The Town of Essex v. The Town of Kingsville, 2021 ONAFRAAT 20

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

The Town of Essex VS The Town of Kingsville

Elford Creek Drain 2021ONAFRAAT20

STATUTE:

Drainage Act

HEARING:

August 19, 2021

DATE OF DECISION:

August 19, 2021

008ElfordCreek21

NEUTRAL CITATION:

2021 ONAFRAAT 20

FILE NO.: 008ElfordCreek21

DATE: 2021/08/19

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

AND IN THE MATTER OF an application to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) by the Town of Essex, under Section 76(1) of the Drainage Act, with respect to the Elford Creek Drain in the Town of Essex and the Town of Kingsville,

AND IN THE MATTER OF a written hearing pursuant to Rule 17 of the Tribunal’s Rules of Procedure,

BETWEEN:

The Town of Essex Applicant

– and –

The Town of Kingsville Respondents

Represented by Robert W. Auger

Self-represented.

DECISION OF THE TRIBUNAL

Background

1On June 21, 2021, the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) received an application pursuant to S.76(1) of the Drainage Act, RCO 1990 from the Town of Essex seeking permission to procure a report of an engineer to vary the Schedule of Assessment for the Elford Creek Drain that was prepared in 1966 by C.G. Russell Armstrong P. Eng., Engineer for the Township of Colchester North, County of Essex.

2The Tribunal provided a Notice of Written Hearing dated June 23, 2021 to the following parties:

1. The Town of Essex
2. The Town of Kingsville
3. All person assessed on the current Schedule of Assessment

3The Notice of Hearing set out the following procedure for the hearing:

1. By Wednesday, July 14, 2021, any person assessed on the Schedule of Assessment prepared in 1966 by C.G. Russell Armstrong is to notify the Clerk of their intent to participate.
2. By Thursday, July 15, 2021, the Clerk will provide to the Tribunal and all participating parties with a list of all persons assessed who intend to participate in the written hearing.
3. By Thursday, July 29, 2021, the parties are required to deliver to the Clerk, to the Tribunal Coordinator, and to each other participating party, one copy of all documents and submissions.
4. By Friday, July 30, 2021, the Clerk shall make one copy of all filed documents and submissions available for review in the municipal office. Additional copies may be made for parties and members of the general public.

4No persons assessed on the Schedule of Assessment indicated that they wished to participate in the written hearing.

5The Town of Kingsville did not oppose the application brought by the Town of Essex.

Decision and Reasons

6Pursuant s.76(1) of the Drainage Act, the council of any local municipality liable for contribution to a drainage works in connection with which conditions have changed or circumstances have arisen such as to justify a variation of the assessment for maintenance and repair of the drainage works may make an application to the Tribunal for permission to procure a report of an engineer to vary the assessment.

7The Town of Essex’s evidence outlines that since the Schedule of Assessment that was prepared in 1966 many severances have occurred without apportionments and, as such, an updated schedule is required to ensure all parcels and roads are fairly assessed in both the Town of Essex and the Town of Kingsville. Further, all drain crossings need to be reviewed to ensure that design details are provided and that cost sharing is included for all of the structures that are considered to be part of the Elford Creek Drain, providing necessary details to complete needed repairs to the drain and crossings. On this basis, the Town of Essex submitted that there has been a change in conditions that justifies a variation of the Schedule of Assessment.

ORDER OF THE TRIBUNAL

8The Tribunal grants permission for the Town of Essex to procure a report of an engineer to vary the Schedule of Assessment of the Elford Creek Drain that was prepared in 1966.