ODR 1997

The Township of Bromley applied to the Ontario Drainage Referee to resolve a dispute with a contractor, Kevin Donohue, regarding the construction of a municipal drain.

The contractor had proceeded with construction without signing a formal contract or following the drainage engineer's supervision, believing his authorization came from a landowners' meeting and a prior tribunal order.

The parties reached a settlement on the construction issues, but the allocation of extra engineering and legal costs remained unresolved.

The Referee found the contractor was not legally justified in his actions and ordered that the extra engineering costs be assessed pro rata to the drain, while half of the legal fees were charged exclusively to the contractor's property.

The appellant municipality appealed a decision of the Ontario Drainage Tribunal which had ordered it to pay damages to the respondent for removing a concrete dam from a drain, and to pay the costs of an engineer's report and hearing costs out of its general funds.

The respondent brought a preliminary motion to dismiss the appeal for delay, which the Drainage Referee dismissed, finding no undue delay or prejudice.

On the merits, the Referee held that the Tribunal exceeded its jurisdiction in awarding damages, as the Drainage Act reserves the power to assess damages exclusively to the Drainage Referee.

However, the Referee confirmed the Tribunal's order requiring the municipality to pay the costs of the report and hearing out of its general funds, agreeing that the municipality acted improperly by ordering the dam's demolition while an appeal was pending, contrary to the stay provisions of the Statutory Powers Procedure Act.

The appeal was allowed in part, and the parties were ordered to bear their own costs.

The appellant appealed a municipal by-law related to a drainage project and brought a motion for procedural orders, including examinations for discovery of the drainage engineer and production of documents.

The respondent argued the appeal was out of time under s. 47(1) of the Drainage Act.

The appellant clarified the appeal was solely to quash the by-law, not a s. 47(1) appeal.

The Drainage Referee granted the motion for discovery and document production, but restricted the scope to issues involving the petition and the conduct of proceedings, excluding matters of design, assessment, and allowances.

The respondent municipality brought a motion to strike the appellant's statement of claim, for a better affidavit of documents, to amend its statement of defence, and for summary judgment.

The parties consented to the amendment of the statement of defence and the provision of a better affidavit of documents.

On the issue of summary judgment, the respondent argued that the appellant's claim for damages was statute-barred under section 111(2) of the Drainage Act because the statement of claim was not issued until December 11, 1995.

The Referee found that the appeal was properly launched on May 27, 1993, and exercised discretion under section 113 of the Drainage Act to confirm this date.

Consequently, only claims for damages arising prior to May 27, 1991, were statute-barred.

The request for summary judgment was dismissed.