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:
Pierina Osti, Pio Osti and Dennis Osti vs The Town of Niagara-on-the-Lake
Wall Drain
[Motion Decision]
2021AFRAAT13
STATUTE:
Drainage Act
HEARING:
16 July 2021
DATE OF DECISION:
16 July 2021
005Wall20
NEUTRAL CITATION:
2021 ONAFRAAT 13
FILE NO.: 005Wall20
DATE: 2021/07/16
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED
AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Pierina Osti, Pio Osti, and Dennis Osti of Niagara-on-the-Lake, Ontario under Sections 48 and 54 of the Drainage Act, with respect to the Wall Municipal Drain in the Town of Niagara-on-the-Lake
AND IN THE MATTER OF: Motions by the appellants, Pierina Osti and Dennis Osti, pursuant to Rule 30 of the Tribunal’s Rules of Procedure
BETWEEN:
Pierina Osti, Pio Osti, and Dennis Osti
Appellants
– and –
The Town of Niagara-on-the-Lake
Respondent
Self-represented
Self-represented
Before: Harold McNeely, Vice-Chair; Andrew McBride, Vice-Chair; and Peter Koroneos, Member.
Written submissions received from:
Pierina Osti, Appellant
Dennis Osti, Appellant
Stan Wall, affected landowner
Brett J. Ruck, Town of Niagara-on-the-Lake
MOTION DECISIONS
1The Appellants filed four Motions that were considered in a Written Motion Hearing. In response to the Motions, the Town filed a written response dated June 11, 2021, which included an affidavit from an affected landowner on the drain, Stan Wall. The Tribunal extended the deadline for the Appellants to file a Reply to the Town’s submissions to July 7. The Tribunal has now reviewed the representations of the parties, including the reply documents sent by the Appellants on July 7.
MOTION 1
2Motion 1. The Appellants’ request is as follows:
Wall Drainage to be dismissed or re-directed back to the Town of Niagara on the Lake to be heard before the town council and engineering company as per town by-law.
The Appellants quote Section 48(1)(d) of the Drainage Act in support of their position that the Wall Municipal Drain is not required. They also state that they did not receive notice of an on-site meeting convened for January 29, 2019. The Town has filed an affidavit of Brett Ruck sworn June 11, 2021 attesting that Notices of this meeting were sent to all affected landowners as required by section 9(1) of the Drainage Act.
DECISION ON MOTION 1
3The Tribunal must hold a Hearing and receive the evidence of the parties before it can render a decision. The Town has complied with the Drainage Act. This is not a matter to be decided on a summary motion. Accordingly, this motion is dismissed.
MOTION 2
4Motion 2. The Appellants’ request is as follows:
Wall Drainage to be dismissed or re-directed back to the Town of Niagara on the Lake to be heard before the town council and engineering company as per town by-law.
In support of this Motion, the Appellants allege mistakes in the Engineer’s report and allege that a member of Council, John Wiens who sat on the Court of Revision on July 28, 2020, did not declare a conflict of interest at the meeting of the Court of Revision and participated in the Decision.
DECISION ON MOTION 2
5Any issue regarding alleged errors in the Engineer’s report will be decided following evidence received at a Hearing and not by a summary Motion. Any issues regarding the allegation of a conflict of interest of a member of Council participating in the Court of Revision process should be resolved by the procedures outlined in the Municipal Conflict of Interest Act. The Tribunal has no jurisdiction to rule on this matter. This jurisdiction rests with the Superior Court of Justice. Motion 2 is dismissed.
MOTION 3
6Motion 3. The Appellants’ request is as follows:
Extension on date to provide expert reports from expert witness. The Appellants state that survey stakes were removed and were not replaced. The Appellants want to have the survey stakes replaced before they request an Expert witness to attend at their property.
7In its responding material, the Town advised that it retained an Ontario Land Surveyor to prepare a survey plan showing the location of the ditch relative to the common property line. This plan, dated March 23, 2021, has been provided to the affected landowners which include the Appellants. The Town states the sketch is “sufficiently detailed for an engineer to appropriately rely on during the preparation of a drainage report”.
DECISION ON MOTION 3
8Having examined the survey plan prepared for the Town, the Tribunal is of the view that the survey provides the necessary information for the Appellants’ expert witness to prepare a report. The time for the Appellants to obtain and serve the expert report on the other affected landowners and the Town, and to file the expert report with the Tribunal, is extended to August 13, 2021.
MOTION 4
9Motion No. 4. The Appellants’ request can be summarized as follows:
The Appellants are asking the Engineer to disclose the name of a young, male engineer from K. Smart Associates Limited who attended at 1129 Line 8 Road and who spoke to Mrs. Osti and Dennis Osti. No date is mentioned in this request. The Appellants plan to send a summons to this person to have him testify at the Hearing of the Appeal.
DECISION ON MOTION 4
10We reserve our decision on this issue. This request will be reviewed and decided at the next Pre-Hearing Conference.
PRE-HEARING CONFERENCE
11Having extended the time for delivery of the Appellants’ expert report, the Pre-Hearing Conference scheduled for July 28, 2021, is cancelled and will be rescheduled as soon as possible after August 13, 2021.
Released: July 16, 2021