2017 Harvest

2017 Harvest

Wednesday, February 16, 2011

Appeal Tribunal throws out unsigned Drainage Engineer report

A number of landowners appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Subsection 54(1) of the Drainage Act from decisions of the Court of Revision on the Baer Municipal Drain (the Drain) dated December 16, 2010.  The Town of Fort Erie had approved a report of a Drainage Engineer which was now being challenged by affected landowners.  However, at the opening of the appeal hearing, the Tribunal itself raised an issue with respect to the legal status of the Engineer's Report titled "Baer Municipal Drain - Final Engineer's Report, Town of Fort Erie", dated April 2010 (the Report) before it. The Report was prepared by Paul Douglas Smeltzer, an Engineer with Amec Earth and Environmental, Burlington, Ontario.

The Report was provided to the Tribunal by the Municipality as part of the evidence its representatives and the appellants would be relying on at the Hearing. The Report had been circulated, considered by Council and adopted by municipal by-law.  It was apparent in reviewing the Report that it had not been signed by the Engineer and did not have the required Engineer's seal on neither the text portion of the Report nor the drawings appended thereto. It was also apparent that the said drawings were still a "work in progress".

Despite the fact that the Engineer provided a signed and sealed copy of a subsequent report dated September 2010, which he testified was in every respect identical to the unsigned and unsealed September 2010 report circulated and subsequently brought to the municipal Council, this did not change the fact that the Town, at the beginning of the process that led to this Hearing, circulated the unsigned and unsealed April 2010 Engineer's Report to the landowners.  Further, the Town Council also considered, adopted and passed a by-law based on this same unsigned and unsealed April 2010 Report.  Accordingly, the Tribunal found that the Report was not a true report under the Drainage Act and therefore ordered that the April 2010 Engineer's Report that council adopted in July 2010 be set aside.

Read the decision at: Baer Municipal Drain.