Agriculture, Food and Rural Affairs Appeal Tribunal
1 Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West
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
2023 ONAFRAAT 18
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 Howe Farms (Ontario) Ltd. of Embro, Ontario, under Section 5(2) of the Drainage Act, with respect to the Proposed Howe Drain in the Township of Zorra.
AND IN THE MATTER OF a motion held pursuant to Rule 30 of the Tribunal’s Rules of Procedure.
BETWEEN:
Howe Farms (Ontario) Ltd. Appellant
– and –
Township of Zorra Respondent
Represented by Paul Courey
Represented by Peter Pickfield
Heard: September 25, 2023 via Zoom
Before: Glenn C. Walker, Chair
Parties Present:
Paul Courey, Counsel for the Appellant
Peter Pickfield, Counsel for the Respondent
David Swift, Counsel for Upper Thames River Conservation Authority
MOTION DECISION
- This is a motion made by the Upper Thames River Conservation Authority (“UTRCA”) for party status in this Drainage Act appeal pursuant to Rule 8 of the Tribunal’s Rules of Procedure.
Background
Howe Farms (Ontario) Ltd. (“Howe”) and Gord and Cheryl Howe, as partners, petitioned the Township of Zorra (“Zorra”) for the construction of new drainage works on the southeast part of Lot 1, Concession 5, in the geographic Township of West Zorra, Township of Zorra, in the County of Oxford pursuant to Subsection 4(1) of the Drainage Act, R.S.O. 1990, c. D.17 (“Act”).
On April 5, 2023, the council for the Township considered the request and decided not to proceed with the drainage works and gave the following reasons:
The potential outlet for the area requiring drainage is subject to a court order requiring the petitioner to restore and rehabilitate lands under a charge and conviction under the Conservation Authorities Act.
Howe appealed this decision to the Tribunal on May 3, 2023, pursuant to Subsection 5(2) of the Act.
The court charge, conviction and court order referred to in council’s decision relates to charge laid against Howe and Gordon Howe by the UTRCA under section 157 of Regulation 157/06 of the Conservation Authorities Act, R.S.O. 1990, c. C.27 relating to lands which are nearby the lands for which drainage is sought in this petition.
The Court found that these lands were within the jurisdiction of the UTRCA and that Howe and Gordon Howe had contravened the regulation by excavating, tiling and grading the lands without obtaining a permit from UTRCA. The sentence of the Court required them to rehabilitate these lands by December 31, 2016. On February 29, 2023, this date was extended to October 31, 2023. As of the date of this hearing, the rehabilitation had not been undertaken.
The Position of the Moving Party
UTRCA submits that it wants to be added as a party to this appeal as its interests related to the lands and watercourse subject to the Order referred to above may be directly and substantially affected by this appeal. UTRCA also argues that it has a genuine interest in the subject matter of this proceeding and will make a relevant contribution to the Tribunal’s understanding of the issues in this proceeding as they relate to the lands and watercourse subject to the Order.
It is undisputed that the same watershed over which the UTRCA has jurisdiction contains both the lands that are the subject of the current petition and those lands that are the subject of the Court Order.
The appellant has not shown that there would be any prejudice to the appellant if UTRCA is added as a party and it is more than likely that evidence presented by it will form part of the hearing of this appeal.
Counsel for the moving party submits that the Tribunal should follow the decision of Acting Drainage Referee Oldfield in a similar matter and find that UTRCA should be given party status in this proceeding.
The Position of the Respondent Municipality
- The municipality supports the motion to have UTRCA added as a party.
The Position of the Appellant
The appellant argues that the issue before the Tribunal is whether the Zorra was justified in declining to appoint an engineer, which was a choice that it had under Section 5 of the Act, and that UTRCA is getting ahead of itself as a result of “bad blood” between itself and the appellant.
The appellant further submits that at this point in a petition, the municipality runs the process not UTRCA.
If the Tribunal finds that an engineer should be appointed and a report produced, it is a statutory requirement that UTRCA be consulted, and it will have the right to appeal issues related to any report.
Analysis
- Rule 8.01 of the Tribunal’s Rules of Procedure provides that any person may request party status in a proceeding by way of a motion. Rule 8.03 sets out 3 non-exhaustive relevant matters which the Tribunal may consider in making its decision. They are whether:
i. A person’s interests may be directly and substantially affected by the Hearing or its result;
ii. A person has a genuine interest, whether public or private, in the subject matter of the proceeding; and
iii. A person is likely to make a relevant contribution to the Tribunal’s understanding of the issues in the proceeding.
This not an appeal in the ordinary sense of the word, requiring an examination of the reasons given by the original decision-maker. The hearing will take the form of a hearing de novo, in essence a re-hearing of the issue as if the original decision had never taken place.
The appellant and Zorra will present evidence and argument relevant to the issue which is whether council should or should not proceed with the drainage works requested in the petition. The Tribunal may confirm the decision of council or direct council to make such decision and to take such action as council is authorized to take under the Act and as the Tribunal considers proper.
I find that, although the interests of UTRCA may be directly and substantially affected by any engineer’s report produced as a result of the petition, those interests are only potential at this point. As well, it will have a genuine public interest if this petition proceeds to a report.
Any contribution to this hearing by way of evidence or submissions by UTRCA is unnecessary as, no doubt, Zorra will attempt to call evidence relating to the history between the appellant and UTRCA before the Tribunal. The relevancy of that evidence will be an issue for the hearing panel to decide.
The Moving Party referred me to the case of Howe v. Zorra (Township) 2016 ONDR 1, a decision of Acting Drainage Referee Oldfield dated January 7, 2016. This decision involved the same parties in slightly but importantly different circumstances.
Howe had previously petitioned Zorra for drainage works on the lands which are the subject matter of the Court Order referred to above. That petition was granted, and an engineer’s report prepared. The engineer’s report was considered by council and by resolution council referred the report back to the engineer pursuant to Section 57 of the Act.
Howe then appealed that decision to the Tribunal who found that it did not have jurisdiction under the Act in these circumstances and transferred the matter to the Drainage Referee. When Howe applied to the Drainage Referee, UTRCA moved to intervene in those proceedings. The Acting Referee granted that motion with reasons.
I agree with the analysis and rationale in the Acting Referee’s decision; however, there is a subtle distinction. In his decision an engineer’s report was already in existence and council referred the report back to the engineer pending the court decision with regard to the charges laid against Howe under the Conservation Authorities Act. It was reasonable in these circumstances for UTRCA to be at the table.
If and when an engineer’s report is prepared, UTRCA will be involved. In the context of this appeal, however, its intervention as a party is premature.
Order
- For the reasons given, this motion is dismissed.
Dated at Chatham, this 6th day of November, 2023.
Glenn C. Walker, Chair
Released: November 6, 2023