Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2^nd^ Floor NW
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West, 2^e^ étage NW
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
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Sluys Family Farm Inc. Gerry Sluys and Wilma Sluys Howard Zettler, Maxine Zettler and Glen Zettler Howard Zettler and Glen Zettler Zettler Municipal Drain (RE) Municipality of Brockton
Zettler Municipal Drain (RE) 2024 ONAFRAAT 19
STATUTE:
HEARING:
September 11, 2024
DATE OF DECISION:
September 25, 2024
006Zettler24
NEUTRAL CITATION:
2024 ONAFRAAT 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 by Sluys Family Farm Inc., Gerry Sluys and Wilma Sluys, of Chepstow, Ontario, and Howard Zettler, Maxine Zettler and Glen Zettler of Walkerton, Ontario under Section 58 (5) of the Drainage Act with respect to the Zettler Municipal Drain in the Municipality of Brockton.
AND IN THE MATTER OF a hearing held pursuant to Rule 6.04 of the Tribunal’s Rules of Procedure.
BETWEEN:
Sluys Family Farm Inc. Gerry Sluys and Wilma Sluys Howard Zettler, Maxine Zettler and Glen Zettler Howard Zettler and Glen Zettler Appellants
– and –
Municipality of Brockton Respondent
Self-Represented
Represented by Steven O’Melia
Heard by video conference on September 11, 2024
Before: Glenn C. Walker, Chair; John Johnston, Vice-Chair; Sarah Judd, Member
Appearances:
Gerry Sluys on behalf of himself and Wilma Sluys – Appellants
Kevin Sluys, on behalf of Sluys Family Farm Inc., – Appellant
Maxine and Howard Zettler on behalf of themselves and Glen Zettler – Appellants
Fiona Hamilton – Director of Legislative Services, Clerk
Steven O’Melia – Counsel for the municipality
Stephen Cobean, P. Eng., – Engineer who wrote the report.
DECISION OF THE TRIBUNAL
This is an appeal to the Tribunal pursuant to Subsection 58(5) of the Drainage Act, R.S.O. 1990, c. D.17.
At a Pre-Hearing Conference (‘’PHC’’) held on July 19, 2024, the appellants were determined to be :
a. Howard, Maxine and Glen Zettler with respect to 336 Chepstow Road,
b. Gerry and Wilma Sluys with respect to 365 Chepstow Road,
c. Howard and Glen Zettler with respect to 362 Chepstow Road, and
d. Sluys Family Farm Inc. with respect to 317 Chepstow Road.
The Notices of Appeal referred to seeking compensation due to reduced crop or no crop being planted until the drain was completed. The Tribunal advised the parties at the PHC that the Tribunal has no jurisdiction to award compensation to the appellants for any delay in the construction of the drainage works.
The Tribunal also advised the parties at the PHC that the sole issue before the Tribunal is whether the respondent municipality has proceeded with reasonable dispatch with the construction of the drainage works after the passing of the by-law.
BACKGROUND
By way of a Notice of Request for Drain Improvement, dated June 21, 2017, Wilhelmina (Wilma) Sluys requested, pursuant to section 78 of the Drainage Act, that all or part of the Zettler Municipal Drain be covered.
The property cited in the Notice was Lot 2, Concession 6, in the geographic Township of Greenock, in the Municipality of Brockton with a municipal address of 365 Chepstow Road. At the PHC it was determined that the owners of this property are Gerry and Wilma Sluys.
None of the other appellants petitioned the municipality for an improvement of the drain.
On June 26, 2017, Stephen Cobean, P. Eng. (“Engineer”) was appointed by the municipality to prepare a report with respect to the drain.
An on-site meeting conducted in connection with the proposed drainage works was held on April 26, 2019.
The Engineer provided his report (“Report”) concerning the proposed drainage works to the municipality on or about February 7, 2022, and the municipality passed its provisional by-law on February 28, 2022.
There were no appeals to the Court of Revision or otherwise and the By-law was given third reading on June 21, 2022.
After tenders, the contract for the construction of the drain was awarded to Karl Robinson Drainage in August of 2022. To date, construction of the drainage works has not commenced.
Who are the Proper Appellants
At the commencement of the hearing, the Tribunal raised the issue of who properly could bring this appeal. Only Gerry and Wilma Sluys filed a Notice of Request for Drain Improvement and thus petitioned the municipality for improvement of the drain.
Subsection 58(5) of the Drainage Act specifically provides that it is a petitioner, not any assessed owner or other person, who may appeal to the Tribunal.
Since the petitioner had filed a Notice of Appeal and appeared at the hearing, counsel for the respondent did not object to the other “appellants” taking part in the proceedings.
The Evidence
The Tribunal heard evidence from Gerry Sluys, Howard Zettler and Karl Robinson on behalf of the appellants. Gerry Sluys and Howard Zettler are appellants and Karl Robinson is the owner of Karl Robinson Drainage, the company that was awarded the construction contract.
Gerry Sluys and Howard Zettler both stated that they were concerned about the time it was taking to complete the drainage project and about the lack of communication between the appellants and the municipality and Engineer.
Karl Robinson testified that typically a drainage project is completed within 6 months of the contract being awarded as long as there are no holdups for permits. He recalled that he was advised that permits and approvals had not yet been obtained. To date, over 2 years later, he has not been able to start construction as the permits are still outstanding.
Stephen Cobean P. Eng., the engineer who wrote the Report, was called to give evidence on behalf of the municipality. He testified that normally all permits would be obtained before the drainage work was tendered, that is before the third reading of the by-law.
He met on site with the Saugeen Valley Conservation Authority (“SVCA”) on May 10, 2021, and received comments back from them on September 7, 2021. SVCA requested an Environmental Impact Study (“EIS”) because the plan was to cover an open water course.
The Engineer engaged a sub-consultant, Envision Consultants, to conduct the EIS. The EIS would identify any species at risk. Because the work done by Envision can only be done in spring, summer, fall months, the study could not commence until 2022.
The EIS was completed and submitted to SVCA in July 2023 and accepted by it; however, the SVCA wants the EIS incorporated into the Engineer’s Report.
SVCA has given approval in principle, but no permit application has yet been submitted to SVCA.
Approval was also required from the federal Department of Fisheries and Oceans (“DFO”). Envision submitted a request for approval to DFO on March 28, 2023. DFO required a further Fisheries Act application and a financial guarantee from the municipality by way of a letter of credit.
The letter of credit has been provided and the Engineer expected to receive final approval from DFO the week of the hearing.
The Engineer stated that council of the municipality asked him to bring a report forward in February 2022. He admitted that it was premature to so without having received all final permits and approvals.
The Engineer also hopes to convince SVCA to accept a Memorandum of Understanding between the municipality and SVCA instead of amending the report by incorporating the EIS. This would circumvent the necessity of amending the report which would mean further delay.
Analysis
- This appeal is brought pursuant to subsection 58(5) of the Drainage Act which provides as follows:
Where council does not proceed with reasonable dispatch with the construction of the work after the passage of the by-law, a petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area to be drained, the Minister may refer the matter to the Tribunal, and the Tribunal may direct the council to take such action as the council is authorized to take under this Act and as the Tribunal considers proper.
The municipality acted expeditiously in appointing an engineer to prepare a report on June 26, 2017. There was then an unexplained delay of almost 2 years before the onsite meeting was held and, again, another almost 2-year delay in producing a report.
The appellants are unhappy with the progress of the construction of these drainage works and rightly so; however, the time period with which the Tribunal must be concerned under subsection 58(5) is the period after the third reading of the by-law on June 21, 2022, to the present.
The question before the Tribunal is whether the council of the municipality proceeded with reasonable dispatch after the final passing of the by-law. Council has appointed the Engineer who acts as the agent of the municipality and so we must examine whether the Engineer has acted with reasonable dispatch.
The Engineer’s Report was submitted to council and the drainage works tendered prematurely, that is before all permits and approvals had been obtained, which appears to be the normal practice. The Engineer stated in evidence that the municipality “encouraged” him to submit his report at that time.
As the evidence shows, the delay in commencing the construction of the drainage works after the final passing of the by-law on June 21, 2022, has been due to the necessity of obtaining permits and approvals from the SVCA and DFO. These should have been obtained prior to the Engineer submitting his report to council.
Had he done so, it appears that there would have been no delays after the passing of the final by-law, based on the alacrity with which council acted in tendering the project.
In final argument, counsel for the municipality admitted that council had not acted with reasonable dispatch and suggested that the Tribunal order the municipality through the Engineer to apply to SVCA for the permit as soon as practicable.
The one source of additional delay is if SVCA requires the amendment of the report and will not accept a Memorandum of Understanding. That of course in not within the control of the municipality.
ORDER
The respondent municipality shall apply to SVCA for the permit necessary to construct these drainage works (if not already applied for) as soon as practicable but no later than 10 days from the date of this Order.
If SVCA requires the Engineer’s Report to be amended, the respondent municipality shall take all necessary steps to do so without delay.
The engineering and legal costs associated with this hearing shall be charged as a general expenditure directly to the Municipality of Brockton and shall not be charged to the drain.
Released: September 25, 2024