Agriculture, Food and Rural Affairs Appeal Tribunal
Agriculture, Food and Rural Affairs
Appeal Tribunal
1Stone 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:
George C. Horton and
Linda Horton (RE)
[Decision]
The Township of Leeds and
the Thousand Islands (RE)
[Decision]
STATUTE:
Drainage Act, R.S.O. 1990, c. D.17
HEARING:
January 14, 2026 via Zoom
DATE OF DECISION:
January 29, 2026
022CreekRd25
NEUTRAL CITATION:
2026 ONAFRAAT 02
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF a Notice of Appeal to Tribunal by George C. Horton, under Section 65 (11) of the Drainage Act (“Act”) with respect to the Creek Road Municipal Drain in the Township of Leeds and the Thousand Islands.
AND IN THE MATTER OF a motion held pursuant to Rule 30 of the Tribunal’s Rules of Procedure.
BETWEEN:
George C. Horton and
Linda Horton
Appellants
– AND –
The Township of Leeds and
the Thousand Islands
Respondent
Self-Represented
Represented by Eric Florjancic
Heard: January 14, 2026 via Zoom
Before:
Glenn C. Walker, Chair
Present:
George C. Horton, Appellant
Linda Horton
Eric Florjancic, Counsel for the Township of Leeds and the Thousand Islands
Michelle Hannah, Municipal Clerk
David Holliday, Director of Operations for the Municipality
Aaron Hatton, Drainage Superintendent for the Municipality
DECISION OF THE TRIBUNAL
This is a motion brought by George C. Horton (“Mr.Horton”), pursuant to Section 100 of the Act for an extension of time to file an appeal. The motion is opposed by the Respondent municipality.
In considering this decision I have relied upon the Notice of Appeal and attached documentation from Mr. Horton, the Respondent’s Motion Record, the decisions of the Court of Revision, made part of the record over the objection of counsel for the Respondent, and the submissions of the parties.
Background
A. J. Robinson, P. Eng. of Robinson Consultants Inc. prepared an Engineer’s Report (the “Report”) initiated by the Township of Leeds and the Thousand Islands (“Township”) under Section 78 of the Act to provide for modifications, improvements and updating assessment schedules for the Creek Road Municipal Drain (the “Drain”). The Report was filed sometime in May, 2024.
The Mr. Horton attended a “Meeting to Consider the Engineer’s Report” on September 3, 2024, where he made submissions regarding the project’s scope and costs.
On June 16, 2025, the Township passed a resolution accepting the Report and giving first and second reading to Provisional By-law No. 2025-031.
Pursuant to the Act the Township served the Mr. Horton with the Notice of the Court of Revision and a copy of the Provisional By-law on July 15, 2025. The notice advised Mr. Horton that any owner of land affected by the drainage works may appeal to the Tribunal regarding any technical issues within 40 days of the sending of the Notice.
Mr. Horton and his wife, Linda Horton, appealed to the Court of Revision with respect to five roll numbers, specifically numbers 081281204008601, 081281204008301, 081281204008400, 081281204008501 and 081281204008300. During submissions, Mr. Horton confirmed that one or more of these properties are owned jointly with his wife.
On October 23, 2025, the Court of Revision at a second sitting pronounced its decision with respect to the Horton appeal granting one ground of appeal and dismissing two other grounds of appeal.
The first ground of appeal dismissed was stated to be “Maintenance was completed in 2018 and the system is working sufficiently. There is no need for this project”. The Court of Revision dismissed this ground of appeal finding that it concerned a matter outside of its jurisdiction.
The second ground of appeal dismissed was stated to be “Alternative proposal for ditch alignments”. The Court of Revision dismissed this ground of appeal finding that it concerned a matter outside of its jurisdiction.
The decision further stated that decisions rendered by the Court of Revision may be appealed to the Tribunal within 21 days of the pronouncement of the decision, that date being November 13, 2025.
Mr. Horton filed a Notice of Appeal with the Municipal Clerk on November 12, 2025. The Notice of Appeal was accompanied by a cover page referring to five enclosures consisting of and stated to be:
i. Generic Notice of Appeal
ii. Reason for appealing beyond the 40-day appeal period
iii. Argument for the reason to appeal
iv. A map of the watershed
v. An additional argument we were asked to include with the appeal.
The appeal form filed was a Notice of Appeal entitled Generic Notice of Appeal to Tribunal by Petitioner(s) or Property Owner(s). The box checked is under Subsection 65(11) of the Act which states to be an appeal by an affected landowner dissatisfied with the engineer’s assessment apportionment under Subsection 65(1) or the engineer’s assessment for a just proportion of the cost by Subsection 65(3) or the cost of assessment by Subsection 65(10).
Under the details of application and relief being sought from the Tribunal Mr. Horton states “See attached for details of application”.
There are five roll numbers referred to in the Notice of Appeal being the same ones stated in the Court of Revision decision.
George C. Horton has signed the Notice of Appeal under Individual or Sole Ownership, and his signature is dated November 12, 2025.
The original Notice of Appeal filed with the Tribunal was not signed and a signed replacement Notice with the same dates was later filed at the request of the Tribunal.
Finally, the Clerk has certified that the Notice of Appeal was filed on November 12, 2025.
In the third document delivered with the Notice of Appeal and referred to in the Notice as “See attached for details of application”, Mr. Horton sets out his grounds for appealing the Report. They include 4 pages of arguments under the headings “Costs exceeding benefits” and “Reconstruction of the drain is not warranted at this time”.
Mr. Horton requested an extension of the time to file the appeal at the same time the appeal was filed. Subsequently, the Tribunal issued a Notice of Motion returnable on January 14, 2026, setting out a timetable for the delivery of motion materials.
The Issues Before the Tribunal
- The issues before the Tribunal are:
i. Is the use of the Generic Notice of Appeal fatal to the proposed appeal?
ii. What is the test to be used by the Tribunal in considering the requested extension?
iii. Should the requested extension be granted?
The Use of the Generic Notice of Appeal is Not Fatal - Analysis
It is common ground that Mr. Horton used the wrong Notice of Appeal form and referred to the wrong section of the Act under which he was seeking to appeal to the Tribunal.
It appears from the documentation attached to the Notice that Mr. Horton wished to appeal pursuant to Subsection 48(1) of the Act. Subsection 48(1) provides as follows:
48 (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,
(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;
(b) the drainage works should be modified on grounds to be stated;
(c) the compensation or allowances provided by the engineer are inadequate or excessive;
(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed,
may appeal to the Tribunal, and in every case a notice of appeal shall be served within 40 days after the sending of the notices under section 40 or subsection 46 (2), as the case may be.
The grounds for appeal which Mr. Horton put forward in his “Argument for the reason to appeal” document would fall under grounds (a) and (b) of the subsection.
Notices of Appeal to the Tribunal are not prescribed forms, that is, they are not prescribed by any Regulation under the Drainage Act. There are forms prescribed under Ontario Regulation 381/12, but they do not include any of the Notices of Appeal.
Notice of Appeal forms are available from the municipal Clerk or online from the Ontario Central Forms Repository.
Nothing in Subsection 48(1) requires any specific format to be used. Rule 6.02 of the Tribunal’s Rules of Procedure sets out the requirements for commencing proceedings under the Drainage Act. It states that:
A person may file an appeal with the Tribunal under the Drainage Act by serving notice upon the council of the initiating municipality by submitting to the clerk of the initiating municipality a signed and dated written notice of the matter under appeal including the name, address, and contact information of the party seeking a remedy.
The section (Subsection 65(11)) under which Mr. Horton attempted to appeal was obviously wrong as it relates only to a Section 65 report, whereas the Report dealing with the Creek Road Municipal Drain was a Section 78 report.
However, it is easily discernible from the grounds given in the Notice that he intended to appeal under Subsection 48(1).
The Tribunal normally seeks to have an appeal submitted on one of the recognized Notice of Appeal forms. This assists the Tribunal in determining the section under which the Appellant is appealing and avoids the analysis which had to be undertaken here.
I therefore find that Mr. Horton complied with Rule 6.02 and that he intended to appeal to the Tribunal under Subsection 48(1) of the Act. His Notice of Appeal qualifies as a Notice of Appeal despite its irregularities.
The Test to be Used in Considering the Extension
- Section 100 of the Act provides as follows:
The Tribunal, in any case that it considers proper, may extend the time otherwise limited for application, appeal or reference.
This section requires the Tribunal to exercise its discretion as indicated by the verb “may”.
I intend to rely upon the test that the Tribunal used in its decision in Bruce Beach Municipal Drain Phase 1[1] (“Bruce Beach”) where it stated:
In the consideration of this matter I will adopt the test used by the courts on a motion to extend time to file an appeal. That test requires me to consider: (1) whether the moving parties formed a bona fide intention to appeal within the time limit; (2) prejudice to the responding party as a result of the delay; (3) the length of the delay and reasons for the delay and (4) the merits of the proposed appeal. Ultimately all elements of the test are to be considered together, and the overarching consideration is what the justice of the case requires. No one factor is determinative. (Alaycheh v. Alaycheh, 2020 ONSC 6006).
Should the Requested Extension be Granted – Analysis
Did Mr. Horton form a Bona Fide Intention to Appeal Within the Time Limit
An appeal under Subsection 48(1) of the Act must be filed within 40 days of the sending of the Notice of the Court of Revision2.
The Notice of the sitting of the Court of Revision was mailed to Mr. Horton on July 15, 20253.
Accordingly, the last day for filing an appeal under Subsection 48(1) was August 24, 2025. The appeal was filed on November 12, 2025, making it 80 days late.
Mr. Horton’s document submission entitled “why we are appealing after the 40 day appeal period” shows that even before the Report was adopted by council, he and others were unhappy with the proposed drainage work.
He states that after consulting with some drainage experts, he and others decided to appeal to the Court of Revision scheduled for August 13, 2025.4
There was a first sitting of the Court of Revision on August 13, 2025, and a second sitting on October 23, 2025. On the latter date the Court of Revision found that it did not have jurisdiction over two of Mr. Horton’s grounds of appeal, which appear to be issues which should have been appealed to the Tribunal under Subsection 48(1). These appear to be the same or similar to the issues referenced in paragraph 19 above.
These facts, which are not disputed by the Respondent, lead me to the conclusion that Mr. Horton and his wife had formed the intention to appeal what are Subsection 48(1) issues at least prior to the sitting of the Court of Revision on August 13, 2025.
They may have unfortunately appealed to the wrong forum, but they still had formed the intention to appeal those issues before August 24, 2025.
I therefore find that Mr. Horton and his wife, Linda Horton, had formed a bona fide intention to appeal within the time limit.
Prejudice to the Responding Party
- The Respondent argues that the Town is prejudiced as a result of the delay for the following reasons:
a. The delay will jeopardize provincial grant funding from the Ministry of Agriculture, Food and Agribusiness; and
b. Delayed construction may result in higher construction costs due to inflation.
The Respondent relies upon three statements made in Ms. Hannah’s affidavit at paragraphs 16, 17 and 18. They are quoted here:
The property owners on the drain may benefit from funding/grants from the Ontario Ministry of Agriculture, Food and Agribusiness (OMAFA), though it is not guaranteed. If construction is not completed on the drain, the affected property owners may not be eligible for any portion of the grant funding.
Delaying the project to accommodate a late appeal puts this funding at risk. If the project is delayed past the construction window, the grant allocation may expire, forcing the full cost of the project onto the ratepayers.
Furthermore, the Township intends to tender this project for construction following Council endorsement. Construction costs continue to rise due to inflation. Re-litigating the Engineer's Report at this late stage creates a real risk of escalated costs.
No evidence was provided as to how the grant funding would be at risk because of an 80-day delay. Construction costs will rise due to inflation. That is a given in today’s economy even if this appeal does not move forward.
I do not find that these reasons constitute prejudice. They are at this point merely speculative.
Bruce Beach is a good example of real prejudice. In that case, construction had already begun, and the Tribunal found that the municipality was prejudiced by the delay.
The arguments made here are ones that could be made with respect to any appeal made in time as any appeal made in time will delay construction. In this context I do not find an 80-day delay to be significant.
Length of and Reasons for the Delay
The length of the delay is 80 days being the time elapsed between the last day for appeals under Subsection 48(1), August 24, 2025, and day on which Notice of Appeal was filed on November 12, 2025.
Mr. Horton gives as his reason for the delay his attempt to appeal to the Court of Revision. It took the Court of Revision more than two months to decide that it did not have jurisdiction on the Subsection 48(1) issues. It was at that point on October 23, 2025, that Mr. Horton realized that he should have appealed to the Tribunal but was 2 months past the appeal period.5
The Respondent argues that Mr. Horton made a deliberate choice not to appeal to the Tribunal but to await the results of some attempt to negotiate an alternative solution of a partial cleanout of the drain. Counsel for the Town submitted that a party cannot elect to waive an appeal period to pursue negotiations and then seek to revive that right when negotiations are unsuccessful.
The point being that Mr. Horton could have appealed to the Tribunal in time and then continued with negotiations while the matter was before the Tribunal.
That argument would have merit if it was as simple as that. However, Mr. Horton did not just attempt to negotiate an alternative solution, but at the same time took an unsuccessful appeal to the Court of Revision with a view to getting some relief.
Many appeals brought in time can take one to two years to navigate the appeal process. In this context I find that an 80-day delay in bringing this appeal is not fatal.
I do note that this appeal could have been brought as soon as Mr. Horton was aware of the decision of the Court of Revision. There was about a 2-week delay before he filed the appeal on November 12, 2025.
I find that the reason for the delay is not totally unreasonable. Mr. Horton was unrepresented. Although he claims to have received some professional advice, it obviously was not helpful to his cause.
Merits of the Proposed Appeal
Mr. Horton sets out his grounds for appeal in his submission “Argument for the reason to appeal”. He states that he wants to appeal to the Tribunal on the grounds that the cost of the drain exceeds the benefits of the drain. He then gives his reasons for this statement.
He also states in this document that reconstruction of the drain is not warranted at this time and gives his reasons for this. Both are recognized grounds for an appeal under Subsection 48(1).
The Town responds with three arguments. First, that Mr. Horton filed his appeal under the wrong section of the Act, second the absence of expert evidence and lastly, what it describes as fiduciary duty vs. grounds of appeal.
I have dealt with the “wrong section of the Act” earlier in these reasons and will not repeat my reasons here.
With respect to the absence of expert evidence, I want to emphasize that at this stage of appeal expert evidence is not required. This is not a hearing on the merits. At this stage the presence of merits is ascertained based on allegations contained in the Notice of Appeal and attached documents.
The threshold is low. The Tribunal must decide that based on the allegations there is the possibility that an appeal might succeed as opposed to being totally frivolous and vexatious.
In Bruce Beach the proposed appeal sought to have the cost of the drain shared by all ratepayers in the municipality and not just by the assessed owners within the watershed. That is why the Tribunal found that the appellant failed to appreciate the scope and purpose of the Act and there was no possibility of success. The same cannot be said here.
Under the heading “Improper Subject Matter” in its Responding Motion Record at paragraphs 32, 33 and 34, the Respondent makes the argument with respect to what it describes as “fiduciary duty vs. grounds of appeal”. I quote these paragraphs below.
The Appellant argues that the Township improperly accepted the Report solely to qualify for provincial grant funding.
The Township submits that securing grant funding is a fiduciary duty of Council. It is appropriate for a Municipality to select a design option that maximizes provincial funding to reduce the financial impact on local ratepayers.
This argument relies on a misunderstanding of the municipal role under the Act. As noted in Re Bruce Beach, where an appellant fails to understand the scope of the Act, the appeal lacks merit.
I do not agree with the statement in paragraph 32 as it is not founded in the facts before me. The arguments in the following paragraphs are rooted in that statement.
Mr. Horton had argued that only a portion of the drainage work proposed in the Report be done based on his perception that not all the work was necessary or justified. He resiled from this position upon discovering that this would jeopardize grant funding.
For these reasons I find that the proposed appeal is not devoid of merit.
The Justice of the Case
Finally, the overarching consideration is what the justice of the case requires. No one factor is determinative. This requires the Tribunal to consider together all the above four factors and then to decide in the exercise of its discretion whether Mr. Horton should be denied the opportunity to appeal or whether an extension should be granted so that the appeal can proceed.
Mr. Horton has been successful on the four factors, more so on some and less so on others. However, over all, the interest of justice for Mr. Horton, the Township and other assessed landowners, weighs the scale in favour of an extension of the time to appeal
Consideration of Case Law.
Counsel for the Town referred me to several reported cases. I accepted the test set out in Bruce Beach. The decision of the Court of Appeal in Rizzi v. Mavros6 confirms that test.
I have read but have not found relevant or helpful in a Tribunal context two other cases both decisions of the Ontario Court of Appeal7.
Alternative Submission
The Township requests an Order expressly restricting the grounds for appeal to the quantum of assessment levied against Mr. Horton’s lands, and striking the grounds relating to the design, scope and validity of the Report if the extension is granted.
This is a motion pursuant to Section 100 of the Act. The section does not encompass the relief requested by the Township, who may attempt to request this relief in a subsequent motion grounded in the provisions of the Act or the Rules.
Order
The Moving Party, George Horton, is granted an extension of the time to file an appeal to the Tribunal pursuant to Subsection 48(1) of the Act retroactive until November 12, 2025.
Linda Horton shall be added as an Appellant and the title of proceedings amended accordingly.
For the clarity of the record, the Appellants shall within 20 days of the release of this Decision, complete and sign a “Notice of Appeal to Tribunal by Owner of Land or Public Utility Re: Engineer’s Report, under subsection 48(1) of the Drainage Act, serve the same on counsel for the municipality and file it with the Tribunal. The Notice of Appeal shall be post-dated November 12, 2025 and the Clerk’s Certificate need not be completed. The documents attached to the original Notice of Appeal should be attached.
Dated at Chatham, this 29th day of January 2026.
Released: January 29, 2026
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.
1250264 Ontario Inc. v. Pet Valu Canada Inc., 2016 ONCA 24
Footnotes
- Drainage Act, R.S.O. 1990, c. D.17, subsections 48(1) and 46(2)
- Affidavit of Michelle Hannah, sworn January 8, 2026, paragraph 6
- Idem, Exhibit “E”
- “Why we are appealing the 40 day appeal period” last paragraph
- 2007 ONCA 350
- Reid v. College of Chiropractors of Ontario, 2016 ONCA 779
- 2021 ONAFRAAT 19 at paragraph 9