Brown v. Central Elgin (Municipality), 2009 ONDR 3

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Brown v. Central Elgin (Municipality)

2009 ONDR 3

DATE OF DECISION:

2009-01-20

2009-03

STATUTE:

Drainage Act

HEARING:

BETWEEN:

MORLEY BROWN and JEAN BROWN APPELLANTS

AND­

THE CORPORATION.OF THE MUNICIPALITY OF CENTRAL ELGIN RESPONDENT

PROCEDURAL ORDER

Upon the application of Counsel for the Respondent made the 24th day of July, 2008 which was adjourned from October 14th, 2008 to today's date. Further, upon requesting an Order for Directions from the Referee on Consent:

1. IT IS ORDERED that the parties shall meet with the Acting Referee, William D. Turville in an effort to mediate this matter being a Notice of Appeal dated the 20th day of April, 2000 and a Statement of Claim dated the 10th day of November, 2000. Such mediation shall take place at the office for the Corporation of the Municipality of Central Elgin on January 15th, 2009 and on January 16th, 2009 if necessary.
2. IT IS ORDERED that the parties submit Mediation Briefs to the Acting Referee. The Appellants' Solicitor shall submit their Brief by December 10th, 2008 and the Respondent's Solicitor shall provide a Responding Mediation Brief by December 22nd, 2008.
3. Costs shall be reserved to the final disposition of this matter.

Dated at Strathroy, Ontario, this 21st day of November, 2008.

ONTARIO DRAINAGE REFEREE

Robert G. Waters

MINUTES OF SETTLEMENT

The parties agree to settle the within proceeding on the following basis:

1. The provisional by-law, By-Law No. 193 of The Corporation of the Municipality of Central Elgin, to provide for drainage works in the Municipality of Central Elgin on part Lots 8 to 11, Concessions 4 and 5, Municipality of Central Elgin, be set aside this being a by-law whereby the said Municipality adopted the report of Spriet and Associates dated January 21^st, 2000, on the Bachner Drain 1998 Extension drainage works.

2. The Appellants shall withdraw their petition for the Bachner Drain (1998) Extension to provide for filling of excavation done on the lands in 1998 and installation of a covered drain and said petition shall be deemed to be null and void.

3. The Notice of Appeal to the Drainage Referee shall be dismissed without costs. The Respondent shall be solely responsible for the costs incurred for engineering report and advice arising out the Petition by the Appellants for the Bachner Drain 1998 Extension and such costs shall not form part of the cost of the drainage works under Sec 73 of the Drainage Act.

4. The Appellants shall provide immediate access to their lands to enable the completion of the work by the Municipality on, the Bachner Drain 1998 pursuant to the terms of the Engineering Report of Spriet Associates dated May 22, 1998, including:

(a) Spreading spoil and brush clean up at a cost of approximately $1,000.00;

(b) the construction of a low level crossing six meters in width including quarry stone base and regarding of side slopes at a cost of approximately $2,500.00;

(c) Completing the outlet protection at the Bachner-Brown boundary as shown in detail "A" of the Spriet Associates Drawing dated 22 May, 1998;

5. The Respondent shall provide the Appellants written notice, including name of the contractor or municipal department performing the work, by registered mail to be sent five days prior to entering the Appellants' lane to perform the aforesaid work; shall complete the said work on or before June 15, 2009 and thereafter cause the engineer firm Spriet Associates to file a certificate in accordance with Section 60 of the Drainage Act with respect to the said work.

6. Each party shall sign a full and final mutual release of all claims arising out of the construction, improvement, maintenance or repair of drainage works, on the Appellants' lands up to and including current date.

DATE: January 20, 2009