ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
WARD v. SW MIDDLESEX (MUNICIPALITY)
2017 ONDR 2
2017-08-22
2017-02
STATUTE:
Drainage Act
HEARING:
BETWEEN:
THOMAS WARD and JEANETTE WARD
Applicants
- and -
THE CORPORATION OF THE MUNICIPALITY OF SOUTHWEST MIDDLESEX
Respondent
ORDER
When dismissing this application by Order and decision issued July 5, 2017, it was ordered that, if the parties are unable to agree as to costs, each party had the opportunity to make written submissions within 30 days. Only the Municipality made submissions about costs. Having considered those submissions, for the reasons which follow:
THIS COURT ORDERS that:
Costs will follow the result on a partial indemnity basis.
Costs, on a partial indemnity basis, are fixed at $20,000.00 inclusive of HST plus disbursements of $1,072.06 and are payable by the appellants to the Municipality forthwith,
The expenses of the Municipality, net after deducting the costs payable to the Municipality by the applicants, shall be levied upon the lands assessed for the maintenance and repair of the Bateman Drain and Branches as set out in the letter report issued by R. Dobbin Engineering Inc. dated March 18, 2015 and signed by Ray Dobbin, P.Eng. (the "Engineer's Report") and may be assessed, levied and collected in the same manner as rates assessed, levied and collected for maintenance under the Drainage Act.
Issued at London, August 22, 2017
Andrew C. Wright
Acting Drainage Referee
TO: Superior Court of Justice
Attention: Civil Registrar
London Court House
AND TO: Valerie M'Garry,
Barrrister & Solicitor
AND TO: Tom Ward
AND TO: M. Paul Downs, B.A., LLB.
Downs Law Professional Corporation Barristers and Solicitors
REASONS
By Order and decision issued July 5, 2017, the presiding Acting Drainage Referee allowed the Municipality's motion to dismiss and the application was dismissed.
As to costs, the presiding Acting Drainage Referee indicated that, if the parties are unable to agree, each party might make brief written submissions.
The presiding Acting Drainage Referee has received submissions from the Municipality only. Counsel for the applicants has advised that she is no longer retained and the presiding Acting Drainage Referee has received a letter from the one of the applicants, Mr. Tom Ward, asking that I address the matter of costs.
The Municipality seeks costs on the basis of substantial indemnity in the order of $40,000, inclusive of HST. While the applicants' case was difficult and ultimately unsuccessful, the questions raised were novel and, if I may say so, imaginative. I am satisfied that the applicants' case was not so groundless as to be a waste of the Court's and parties' time. Any further similar proceedings resulting in the delay of implementation of the Engineer's Report might be viewed differently as vexatious and an abuse of the process.
5, Costs will follow the result but on a partial indemnity basis. Costs, on a partial indemnity
basis, are fixed at $20,000.00 inclusive of HST plus disbursements of $1,072.06 and are payable by the appellants to the Municipality forthwith.
Reference is made to section 118(1) of the Drainage Act which provides that
Except as provided by subsections (2), (3) and (4), all damages and costs payable by a municipality and arising from proceedings taken under this Act shall be levied upon the lands and roads in any way assessed for the drainage works for construction, improvement, maintenance or repair in such manner as the referee or court may determine, and may be assessed, levied and collected in the same manner as rates assessed, levied and collected for maintenance under this Act.
- This is consistent with the July 5, 2017 decision which provided that the expenses of the
Municipality arising from the proceeding were be levied upon the lands assessed for the maintenance and repair of the Bateman Drain and Branches as set out in the Engineer's Report and may be assessed, levied and collected in the same manner as rates assessed, levied and collected for maintenance under the Drainage Act. For this purpose the expenses of the Municipality shall actual expenses after deducting any costs payable to the
Signed at London August 22, 2017
Andrew C. Wright
Acting Drainage Referee