AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Tait Drain (RE)

[Motion Decision]

Township of Malahide

Tate Drain (RE)

[Motion Decision]

2024 ONAFRAAT 10

STATUTE:

Drainage Act

HEARING:

March 27, 2024

DATE OF DECISION:

April 5, 2024

006Tate22

NEUTRAL CITATION:

2024 ONAFRAAT 10

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 Ken and Robert J. Jones and Leon and Deb Passmore of Aylmer, Ontario, and of Peter and Doris Dohner and Corey Underhill Farms Ltd. of Port Burwell, Ontario under Section 48 of the Drainage Act, with respect to the Tate Drain in the Township of Malahide.

BETWEEN:

Peter and Doris Dohner

Ken and Robert J. Jones

Leon and Deb Passmore

Corey Underhill Farms Ltd.

Appellants

– and –

Township of Malahide Respondent

Self-Represented

Represented by Paula Lombardi

Before:

Marc Huneault, Chair; John Johnston, Vice-Chair; David Fawcett, Member

ORDER OF THE TRIBUNAL

BACKGROUND

The Tribunal received appeals, dated June 6, 2022, from Peter Dohner and Doris Dohner (“Dohner”), Leon Passmore and Deb Passmore (“Passmore”), Ken Jones and Robert J. Jones (“Jones”) and Corey Underhill Farms Ltd. (“Underhill Farms”) under Section 48 of the Drainage Act, with respect to the Tate Drain – Branch “E” in the Township of Malahide (“Township”) in the County of Elgin.
On February 13^th, 2024, counsel for the Township of Malahide, Ms. Paula Lombardi, provided the Tribunal with the Minutes of Settlement which had been signed by all parties except for the Appeal of Ken Jones and Robert J. Jones.
The Township of Malahide brought a motion to dismiss the appeal of the Jones’.
The Appeal of Ken Jones and Robert J. Jones was dismissed on March 27^th, 2024.

MINUTES OF SETTLEMENT

Per the Minutes of Settlement, amendments to the Engineer’s Report are as follows:

a. deleing Schedule ‘B’ – Cost Estimate of the Engineer’s Report in its entirety and found at page 8 of the Engineer’s Report and replacing it with Schedule ‘B’ Cost Estimate attached as Schedule “A” to these Minutes of Settlement;

b. deleting Schedule ‘C’ – Assessment for Construction of the Engineer’s Report found at pages 9 and 10 of the Engineer’s Report in its entirety and replacing it with “Schedule ‘C’ – Assessment for Construction, Tate Drain – Branch ‘E’ 2021, Township of Malahide, attached as Schedule “B” to these Minutes of Settlement;

c. deleting Drawing No. 1, Job No. 220152 and replacing it with the Drawing 1 of 1, Tate Drain – Branch ‘E’ 2021, Township of Malahide, Plan, Profiles & Detail, stamped by M.P. DeVos, Licensed Professional Engineer dated April 24, 2023, to the end of Schedule “C” Engineer’s Report attached as Schedule ‘C’ to these Minutes of Settlement;

A copy of the Minutes of Settlement is attached hereto as Appendix “A”.

DRAINAGE ACT

Under s.51 of the Drainage Act:

51 (1) On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, may make such order and direct such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act. R.S.O. 1990, c. D.17, s. 51 (1); 2006, c. 19, Sched. A, s. 6 (4).

The panel has reviewed the Minutes of Settlement and finds that the Minutes of Settlement are proper for the purposes of this Act and are accordingly, approved.

ORDER

The Township shall amend the provisional by-law to incorporate all of the items in the Minutes of Settlement prior to giving third reading thereby enacting the by-law.
An Order shall go in accordance with the Minutes of Settlement as filed with the Tribunal.

Released: April 5, 2024

Peter and Doris Dohner, Ken and Robert J. Jones, Leon and Deb Passmore, Corey Underhill Farms Ltd. v. Township of Malahide, 2024 ONAFRAAT 10

Case Summary