ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Courtney v. Huron (Township)
1997 ONDR 2
STATUTE: Drainage Act
BETWEEN:
LYNN COURTNEY APPELLANT
-AND-
THE CORPORATION OF THE TOWNSHIP OF HURON RESPONDENT
DECISION
The Ontario Drainage Referee heard a Motion made by W. H. Peter Madorin, Q.C. Counsel for the Respondent, The Corporation of the Township of Huron, on the 2nd day of December, l996 in the Court House at Walkerton, Ontario. The Motion followed two previous motions dated the l5th day of November, l995 and the 7th day of November, 1996 respectively, dealing with procedural matters. The Appellant, Lynn Courtney, elected to act for himself without the assistance of legal counsel and accordingly difficulties arose relating to Mr. Courtney's procedural obligations with respect to the filing of satisfactory pleadings, documents, etc.
The Respondent's Motion requested:
An order abridging the time for service and filing of the Motion Record, if necessary;
An Order striking out the Appellant's Statement of Claim for failure to provide a further and better Affidavit of Documents;
In the alternative, an Order that the Appellant produce to the Respondent copies of all documents which have not yet been produced and which are relevant to this action, in a clear and concise fashion, including but not - exclusive of those set out in Schedule "A' to this Notice of Motion;
An order that the Appellant produce a further and better Affidavit of Docments, in a logical and chronological order and set out the documents in separate numbered paragraphs;
An order granting the Respondent leave to amend its Statement of Defence;
In the event the Respondent is granted leave to amend its Statement of Defence, an Order for Summary Judgment;
Costs of the action and motion on a solicitor and client basis
With respect to the Respondent's request to (a) amend the Statement of Defence and (b) be provided with a better Affidavit of Documents, both Parties, on consent, agreed to the granting of an Order in the following terms:
THIS COURT ORDERS THAT leave be granted to the Respondent to amend its Statement of Defence in accordance with the wording of "paragraph 6" of Tab "B" in the Motion Record
THIS COURT FURTHER ORDERS THAT the Appellant file a further and better Affidavit of Documents including the documents referred to in "Schedule A Tab A" of the Motion Record where available
THE REMAINDER of the relief sought in the Motion is adjourned pending written submissions by the parties.
That Order permitted the Respondent to amend its Statement of Claim in the following terms:
"The Township pleads and relies upon the provisions of The Drainage Act, R.S.O. l990 D.l7, in particular sections 47, 101, l06, 111 and ll8 thereof, and the provisions of the Limitations Act, R.S.O. 1990, c. L.15 and in particular section 45 thereof."
The Referee having granted leave to the Respondent to amend the Statement of Defence determined that the Appellant ought to be given more time to file written submissions with respect to the issues arising from the amendment and particularly the request for Summary Judgment. Accordingly it was agreed that written submissions would be forwarded by the Appellant and Counsel for the Respondent to the Referee by the end of January l997.
In support of his Motion, Counsel for the Respondent argued that Mr. Courtney did not have his Statement of Claim issued until December 11, l995 and accordingly any claim made by the Appellant arising before the 11th day of December, l993 was statute barred by Section 111 (2) of The Drainage Act, R.S.O. 1990 Chapter D 17. Mr. Madorin relied on two reported cases which he claimed supported his legal position. The Ontario Court of Appeal Decision of 1904 dealt with a similar issue of damages arising from a drainage work (although it referred to a different Statute) I quote from that case:
" The question then arises how these claims are affected by delay, and I think that all the damages which accrued to the Plaintiffs more than two years before the l0th September, l90l, whether arising from original construction or for want of maintenance and repair, must be held to be barred.
The right to damages arising by reason of original construction is a right given by the statute itself - sec. 93 (l) - and to this the Limitation Act, R.S.O. l897, ch. 72 would be applicable and would bar an action after two years. But, if it should be said that the Limitation Act is confined to actions, and is inapplicable to claims, such as the present, then sec. 438 of the Municipal Act applies, which provides that such claims, even in case of a continuation of damage, shall be made within one year from the time when the cause of action arose, or became known to the claimant.
But the new sec. 93 is made expressly applicable to all claims in or consequent upon construction, as well as to claims for maintenance or want of repair, and indeed to all sorts of damage claims, and the limitation in all damage cases is now by that section two years.
It was contended that, inasmuch as there was no negligence in the original construction of the work authorized by the by-law, and as it was constructed in the manner so authorized the original work was the cause of complaint, and that all damage caused thereby, no matter when it occurred, was barred after two years from the completion of the work, either by virtue of the Limitation Act, R.S.O. ch 72, sec. 1, sub-sec 1 (g) by sec. 438 of the Municipal Act, or by sec. 93, sub-sec (3) of the Drainage Act. I think, however, it is established by Darley Main Colliery Co. v. Mitchell (l886), 11 App. Cas. 127, that the damage or injury, whenever it occurs, is the cause of complaint in such cases, and that a new action might have been brought for every new injury. Therefore, although the work was done as long ago as l887, the claimants are entitled to recover for any injury or damage arising from the original construction which has occurred within two years before the l0th September, l901."
Wigle v. Townships of Gosfield South and Gosfield North (C.A.) Ontario Law Reports 1904 (Vol VII) Page 302
Mr. Madorin also referred to the reported case of the Drainage Referee, Henderson, K.C. Once again, I quote from that case:
" Mr. Thompson argues that the plaintiff cannot recover for damages for original construction because of the fact that the work was completed more than two years before the commencement of the action, and he refers to Thackeray v Raleigh, 25 A.R. 226. The distinction between that case and this is, that the Thackeray Case was one for damages for the taking of land and its injury and severance by the construction of the drain itself. That is not this case. This case is for my present purposes identical with Wigle v. Gosfield, 7 O.L.R.32. There it was held that the damages in a case such as this are re-current and not only may but must be paid for as sustained from time to time, each claim for damages within a period of two years before action brought. Therefore I am satisfied that the plaintiff is entitled to claim for such damage as he has sustained by reason of the defect in the original construction of the drain within two years of the time of the bringing of the action, and his claim being confined to the year l912, is in time. "
Culleton v. Township of Logan (Ont.Drainage Court) 1913 Ontario Weekly Reporter (Vol. 25) P. 254
Both cases deal squarely with the legal issue raised by the Respondent. In the latter case the former Referee found that damages occurring yearly and flowing from a faulty construction can be the basis for a claim arising year after year, but they become Statute barred when two years have elapsed from the time the damages occur. I find that to be a correct statement of the law and I find it to be applicable in the current case.
Counsel for the Respondent argued that because the Appellant had not filed his Statement of Claim until December ll, l995 he ought to be barred by Section 111 (2) from any claim for damages prior to December ll l993.
Section 111 (2) of the Drainage Act reads as follows:
"A copy of the notice with an affidavit of service thereof shall be filed with the local registrar of the Ontario Court (General Division) for the area in which the initiating municipality is situate, and the notice shall be filed and served within two years from the time the cause of complaint arose. R.S.O. 1980, c. 126, s.111 (2) revised. "
Mr. Courtney in the voluminous material filed by him noted that he first filed his Appeal with the Township on May 27 l993. It was subsequently recorded with the Ontario Court (General Division) as File No. 171/93.
Mr. Courtney pleaded in his written submissions for special consideration to be given by the Referee to his claim pursuant to Sec. 113 of the Drainage Act.
Section 113 of the Drainage Act reads as follows:
"The referee may, where he or she considers it proper, extend the time otherwise limited for appeals or other proceedings. R.S.O. 1980, c.126, s.113"
The Referee is of the opinion that this section grants broad discretionary authority to the Referee to extend time limitations for appeals when "he or she considers it proper". This discretion must be exercised with restraint but it is available in circumstances where equity or natural justice concerns clearly demand that the normal rule be set aside. In this matter the Referee is of the opinion, based on the evidence, that the Appeal was properly launched on the 27th day of May l993. If any doubt remains as to the technical correctness of the filing, the Referee relies on the provisions of Section 113 of the Drainage Act to extend the time for claiming damages to a date extending two years prior to May 27 l993.
After serious consideration of all the circumstances of this case, I have come to the conclusion that there is no compelling requirement of equity to justify extending the time limit beyond that date.
I THEREFORE FIND THAT the Appellant filed his Appeal on the 27th day of May, l993 and hence is statute barred from raising any claim for damages prior to May 27 l991 - two years prior. Accordingly, all proceedings hereafter will deal only with damages arising on or after May 27, l99l. Issues of cost will be considered at the conclusion of this Appeal. The request for Summary Judgment is therefore dismissed.
DATED: March 11, l997
Delbert A. O'Brien, Q.C. Ontario Drainage Referee