Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West
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:
General Drain (RE) Jones Realty Inc. 1000083282 Ontario Inc. and 1603844 Ontario Inc. Town of Amherstburg
General Drain (RE) 2025 ONAFRAAT 03
STATUTE:
Drainage Act
HEARING:
April 15, 2025
DATE OF DECISION:
April 22, 2025
011GeneralPrivate24
NEUTRAL CITATION:
2025 ONAFRAAT 03
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF Notices of Appeal to the Tribunal by Jones Realty Inc. of McGregor Ontario, under Section 48(1) and Section 54(1) of the Drainage Act (“Act”) with respect to the General Drain (2024) in the Town of Amherstburg.
AND IN THE MATTER OF a motion held pursuant to Rule 30 of the Tribunal’s Rules of Procedure.
BETWEEN:
Jones Realty Inc. Appellant
-and-
Town of Amherstburg Respondent
-and-
1000083282 Ontario Inc. and 1603844 Ontario Inc. Party
Represented by Paul Courey
Represented by Robert Scriven Represented by Stuart Mackay
Heard: April 15, 2025, via Zoom
Before: Glenn C. Walker, Chair
Parties Present:
Dan Huneault - Officer, Jones Realty Inc., Appellant Paul Courey - Counsel for Appellant
Sam Paglia - Drainage Superintendent, Town of Amherstburg
Josh Warner P. Eng., - R. Dobbin Engineering, Engineer who wrote the report Robert Scriven - Counsel for Municipality
Stuart Mackay - Counsel for 1000083282 Ontario Inc. and 1603844 Ontario Inc.
MOTION DECISION AND ORDER
BACKGROUND
1This is a motion brought by the appellant Jones Realty Inc. (“Jones”) pursuant to Rule 24.02 of the Tribunal’s Rules of Procedure for an order directing the respondent, the Town of Amherstburg (“Amherstburg”) and the third parties 1000083282 Ontario Inc. (“1000”) and 1603844 Ontario Inc. (“160”) to produce to Jones the following documents which they have in their possession or control or to which they have access:
i. any application for an Official Plan amendment pending for any land within the watershed of the proposed General Drain;
ii. any application for a Zoning By-law amendment pending for any land within the watershed of the proposed General Drain;
iii. any study, report or document received or obtained in connection with (i) or (ii) used in consideration of such applications;
iv. any study, report or document with respect to any Phase One, Phase Two or other environmental assessment for any land within the watershed of the proposed General Drain;
v. any study, report or document with respect to any Site Plan Agreement pending for the land within the watershed of the proposed General Drain; and
vi. other relief as may be permitted.
2Attached to this decision is a copy of the Plan for the General Drain (2024) (“Drain”) taken from the Engineer’s Report (“Report”). The watershed for the Drain is contained within the red-dashed line. The watershed contains 15 properties which are referred to by Index Numbers in the Report.
3For the context of this motion, it is necessary to understand the different properties in the watershed. The following information was gathered from the affidavits of the parties, the Report and from further information obtained during the motion hearing or provided to the Tribunal.
4This chart sets out the information concerning the various properties.
| INDEX NUMBER | OWNER | COMMENTS |
|---|---|---|
| Index Number 1 | Essex Terminal Railway Company | |
| Index Number 2 | Allied Chemicals Canada | Appears presently to be vacant land although may have had an industrial use in the past |
| Index Numbers 3 and 4 | 1000083282 Ontario Inc. | Vacant land. Proposed to be developed as residential as River’s Edge Phase 3 |
| Index Numbers 5 and 7 | 1603941 Ontario Inc. | Existing multi-unit condominiums River’s Edge Phases 1 and 2 Index Number 5 is the original petitioner for the Drain |
| Index Number 6 | Amherstburg Land Holdings Limited | Former industrial use. Now being remediated under the Environmental Protection Act |
| Index Number 8 | Essex Region Conservation Authority | Runs along the edge of the Detroit River |
| Index Number 9 | Jones Realty Inc. | Amherstburg Yacht Club Appellant |
| Index Numbers 10, 11, 12 13, 14, 15 | 1924976 Ontario Inc. (Daniel Casher) | Vacant land Proposed to be developed |
5An existing private drain currently services properties with Index Numbers 1 through 9, with the exception of the property with Index Number 5, who has petitioned to be added to the drainage area. The private drain outlets into the Detroit River via two 450 mm concrete/pvc pipes according to the Report.
6However, Jones states that the private drain and the proposed General Drain, outlets, do not outlet directly into the Detroit River, but into the basin of the Amherstburg Yacht Club, which is a water lot owned by Jones and thus outlets onto private property.
7Following the site meeting, the owner of properties with Index Numbers 10 through 15, who proposes to develop these vacant lands, petitioned to be added to the drainage area for the proposed drain.
8Jones has appealed to the Tribunal under section 48(1) of the Drainage Act. It sets out the basis for its appeal in the Notice of Appeal as follows:
The proposed drainage pipe will discharge into the marina directly carrying drained water from a newly developed residential area, the previous neighbouring industrial area, and an adjacent landfill. This discharge, coupled with restricted flow and limited water circulation, poses several environmental challenges. The stagnant water in the marina could lead to sediment settling at the bottom, impacting the harbour depth and navigability, while also creating a buildup of pollutants, debris and algae.
This sedimentation not only affects water quality, potentially leading to contamination, but also threatens aquatic life and poses a significant risk to business operations at Jones Realty Inc.
In response Jones Realty Inc. is requesting a redesign of the drainage system to redirect the outflow away from the marina, directly into the Detroit River. This alternative configuration aims to mitigate the negative impacts on the marina facility.
Appellant’s Position
9The appellant’s challenges to the Report are two-fold. Firstly, it is concerned about the increased flow onto its property under the proposed Drain. Secondly, it argues that there is the potential for the discharge of contaminated silt and debris onto its property. These are the issues to be addressed by the panel at the hearing of the appeal.
10The appellant argues that it has retained experts in civil engineering and environmental science who need to analyze the drain proposal in the Report for the impact on Jones’ land and that the best evidence is within the control of Amherstburg and the third party corporations.
Position of Amherstburg
11Amherstburg resists the motion to produce on the grounds that documents such as applications for Official Plan amendments, Zoning By-law amendments and Site Plan Agreements are not released by the municipality until they are finalized and approved by council and then become part of the public domain. Prior to that, Amherstburg asserts that this information is treated as confidential and is not proof of the final outcome.
12In argument, Amherstburg also took the position that the requested documents were not relevant to the issues before the Tribunal and that there would not be a significant change in the impact on the lands of Jones since the private drain already services properties with Index Numbers 1 through 4 and 6 through 9.
Position of 1000 and 160
131000 and 160 support the position taken by Amherstburg.
Analysis
14Although the appellant does not cite the Rule pursuant to which it seeks production, Rule 24.02 is applicable. It states: “The Tribunal may at any stage of a proceeding order a party to disclose to any other party documents and things relevant to the issues in the proceeding.”
15The operative word here is “relevant”, and the case law has defined the standard as being “arguably relevant”.1
16The appellant has cast a wide net, which, at first glance, would be indicative of the classic fishing expedition.
17The task at hand is to determine whether the documents requested are arguably relevant to the issues described above by analyzing the evidence provided. The onus of proof is on the moving party.
18Since this motion proceeding was commenced, the appellant has come into possession of information regarding the Amherstburg Land Holdings Limited property (Index Property Number 6) and its remediation. This information consists of that found on the Ministry of the Environment, Conservation and Parks website and documents contained in the affidavit of Sam Paglia sworn April 8, 2025 which was filed by Amherstburg.
19At the commencement of the motion, Mr. Courey indicated that he was withdrawing request (iv) above as a result of that disclosure.
20The appellant seeks production of any application for an Official Plan or Zoning By- law amendment, or documents relating to any Site Plan Agreement, pending for any land within the watershed of the proposed Drain and any study, report or document received or obtained or used in the consideration of such applications. This encompasses properties with Index Numbers 1 – 15.
21The appellant must provide some evidentiary foundation to allow the Tribunal to determine if these documents are arguably relevant to the issues of flow and contamination.
22By way of affidavit, the appellant has provided the following:
i. In order to fully evaluate the conclusions of the author of the report, Jones’ advisors need access to the planning information and other documents.2
ii. However, later in Mr. Huneault’s reply affidavit sworn April 10, 2025, the appellant narrows the scope of its request where the deponent states in paragraph 14 that: “The key for Jones is to have an indication what is planned for the other lands, at least in the foreseeable future. Given that there are applications pending and dependent upon the General Drain being finalized, it follows logically that Jones should know what those plans are.”
23I would have expected the evidence in support of the motion to include affidavit evidence from Jones’ advisors, such as an engineer or other professional, describing how, for example, an application for an Official Plan or Zoning amendment would assist him or her in advising the appellant. That evidence is missing.
24The appellant knows that the property designated as Index Numbers 3 and 4 will be developed as residential as River’s Edge Phase 3. It knows that the lands of Amherstburg Land Holdings Limited, Index Number 6, will possibly be developed as residential3. It also knows that properties designated as Index Numbers 10 – 15 may also be developed in the future.
25I have not been provided with any evidence to show how the requested documents would be used by Jones’ advisors. Any Official Plan and Zoning amendments have not yet been put into effect. Any Site Plan Agreements would be dependent on those amendments being in force. I see no reason why the requested documents would be arguably relevant to the issues in this appeal without that evidence.
Conclusion
26I therefore conclude that the appellant has failed to prove on the balance of probabilities that the requested documents are arguably relevant to the issues in this appeal.
27The motion is dismissed.
Dated at Chatham, Ontario this 22nd day of April.
J. H. WARNER 100520016
AUG. 14, 2024
Engineering Inc.
4218 Oil Heritage Road Petrolia Ontario, N0N 1R0
Phone: (519) 882-0032 Fax: (519) 882-2233
TOWN of AMHERSTBURG
GENERAL DRAIN PLAN
1 OF 6
Footnotes
- Ontario (Human Rights Commission) v. Dofasco Inc., 2001 CanLII 2554 (ONCA)
- Affidavit of Dan Huneault, sworn March 31, 2025, paragraph 9
- Email from Chris Aspila to Robert Scriven et al., March 7, 2025, forwarded by letter to Paul Courey on March 12, 2025