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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Doyle Harrigan and David Harrigan (RE) City of Clarence-Rockland (RE) [Motion Order] Cobb’s Lake Creek Municipal Drain (RE) [Motion Order]

STATUTE: Drainage Act, R.S.O. 1990, c. D.17

HEARING: November 14, 2025 by Zoom

DATE OF DECISION: November 21, 2025

007Cobbs025

NEUTRAL CITATION: 2025 ONAFRAAT 14

IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF the Notices of Appeal to the Tribunal from Doyle Harrigan and David Harrigan of Curran, Ontario under Section 64 of the Drainage Act (“Act”) with respect to the Cobb’s Lake Creek Municipal Drain in the City of Clarence-Rockland.

AND IN THE MATTER OF an electronic motion held pursuant to Rule 30 of the Tribunal’s Rules of Procedure

BETWEEN:

Doyle Harrigan and David Harrigan Appellants

-and-

City of Clarence-Rockland Respondent

Self-Represented Self-Represented

Heard: November 14, 2025 by Zoom

Before: Glenn C. Walker, Chair, John Johnston, Vice-Chair, and Sarah Judd, Member

Parties Present: Doyle Harrigan, Appellant David Harrigan, Appellant Monique Ouellett, Deputy Clerk Lorne Franklin, Robinson Consultants Inc. Eric Leroux, Drainage Superintendent

MOTION DECISION

1. The City of Clarence-Rockland (“City”) brings this motion to dismiss the appeals of Doyle and David Harrigan (“Appellants”) on the ground that they are premature.

Background

2. Robinson Consultants Inc. prepared a report for the City pursuant to Section 78 of the Drainage Act, R.S.O. 1990, c. D.17 (“Act”) for the Cobb’s Lake Creek Municipal Drain (“Drain”).

3. Work on the Drain commenced in 2024 and is expected to be completed in October 2026.

4. In July 2025 the Appellants appealed to the Tribunal pursuant to Section 64 of the Act which provides for an appeal where there is dissatisfaction with the quality of construction of the drainage works alleging that

• The contractor razored trees and limbs along the bank of the creek resulting in slabs of wood from a few inches to 5-6 feet long or longer being left in the drain and on land on top of the bank as well as in the fields adjacent to the drain up to a distance of fifty feet or more from the bank
• The Appellants picked up many large tractor buckets of this wood in the fall of 2024
• In the spring of 2025, the whole area was flooded as it is every spring. The water from the flood carried huge pieces of wood and debris that were along the bank and in the creek and floated it all over their fields up to several hundred meters away from the bank of the creek
• For several days after the spring flood of 2025, they needed 4 men and a tractor to pick up the razored slabs that were spread all over their fields
• Large piles of stones have been dropped in various places in their fields

5. By way of relief the Appellants claim compensation of $10,000 for the work that they did in cleaning up their fields in 2024 and 2025, that all razored wood be picked up by the contractor and all stones completely removed from their fields.

Conduct of the Motion

6. Although the City filed an affidavit in support of the motion, it did little more than confirm that the motion was authorized by the resolution of council on the basis of prematurity. The Appellants oppose the motion but have not filed an affidavit.

7. In order to have an evidentiary record on which to base its decision, the Tribunal affirmed, with their consent, the Appellant, Doyle Harrigan, the Drainage Superintendent, Eric Leroux and the Engineering Technologist from Robinson Consultants, Lorne Franklin. The Tribunal also accepted as exhibits to the motion hearing the Engineer’s Report and the report to council of Guillaume Boudrias.

Jurisdiction

8. The Tribunal questioned the City on whether the Tribunal had jurisdiction to dismiss the appeals without a hearing. The City was unable to direct the Tribunal to anything in the Act or its Rules of Procedure that authorized a motion to dismiss without a hearing in these circumstances.

9. Rule 33.01 of the Tribunal’s Rules of Procedure does provide for the dismissal of an appeal where in its opinion the proceeding is frivolous, vexatious or is commenced in bad faith, the proceeding relates to matters that are outside the jurisdiction of the Tribunal or some aspect of the statutory requirements for bringing the proceeding has not been met.

10. However, none of those reasons apply to these appeals or are alleged by the moving party.

11. Section 64 of the Act provides:

Any owner of land dissatisfied with the quality of the construction of a drainage works constructed under this Act may, at any time during construction or up to one year from the date of completion of the drainage works as certified by the engineer or a drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated.

12. The Appellants have brought these appeals during the construction as they are entitled to do and have therefore complied with the statutory requirement for bringing the proceeding.

13. A motion to dismiss without a hearing is a serious matter that would deprive the Appellants of a hearing. It is equivalent to a summary judgment and unless authorized by law must fail.

14. The Tribunal does not have jurisdiction to grant this relief.

Other Considerations

15. The City makes the argument that the appeals are premature because the contractor has until the contract is completed (projected date October 2026) and a further one year warranty period following that to correct any deficiencies. That is a reasonable argument to make.

16. Although the Tribunal cannot dismiss the appeal without holding a hearing it does have other relief that it can provide in the appropriate circumstances.

17. Section 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 provides that a tribunal has the power to determine its own procedures and practices and make orders that may apply to a particular proceeding.

18. A hearing in this matter is scheduled for January 14 and 15, 2026. To proceed with a hearing at this time would be unfair to the City and possibly result in further appeals being brought by the Appellants relating to the period of time from January 2026 to date of completion of the contract.

19. Accordingly, the Tribunal will cancel the hearing dates of January 14 and 15, 2026 and stay the appeals until such time as the construction of the drainage works is certified as complete by the Engineer or the Drainage Superintendent as contemplated by Section 64 of the Act. In our opinion, the date of completion does not include any warranty period.

20. The Tribunal would like to bring to the attention of the Appellants that it does not have jurisdiction to deal with the claim for compensation. That relief is within the original jurisdiction of the Court of the Drainage Referee pursuant to Section 106(1)(c). The Tribunal does have exclusive jurisdiction with respect to the balance of the claims for relief.

21. For any claim for compensation, a person should make an application to the Court of the Drainage Referee. Any person making such a claim is usually represented by counsel.

Orders

22. The motion insofar as it requests the dismissal of the appeals without a hearing for prematurity is dismissed.

23. The dates set for the hearing of these appeals on January 14 and 15, 2026 are vacated and timelines for disclosure set out in paragraphs 15, 16 and 17 of the Pre-Hearing Conference Order dated September 12, 2025, are revoked.

24. The appeals shall be stayed until the Engineer or the Drainage Superintendent certifies that construction of the Drain is complete, which date of completion shall not include any warranty period (“Certificate of Completion”).

25. The Clerk of the municipality shall forward to the Appellants and to the Tribunal the Certificate of Completion as soon as practicable after it is issued.

26. Upon receiving the Certificate of Completion, the Tribunal will schedule a second Pre-Hearing Conference to assess whether any alleged deficiencies have been remedied by the contractor and/or to determine whether any further stay is required to permit the contractor to remedy the deficiencies during the warranty period.

27. At the second Pre-Hearing Conference, or a subsequent one if required, the Tribunal will schedule new hearing dates and timelines for disclosure.

Dated at Chatham, Ontario this 21st day of November, 2025.

This document is also available in French. Please contact the Tribunal at 519-826-3433 or by email at AFRAAT@ontario.ca to request a copy in French.

Ce document est également disponible en français. Veuillez contacter le tribunal au 519 826-3433 ou par courriel à AFRAAT@ontario.ca pour demander une copie en français.