- Appeal to Referee
- Service and Filing of Appeal
- Notice of Hearing
- Powers of the Referee
- Security for Costs
- Further Review of Referee's Decision
1. Appeal to Referee
A party unhappy with a fence-viewer award may appeal to a "referee" within 15 days after receiving a copy of the award sent to them by the municipal clerk.
Referees are provincial appointees, are paid by the province and have their expenses compensated by the province [s.27].
In Whitney v Information and Privacy Commissioner of Ontario [2013 ONSC 996 (CanLII)], a request under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) for records of a line fence referee was denied on the basis that such referees are provincial appointees independent of the municipality. The records were therefore not under the 'custody or control' of the municipality.
2. Service and Filing of Appeal
The appeal must be in the prescribed form. It must be served on the other parties by registered mail, or to to owners and occupants it may also be "given by leaving it with the owner or occupant at the place of residence of the owner or occupant or with some other person, over the age of eighteen years, residing thereat."
Form 5: Owner's Notice of Appeal from Fence-Viewer's Award
It must then be filed in the municipal clerk's office, accompanied by an "affidavit of service" confirming that service of the appeal was made on the other parties [s.10(2)], and the required fee payable to the municipal clerk [s.10(1)]. The fee for appeals filed in 2014 is $300, and after that it increases with inflation [Reg 363/13, s.3]. The fee for 2015 is $308.
Form 6: Affidavit of Service of Notice of Appeal
Where land from more than one municipality is involved, the appeal filed in whichever municipality the appellant choses [s.10(8)].
3. Notice of Hearing
The municipal clerk shall notify the referee of the appeal who shall schedule a time and place for the appeal hearing [s.10(3)]. Appeals may be heard during the winter, despite any local winter fence-viewing exemption by-laws [s.5(4)].
The municipal clerk is responsible for the service of the Notice of Hearing on the parties [s.10(4)], and the muncipality must provide a room and support service for the appeal [s.28].
4. Powers of the Referee
At the appeal hearing, the referee may question the parties and other witnesses under oath and may inspect the premises involved.
The referee's authority over an award is broad. The referee may "may set aside, alter or affirm the award, or correct any error therein".
The referee may also "order payment of the costs of the proceedings by either party and fix the amount of the costs." [s.10(5)]
Where the (head) referee conducts the appeal hearing their fees are $491/day where more than three hours are involved, and $245.50/day where three hours or less are involved. Where a deputy referee conducts the appeal hearing their fees are $398/day where more than three hours are involved, and $199/day where three hours or less are involved [Reg 363/13, s.4].
The clerk shall serve the referee's decision, if any, to the parties by registered mail [s.10(9)].
5. Security for Costs
The referee may, at any time, order the appellant to pay an money to the clerk in an amount to cover the anticipated costs of the appeal [s.10(7)].
6. Further Review of Referee's Decision
There is no further statutory appeal from the referee's decision [s.10(6)].
However, like any exercise of government power it may be "judicially-reviewed" in the Superior Court (usually the "Divisional Court"). However the court will give significant deference to the referee's fact-findings in such a case and any party taking the matter to court had better have very strong grounds. A typical judicial review of such a decision would be grounded on issues of substantial and unfair breach of procedure, jurisdictional error (eg. the decision extended beyond their authority), bias of the referee, or extreme error of fact-finding.