Rockeynol Farms Ltd. v. The Corporation of the Township of Flos, 1987 ONDR 2

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Rockeynol v. Flos (Township)

1987 ONDR 2

DATE OF DECISION:

1987-09-27

1987-02

STATUTE:

Drainage Act

HEARING:

BETWEEN:

ROCKEYNOL FARMS LTD.

APPELLANT

• AND –

THE CORPORATION OF THE TOWNSHIP OF FLOS

RESPONDENT

O R D E R

THIS MATTER coming on for hearing at the Town of Newmarket the 5th 6th and 11th days of October, 1983, in the presence of Counsel for the Appellant and for the Respondent, upon reading the Minutes of Settlement, filed, the pleadings and proceedings herein and what was alleged by Counsel as aforesaid:

1. IT IS ORDERED that the Respondent shall pay to the Appellant the sum of $25,000.00 inclusive of claim, interest and costs as damages for the years 1979 to 1983 inclusive.

2. IT IS FURTHER ORDERED that the decision as to whether these damages should be assessed against the Municipal Drain Ratepayers or against the Respondent's general funds, be left to the discretion of this Honourable Court.

William D. Turville, Drainage Referee

D E C I S I O N

This action having been settled by the parties, it was left to my discretion to determine the allocation of the $2,000.00 costs under Section 118 of the Drainage Act, R.S.O. 1980, Chapter 126; that is, whether they should be paid by the municipality out of its general funds or levied only against those assessed under Section 118(1). The damages and costs arise from an "improper action, neglect, default or omission" on the part of employees of the municipality in the maintenance or repair in carrying out the works and should be borne by the municipality and paid out of its general funds.

DATED at Newmarket, Ontario this 28th day of September, 1987

William D. Turville

Drainage Referee

MINUTES OF SETTLEMENT

The parties hereto hereby consent to settlement of the above styled claim as follows:

1. The respondent shall pay to the appellants the sum of $26,000 inclusive of claim, and interest as damages for the years 1980 to 1987 inclusive, plus costs of $2,000.

2. The parties agree to leave to the discretion of this Honourable Court the decision as to whether these costs should be assessed against the Township's general funds.

Dated at Newmarket this 28th day of September, 1987

Teskey, Heacock & Ferguson,

Solicitor for the Appellant

Solicitor for (Flos) Respondent