ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
Carnarvon (Township) v. Cooper
1998 ONDR 4
1998-05-21
1998-04
STATUTE:
Drainage Act
HEARING:
BETWEEN:
THE CORPORATION OF THE TOWNSHIP OF CARNARVON
PLAINTIFF
-AND-
TOM COOPER, RON COOPER & GARY COOPER
DEFENDANTS
DECISION
The Referee conducted a Hearing on the 29th day of April 1998 at the Court House at 4 Eleanor Street, Gore Bay, Ontario.
The matter had been initiated by the Township of Carnarvon in the Small Claims Court but had been transferred to the Court of the Drainage Referee by consent of the Parties pursuant to Section 120 (l) of the Drainage Act.
The Plaintiff Corporation in its claim sought an Order compelling the Defendants to pay the sum of $7,840.83 to the Plaintiff to reimburse it for sums expended in reconstructing the McDonald Municipal Drain pursuant to an Order of the Ontario Drainage Tribunal dated October 19, 1995. That Order had required the Township of Carnarvon to reconstruct the McDonald Municipal Drain and:
- IT IS ORDERED THAT 50% of the balance of the costs to excavate the open reach of the McDonald Drain and the cost to construct a new covered drain as recommended by R. Walton, P.Eng. shall be paid by Spriet Associates Sudbury Ltd. and 50% of the costs shall be paid by the contractor who constructed the drainage works, Tom Cooper, Ron Cooper and Gary Cooper c.o.b. as Cooper Engineering and Construction”.
Evidence give by the Clerk of the Township, Mary McCutcheon, indicated that the Plaintiff Township had complied with the Tribunal Order incurring construction costs of seventeen thousand six hundred and forty-eight dollars and fifty-nine cents ($17,648.59).
She advised that Spriet Associates Sudbury Limited had promptly paid their share of eight thousand seven hundred and twenty-three dollars and thirty cents ($8,723.30), but that Cooper Construction, despite being repeatedly invoiced, had not paid their share. She stated that the exact amount due from the Defendants was seven thousand eight hundred and forty dollars and eighty-three cents ($7,840.83) because a holdback credit due to the Defendants of eight hundred and eighty-two dollars and forty-six cents ($882.46) had been credited by the Township to their account.
Mr. Land, on behalf of the Plaintiff, having proven the exact amount of the cost of reconstruction of the Drain, requested that the Referee make an Order requiring the Defendant to pay the Plaintiffs the sum of seven thousand eight hundred and forty dollars and eighty-three cents ($7,840.83). He advised that when the claim was originally filed in the Small Claims Court to save legal costs the Plaintiff had reduced the claim to six thousand dollars ($6,000) to comply with the Small Claims Court jurisdiction limit.
However, he went on to state that when the Defendants refused to settle and it was transferred to the Court of the Referee he advised the Defendants that he would be claiming for the full increased cost of seven thousand eight hundred and forty dollars and eighty-three cents ($7,840.83).
Mr. Cooper, on behalf of the Defendants, requested that the Referee conduct a new trial of the issues previously heard and dealt with by the Ontario Drainage Tribunal. He advised that although he had notice of the Tribunal Hearing and was present during the Hearing, he was taken by surprise and was not properly prepared. He therefore stated that the Defendants had not had their position properly presented and requested a new Trial on the merits. He noted that the Tribunal had heard the Appeal despite the fact that the Appeal was not launched within the one year time limit provided for in Section 64 of the Drainage Act.
Mr. Land objected to any new consideration of the merits as dealt with by the Drainage Tribunal stating that it would not only greatly prejudice the Plaintiff, but also prejudice Spriet Associates Sudbury Limited who were not present and had already paid their portion of the monies ordered.
The Referee, after considering the evidence filed and the submissions made, proceeded to grant an order requiring that the Defendants pay the Plaintiff the sum of seven thousand eight hundred and forty dollars and eighty-three cents ($7,840.83). The Referee in his oral judgement stated that although the Court of the Ontario Drainage Referee had general Appellate jurisdiction with respect to the Drainage Tribunal, it was specifically precluded by the preventative clause in Section 101 of the Drainage Act from hearing an Appeal with respect to Section 64 matters, namely “quality of construction”. The Court went on to state that in the absence of any evidence to indicate an abuse of procedure the Referee had no grounds to conduct a judicial review of the matter. The Referee noted that although the Section 64 Appeal before the Ontario Drainage Tribunal had not been launched within the one year limitation period that the Tribunal had specifically extended the time allowed pursuant to the powers granted to it by Section 100 of the Act.
The Referee therefore dismissed the Defendants’ application to have the matter reconsidered on the merits. The Referee further ruled that the claim of the Plaintiff was not limited in the Court of the Referee to the sum of six thousand dollars ($6,000) noting that the Defendant was not prejudiced, having been notified by the Plaintiff when consent was given to transfer that matter from the Small Claims Court, that the quantum of the Claim would be increased to provide full reimbursement.
After hearing submissions with respect to the issue of costs and noting that the request of the Plaintiff to have costs in its favour fixed at three hundred dollars ($300.00) was most reasonable, in the circumstances, an Order was so made.
DATED: May 21, 1998
DELBERT A. O’BRIEN
DRAINAGE REFEREE