ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Horodynsky v. Innisfil (Town) 2005 ONDR 3

DATE OF DECISION: 2005-09-22

STATUTE: Drainage Act

HEARING:

BETWEEN:

BORIS HORODYNSKY, PAUL HORODYNSKY, HORODYNSKY FARMS INC., LAWRENCE KWOK, ELAINE KWOK, EASLEY PRODUCE ONTARIO INC., NORMAN TASCA, JOSEPH TASCA, LUIGI TASCA, NORMA TASCA, L & L GARDENS INC., JOSEPH CESTARIC, SANDRA CESTARIC, IMRE MORA, HEIDI MORA, AND INNISFIL GARDENS INC. APPLICANTS

• AND-

TOWN OF INNISFIL AND THE NOTTAWASAGA VALLEY CONSERVATION AUTHORITY, AND HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF FISHERIES AND OCEANS RESPONDENTS

DECISION

This matter first came before the Drainage Referee by way of Motion made by the Applicant in the Superior Court House, Barrie, Ontario on Monday the 19th day of July 2004. The Counsel for the Respondent Township at that time requested an adjournment based on the grounds that she had not received sufficient notice and accordingly was not properly prepared to proceed. The matter was then adjourned to proceed on the 17th day of August 2004. On the 17th day of August 2004 the Drainage Referee heard submissions by the Parties and was advised that the Parties had consented to a Procedural Order discontinuing the application against the Respondent Her Majesty the Queen in right of Canada as represented by the Minister of Fisheries and Oceans. It also provided that drainage repairs as approved by the Department of Fisheries and Oceans and the Nottawasaga Valley Conservation Authority be carried out by the Township and that certain issues of law be determined by the Drainage Referee (including whether the Drainage Referee would order the appointment of a drainage engineer pursuant to Section 78 of the Drainage Act). After three days of hearings in early November the matter was adjourned to the 26th day of November to proceed further. However, due to complications involving the Parties it was agreed to further adjourn the matter and an Order was made on consent by the Drainage Referee dated Friday the 17th day of December 2004 adjourning the matter to proceed on the 12th day of January 2005.

Difficulties arose with respect to adequate service of the Notice for the January 12th hearing and as a result a further Order was made by the Drainage Referee on consent on the 12th day of January 2005 providing for an adjournment of the matter until the 29th day of March 2005 at the hour of 10:00 a.m. The Order further provided that on or before the 1st day of March 2005 that the Town of Innisfil send by regular mail notice of the continuation of hearing to each land owner subject to assessment under By-Law A-40 at each address as provided in the assessment roll. A notice was attached to the Order a copy of which is attached hereto.

On the 31st day of March 2005 the hearing proceeded and after substantial evidence was heard the Parties asked the court to permit them to retire for the purpose of negotiating a settlement. The negotiations continued the second day and finally resulted in the Parties advising the Court that they had reached an agreement and they filed with the Court a Consent Order a copy of which is attached hereto in full. The Order dealt with many of the issues, but left open one matter to be determined by the Drainage Referee.

The final paragraph in the Order being paragraph 16 provides as follows:

"THIS COURT ORDERS that the issue of costs payable to NVCA, if any, shall be and are hereby reserved to be determined following the submission of a bill of costs by counsel for NVCA."

ISSUES

The only issues remaining to be determined by the Drainage Referee at this stage of the proceeding was:

(a) the reasonableness of the costs claimed by the Nottawasaga Valley Conservation Authority.

(b) whether any cost ought to be paid to the Nottawasaga Valley Conservation Authority.

This matter involved a section of the Municipal Drain known as the South Innisfil Drain - Main Branch Drain. The drain was created by By-Law A-40 adopted on December 17th, 1956 in response to a petition brought by a number of farmers. The area surrounding the drain consisted of highly productive agricultural land intensely farmed and irrigated. The major production was onions and carrots which grossed up to $13,000.00 an acre. It appears that flooding had been an ongoing problem for many decades and in 1981 the Town of Innisfil and the Nottawasaga Valley Conservation Authority jointly carried out a study entitled the South Innisfil Creek Drainage Study. The report noted the financial losses suffered by landowners and recommended the provision of a detention pond. That report was prepared by Ainley and Associates Limited and a final report was prepared by Triton Engineering Services Limited. The second report was completed January 14th, 1985 and made various recommendations, but because of the great costs involved no action was taken. More recently the drain was declared to be a cold water stream containing sensitive fish habitat and accordingly a Class D authorization was required from the Conservation Authority before further work could be done on the drain. In June of 2000 the creek overflowed causing severe flooding and crop damage to several farmers. In August 2000 a representative from Innisfil namely, the Drainage Superintendent toured the relevant portions of the drain with Mr. Horodynsky and they agreed upon what had to be done and at Mr. Zehr's suggestion he completed a request for drainage maintenance. The Town responded and quotes were obtained from two contractors to carry out the work and a budget was prepared by the Town council. The Town also retained an engineer to update the assessment schedule.

The drainage engineer submitted the requests for approval to both provincial and federal authorities. The Department of Fisheries and Oceans further requested additional documentation in the way of cross-section drawings of the drain. The drainage engineer had difficulty in locating the original 1957 profile drawings and had to conduct a further study of the drain to compare the design. The approval from the Department of Fisheries and Oceans was not obtained in time to do any work until the spring of 2004. Unfortunately heavy rains occurred in July 2004 resulting again in serious flooding. As has been previously indicated the matter came before the Drainage Referee on July 19th, 2004. On July 26th, 2004, eight days after the commencement of these proceedings the approval requested by the Town for the maintenance work was granted by the Authorities. In early August 2004 the engineer prepared tender documents and received the contractors awarded and the maintenance work was carried out. The engineer certified that the work was completed on September 20th, 2004. This historical statement is presented by the Drainage Referee to assist in the understanding of this matter, but without any determination as to its verity. The Drainage Referee is aware that he may be required to conduct further proceedings in this matter and therefore this historical statement is made without prejudice to any findings that he may make in the future as to the facts.

Mr. Kenneth Hill the solicitor for the Respondent Nottawasaga Valley Conservation Authority duly submitted a Bill of Costs which was received by the Drainage Referee in May of 2005 in which the Drainage Referee reviewed in detail. The Drainage Referee found that the Bill of Costs was reasonable both as to the hourly rate ($225.00 per hour for legal counsel with the experience and competence of Mr. Hill.) Further the time expended with respect to the various matters, was in all the circumstances reasonable given the complexity and the amount of damages claimed in the Statement of Claim namely $2,000,000.00. The claim for costs based on the partial indemnity scale is appropriate in all the circumstances with respect to costs in drainage matters before the Drainage Referee.

With respect to the second consideration namely whether legal costs ought to be granted to Nottawasaga Valley Conservation Authority and assessed against the assessed owners in the drain as part of the drainage works, I have found that in all the circumstances that such an award is not justified. First, although, the Drainage Referee was not a party to the negotiations leading to the Consent Order, it is obvious that the Applicants were substantially successful in obtaining their objectives. Secondly, although, Mr. Hill in representing the Conservation Authority contributed significantly to the progress of the hearing and represented his client with skill, he was acting in the interests of the citizens of Ontario at large through the agency. All the citizens of Ontario benefit from the work of the Conservation Authority and their interests were being protected by the Nottawasaga Valley Conservation Authority in this matter. However important the work of the Conservation Authority may be, the cost should be borne by all the citizens of Ontario who benefit. I observe that in many cases the burden of conservation measures is often assigned in drainage matters to a few assessed land owners whose resources are often very limited particularly those in pursuit of an agricultural livelihood. Legal costs are discretionary and in drainage matters the fundamental legal principal enshrined in the Drainage Act is: he or she who benefits pays the cost. This decision is in keeping with that principal which has endured with remarkable success in Ontario for well over a century.

Finally, in this matter before the Drainage Referee the Applicant was not seeking damages against the Conservation Authority and was only urging the repair and improvement of the drain. It should also be noted that the Conservation Authority had ample means in conjunction with the Department of Fisheries and Oceans to protect its interest in the final outcome. Therefore, the requested award of costs to the Nottawasaga Valley Conservation Authority is hereby denied.

DATED: September 22nd, 2005

Delbert A. O'Brien, Q.C. Juris D Ontario Drainage Referee