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:

Edwin Hunter, Milly Coulthart, and Neil & Carol O’Connell VS Norfolk County [FINAL DECISION]

Highway 6 Drain [Final Decision]

STATUTE:

Drainage Act

HEARING:

February 24, 2022

DATE OF DECISION:

March 01, 2022

012Highway621

NEUTRAL CITATION:

2022 ONAFRAAT 13

FILE NO.: 012Highway621

DATE: 2022/03/01

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

AND IN THE MATTER OF appeals submitted by Edwin Hunter, Milly Coulthart, and Neil & Carol O’Connell of Port Dover, Ontario under Section 54 of the Drainage Act, with respect to the Highway 6 Drain in Norfolk County.

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

BETWEEN:

Edwin Hunter, Milly Coulthart, and Neil & Carol O’Connell Appellants

– and –

Norfolk County Respondent

Self-represented

Represented by Joel Miller, P. Eng

HEARD: February 24, 2022

Before: Brandi Neil, Vice Chair, Don McNalty, Vice Chair, Marc Huneault, Vice-Chair

In attendance:

Milly Coulthart, Appellant

Edwin Hunter, Appellant

Neil O’Connell, Appellant (on behalf of himself and Carol O’Connell)

Joel Miller, P. Eng., Engineer who wrote the Report

Bill Mayes, County Drainage Superintendent

Krista VanPaemel, acting as Clerk of the Tribunal

TRIBUNAL DECISION

1The Agriculture, Food and Rural Affairs Appeal Tribunal (“the Tribunal”) held this appeal hearing by Zoom video conferencing on February 24, 2022. The Appellants, Edwin Hunter, Milly Coulthart, and Neil & Carol O’Connell brought Section 54 Appeals of the Assessments in the Engineer’s Report for the Highway 6 Drain (hereinafter “the Engineer’s Report”) prepared by Joel Miller, P. Eng. dated April 14, 2021.

2The Highway 6 Drain (the “Drain”) has a lengthy history. The Engineer’s Report was prepared pursuant to petitions under Section 4 of the Drainage Act, that were submitted in April 2012 by the Ministry of Transportation Ontario, Norfolk County Manager of Roads and the County Manager for County-owned lands.

3There were several other landowners along the Drain who attended to observe but did not wish to participate in the hearing.

4In advance of the hearing, the Tribunal received a proposed Consent Order with respect to the appeal of the Appellants, Neil and Carol O’Connell indicating that a resolution had been reached on this matter.

5The Appellants, Edwin Hunter and Milly Coulthart, attended the hearing and indicated they were withdrawing their appeals before any evidence was heard.

6The hearing began with the filing of the affidavit of service of the Notice of Hearing as an exhibit.

Evidence of the Engineer, Joel Miller

7Joel Miller, P. Eng., provided sworn testimony that consisted of a brief overview of the Drain and the consent order being sought. In the course of his testimony, the following documents were filed as Exhibits 2 and 3 respectively: the Engineer’s Report and the Proposed Consent Order, Re. Appeal of N. & C. O’Connell (Roll No. 337-040-18378) dated February 22, 2022 with attached Assessment Revisions dated February 22, 2022.

8During his testimony, Mr. Miller explained that the Engineer’s Report assessed 0.06 hectares of Roll No. 337-040-18378 (N. & C. O’Connell property at 35 Coastal Court, Port Dover) for outlet liability. Based on 0.06 hectares being in the Highway 6 Drain watershed, the report’s total outlet assessment to the O’Connell property was $323. The report did not assess the O’Connell property for benefit assessment.

9He further testified that through on-site review with Mr. O’Connell in October 2021, he confirmed only 0.04 hectares of the O’Connell property should be assessed for outlet liability. He had reassessed the amount of the O’Connell’s property in the watershed. It was now being reduced from $323 to $226.10 based on the revised affected area on the O’Connell property.

10He further explained that the reduction in the O’Connell assessment, in the amount of $96.00, will now be assessed as an increase in Benefit to the Port Dover Wastewater Treatment Plant.

Submissions of the Appellants

11Neil O’Connell did not testify but made submissions indicating they (Neil and Carol O’Connell) are consenting to the Proposed Consent Order filed as Exhibit 3.

Orders

12Upon hearing the evidence and submissions, the Tribunal makes the following orders on consent of the parties regarding revised assessments for the Appellants Neil and Carol O’Connell:

a) The Highway 6 Drain report be amended to assess 0.04 hectares of Roll No. 337-040-18378 (N. & C. O’Connell property at 35 Coastal Court, Port Dover) for outlet liability, a reduction in outlet assessment by $96.90 to $226.10.

b) To increase the total benefit assessment of the Port Dover Wastewater Treatment Plant property, owned by Norfolk County (Roll No. 334-030-46900) by $96.90 to $45,096.90.

c) The Engineer’s Report be amended as set out in the Proposed Assessment Revisions dated February 22, 2022, attached to the Exhibit 3.

13The Tribunal further orders that:

a) The non-administrative costs of the Norfolk County incurred with respect to this appeal shall form part of the cost of the drainage works and such costs may include the Engineer’s fees and expenses for attending and participating in the hearing; and

b) There shall be no other Order as to costs and all parties shall be responsible for their own costs.