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:

Irene Meagher Ihsan Kerbaj & Yousra Jaramani Jaron Cotton (RE)

[Motion Decision]

City of Ottawa(RE) [Motion Decision]

STATUTE:

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

HEARING:

Februrary 25, 2026 by Zoom

DATE OF DECISION:

March 5, 2026

023McKinnonsCreek25

NEUTRAL CITATION:

2026 ONAFRAAT 05

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

AND IN THE MATTER OF the Notice of Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Irene Meagher of Navan, Ontario, Ihsan Kerbaj & Yousra Jaramani of Ottawa, Ontario and Jaron Cotton of Navan, Ontario, under Section 48 of the Drainage Act (“Act”) with respect to the McKinnons Creek Municipal Drain in the City of Ottawa.

AND IN THE MATTER OF an Electronic Motion held pursuant to Rule 30 of the Tribunal’s Rules of Procedure brought by Jaron Cotton requesting an extension of time to file a Notice of Appeal uner Section 48.

BETWEEN:

Irene Meagher Ihsan Kerbaj & Yousra Jaramani Jaron Cotton Appellants

– AND–

City of Ottawa Respondent

Self-Represented Represented by Eric Florjancic

Before: Brandi Neil, Chair Heard: Februrary 25, 2026 by Zoom

Present:

Jaron Cotton - Proposed Appellant

Tracy Harris - Representing Irene Meagher

Eric Florjancic – Counsel for the City of Ottawa

Erin Moore – Municipal Drainage Program Officer, City of Ottawa

Dave Ryan – Drainage Superintendent, City of Ottawa

Andy Robinson – Drainage Engineer, Robinson Consultants Inc.

Lauren Franklin – Drainage Engineer, Robinson Consultants Inc.

DECISION OF THE TRIBUNAL

Background

1This motion by Jaron Cotton, to request an extension of time to file a Section 48 Appeal was heard by way of video conference on February 25, 2025.

2The Tribunal has the authority to extend time to file an appeal under the Drainage Act (hereinafter, “the Act”) pursuant to Section 100.

3A notice of appeal under Section 48 is required to be served within 40 days after the sending of the notices of the first sitting of the Court of Revision, which was November 13, 2025.

4As such the last day to have filed the appeal would have been December 27, 2025 which was a Saturday so Monday December 29, 2025 would have been the last day to file an appeal.

5The moving party, Mr. Cotton is unrepresented and provided written submissions and sworn viva voce evidence both of which will be considered.

6The reponding, Municipality opposed the motion. They provided detailed written submissions, affidavit evidence and oral arguments by counsel.

Position of the Parties

5Mr Cotton testified that this matter started back in 2017 and he attended two initial meetings about the proposed drain. He indicated he did receive further documentation about the drain but was unaware of the timelines. He was busy farming but when he made inquiries he was told he needed to fill out this motion which he did once he learned of the procedure.

6In his motion materials, he indicated that when he requested a copy of the engineering booklet and drawings this is when he first became aware of that McKinnons Creek Drain was proposed to be relocated through his agricultural lands, a change that had not been communicated to him. He testified that he was originally told the Creek was going to be cleaned not moved through his agricultural highlands.

7He testified that he believes the Drain should follow the existing water course and utilize low lying lands rather than going through his higher agricultural land. He also stated that the allowances might pay for the land but would not cover the costs for changing anyting like grading and fencing that will be required.

8The Responding Municipality opposed this motion on the following grounds:

a) The Municipality strictly complied with the notice requirements set out in Section 41(1) of the Drainage Act

b)The proposed appeal is legally flawed and has no chance of success as it is a matter governed exclusively by Section 47 of the Act as he seeks to relocate the physical alignment of the Drain. They submit that is matter strictly governed exclusively by Section 47 of the Act which is outside the Tribunal’s jurisdiction. They submit the timeline for this type of appeal expired on November 17, 2025.

c)The drainage project is time sensitive and other land owners exercised their rights of appeal in a timely manner. To allow a late appeal on a technical design issuew would cause significant prejudice by disrupting the progect schedule.

d) The moving party has failed to satisfy the discretionary test for an extension of time.

9None of the other Appellants responded to this motion so are deemed to have taken no position.

Discussion and Analysis

10I will first address the submission by the Municipality that this appeal has been brought under the wrong section. The municipality alleges that this is a Section 47 matter and the Tribunal has no jurisdiction.

11I indicated that modifications to the drain fo fall under Section 48(1)(b) of the Act. I specifically asked the Municipality to explain their written submission that the appeal was brought under the wrong section. They indicated it should be Section 47 because he is proposing to move and realign the drain. They provided no further submissions on this point.

13This issue goes to the Tribunals jurisdiction to address the appeal as well as the appeal limitation period. If the Tribunal accepted the argument of the Municipality the time period for appeal would have expired on November 17, 2025.

14After reviewing the appeal paperwork, the motion materials and hearing the evidence of the Appellant Jaron Cotton, the Tribunal excepts that the appeal was properly brought under Section 48.

15A realignment or the moving of a portion of the proposed drain does fit under Section 48 and is properly within the jurisdiction of this Tribunal. Furthermore, his evidence suggests some specific concerns with respect to the allowances as well.

16As discussed above the Section 48 appeal was required to be filed by December 29, 2026.

17Mr. Cotton’s Notice of Appeal is dated January 15, 2026. It was 2 weeks and three days late.

10In the consideration of this matter I will adopt the test previously used by this Tribunal to assess a motion of this nature. It is the test used by the courts on a motion to extend time to file an appeal (Alaycheh v. Alaycheh, 2020 ONSC 6006) .

11That test requires me to consider four factors. Ultimately all elements of the test are to be considered together, and the overarching considerations is what the justice of the case requires. No one factor is determinative. The relevant factors are:

(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.

1. Did he form a Bonafide intention to appeal within the time frame

12That question was not definitively answered through Mr. Cotton’s evidence or submissions. He was involved in the intial stages of the process as he testified he attended two meetings when this process beganin 2017. He also indicated he was unaware the Drain plan was changed to go through his high lands. His evidence suggests he took steps to bring his appeal and this motion as soon as he learned it was necessary

2. Prejudice to the parties

13Counsel indicated the prejudice to the parties relates to potential delays and increased construction costs. However, he agreed that the two other appeals have not even had a pre hearing conference yet. He did point out that those appeals relate to allowances and not the nature of the drain.

14While I appreciate an appeal involving modifications to the drain will hold up construction and may lead to increased costs, I am assessing that by considering the delay in when the appeal was attempted to be filed. The appeal was two and half weeks late, that is a minimal delay. The other appeals, both Section 48, are still in the early stages, prior to the Pre-Hearing Conference which is scheduled for April 24, 2026. I find no significant prejudice.

15I can only assume the that paragraph 33 of the affidavit of Erin Jennifer Moore in the responding parties motion materials was an error. It set out that the Tribunal issued a Notice of Pre-Hearing Conference on Deccember 17, 2025 that was scheduled for and proceeded in January. This is incorrect. There has not been a Pre-Hearing Conference held or previously scheduled. The Notice from December 17, 2025 set the Pre-Hearing Conference for April 24, 2026 as set out in Exhibit K to her affidavit.

3. The length of delay and reason for the delay

16Mr Cotton explained that he was unaware of the timelines and he was busy farming. The length of the delay, two and a half weeks is minimal. Ignorance of the time frames is not a legal excuse per say but he is an unrepresented individual who made inquiries a little late but acted fairly quickly upon learning of the process.

4. The merits of the proposed appeal

17The Municipality focused their submissions on it being the wrong appeal, which I do not accept. They further submitted that because he was not an engineer or calling an engineer there could be no merits to his proposal. I also disagree with this argument.

18Mr. Cotton is proposing an alternate location/alignment that may have merit. He will be able to give evidence in terms of what he has observed on his land and ask questions of the engineer about his proposed plan. The fact he is not planning on calling an engineer at this stage does not automatically discredit the merits of his appeal. I find there is some merits to his proposal that could be explored further at a full hearing of this appeal.

Decision

19All factors of the test must be considered collectively, no one factor is definitive. The fact the first element of the test cannot be answered in the definitive is not determinative.

20After considering all factors including that he was only two weeks and three days late, that two other appeals are still before this Tribunal and have not even had a Pre-Hearing and there is some merit to the appeal, I find interest of justice favour the granting of the motion.

21The motion to extend time to file an appeal under Section 100 is granted. The Appeal shall be accepted and he will be added as an appellant to the proceedings.

22A copy of the Pre-Hearing Conference Notice shall be sent to Mr Cotton.

Dated at Orangeville Ontario this 5^th day of March, 2026.

Released: March 5, 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.