the hearing is the adversary system which assumes the parties will bring the evidence and the tribunal will reach a decision based on that evidence. It is not the normal function of the tribunal to search out evidence and judges are criticized if they interfere so as to become advocates. The Court of Appeal stated that the duty of a tribunal is to decide on the evidence before it, to draw appropriate inferences from the failure of a party to call available evidence, but not to insist that evidence be called, and concluded:

“It would be a distortion of our system to have the tribunal determining what evidence is to be called and what persons are to be invited to intervene, notwithstanding the desires of the parties…”

Paul Courey also relied upon a passage from the decision of the Divisional Court in Re B and Catholic Children’s Aid Society, reported at 1987 Can LII 5416 in opposing the Tribunal’s request to have David Krutsch testify at the Review Hearing. This was an appeal from the decision of a hearing officer appointed pursuant to the Child Welfare Act which denied the Appellant’s application to have his name expunged from the Child Abuse Register. The hearing officer had relied upon the evidence of a social worker who related her investigation based on out-of-court conversations she had with the alleged victim. The alleged victim did not testify at the hearing and the tribunal’s decision was made without giving the Appellant the opportunity to cross-examine the alleged victim. Justice Craig in ruling for the Appellant stated as follows:

10It is our view that in the circumstances mentioned, where the appellant was denied the right to cross-examine the alleged victim, the admission of the hearsay evidence did amount to a denial of natural justice; the hearing in this case fell below the minimum requirement of fairness. The appellant was not convicted of sexual molestation but nevertheless it is a grievous stigma to have one’s name in the Child Abuse Register where it may remain for 25 years.

The decisions relied upon by Paul Courey arise from proceedings in which an individual’s rights are involved. It was alleged in these cases that the respondent had committed a serious wrong, that the denial of an opportunity to cross-examine a key witness or the accuser was a denial of natural justice. This is far different than the role of this Tribunal and the responsibilities entrusted to the Tribunal in Sections 48, 54 and 98(4)(b) of the Act. The Supreme Court of Canada recognized that the “duty of procedural fairness is imminently variable, inherently flexible and content specific” (emphasis added). We are of the view that the authorities cited by Paul Courey do not apply to prevent the Tribunal from carrying out its responsibilities by requesting the Landmark Report or by the Review Panel requiring the author of the report to attend and give evidence at the Review Hearing. Rule 29.26 states that on a Review the Tribunal may confirm, vary, suspend or cancel the final decision or order under review. Out of a concern to provide the parties an opportunity to examine and cross-examine the coastal engineer to correct the procedural fairness issue identified by Vice-Chair O’Kane, we determined that it was essential that David Krutsch attend to testify at the Review Hearing. We note, as well, that during the Review Hearing, questions were directed to this witness by some of the Appellants, by Mr. Courey and a member of the Review Panel. There was no lack of procedural fairness to any of the parties in requiring the presence of David Krutsch at the Review Hearing or allowing him to be examined.

The Tribunal’s final decision dated March 5, 2019 provides a summary of the findings made by David Krutsch in the Landmark Report, which he had filed with the Municipality as ordered by the Tribunal. That report points out a number of concerns about the outlet structure proposed in the Spriet report. During cross-examination, Mr. Krutsch indicated that the flume walls should have the ability to withstand the anticipated forces although the baffle wall may not work as designed. Mr. Krutsch also indicated that the structure proposed by Mr. Spriet could impact the movement of beach materials and as a result, could cause negative impacts on adjacent properties. In response to additional questions he indicated that the impact would be within about 30 meters of the structure. He also stated that with the water levels returning to near normal levels that the outlet problems have been reduced for now but would need to be addressed in the longer term.

THE ROOD REPORT

The general principles for the admissibility of hearsay evidence by administrative tribunals are summarized by Sopinka, Lederman, and Bryant, at page 308 of The Law of Evidence in Canada (Second Edition) as follows:

In proceedings before most administrative tribunals and labour arbitration boards, hearsay evidence is freely admissible and its weight is a matter for the tribunal to decide, unless its receipt would amount to a clear denial of natural justice. So long as such hearsay evidence is relevant, it can serve as a basis for the decision, whether or not it is supported by the evidence which would be admitted in a court of law.

The Tribunal’s processes are at all times governed by its Rules, the Drainage Act and the Statutory Powers Procedure Act which give the Tribunal broad authority to receive evidence. There is no provision in the Tribunal’s enabling statute or rules which places any restrictions on the receipt of evidence, other than communications which are subject to privilege.

The Rood Report had been received in evidence as part of Exhibits 2, (the Peter Rose Evidence Package) and Exhibit 4, (the Neil Rose Evidence Package). The Municipality argues that the Hearing Panel should have ignored the Rood Report since the author was not produced at the Hearing to be cross-examined.

The Tribunal is often called upon to deal with unrepresented litigants such as the appellants in this appeal. Often, unrepresented litigants are not familiar with the rules of evidence applied in civil courts. A liberal and practical approach to the manner in which justice is and must be dispensed on a day to day basis must be applied such as the Hearing Panel did in this matter. In addition, there are relaxed rules of evidence such as Section 15(1) of the SPPA which are not found in the Rules of Civil Procedure. Paragraph 49 of Dunsmuir supports the principle to “leave some matters in the hands of administrative decision makers”. As a specialized decision maker, the Tribunal has a gate keeper function outlined in Section 51(1) of the Act which states “the Tribunal may make such order or direct such things to be done as are authorized by this Act or it considers proper to carry out the purposes of the Act”. (emphasis added).

The SPPA allows for a less formal way of introducing evidence at a hearing than might be the case under the Rules of Civil Procedure, or at a hearing conducted before tribunals such as the Human Rights Tribunal.

In our view, Section 15(1)(b) of the SPPA authorized the Hearing Panel to consider the Rood Report in its deliberations, and the proper approach as stated by the Hearing Panel was to assess the weight to be given to it.

We are of the view that the Hearing Panel’s comments and conclusions, as they relate to the Rood Report, are reasonable and do not amount to an error.

We agree entirely with Vice-Chair O’Kane’s analysis and conclusions found at paragraphs a), b), c) and d), under the heading “Analysis of the Municipality’s Reasons” of his Decision and adopt these.

We also note that the Hearing Panel, as trier of facts, was in a better position to weigh the evidence and deference should be given to their analysis and findings. As a Review Panel, we should refrain from deciding the issues themselves in the absence of an error which requires rectification.

THE HEARING PANEL DREW CONCLUSIONS OUT OF THE AIR

With regard to the Municipality’s argument that the Hearing Panel drew conclusions out of the air, in our view, this is incorrect. The Vavilov decision cautions the reviewing court from second guessing the decisions of decision makers with specialized knowledge. We are of the view that the Hearing Panel applied its institutional expertise and experience, important factors recognized by the Court in paragraph 93 of its decision.

The process to review the decision is set out in the following excerpt from Vavilov:

84As explained above, where the administration decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention: and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion: see Dunsmuir, at para. 48, quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286.

The Hearing Panel communicated the rationale for its decision in the Final Decision. A reasoning process was followed by the Hearing Panel to arrive at its conclusions. We disagree with the Municipality’s suggestion that the Hearing Panel drew conclusions out of the air.

COMPELLING THE MUNICIPALITY TO PRODUCE AGENCY APPROVALS AND REPORTS, AND SETTING ASIDE THE SPRIET REPORT IN ITS FINAL DECISION

The Tribunal did not exceed its jurisdiction in requiring the production of various Agency Approvals and Reports. The Appellants were self-represented and while the Tribunal must be careful not to act as advisor to the Appellants, it must nevertheless scrutinize the engineer’s report as required in an appeal under Section 48 of the Act. In its Interim Decision, the Tribunal identified many errors in the Spriet Report. In the face of these errors, it was reasonable to request production of the Agency Approvals and Reports.

Furthermore, in order to construct drainage works that have been approved under the jurisdiction of the Act, it is common knowledge that approvals from other agencies, Ministries etc. are required. Should those required approvals not be obtained, then the Engineer may need to amend the design and the report or potentially under section 40 of the Act find that the “drainage works …cannot be constructed under the Act.”

HEARING PANEL FAILED TO EXPLAIN WHY THEY WENT FROM ONE POSITION TO ANOTHER

The comments and recommendations in the Landmark Report were reviewed by the Hearing Panel in the Final Decision.

The Hearing Panel had expertise in the unique aspects of municipal drainage and is considered a specialized tribunal. In exercising its responsibilities, it could analyse the Spriet Report not only based on the evidence, but also by applying its drainage knowledge and experience.

The following findings from the Final Decision clearly set out the reasons which led the Hearing Panel to set aside the Spriet Report:

The Tribunal finds the Landmark Report to be a thorough review of the proposed structure as designed by Spriet. The changes proposed in the Landmark Report appear to address many of the concerns raised by the Appellants, including beach erosion and scour holes.

However, the Landmark Report demonstrates the shortcomings of the Spriet Report. At stated in the Landmark Report, the structure as designed by Spriet can be significantly improved with potential cost savings. However, redesigning the structure as recommended by Landmark would require the following:

a) The design drawings would have to be changed;

b) The specifications would have to be changed;

c) The cost estimate would have to be revised;

d) The assessment schedule for construction would have to be revised;

e) The assessment schedule for maintenance would have to be revised;

f) The temporary right-of-way for access for construction may have to be revised;

g) The permanent right-of-way access for maintenance would have to be revised;

h) New approvals (or waivers) from the Conservation Authority, Fisheries and Oceans Canada, and the MNRF under the Lakes and Rivers Improvement Act would have to be obtained for the new design.

Many of these items required changing, in any event, because of the Tribunal’s Interim Decision #1:

a) The watershed boundary needs to be amended to comply with exhibit 4A and Spriet’s drawing #2A;

b) the cost estimate requires revision;

c) The assessment schedule for constructions is to be revised;

d) The assessment schedule for maintenance is to be revised;

e) The permanent right-of-way for access for construction and maintenance is to be revised;

f) A new approval (or waiver) from the Conservation Authority is required as the previous one expired prior to the issuance of Interim Decision #1; and,

g) An approval (or waiver) from the MNRF under the Lakes and Rivers Improvement Act needs to be obtained.

Therefore, given the substantial work that is required to review and update the Spriet Report as it currently stands, the Section 48 appeals are allowed, and the current Spriet Report shall be set aside.

The Act sets out procedures and timelines for the assessed owners to review a report and provide their input. This process provides the parties an opportunity to work together to find a solution to the issues which caused the commission of the report.

The Spriet report requires significant amendments and should follow through the same process as a new report, if it was to be revised. This would ensure all assessed owners have ample opportunity to work towards agreeable solutions and costs. There would be limited savings in time, if the report was amended as opposed to a new report being prepared. By setting this report aside, a new report can be commissioned, and the engineer has the opportunity to look at various solutions to the problem including those proposed in the Spriet and Landmark reports. Should the engineer preparing the new report decide that work paid for by the Municipality can be used and has value, then the engineer can provide an allowance to the Municipality to reflect that value.

We reject the Municipality’s suggestion that the Hearing Panel failed to explain its change of position. This is clearly set out in the passage of the Final Decision quoted above. There is a generally accepted principle that a tribunal or trial judge owes the losing party an explanation for rejecting the evidence of a key witness or witnesses. (see the Court of Appeal decision of Birkshire Group Inc. v. Wilkes, 142 OR (3rd) page 479, at paragraph 12. We are of the view that the Hearing Panel gave clear and rational reasons for doing so in its Final Decision, and the Final Decision of the Hearing panel falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law as stated in the Vavilov decision.

ORDER

1. The Decision dated the 5th day of March 2019 is affirmed.

2. The Landmark Engineer account in the amount of $2,543.57 for the attendance of David Krutsch at the Review Hearing shall be paid by the Municipality from its general funds and shall not be charged to the Rose Beach Line Municipal Drain.

3. There shall be no costs to the parties.

Amended version dated at Ottawa, this 18th day of March 2020.

TO: Connie Blair Drainage Analyst, Drainage, Asset and Waste Management Municipality of Chatham-Kent 315 King Street West, P.O. Box 640 Chatham, Ontario N7M 5K8

AND TO: Paul Courey Courey Law Professional Corporation 16 Queen Street South, P.O. Box 178 Tilbury, Ontario N0P 2L0

AND TO: Peter James and Anje Rose Shea-Lynn Vandergriendt 12084 Rose Beach Line Morpeth, Ontario N0P 1X0

AND TO: Donald Neil Rose and Barbara Jean Rose 2152269 Ontario Limited 11977 Rose Beach Line R.R. #1 Morpeth, Ontario N0P 1X0

AND TO: Mark and Peggy Grimsteed 12004 Rose Beach Line R.R. #1 Morpeth, Ontario N0P 1X0

AND TO: Terry and Pamela Bachus 12064 Rose Beach Line, R. R. #1 Morpeth, Ontario N0P 1X0

AND TO: Teresa and Edward Wood 6 Canter Court Ancaster, Ontario L9K 1K7

AND TO: Jennifer E. Eskritt-Verwegen 12056 Rose Beach Line Morpeth, Ontario N0P 1X0

AND TO: Jeff and Kerry Matheson 12044 Rose Beach Line R.R. #1 Morpeth, Ontario N0P 1X0

AND TO: Dot Blackburn 12040 Rose Beach Line R.R. #1 Morpeth, Ontario N0P 1X0