Greisbach Drain Sec 54(1)

In the matter of the Drainage Act R.S.0. 1990, Chapter D.17, as amended.

And in the matter of:

An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Wilhelm Greisbach, in Monkton, Ontario, under Subsection 54(1) of the Drainage Act from a decision of the Court of Revision on the Greisbach Municipal Drain in the Municipality of Huron East.

And in the matter of:

A request for review by Hugh Crawford and John Tollenar from a decision of the Tribunal dated October 8, 2009 under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure for the Tribunal.

Before:

Kirk Walstedt, Chair

Appearances:

None

Background to the Review Request

The decision is based on written submissions only. No oral evidence was given.

The "Greisbach Municipal Drain" is a project initiated under the Drainage Act (the "Act") in the Municipality of East Huron from a report prepared by Gamsby and Mannerow Engineers dated April 2, 2009.

The Tribunal heard an appeal from Mr. Wilhelm Greisbach under section 54(1) of the Act in Seaforth Ontario on September 30, 2009. All assessed landowners were parties to the appeal.

In a letter dated November 5, 2009, assessed landowners, Hugh Crawford and John Tollenar requested a review of the Tribunal's decision pursuant to Rule 29 of the Tribunal's Rules of Procedure.

Evaluation of the Review Request

Rule 29 of the Tribunal's Rules of Procedure sets out the criteria for evaluating a Request for Review of a Tribunal decision. Subsection 29.09 reads as follows:

Evaluation of a request for review

29.09 In deciding whether it is advisable to conduct a review of all or any part of a final decision or order, the Tribunal may consider any relevant circumstances including,

1. whether there is significant new evidence which was not available at the time of the original appeal;
2. whether the Tribunal made a material error of law or fact such that the Tribunal would likely have reached a different decision;
3. the extent to which any party to the appeal or any other person has relied upon the final decision or order;
4. the extent to which any party to the appeal or any other person will be affected by the review process; and
5. whether the public interest in finality of decisions is outweighed by the alleged prejudice to the requester.

Complaints behind the Review Request

The basis for the request for the review is because of new evidence put forward by Mr. Crawford and Mr. Tollenar, that was not presented to the Tribunal at its September 30, 2009 Hearing. Mr. Crawford and Mr. Tollenar submit that a 1984 Tile Drainage Map of the farmlands in question illustrates that Mr. Greisbach does have farm drainage tiles that drain into the municipal drain, which is contrary to the testimony he gave at the Hearing. They've provided a copy of this map in their request for review. The second issue they raise is that the concession road was built higher and wider in the mid 1990s and that an overflow drain was never installed underneath the road to accommodate the overflow.
Review Findings

I have reviewed the one page request for review dated November 5, 2009, the attached tile drainage map, and the Tribunal's Decision dated October 8, 2009. I also conferred with the original panel members.

The basis for a request for review to be considered is that the information provided must contain significant new evidence or facts. The basis for this request for review was, "There are facts which the Tribunal was not privy too (sic), and others, which were not correctly presented."

The "significant new evidence" test under Rule 29.09 (a) of the Tribunal's Rules of Procedure relates to significant new evidence that was not available at the time of the original hearing.

It is my view that Hugh Crawford and John Tollenar fail to meet the test that the evidence now presented was not available at the time of the original Hearing. It begs the question, if the 1984 Map was so easily accessible to form the basis of a Request for Review, then why wasn't it presented as evidence at the Hearing? No explanation is given.

I also note that although he is an assessed landowner, and therefore a party to the original Hearing, Mr. Tollenar chose not to present evidence at the Hearing. Mr. Crawford did appear as a witness for the municipality. However, he made no mention of the 1984 Drainage Map upon which he now relies upon in his review request. Mr. Crawford and Mr. Tollenar also assert that Mr. Greisbach did not correctly present some of the facts stated in his testimony.

It is clear from my reading of the Decision that Mr. Greisbach presented his evidence under oath and although both Mr. Crawford and Mr. Tollenar had every opportunity to cross examine Mr. Greisbach as to the reliability of his testimony, neither chose to do so.

The evidence that the road was built higher and wider in the 1990s with no overflow drain was presented at the Hearing. The fact that Mr. Crawford and Mr. Tollenar believe that the Tribunal did not give the evidence more weight in its decision cannot form the basis of a Request to Review the Decision. The Tribunal's Decision speaks for itself. The panel gave this evidence the weight they felt if deserved in arriving at their decision.

In conclusion, the Decision itself provides a detailed analysis of the evidence before it, resulting in well reasoned and rationale findings.

I therefore find there is absolutely no basis upon which to order that a review of the Tribunal's Decision should be conducted.

Decision of the Tribunal

Therefore, I refuse to grant Hugh Crawford and John Tollenar's Request for a Review of the Tribunal's October 8, 2009 Decision.

Dated at Maidstone, Ontario this 10th day of December, 2009.