Boycotting drainage hearing proves costly

Sunday, August 29, 2010

by SUSAN MANN

A northern Ontario farmer who refused to attend a drainage hearing he requested must pay $10,000 in costs to his township, the Agriculture, Food and Rural Affairs Appeal Tribunal ruled recently.

In its Aug. 20 written decision, the Tribunal dismissed the drainage appeal of Belle Vallee area Richard Gosselin and told the Municipality of Brethour Township that it could enter the cost award on the tax roll immediately. The township can finish the contentious drainage work without interference from any assessed landowner. The $10,000 Gosselin has to pay is to be credited against the costs of the drain before calculations of the final assessments to landowners on the drain are done.

Tribunal chair Kirk Walstedt, who did not hear this particular case, says it’s not common for the Tribunal to award costs. “We do award costs occasionally.” It’s up to the panel to determine if costs are awarded and that decision depends on the circumstances.

“The panel obviously felt strongly that there should be (costs awarded) in this case,” he adds.

Township lawyer Paul Courey noted in the Tribunal’s written decision that the township incurred legal, engineering and staff costs associated with responding to Gosselin’s appeal, which was adjourned in both May and June. The appeal was rescheduled for July but Gosselin’s lawyer, Lisa Neil, told the Tribunal by fax the morning that the two-day hearing was to start that he wouldn’t be there.

In her July 21 faxed letter, Neil says they felt the Tribunal’s, township’s and township lawyer’s actions were highly prejudicial and resulted in a complete lack of procedural fairness in the proceedings.

The township asked for $6,295 in costs and that 50 per cent of the money to be assessed against Gosselin’s lawyer. But the Tribunal can’t make an order requiring Neil to reimburse Gosselin.

“However in the circumstances, had such jurisdiction existed the Tribunal would have made such an order,” it says in the written decision.

The Tribunal described Neil’s conduct as frivolous and vexatious.

The township also argued it was up to Gosselin to prove his appeal and since he wasn’t there to do that at the July hearing the appeal should be dismissed. The Tribunal agreed.
Neither Gosselin nor his lawyer could be reached for comment.

The Hambly Sabourin Drain and the Beaulac-Beach Drain together drain a watershed area of primarily agricultural lands in the Belle Vallee area north of New Liskeard near the Ontario-Quebec border. Both drains were established in the early 1980s. A series of open ditches begin on the property of Garry Beach in Brethour Township, run westerly and empty into Wright Creek on Richard Gosselin’s property.

In response to complaints from some landowners, Brethour Township appointed an engineering firm to report on repairs and improvements. The report was issued and despite that the construction tenders exceeded the drainage engineer’s estimates by 133 per cent, the landowners and township decided to go ahead with the work.

In its written decision, the Tribunal notes various issues with the drain project have been before the Tribunal or Drainage Referee 12 times since 2003.

Retired farmer Garry Beach, one of the landowners affected by the drain, says “this drain can’t work because it will keep eroding and never stop. It’s going to be a monster forever.”

Beach and another landowner, Sylvain Gauthier of Thornloe, also had concerns about the drain. Their appeals were heard by the Tribunal July 21 and 22. The Tribunal issued separate decisions for them.  They received compensation for hay losses and the township was ordered to work on the drain. Beach says for him the matter is now finished.

The Tribunal expects that Gosselin may seek to review this decision, and others, under the Rules of Procedure or by judicial review. BF