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: Howe Farms (Ontario) Ltd. (RE) [Decision] Township of Zorra (RE) [Decision]

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

HEARING: January 16, 2026, by Zoom

DATE OF DECISION: February 26, 2026

010HoweDrain2025

NEUTRAL CITATION: 2026 ONAFRAAT 03

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 the Tribunal by Howe Farms (Ontario) Ltd., under Section 48(1) of the Drainage Act (“Act”) with respect to the Howe Drain in the Township of Zorra.

AND IN THE MATTER OF a motion for party status pursuant to Rule 18 of the Tribunal’s Rules of Procedure

BETWEEN:

Howe Farms (Ontario) Ltd. Appellant

• AND -

Township of Zorra Respondent

Represented by Paul Courey

Represented by Peter Pickfield

Heard: January 16, 2026, by Zoom

Before: Glenn C. Walker, Chair

Present: Paul Courey, Counsel for the Appellant Peter Pickfield, Counsel for the Township of Zorra Fraser Kelly, Counsel for the Upper Thames River Conservation Authority Julia Harnadek, Counsel for the Upper Thames River Conservation Authority

DECISION OF THE TRIBUNAL

1. This is a motion brought by the Upper Thames River Conservation Authority (“UTRCA” or “Moving Party”) for an order naming UTRCA as a party in this proceeding.

2. The motion is supported by the Township of Zorra (“Zorra”) and opposed by the Appellant, Howe Farms (Ontario) Ltd. (“Howe”).

3. The Moving Party filed a Motion Record containing submissions and the Affidavit of Karen Winfield, UTRCA Land Use Regulations Officer, with exhibits. Zorra and Howe did not file Motion Records but relied upon UTRCA’s materials and oral argument.

4. The Tribunal heard submissions from the parties and the Moving Party on January 16, 2026. Counsel for the Appellant requested that the Tribunal reserve its decision until he could provide the Tribunal with a decision of the Drainage Referee in the matter of Chrustie v. City of Ottawa (“Chrustie Decision”) which he expected to receive imminently

5. The Tribunal adjourned the motion hearing to January 28, 2026 to allow the Moving Party and the Respondent to submit comments on the Chrustie Decision.

6. The Tribunal ordered that counsel for the Appellant provide the Chrustie Decision to the Moving Party and the Respondent as well as to the Tribunal on or before the January 23, 2026 at 4:00 pm, failing which the motion continuation date of January 28, 2026 will be cancelled and the Tribunal will reserve its decision on the motion based on submissions heard on January 16, 2026.

7. The Chrustie Decision was not received within this timeline and the motion continuation date was cancelled.

Background

8. For a full understanding of the context for this motion, it is necessary to delve into the history of the various proceedings involving Howe, Zorra and UTRCA.

9. In approximately 2012, Howe undertook to bury a watercourse on his farmlands located at Part Lot 19, Concession 1, in the Township of Zorra (“Part Lot 19”).

10. These lands are within the jurisdiction of UTRCA. Howe did not obtain a permit for this work as required by the regulations although he was aware that one was required.

11. Consequently, UTRCA charged Howe Farms (Ontario) Ltd. and its principal, Gordon Howe personally, with violating the Conservation Authorities Act, R.S.O. 1990 c. C.27 and Regulation 157/06 thereunder.

12. Each was found guilty on December 14, 2015 in Provincial Offences Court, and was sentenced on May 31, 2016. As part of the sentence, the Court ordered that both defendants were to rehabilitate Part Lot 19 by removing the fill and the pipes and restoring the stream and floodplain they buried to the satisfaction of UTRCA.

13. The convictions and sentences were then appealed to the Ontario Court of Justice. The Court dismissed the appeal on June 29, 2022.

14. October 31, 2023 was set as the deadline for the completion of the rehabilitation. To date no rehabilitation of Part Lot 19 has occurred.

15. Meanwhile, Howe petitioned Zorra for drainage improvements on December 11, 2013. Council ordered Mr. DeVos, a drainage engineer, to prepare a report. On June 2, 2015, Zorra referred the report back to the engineer pending the appeal court decision under the Conservation Authorities Act.

16. Howe appealed this decision of council to the Tribunal pursuant to Section 45(2) of the Act. On August 7, 2015, the Tribunal found that it did not have jurisdiction and transferred the appeal to the Court of the Drainage Referee.

17. UTRCA moved before the Drainage Referee to intervene in the Drainage Referee proceedings and was added as a party to the proceedings on January 7, 2016.

18. Subsequently, before the Drainage Referee hearing took place, Howe withdrew its application.

19. Howe, together with Gordon and Cheryl Howe, then petitioned Zorra for drainage work with respect to Part Lot 1, Concession 5, in the Township of Zorra (“Part Lot 1”). These lands are located across Road 68 from Part Lot 19, where the rehabilitation work is to take place.

20. On April 5, 2023, the council for the Township considered the request and decided not to proceed with the drainage works and gave the following reason:

“The potential outlet for the area requiring drainage is subject to a court order requiring the petitioner to restore and rehabilitate lands under a charge and conviction under the Conservation Authorities Act.”

21. The petitioners appealed this decision to the Tribunal pursuant to Section 5(2) of the Act.

22. UTRCA moved before the Tribunal for party status. In a decision of the Tribunal dated November 6, 2023 (“2023 Motion Decision”), the Tribunal dismissed the motion finding that UTRCA’s intervention in the appeal was premature as no engineer’s report had been prepared.

23. This appeal was withdrawn on January 10, 2024 by the appellants before a hearing on the merits

24. On July 22, 2024, Pineridge Farms (Oxford) Ltd. (Gordon J. Howe, President) and Howe Poultry Farms Ltd. (Gordon Howe, President) petitioned Zorra for drainage work citing the lands that required drainage and outlet to be Part Lot 19 and Part Lot 1.

25. Zorra appointed Mr. DeVos, the drainage engineer, to prepare a report. He provided a report under section 40 of the Act concluding that the drain could not be constructed as a permit from UTRCA would be required and UTRCA had indicated that one would not be forthcoming as the rehabilitation work on Part Lot 19 had not been completed.

26. Howe Farms (Ontario) Ltd. (Gordon Howe, President) (“Appellant”) has appealed the report to the Tribunal pursuant to Section 48(1) of the Act.

The Position of the UTRCA

27. The position of UTRCA is succinctly stated in paragraph 9 of the grounds for the motion contained in its Notice of Motion as follows:

UTRCA wishes to be named as a Party to the appeal as its interests related to the lands and watercourse subject to the 2023 Order may be directly and substantially affected by this appeal. UTRCA has a genuine interest in the subject matter of this proceeding and will make a relevant contribution to the Tribunal’s understanding of the issues in this proceeding as they relate to the lands and watercourse subject to the 2023 Order.

28. UTRCA further argues at paragraphs 13 and 14 of the Notice of Motion that:

The Chair of the Tribunal denied party status to the UTRCA in an earlier Drainage Act appeal proceeding relating to the Appellants’ properties (File No. 004Howe23) on the basis that the interests of the UTRCA in the matter were only “potential” until a Drainage Report had been prepared.

That Report has now been prepared by Mr. DeVos and, as noted by the Chair in his earlier decision, the UTRCA “will have a genuine public interest if this petition proceeds to a report”, and, “[i]f and when an engineer’s report is prepared, UTRCA will be involved.”

The Position of Zorra

29. Zorra supports the motion and relies upon the arguments made by the UTRCA.

The Position of the Appellant

30. The Appellant resists the motion and argues that there is no need for UTRCA to be involved in this appeal. He further argues that there is nothing different in this motion that was not present in the motion for party status in 2023. He supports the decision made in the 2023 Motion Decision and asks for the same result.

Analysis

31. Rule 8.01 of the Tribunal’s Rules of Procedure provides that any person may request party status in a proceeding by way of a motion. Rule 8.03 sets out 3 non-exhaustive relevant matters which the Tribunal may consider in making its decision. They are whether:

(i) A person’s interests may be directly and substantially affected by the Hearing or its result;

(ii) A person has a genuine interest, whether public or private, in the subject matter of the proceeding; and

(iii) A person is likely to make a relevant contribution to the Tribunal’s understanding of the issues in the proceeding.

32. This is the third attempt by the UTRCA to become a party in Drainage Act proceedings involving the Appellant’s lands, either Part Lot 19 or Part Lot 1. Its interest in the subject matter of the various appeals is well established.

33. In its 2023 Motion Decision, the Tribunal found that the participation of UTRCA was premature as that appeal required the Tribunal to decide whether a report should be prepared in response to the Section 4 petition. The appeal was not from a report.

34. UTRCA argues that now that there is a report, the rationale for dismissal of the motion for party status in the previous appeal no longer applies.

35. The Section 40 report appealed from here is not the type of report contemplated by the Tribunal in its 2023 Motion Decision, that is a report concerning the construction of drainage works. No such report exists yet.

36. The Tribunal relies upon the reasons given in the 2023 Motion Decision in denying the Moving Party’s request for party status. They are repeated here.

… although the interests of UTRCA may be directly and substantially affected by any engineer’s report produced because of the petition, those interests are only potential at this point. As well, it will have a genuine public interest if this petition proceeds to a report.

Any contribution to this hearing by way of evidence or submissions by UTRCA is unnecessary as, no doubt, Zorra will attempt to call evidence relating to the history between the appellant and UTRCA before the Tribunal. The relevancy of that evidence will be an issue for the hearing panel to decide.

The Moving Party referred the Tribunal to the case of Howe v. Zorra (Township) 2016 ONDR 1, a decision of Acting Drainage Referee Oldfield dated January 7, 2016. This decision involved the same parties in slightly but importantly different circumstances.

Howe had previously petitioned Zorra for drainage works on the lands which are the subject matter of the Court Order referred to above. That petition was granted, and an engineer’s report prepared. The engineer’s report was considered by council and by resolution council referred the report back to the engineer pursuant to Section 57 of the Act.

Howe then appealed that decision to the Tribunal who found that it did not have jurisdiction under the Act in these circumstances and transferred the matter to the Drainage Referee. When Howe applied to the Drainage Referee, UTRCA moved to intervene in those proceedings. The Acting Referee granted that motion with reasons.

I agree with the analysis and rationale in the Acting Referee’s decision; however, there is a subtle distinction. In this decision an engineer’s report was already in existence and council purportedly referred the report back to the engineer pending the court decision with regard to the charges laid against Howe under the Conservation Authorities Act. It was reasonable in these circumstances for UTRCA to be at the table.

If and when an engineer’s report is prepared, UTRCA will be involved. In the context of this appeal, however, its intervention as a party is premature.

37. I agree with the submissions of the Appellant that nothing has changed and that the result of this motion should follow the 2023 Motion Decision.

38. It is well established that a tribunal is not bound by its previous decisions.

39. However, the Tribunal does have the discretion to add a person as a Participant to a proceeding pursuant to Rule 8.05 of its Rules of Procedure on such terms as it considers appropriate.

40. A person includes a corporation (Interpretation Act, R.S.O. 1990, c. I.11, Subsection 29(1)) and conservation authorities are bodies corporate (Conservation Authorities Act, R.S.O. 1990, c. C.27, subsection 3(4)).

41. I am exercising my discretion to add URTCA as a Participant only. I believe that I can do this on my own motion, and I do this because they have consistently requested participation over several different appeals.

42. I find that making UTRCA a Participant in these proceedings will accomplish its goal to have a voice in this matter while not greatly impacting the length of the hearing. UTRCA will not be able to call additional witnesses, although of course Zorra may call UTRCA people. They will not be entitled to cross-examine witnesses. They will have the right to make opening and closing statements.

Order

43. The Motion brought by the UTRCA for party status is dismissed.

44. UTRCA will be added as a Participant to these proceedings on the following terms and conditions:

(i) UTRCA may call one witness at the hearing;

(ii) That witness will be subject to cross-examination by the other parties;

(iii) UTRCA may make opening and closing statements, either in writing or both;

(iv) Upon request, UTRCA may receive copies of documents exchanged by the parties;

(v) UTRCA may not raise issues that have not already been raised by a party;

(vi) UTRCA may not call additional witnesses;

(vii) UTRCA may not cross-examine witnesses;

(viii) UTRCA may not bring motions; and

(ix) UTRCA may not claim costs or be liable for costs.

Dated at Chatham, Ontario this 26th day of February, 2026.

Released: February 26, 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.