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

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

Gary and Karen Pollock Mark and Samira Gancevish Vs The Township Of Huron-Kinloss

Bruce Beach Municipal Drain Phase 1 2021ONAFRAAT19

STATUTE:

Drainage Act

HEARING:

December 21, 2021

DATE OF DECISION:

December 21, 2021

015BruceBeach21

NEUTRAL CITATION:

2021 ONAFRAAT 19

FILE NO.: 015BruceBeach21

DATE: 2021/12/21

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

AND IN THE MATTER OF appeals received by the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) under Section 54 of the Drainage Act, with respect to the Bruce Beach Municipal Drain, Phase 1, located in the Township of Huron-Kinloss, submitted by: Gary and Karen Pollock; and Mark and Samira Gancevich.

AND IN THE MATTER OF an electronic hearing held pursuant to Rule 18 of the Tribunal’s Rules of Procedure.

AND IN THE MATTER OF a motion brought pursuant to Rule 30 of the Tribunal’s Rules of Procedure, by David and Jackie Brisbin, requesting an extension of the time to file a Notice of Appeal under Section 48 of the Drainage Act, with respect to the Bruce Beach Municipal Drain, Phase 1, located in the Township of Huron-Kinloss.

BETWEEN:

Gary and Karen Pollock Mark and Samira Gancevish Appellants

– and –

The Township of Huron-Kinloss Respondent

Self-Represented Represented by Carolina Campos

Represented by Paul Courey

Heard: December 21, 2021

Before: Glenn C. Walker, Chair

Appearances:

David Brisbin, moving party

Carolina Campos, counsel for Mark and Samira Gancevich, appellants

Paul Courey, counsel for the Township of Huron Kinloss

MOTION DECISION

1This motion was heard on Tuesday, December 21, 2021, by way of video conference.

2The Moving Parties, David and Jackie Brisbin, request an extension of the time to file an appeal under Section 48 of the Drainage Act, R.S.O. 1990 c. D.17 (“Act”) pursuant to Section 100 of the Act which provides that the Tribunal, in any case that it considers proper, may extend the time otherwise limited for application, appeal or reference.

3A notice of appeal under Section 48 is required to be served within 40 days after the sending of the notices of the first sitting of the Court of Revision, in this case by August 29, 2021.

4The Moving Parties had previously served a Notice of Appeal under Section 54 of the Act. The Tribunal refused to accept that appeal by order dated November 16, 2021, on the grounds that they had not made an appeal to the Court of Revision.

5In their Notice of Motion, the Moving Parties, who have the onus of convincing the Tribunal to exercise its discretion in their favour, do not provide any reason as to why they were late in filing a Section 48 appeal but merely state their position that “the municipality should assess all Huron-Kinloss taxpayers for this drain”.

6No sworn evidence was provided by the parties and the Tribunal accepts the submissions of the parties for the purpose of deciding this motion.

7The municipality advised that work on the drain was already underway after an emergency authorization was obtained from the Minister pursuant to Section 124 of the Act on October 1, 2021, on the basis that there were no Section 48 appeals. The municipality alleges that it would be prejudiced if a Section 48 appeal was permitted to proceed now.

8Ms. Campos, appearing on behalf of Mr. and Mrs. Gancevich, took no position on the motion.

9In the consideration of this matter I will adopt the test used by the courts on a motion to extend time to file an appeal. That test requires me to consider: (1) whether the moving parties formed a bona fide intention to appeal within the time limit; (2) prejudice to the responding party as a result of the delay; (3) the length of the delay and reasons for the delay and (4) the merits of the proposed appeal. Ultimately all elements of the test are to be considered together, and the overarching consideration is what the justice of the case requires. No one factor is determinative. (Alaycheh v. Alaycheh, 2020 ONSC 6006)

DISCUSSION AND ANALYSIS

Bona Fide Intention to Appeal

10I find that the Moving Parties had formed a bona fide intention to appeal within the time limit imposed by Section 48. Although they had not appealed to the Court of Revision, Mr. Brisbin addressed the Court of Revision on August 9, 2021, expressing opinions that were clearing Section 48 matters and not Section 54 matters. (August 9, 2021 Court of Revision Meeting Minutes)

Prejudice to the Municipality

11I find that the municipality will be prejudiced if the Moving Parties are permitted to bring a Section 48 appeal now. Drainage work has already commenced after the Minister declared an emergency and allowed the work to proceed before the provisional By-law was adopted on the basis that there were no Section 48 appeals.

Length of and Reason for Delay

12If an appeal is permitted, it will be approximately 4 months late. The Moving Parties have given no reason or explanation for the delay.

Merits of the Proposed Appeal

13The Moving Parties set out the grounds for appeal in their Notice of Motion. Succinctly stated, they feel that the cost of this drain should be charged to all taxpayers in the municipality and not just to the 125 property owners who are presently bearing the expense of the drain.

14I find that based on these grounds of appeal, there is no chance of success if the appeal were to proceed. The Moving Parties clearly fail to appreciate the purpose and scope of the Act.

Conclusion and Order

15The justice of this case requires that the time for a Section 48 appeal by the Moving Parties not be extended. The Moving Parties have failed to persuade the Tribunal that they have a valid reason for not serving the appeal in time, nor have they provided to the Tribunal arguable grounds for the appeal.

16The motion is dismissed.