Agriculture, Food and Rural Affairs Appeal Tribunal
Agriculture, Food and Rural Affairs
Appeal Tribunal
1Stone 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:
David and Jackie Brisbin; Gary and Karen Pollock; Mark and Samira Gancevish VS The Township of Huron-Kinloss
Bruce Beach Municipal Drain
2021ONAFRAAT22
STATUTE:
HEARING:
November 15, 2021
DATE OF DECISION:
November 16, 2021
015BruceBeach21
NEUTRAL CITATION:
2021 ONAFRAAT 22
FILE NO.: 015BruceBeach21
DATE: 2021/11/16
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; Mark and Samira Gancevish; and David and Jackie Brisbin.
AND IN THE MATTER OF a Pre-Hearing Conference held pursuant to Rule 29 of the Tribunal’s Rules of Procedure.
BETWEEN:
David and Jackie Brisbin
Gary and Karen Pollock
Mark and Samira Gancevish
Appellants
– and –
The Township of Huron-Kinloss
Respondent
Self-Represented
Self-Represented
Represented by Jacob Polowin
Represented by Paul Courey
HEARD: November 15, 2021
Before: Glenn C. Walker, Chair; Marc Huneault, Vice-Chair and John Johnston, Vice-Chair
Appearances:
Jacob Polowin, Counsel for Mark and Samira Gancevish, appellants
Gary Pollock, appellant
David Brisbin, affected landowner
Paul Courey, Counsel for the Township of Huron-Kinloss
Emily Dance, Clerk, Township of Huron-Kinloss
Stephen Brickman, Engineer who wrote the report
DECISION AND ORDER OF THE TRIBUNAL
1A virtual Pre-Hearing Conference (“PHC”) was held on November 15, 2021. The purpose of the PHC, in part, was to determine whether the Tribunal should accept the Notice of Appeal filed by David and Jackie Brisbin (“the Brisbins”) under Section 54 of the Drainage Act, R.S.O. 1990, c. D.17 (“Act”).
2The Tribunal reviewed the Notice of Appeal filed by the Brisbins on August 26, 2021. The Notice is entitled: “Notice of Appeal to Tribunal from the Court of Revision”. The Tribunal also reviewed the draft minutes of the Court of Revision held on August 9, 2021. These minutes have not yet been adopted.
3The minutes of the Court of Revision reflect that the only written appeals received by the Court of Revision were from Pollock and Gancevish and that a resolution was passed declaring that no further appeals would be accepted at the meeting.
4Under the heading “Comments from Landowners”, the minutes state that Mr. Brisbin addressed the Court of Revision and set out his concerns about the Drainage Report (“Report”).
5The Tribunal also heard submissions from David Brisbin and counsel for the municipality. Mr. Brisbin indicated that he had concerns about the Report but that he did not object to the amount for which he had been assessed.
6It is clear that Mr. Brisbin did not file an appeal to the Court of Revision, nor did he have an issue with his assessment. The issues he raised in his comments to the Court of Revision were not issues over which it had jurisdiction. If there is no appeal to the Court of Revision, there can be no appeal of its decision to the Tribunal under Section 54.
7For these reasons, the Tribunal declines to accept the appeal brought by the Brisbins pursuant to Section 54 of the Act.
8If the Brisbins wish to pursue their concerns with the Report, they should consider other avenues including an appeal under Section 48 of the Act. Any appeal brought pursuant to Section 48 of the Act would be late. Such an appeal must be served within 40 days of the sending of the notices for the Court of Revision, which in this matter was on July 20, 2021.
9The Tribunal may grant an extension of the time to appeal pursuant to Section 100 of the Act.
10Mr. Brisbin indicated that he wished to apply for such an extension. This must be done by motion to the Tribunal pursuant to Rule 30 of the Tribunal’s Rules of Procedure. The motion shall be served on the respondent municipality and the other two appellants; but it is not necessary to serve other persons assessed on the drain, who will be added as parties by order of the Tribunal.
11The motion will be heard by video conference on Tuesday, December 21, 2021 commencing at 9:00 a.m.
All appeals shall be heard by video conference on Monday, February 21 and Tuesday, February 22, 2022.
Released: November 16, 2021