Agriculture, Food and Rural Affairs Appeal Tribunal
1 Stone Road West 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 Guelph, Ontario N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca
2023 ONAFRAAT 05
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF proposed Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) by Frank Szeder Jr. and the Szeder Estate under Sections 48 and 54 of the Drainage Act, with respect to the Frank Szeder Drain located in the Townships of Emo and La Vallee.
AND IN THE MATTER OF a motion in writing held pursuant to Rule 30 of the Tribunal’s Rules of Procedure.
BETWEEN:
Frank Szeder Jr. Szeder Estate (Stefan Szeder, Estate Trustee) Moving Parties
– and –
Township of Emo and Township of La Vallee Responding Parties
Represented by Paul Courey
Represented by Alan D. McKitrick and Anne-Marie L. McKitrick
Before: Glenn C. Walker, Chair
MOTION DECISION
Background
This is a motion in writing brought by the moving parties, Frank Szeder Junior and Stefan Szeder, as Estate Trustee of the Estate of Frank Szeder Senior, (hereinafter called “Szeder”) for an order extending the time for filing appeals pursuant to section 100 of the Drainage Act R.S.O. 1990, c. D.17 (the “Act”).
The report of the engineer, dated March 4, 2022 (the “Report”), and the affidavit evidence provide a summary of the history of these proceedings to date.
On January 31, 2008, the Township of Emo (“Emo”) received a Section 4 petition from Frank Szeder (the report does not specify whether this was Junior or Senior) noting that properties in Sections 35 and 36 required drainage. On March 3, 2008, Emo council appointed K. Smart Associates Limited to prepare a report on the Szeder petition.
On April 9, 2008, the Township of La Vallee (“La Vallee”) received a Section 4 petition from Frank Szeder (again the Report does not specify whether this was Junior or Senior) noting that properties in Section 31 required drainage. On May 13, La Vallee council appointed K. Smart Associates Limited to prepare a report on this Szeder petition and directed that the report should be combined with the report being prepared for the Szeder petition in Emo.
No report was produced until Szeder initiated an Application to the Drainage Referee resulting in an order that the Engineer file his report with the Clerk by June 30, 2021.
The Report, authored by John Kuntze, P. Eng. (the “Engineer”), was submitted to Emo in July 2021. It was considered by Emo council on September 28, 2021, pursuant to a further order of the Drainage Referee requiring council to consider the Report on that date. Emo council referred the Report back to the Engineer on January 26, 2022, for reconsideration.
By further order of the Drainage Referee on February 10, 2022, the Engineer was ordered to complete the revised report by February 25, 2022. The revised report was delivered to the Clerk on March 4, 2022.
On April 6, 2022, Emo council adopted the revised report by Provisional By-law.
Notice of the Sitting of the Court of Revision was given on April 29, 2022, and the Court of Revision was held on June 7, 2022.
Appeals Received by the Tribunal
Three Notices of Appeal under section 48 of the Act (“Section 48 Appeal(s)”) have been received by the Tribunal.
A Section 48 Appeal from the Frank Szeder Senior Estate was filed by its Estate Trustee, Stefan Szeder, with the Clerk on June 14, 2022.
A Section 48 Appeal from Frank Szeder Junior was filed with the Clerk on June 14, 2022.
A Section 48 Appeal from Michael D. Sheppard was filed with the Clerk on June 21, 2022.
No appeals under section 54 of the Act from the decisions of the Court of Revision have been received by the Tribunal.
As stipulated in section 48 of the Act, an owner of land affected by a drainage works may appeal to the Tribunal within 40 days after the sending of the notices of the sitting of the Court of Revision.
Because the notice of the sitting of the Court of Revision was given on April 29, 2022, the last day for a Section 48 Appeal was June 8, 2022. All 3 Section 48 Appeals received by the Tribunal were late filed.
Szeder is seeking an extension of the time to file their Section 48 Appeals. No motion has been brought by Michael D. Sheppard for an order extending the time for him to file his Section 48 Appeal and his Notice of Appeal will not be considered by the Tribunal.
Szeder also requests an order extending the time to file appeals under Section 54 of the Act (“Section 54 Appeal(s)”) from the decisions of the Court of Revision although none have yet been filed.
Section 54(1) of the Act provides that an appeal from the decision of the Court of Revision must be filed within 21 days of the pronouncement of the decision of the Court of Revision. That was on June 7, 2022. The final date to file a Section 54 Appeal would have been June 28, 2022.
Stefan Szeder brings this motion on behalf of his brother, Frank Szeder Junior, and as Estate Trustee of the Estate of his late father Frank Szeder Senior. He states in his affidavit that his brother is “ill-equipped to deal with this matter” and has appointed him to act as his agent.
Discussion and Analysis
Factors to Consider
In its decision in Bruce Beach Municipal Drain Phase 1, 2021 ONAFRAAT 19, the Tribunal adopted the test used by the courts on a motion to extend time to file an appeal. That test required the consideration of the following factors: (1) whether the moving parties formed a bona fide intention to appeal within the time limit; (2) prejudice to the responding party as a result of the delay; (3) the length of the delay and the reasons for the delay and (4) the merits of the proposed appeal.
Ultimately, all elements of the test are to be considered together, and the overarching consideration is what the justice of the case requires. No one factor is determinative.
Section 100 of the Act provides that, in any case it considers proper, the Tribunal may extend the time otherwise limited for appeal. In other words, the Tribunal may exercise its discretion.
Bona Fide Intention to Appeal
In support of the motion, Stefan Szeder filed an affidavit sworn February 23, 2023. He makes this affidavit as the Estate Trustee of the Estate of Frank Szeder Senior and as agent for his brother, Frank Szeder Junior.
In that affidavit he states at paragraph 28: “After the provisional By-law was adopted, I decided that I would appeal under Section 48”. This evidence is undisputed. The provisional By-law was passed on April 6, 2022, well before the deadline for the Section 48 Appeal which was June 8, 2022.
The Tribunal finds that Szeder had formed a bona fide intention to appeal within the time limit imposed by Section 48.
Prejudice to the Municipality
The Responding Party (the “Municipality”) argues that, if leave to file the Szeder appeals late is granted, it will be impossible to proceed with the construction of the drain in 2024 and that the delay will result in a greater cost for the drain which will impact all other persons on the drain.
In view of the fact that the progress of these petitions leading up to construction of the drain has taken 15 years so far, another year is hardly noteworthy. No evidence was provided to support the claim that the cost would be increased and without this evidence this is pure speculation. In any event, this does not directly cause the municipality prejudice, although it may affect some of its ratepayers.
Length of Delay and Reasons for the Delay
With respect to the Section 48 appeals, the delay was 6 days in length. With respect to the Section 54 appeals, the length of the delay continues to run with the time to file a Section 54 appeal being on or before June 28, 2022.
In his affidavit, Stefan Szeder gives several reasons for the delay in filing the Notices of Appeal.
He states that he misunderstood how the time limits were calculated with respect to the Section 48 appeals and that when he conferred with his counsel in early June, he found to his surprise that the deadline for an appeal under Section 48 had just passed.
He further avers that he was still quite ill with a severe case of Covid-19 and subsequently “long Covid” and that counsel intervened and drafted and filed appeals for him on June 14, 2022.
The argument made by the Municipality on this point is based on a lack of specificity regarding Stefan Szeder’s health in his affidavit.
The Tribunal accepts the evidence of Stefan Szeder and the reasons given by him, both as agent and Estate Trustee, for the late filing of the Section 48 appeals. This is a reasonable reason for the late filing.
Concerning the Section 54 appeals, the length of the delay cannot be established as Section 54 appeals have not yet been filed after almost 10 months from their due date.
As the reason for this delay, Szeder alleges a misunderstanding between himself and counsel as to who was going to file the appeals, also citing problems that his counsel was having with the breakup of his law firm and the loss of an experienced staff person.
There appears to have been confusion as Szeder and his counsel believed that the other had filed Section 54 appeals. However, despite being advised by the Tribunal on August 11, 2022, that it had not received any Section 54 appeals from Szeder, none have been filed to date.
Merits of the Proposed Appeals
The grounds for appeal are the same in both of the Notices of Appeal that have been filed by Szeder pursuant to Section 48.
They state that the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof, that the drainage works should be modified on grounds to be stated and that the compensation or allowances provided by the engineer are inadequate or excessive.
Both Notices contain the following detail: “The work proposed initially was adequate, but upon referral back was modified without request, resulting in a higher cost and less effective drain. The work should proceed as originally designed. Much work now proposed, such as a boundary survey, and construction of a new channel beside a useable road ditch, is unnecessary. The watershed as described in the revised report is inaccurate. Allowances to Szeder are inadequate.”
These are meritorious grounds for an appeal under Section 48 of the Act.
Responding Party’s Caselaw
The Tribunal has reviewed the Tribunal caselaw provided by the Municipality. It is trite law to say that administrative tribunals are not bound by the doctrine of stare decisis and that each case must be decided on its own set of facts.
Although all the cases cited can be distinguished from those in the present motion, the Tribunal notes that the test applied in the Bellcreft Beach Drainage and Pumping System (RE), 2001 ONAFRAAT 37 is substantially similar to the test which it has employed.
The Municipality also makes much of the fact that there was a substantial delay in the moving parties bringing this motion. The moving parties became aware of the fact that the Section 48 appeals had been rejected by the Tribunal as being late filed in August of 2022, yet this motion was not commenced until February 2023.
Despite this, none of the tests for granting leave to extend time to file an appeal take this into account. It is unfortunate that there was such a pronounced delay, but the Tribunal finds that it is not grounds to dismiss the motion.
Findings
With respect to the Section 48 appeals, the Tribunal finds that Szeder has proven that they had established a bona fide intention to appeal during the appeal period; that there was no prejudice to the municipality, although there might be to some of its ratepayers; that the length of the delay is of relatively short duration (6 days), that the reason for the delay was reasonable and that the merits of the appeal as stated in the Notices of Appeal constitute triable issues.
The Tribunal finds that the justice of the case requires that it grant leave to file the Section 48 appeals late and they are so accepted.
With respect to the Section 54 appeals however, the failure to file any Section 54 appeals, even though they may have been late, is fatal to this portion of the motion. Once it became apparent to Szeder that no Section 54 appeals had been filed with the Tribunal, such appeals should have been immediately filed and the Tribunal advised that a motion would be brought for leave to late file.
Although Szeder may have established an intention to appeal within the appeal period, the length of the delay remains undetermined. No reason for the continuing delay has been put forward.
Conclusion and Order
The Tribunal grants leave for the late filing of the Notices of Appeal under Section 48 of the Act which Notices were filed on June 14, 2022.
The motion for leave to late file Notices of Appeal under Section 54 of the Act is dismissed.
Glenn C. Walker, Chair Agriculture, Food and Rural Affairs Appeal Tribunal
Released: April 17, 2023