ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
King v. Kawartha Lakes (Township)
2004 ONDR 5
2004-08-25
2004-05
STATUTE:
Drainage Act
HEARING:
BETWEEN:
CARL KING
APPELLANT
- AND -
CORPORATION OF THE CITY OF KAWARTHA LAKES
RESPONDENTS
DECISION
On the 23rd day of July 2004 at the Superior Court in Chatham, Ontario, Legal Counsel for the Parties appeared before the Ontario Drainage Referee to make submissions as to cost with respect to a Decision dated the 26th day of April 2004.
The central issue in the original hearing addressed by the Parties before the Referee and later appealed to the Divisional Court was the jurisdiction of the Referee to hear an appeal from the Food and Rural Affairs Appeal Tribunal in circumstances where that Decision was deemed to be final pursuant to Section 101 of the Drainage Act, 1990, R.S.O. Chapter 17.
Counsel for the City noted that the original Hearing had to be adjourned to permit notice to be given to the Ministry of the Attorney General of Ontario that a constitutional question was in issue. She further suggested that matters were also complicated by a concurrent strike of Public Service Workers. Ms. M’Garry submitted that the jurisdiction issue was one of uncertainty due to previous conflicting decisions and accordingly she was of the opinion that it would be unfair to assess legal costs against the local owners assessed in the Drain. Ms. M’Garry further submitted that it would be appropriate, based on previous drainage decisions if costs were awarded on the partial indemnity grid. She concluded by stating that if costs were awarded against the Respondents that they be assessed to the City of Kawartha rather than the local land owners.
Counsel for Mr. King agreed the issue had been one of the jurisdictions of the Drainage Referee and that there had been some uncertainty because all the relevant authorities had not previously been placed before the Court. He now noted the law was clarified and therefore discretion should be exercised to limit cost, as was the Rule in past drainage decisions.
Mr. Courey noted that the Divisional Court did not award costs and urged that the same precedent be applied in this case. He argued that the law is now settled and accordingly the whole drainage community benefits and thus Mr. King ought not to be penalized in costs.
The Drainage Referee agreed in substance with the submissions made by legal Counsel, both of whom had considerable experience in drainage proceedings. The Referee agrees that normally, costs even on a partial indemnity basis may prove to be a bit too rich in drainage matters and broad discretion ought to be exercised by the Referee to ensure that legal costs are not excessive. Most drainage matters are not fundamentally adversarial in nature, more often reflecting the efforts of one or more reluctant assessed owners to exercise their generous rights of appeal as provided in the Act. In this case, the issue, being jurisdictional, was of even broader interest to the whole drainage community. I therefore have no difficulty in concluding that costs ought not be assessed against either Party following the logic of the Division Court in this matter.
ORDER
IT IS THEREFORE ORDERED THAT no costs will be assessed to either Party, each Party being responsible for its own costs.
IT IS FURTHER ORDERED THAT the legal costs for the Hearings incurred by the Municipality be paid out of the general revenues of the City of Kawartha.
DATED August 25th, 2004
Delbert A. O’Brien, Q.C., Juris D.
Ontario Drainage Referee