Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2nd Floor NW Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West, 2e étage NW Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL: TLI Holdings Inc vs Norfolk County [Jurisdictional Decision]
Langtry Drain [PHC Jurisdictional Decision]
STATUTE: Drainage Act
HEARING: May 11, 2022
DATE OF DECISION: May 19, 2022
003Langtry22
NEUTRAL CITATION: 2022 ONAFRAAT 16
FILE NO.: 003Langtry22
DATE: 2022/05/19
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF an appeal submitted to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) by TLI Holdings Inc. of Norfolk, Ontario under Section 54 of the Drainage Act, with respect to the Langtry Drain in Norfolk County.
AND IN THE MATTER OF a Pre-Hearing Conference to be held pursuant to Rule 29 of the Tribunal’s Rules of Procedure.
BETWEEN:
TLI Holdings Inc. Appellant
– and –
Norfolk County Respondent
Self-represented
Self-Represented
Heard: May 11, 2022
Before: Brandi Neil, Vice-Chair; John Johnston, Vice-Chair; David Stevens, Member
Appearances:
David Townsend, on behalf of the Corporate Appellants
Brenda Townsend, on behalf of the Corporate Appellants
Neal Morris, Engineer who wrote the Report
Krista VanPaemel, Drainage Clerk, Norfolk County
DECISION OF THE TRIBUNAL
1On May 11, 2022, a further Pre-Hearing Conference was held before the Tribunal in relation to an appeal that was submitted by TLI Holdings Inc., under Section 54 of the Drainage Act (hereinafter referred to as “the Act”).
2The purpose for this Pre-Hearing Conference was to determine if the Tribunal has jurisdiction to hear this appeal.
Procedural Matters
3Prior to evidence being called, the Tribunal asked if the Appellants were owners of lands being assessed. The Appellants, TLI Holdings Inc., appears in the executive summary of the Engineer’s Report. However, in the actual assessments the lands the Appellants identified as owning, Tax Roll 10-487, was listed as being owned by Breeze Dried Inc.
4The Appellants explained that Breezed Dried Inc. is another company that they, the Townsends, own. They told the Tribunal that this other company previously owned this property but it was transferred to their other company, TLI Holdings Inc., in 2016. The Respondent agreed that their list had not been updated.
Jurisdiction
5Section 52(2) of the Act provides for an owner of land assessed for drainage work to appeal to the court of revision by sending a notice to the clerk of the municipality at least 10 days before the first sitting of the Court of Revision. As set out in Section 52(3) of the Act, if such notice is sent, the Court of Revision shall hear the appeal. Section 52(4) provides if the notice of appeal is not sent in accordance with section 52(2), the Court of Revision may pass a resolution at its first sitting to allow an appeal to be heard.
6It was a conceded by the Appellants at the previous Pre-Hearing Conference that a written appeal was not submitted to the Court of Revision in accordance with Section 52(2) of the Act. However, they did attend the Court of Revision and made verbal submissions.
7Section 54(1) of the Act provides for an appeal to the Tribunal only by a party to an appeal to the Court of Revision or from the omission, neglect or refusal to hear an appeal.
8The issue to be determined at this jurisdiction hearing is, whether the Appellants were a party to an appeal before the Court of Revision? More specifically:
i. Is this a situation where the Court of Revision omitted, neglected or refused to hear an appeal?
ii. Was the Appellant a party to the appeal at the Court of Revision on February 1, 2022, by being allowed to give oral submissions at the Court of Revision?
iii. Is the use of the Court of Revision’s discretion to not pass a resolution under Section 52(4) to hear an appeal at its first sitting, reviewable by the Tribunal?
Evidence
9Only Mr. David Townsend (hereinafter “Mr. Townsend”) gave evidence under oath but both Mr. Townsend and Mrs. Brenda Townsend asked questions on behalf of the Appellant.
David Townsend
10Mr. Townsend gave the following evidence relevant to the issue of jurisdiction:
o They were not aware of the Court of Revision Hearing until the day before the hearing and the notice said they had to file an appeal ten days before;
o They had not been working out of their corporate office or checking the mail regularly because of the covid restrictions at that time and because Mrs. Townsend was away for three weeks in Mexico;
o Their corporate office is about 15 miles from their home;
o Upon receiving the notice they did contact the Respondent and were given the information to call in at the Court of Revision hearing;
o They did call in and made oral submissions at the Court of Revision;
o No one advised them they could file a written appeal;
o He did not recall being asked about filing a written appeal at the Court of Revision. He assumed they were disqualified because it was after the ten days set out in the notice;
o When asked if he is familiar with Drainage Act matters, he answered that yes they have drains on most of their farm properties but this is the first involving residential properties; and,
o They did not feel they were consulted before these assessments were made.
Neal Morris, P. Eng – Author of the Engineer’s Report
11Neal Morris is the engineer who prepared the report pursuant to Sections 4 and 78 of the Act. He represented the Respondents at this hearing and gave the following evidence:
o The notice of the sitting of the Court of Revision on February 1, 2022 (Exhibit 1) was sent out in the appropriate timelines;
o He was present at the Court of Revision;
o The Townsends attended by calling in;
o There was another appeal that was filed late that was heard at that sitting;
o The Court of Revision often hears late appeals;
o There were several on-site meetings with landowners before the report was complete;
o He was not at the first on-site meeting but, from his colleagues notes and at page 5 of the Engineer’s Report, the Townsends were present;
o On August 30, 2019 there was a site meeting where he explained the process regarding appeals to the Court of Revision; and,
o At the Court of Revision, the Chair, Alan Strang, asked the Appellants if they wished to appeal and they answered they did not.
Krista VanPaemel – Norfolk County
12Ms. VanPaemel, an employee with Norfolk County, was called by the Respondent and gave the following evidence:
o The Notice of the Court of Revision sitting on February 1, 2022 was mailed on January 10, 2022 to the Townsends;
o She had previously sent mail to the Townsends that they had received;
o The Townsends were asked by the Chair of the Court of Revision if they submitted an appeal and they said no;
o She did have a telephone conversation with Brenda Townsend the day before they Court of Revision;
o She had received an email from the Townsends asking for a call so she called them and explained they can file a late appeal to be presented to the Court of Revision. During that call she offered her assistance to help them complete the appeal and they told her they did not want to; and,
o She told them without an appeal they could attend the Court of Revision but as observers only.
13At the completion of Ms. VanPaemel’s evidence, Mrs. Townsend conceded that what Ms. VanPaemel said was correct.
Discussion and Findings
14Mr. Townsend indicated they were unaware they could file a late appeal. However, Ms. VanPaemel gave clear and detailed evidence that she advised Brenda Townsend over the phone that they could file a late appeal and offered to assist in the process. As Mrs. Townsend conceded this evidence was correct, the discrepancies in testimony on this point do not need to be reconciled and the Tribunal accepts the evidence of Ms. VanPaemel on this point.
15Mr. Morris testified that he heard the Court of Revision Chair ask the Appellants if they wished to file an appeal. This differed slightly from Ms. VanPaemel’s evidence that the Chair asked if they did file an appeal.
16The Chair of the Court of Revision, in all likelihood, would have been provided with a copy of the written appeals at the beginning of the sitting so would have been aware they had not filed an appeal. For this reason, if the Tribunal needs to make a finding on this point they would accept the evidence of Mr. Morris. However, whether the Chair asked if they “wished to” or if they “did” file an appeal, it was clearly an opportunity for the Appellants to indicate they wanted to bring an appeal. There was no testimony tendered by the Appellants to support that they asked the Court of Revision to file an appeal on February 1, 2022. The Tribunal finds they did not ask to file an appeal when they attended the Court of Revision. Although the evidence of Mr. Morris seems more likely on this point, nothing turns on this specific discrepancy so the Tribunal makes no finding other than, one of Mr. Morris or Ms. VanPaemel either misheard or their recollection is incorrect with respect to one or two words spoken by the Chair of the Court of Revision.
17The Engineer’s report (Exhibit 2) sets out in detail the number of onsite meetings. There was a Townsend representative, K. Townsend, present on both April 21, 2004 and August 30, 2019. The report also sets out there was a further on-site meeting on February 27, 2020 and that notice of the meeting was sent to all landowners in the watershed. There was a further on-site meeting described in the report held with the owners of Breeze Ltd Inc. (Roll No. 010-487). Although it did not list their names, from the Townsend’s earlier submissions to this Tribunal, the Tribunal accepts that this meeting would have been with at least one of the Townsends. This meeting was just held with them where they had the opportunity to voice their specific concerns. Although it is not directly relevant to the issue of jurisdiction, the Tribunal notes that the Appellants were given opportunities to address their concerns at several meetings.
18Both the evidence of Mr. Morris and Ms. VanPaemel clearly support that the Appellants were involved in the drain process. One of them attended a meeting on August 30, 2019 where the process was explained.
19The Appellants missed the timeline for filing an appeal as they were not checking their corporate mailbox that was only 15 miles from their home. Although COVID-19 restrictions may have prevented them from working from their corporate office, nothing prevented them from travelling 15 miles to check the mail regularly. Once they realized they had missed the timeline for filing, they spoke to Ms. VanPaemel the day before the Court of Revision sitting and she explained to them they could file a late appeal and offered assistance in this regard, which they declined. This evidence was conceded by the Appellants.
20The Tribunal finds that the Appellants could have filed a late appeal and they chose not to.
Answers to Questions in Paragraph 8
21There was no appeal brought or attempted to be brought by the Townsends. This is not a situation where the Court of Revision omitted, neglected or refused to hear an appeal.
22In the circumstances of this matter, the Appellants were not parties to an appeal by virtue of giving oral submissions. There was no evidence to suggest they thought they were Appellants or that they asked to be Appellants.
23This is not a situation where the Appellants were seeking to appeal and the Court of Revision declined to pass a resolution to allow their appeal. As such, the Tribunal does not need to determine if that decision is reviewable.
24The Appellants were not parties to an appeal before the Court of Revision and the Tribunal has no jurisdiction to hear this appeal.
Released: May 19, 2022