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:
Dr. David Coates and Patricia Coates The Town of Amherstburg
Dr. David Coates and Patricia Coates The Town of Amherstburg 2021ONAFRAAT6
STATUTE:
Drainage Act
HEARING:
April 21, 2021
DATE OF DECISION:
April 23, 2021
001JohnParks21
NEUTRAL CITATION:
2021 ONAFRAAT 6
FILE NO.: 001JohnParks21
DATE: 2021/04/23
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: an appeal submitted by David and Patricia Coates of Amherstburg, Ontario under Section 54 of the Drainage Act, with respect to the John Parks Drain No. 2 in the Town of Amherstburg.
AND IN THE MATTER OF: a pre-hearing conference held pursuant to Rule 24 of the Tribunal’s Rules of Procedure.
BETWEEN:
Dr. David Coates and Patricia Coates Appellants
– and –
The Town of Amherstburg Respondent
Self-Represented
Self-Represented
HEARD: April 21, 2021
Before: Brandi Neil, Vice-Chair; Andrew McBride, Vice-Chair; and Peter Koroneos, Member.
Appearances:
Patricia Coates, Appellant
Dr. David Coates, Appellant
Paula Parker, Municipal Clerk for the Town of Amherstburg
Shane McVitty, Drainage Superintendent for the Town of Amherstburg
ORDER OF THE TRIBUNAL
1On April 21, 2021 a pre-hearing conference was held before the Tribunal in relation to the appeal submitted by David and Patricia Coates under Section 54 of the Drainage Act with respect to the John Parks Drain No. 2 in the Town of Amherstburg, appealing the decision of the court of revision.
2Before proceeding with the pre-hearing conference items set out in the Notice of Pre-Hearing Conference dated March 26, 2021, the Tribunal identified that it was unclear whether it had jurisdiction to deal with the appeal.
Jurisdictional Issue
3The jurisdictional issue can clearly be stated as, can a party who did not appeal to the court of revision bring an appeal to the Tribunal under section 54 of the Drainage Act? The jurisdictional issue stems from the wording of Section 54, which requires the Appellants to have been a party to an appeal before the court of revision in order bring an appeal under that section.
4Section 54 states:
"Any party 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 21 days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal."
5Section 52 of the Drainage Act is also relevant and states:
(1) An owner of land assessed for the drainage works may appeal to the court of revision on any of the following grounds:
Any land or road has been assessed an amount that is too high or too low.
Any land or road that should have been assessed has not been assessed.
Due consideration has not been given to the use being made of the land.
(2) To Appeal, the owner shall send a notice to the clerk of the initiating Municipality setting out the grounds of the appeal at least 10 days before the first sitting of the court.
6At the beginning of the pre-hearing conference, the following facts were accepted by the appellants and municipality:
There was an on-site meeting related to this proposed drain held on October 17, 2019, and, while the Appellants were notified of this meeting, they did not attend.
There was a meeting to consider the Report held on November 3, 2020 and, while the appellants were notified of this meeting, they did not attend.
The first sitting of the court of revision was held on December 2, 2020 but the appellants did not attend or submit an appeal.
The second sitting of the court of revision was held on January 5, 2021 and the appellants did not attend or submit an appeal.
The Appellants contacted Municipal Drainage Superintendent Shane McVitty on January 22, 2021 by telephone.
On January 26, 2021, the following documents were submitted to the municipality:
o An undated Notice of Appeal to the Court of Revision filed by David and Patricia Coates; and
o A Notice of Appeal to the Tribunal from the Court of Revision under s.54 of the Drainage Act, filed by David and Patricia Coates and dated January 26, 2021.
7The appellants both spoke at the pre-hearing conference and provided information that was set out in their Notice of Appeal regarding their personal circumstances and responsibilities during the pandemic. They take the position that their personal circumstances during the pandemic and the pandemic itself prevented them from taking part in any of the proceedings within the timelines and this has created issues with procedural fairness.
8The submissions of the municipality were given by Drainage Superintendent Shane McVitty. The Town takes the position that it has followed all obligations and processes in the Drainage Act, despite the pandemic. He confirmed that all meetings since the commencement of the pandemic have taken place virtually and information has continued to be mailed out to the parties and has been made available on the Town’s web site.
9The appellants have accepted as fact that they received the notices and did not attend any of the meetings including the original on-site meeting in 2019. The appellants did indicate that they attempted to attend the virtual second sitting of the court of revision but were unable to do so as they had not registered by the day before. Although this was not presented as sworn evidence, it does not appear to be disputed by the Town and is accepted by the Tribunal and has no bearing on the ultimate outcome.
10In the agreed upon facts it is clear that the time period for an appeal to the court of revision under Section 52 had expired. The Appellants did not file the appeal as required within 10 days prior to the court of revision’s first sitting on December 2, 2020. In fact, they did not file it until January 26, 2021, three weeks after the second sitting of the court of revision on January 5, 2021.
11As the Appellants did not file an appeal to the court of revision prior to its sitting, they were not a party to an appeal to the court of revision. The only other way they could be considered parties to a section 54 appeal before the Tribunal is if they were added parties, which are owners who did not file an appeal with the court of revision but are added by virtue of being an assessed owner and the standard Tribunal order. Such added parties are limited to addressing properly filed appeals by other parties. This is not the case here; the appellants are not addressing an appeal filed by other parties but rather their own appeal.
12Although the Tribunal can extend the timelines for filing appeals to the Tribunal, it does not have the jurisdiction to extend the timelines for filing before the court of revision and to require the court of revision to reconvene to consider a matter. As the appellants were not parties to an appeal before the court of revision, the Tribunal does not have jurisdiction to hear this appeal.
13In the event there was no jurisdictional issue, the Tribunal would have taken the position that there have not been any issues with procedural fairness in this process. The Town followed all steps set out in the Drainage Act and provided the appellants with all required documentation and notices. This is not a situation where the appellants tried to participate and engage in the process and were somehow denied the opportunity.
14The appellants were notified of all proceedings and had the opportunity to engage in the process and did not until the process was complete. The process began in October of 2019, pre-pandemic and, aside from attempting to attend the virtual second meeting of the court of revision on January 5, 2021 at the time of the meeting, the appellants took no steps to engage in the process or follow the timelines set out in the notices they received. They waited over two weeks after the January 5, 2021 meeting to contact the municipality. The appellants have experienced personal hardship with the health situation of family members and Dr. Coates does have a demanding job during these unprecedented times. However, their situation did not require any kind of technological or special accommodation that was requested and denied. They demonstrated today that they are able to participate in virtual proceedings. Given their professions they have the ability to understand the process and the notices they received.
15The sympathy of the Tribunal panel goes to the appellants for their personal hardships this past year as well as the thanks of the panel to Dr. Coates and all members of the medical profession in these difficult times. However, their personal circumstances and the pandemic itself did not result in a procedural fairness issue in this matter.
16As there is no jurisdiction to hear this matter, the appeal is dismissed.
Released: April 23, 2021