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:
Frank Szeder Jr. and Szeder Estate (Stefan Szeder, Estate Trustee) Frank Szeder Drain (RE) [Motion Decision] Township of Emo and Township of La Vallee
Frank Szeder Drain (RE) [Motion Decision] 2024 ONAFRAAT 15
STATUTE:
HEARING:
March 22, 2024
DATE OF DECISION:
June 26, 2024
010FrankSzeder22
NEUTRAL CITATION:
2024 ONAFRAAT 15
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF the Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) by Frank Szeder Jr. and the Szeder Estate under Section 48 of the Drainage Act (the “Act”), with respect to the Frank Szeder Drain located in the Townships of Emo and La Vallee.
AND IN THE MATTER OF a Motion to be held pursuant to Rule 30 of the Tribunal’s Rules of Procedure.
BETWEEN:
Frank Szeder Jr. Szeder Estate (Stefan Szeder, Estate Trustee) Appellant
– and –
Township of Emo and Township of La Vallee Respondent
Represented by Paul Courey Represented by Allan D. McKitrick
HEARD: March 22, 2024
Before: Steve Moutsatsos, Vice-Chair, Don McNalty, Vice-Chair, Dave Fawcett, Member
Appearances:
Stefan Szeder, Appellant Paul Courey, Counsel for Appellant Allan McKitrick, Counsel for Respondent Candace Hilchuk, Counsel for Respondent Jacob Vanderzwet, Agent for Paula Lombardi, Counsel for John Kuntze John Kuntze, P. Eng., Engineer that wrote the report Crystal Gray, Clerk/Treasurer, Township of Emo
MOTION DECISION
Background
- This is a motion brought by the moving parties, Frank Szeder Junior and Stefan Szeder, as Estate Trustees of the Estate of Frank Szeder Senior (hereafter called “Szeder”) for an order declaring:
a. An Order declaring that the Responding Party lacked jurisdiction to refer the report of K. Smart Associates Limited, per John Kuntze P. Eng, dated June 30, 2021, back for reconsideration because the matter was then before the Referee.
b. An Order declaring that the report that is the subject of the appeal herein is the report of K. Smart Associates Limited, per John Kuntze P. Eng. Dated June 30, 2021.
c. An Order declaring that the report of K. Smart Associates Limited dated March 2, 2022 is of no effect.
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 the 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 compete 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.
Szeder’s motion for leave for the late filing of the Notices of Appeal under Section 48 of the Drainage Act R.S.O. 1990, c. D. 17 (the “Act”) was granted pursuant to an order of this Tribunal dated April 17, 2023 (the “Late Filing Appeal”).
Analysis
- The essence of Szeder’s argument for the granting of this motion rests on two propositions:
i) That Emo lacked the authority to refer the Report back to the Engineer for reconsideration pursuant to Section 57 of the Act;
ii) That Emo had some improper or nefarious purpose in referring the Report back to the Engineer.
- Section 57 of the Act provides as follows:
The council of the initiating municipality, at any time before passing the by-law, if it appears that there are or may be errors in the report of the engineer or that for any other reason the report should be reconsidered, may refer the report back to the engineer for reconsideration, and the engineer shall thereupon reconsider the report and shall further report to the council, which report has the same effect and shall be dealt with in the same manner and the proceedings thereon shall be the same as upon the original report. R.S.O. 1990, c. D. 17, s. 57.
Emo had the clear authority under Section 57 of the Act to refer the Report back to the Engineer for reconsideration.
Counsel for Szeder argued that the decision of the Court of Appeal in the Township of Colchester North v. Township of Gosfield North 27 O.A.R. 281, had the effect of prescribing Emo’s ability to refer the matter back to the Engineer on the basis as the matter was before the Drainage Referee, Emo could not refer the Report back to the Engineer.
The Tribunal distinguishes Colchester case on the basis that the act then in force was the Municipal Drainage Act R.S.O. 1897 c. 226. The current Act is substantially different and expressly authorizes a municipal council to refer the Report back to the Engineer. [Vanderschat et al v. North Easthope (Township) 1992 ONDR 3].
There was no substantive evidence brought forward to the Tribunal of Emo having any improper or nefarious purpose for referring the Report back to the Engineer.
The issue of the validity of the Report should have been known to Szeder at the time of the Late Filing Appeal (spring of 2023) and Szeder, who at the time was represented by counsel did not raise the issue that is the subject of this appeal.
The Tribunal is of the view to raise the issue of jurisdiction and the validity of the Report at this time is inappropriate.
Findings
- Emo had the full right and authority to order the reconsideration of the Report by the Engineer and in doing so did not have any improper motive or purpose.
Conclusion and Order
- The Tribunal dismisses the Szeder motion in its entirety.
Released: June 26, 2024