Valerie M'Garry

Several landowners appealed the Engineer's Report for the Filsinger Municipal Drain under sections 48 and 54 of the Drainage Act.

The appellants challenged the inclusion of certain lands in the watershed, the scope and cost of the proposed drainage work, the right-of-way allowances, and the assessment calculations.

The Tribunal dismissed the section 48 appeals regarding the watershed and drainage work, finding the existing drain was in poor condition and the proposed improvements were necessary.

The Tribunal allowed one appellant's appeal in part, increasing his right-of-way allowance based on a higher land value.

The Tribunal also allowed the section 54 appeals in part, adjusting the maintenance assessments for the upstream reach of the closed drain, but otherwise upheld the engineer's assessment calculations.

Several landowners appealed the Engineer's Report for the Filsinger Municipal Drain under sections 48 and 54 of the Drainage Act.

The appellants challenged the inclusion of certain lands in the watershed, the scope and cost of the proposed drainage work, the right-of-way allowances, and the assessment calculations.

The Tribunal dismissed the section 48 appeals regarding the watershed and drainage work, finding the existing drain was in poor condition and the proposed work was necessary.

The Tribunal allowed Tyson Kraemer's section 48 appeal in part, increasing his right-of-way allowance.

The Tribunal also allowed the section 54 appeals in part, adjusting the maintenance assessments for the upstream reach of the closed drain, but otherwise accepted the Engineer's assessment calculations.

This is a costs endorsement following an appeal decision released on May 8, 2017.

The appellants were successful on appeal and the cross-appeal was dismissed.

The appellants sought partial indemnity costs in the amount of $38,105.67, including disbursements and HST.

The respondent did not dispute the quantum but argued that no costs should be awarded or alternatively that costs should be left to the application judge or awarded in the cause.

The court awarded costs to the appellants in the full amount requested, applying the ordinary practice that the successful party on appeal receives reasonable, fair and proportionate partial indemnity costs.

The appellants appealed an application judge's order declaring an Order to Remedy Unsafe Building null, void, and inoperative.

The respondent cross-appealed seeking an interim injunction to prevent demolition and a declaration that the building was not unsafe.

The Court of Appeal found that the application judge made two errors: first, in finding that service of the Order to Remedy was defective when it was properly served on the owner by registered mail in compliance with the Building Code Act; and second, in finding that the Order to Remedy lacked the required specificity.

The Court held that the Order to Remedy contained sufficient particularity to enable the respondent to understand the case it had to meet and the deficiencies requiring remediation.

The appeal was allowed, the cross-appeal dismissed, and the issues of interim injunction and whether the building was unsafe were remitted to another application judge.

The appellant appealed a municipal council's decision to refer an Engineer's Report back to the engineer under the Drainage Act.

The Upper Thames River Conservation Authority brought a motion for party status.

The Tribunal determined it lacked jurisdiction to hear the appeal under s. 45(2) because the Act does not provide an appeal right when a report is referred back to the engineer.

Finding that the appeal essentially challenged the validity of the council's resolution, which falls under the exclusive jurisdiction of the Drainage Referee pursuant to s. 106(1)(b), the Tribunal transferred the matter to the Referee under s. 119.

Consequently, the motion for party status was deemed academic.

The defendants brought a Rule 21 motion to determine questions of law regarding applicable limitation periods and proper parties in an action for damages arising from a municipal drain.

The court held that the limitation period in s. 111 of the Drainage Act applies only to proceedings before a referee, not the Superior Court, meaning s. 45 of the former Limitations Act applied to the plaintiffs' claims.

The court also found that the one-year limitation period under s. 46 of the Professional Engineers Act applied to the claims against the engineering defendants.

Finally, the court determined that under s. 79 of the Drainage Act, the municipality is strictly liable for damages caused by the condition of drainage works, precluding claims against the other defendants.

The appellants appealed the engineer's report for a municipal drain project designed to convey stormwater and control erosion in a steep gully area.

The appellants argued the project was excessive and unwarranted, suggesting less expensive alternatives like rock riprap.

The Tribunal accepted the uncontradicted evidence of the engineer that the design was appropriate for the extreme gradient and high water velocities, and that the appellants' property was properly assessed.

The appeal was denied and the engineer's report was confirmed without modification.

On a summary judgment motion in long-running drainage litigation, the moving defendants sought dismissal on limitation grounds and substantial indemnity costs.

The responding plaintiffs opposed and sought related procedural relief, including amendment of pleadings to particularize nuisance and to plead discoverability and fraudulent concealment.

The court held that the record disclosed multiple genuine issues requiring a trial, including disputed facts regarding design, construction, disclosure obligations, and the interaction of potentially applicable statutory limitation regimes.

Summary judgment was dismissed, leave to further amend the amended statement of claim was granted, and the matter was directed to proceed expeditiously toward trial.

The City of Kawartha Lakes brought a motion to dismiss Alan Webster's appeal under the Drainage Act for failing to comply with a procedural order and for being frivolous and vexatious.

The appellant filed his particulars 22 days late.

The Tribunal found that while the appellant's cavalier attitude toward the procedural order was worthy of censure, the appropriate remedy was costs rather than summary dismissal.

Applying the test for frivolous and vexatious proceedings, the Tribunal concluded by the slimmest of margins that the appeal was not obviously incapable of success or brought for an improper purpose.

The motion was dismissed, with costs reserved.

The City of Kawartha Lakes brought a motion to dismiss several appeals under section 48 of the Drainage Act, arguing they were frivolous and vexatious and that the appellants failed to participate in an alternate hearing before the Drainage Referee.

The Tribunal found that the failure to attend the Referee's proceedings did not render the appeals to the Tribunal frivolous or an abuse of process, as the Referee had confirmed the appellants' right to maintain their appeals to the Tribunal.

The Tribunal also found no factual basis to conclude the appeals were frivolous or vexatious under the legal test.

The motion to dismiss was granted with respect to one appellant who indicated he no longer wished to pursue his appeal, but dismissed for the remaining three appellants.

The Tribunal issued case management directions requiring the remaining appellants to provide full particulars and evidence within 20 days.

The appellant pig farm applied to expand its operations but was denied minor variances from a municipal zoning by-law that enforced minimum distance separation (MDS II) guidelines.

The appellant applied to the Normal Farm Practices Protection Board, which held it had jurisdiction and exempted the appellant from the doubling factor of the MDS II guidelines.

The Divisional Court overturned this, finding the Board lacked jurisdiction over zoning by-laws.

On appeal, the Court of Appeal held that the Board does have jurisdiction to consider zoning by-laws under the Farming and Food Production Protection Act.

However, applying a reasonableness standard of review, the Court found the Board's decision unreasonable because it directly contradicted the mandatory provincial MDS II guidelines, violating section 9 of the Act.

The appeal was dismissed.

The Ontario Pork Producers Marketing Board brought a motion for leave to intervene in an appeal concerning the jurisdiction of the Normal Farm Practices Protection Board to regulate farming practices versus municipal zoning bylaws.

The appellant consented to the intervention, while the respondent municipality opposed it.

The Court of Appeal granted the motion, finding that the proposed intervenor could provide a broader public interest perspective on the relative rights of the province and municipalities to control farming operations.

Leave to intervene was granted subject to conditions, including no addition to the record and no duplication of the appellant's arguments.

The successful appellant sought costs on a partial indemnity basis in the amount of $27,295.59.

The respondent argued the claimed hourly rates and preparation time were excessive, suggesting $5,000 all inclusive.

Applying the principles from Boucher, the Divisional Court fixed costs at $12,000 all inclusive, finding this amount fair and reasonable given the nature and complexity of the matter, the number of appearances, and reasonable preparation time.

The Municipality of Bluewater appealed a decision of the Normal Farm Practices Protection Board, which had granted the respondent farmer an exemption from the minimum distance separation requirements in the municipality's zoning by-law.

The Divisional Court allowed the appeal, finding that the Board lacked jurisdiction to interfere with land use planning matters, which fall exclusively under the Planning Act.

The Board's authority is limited to protecting farmers from nuisance claims regarding normal farm practices, not granting zoning variances.

The appellants appealed the decision of the Court of Revision and the engineer's report regarding the Lewis and Maple Avenue South Drains.

The Tribunal confirmed the assessments for the Lewis Drain as modified by the Court of Revision.

For the Maple Avenue South Drain, the Tribunal found the work was required but modified the assessment schedule to reflect that the major factor contributing to the need for the work was the construction of berms by one of the appellants, assessing a special benefit to that owner.