ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Goetz v South Bruce (Municipality), 2021 ONDR 3

DATE OF DECISION: 2021-03-10

Court File No.: CV-20-18 (Walkerton)

B E T W E E N:

MARK GOETZ, DAWN KENNEDY and PATRICIA GOETZ

Applicants

• and –

THE CORPORATION OF THE MUNICIPALITY OF SOUTH BRUCE

Respondent

ACTING DRAINAGE REFEREE ) ANDREW C. WRIGHT ) THURSDAY, THE 10^th^ DAY ) OF MARCH, 2021 )

ORDER

In my February 12, 2021 decision in this matter, I ordered that, if the parties were unable to agree as to costs, each party could make brief written submissions to the presiding Acting Drainage Referee. I have now received and considered the costs submissions of the respondent Municipality and of the applicants. For the reasons that follow, it is ordered that each party is to bear their own costs of this proceeding.

REASONS

1Normally costs follow the result on a partial indemnity basis. The Referee has, however, broad discretion when dealing with costs.

2In this case the applicants raised and relied upon a case called Kilberg v. Wallace (Township) reported at 1988 ONRD 1. It is a 33-year-old decision rendered by Referee William Turville, Q.C. on March 17, 1988. That decision is at odds with the practise of Ontario drainage engineers as it pertains to the Capacity Issue, as that term is used in the reasons for my decision issued February 12, 2021.

3In effect this case confronted the Kilberg case requiring that it either be reaffirmed or overruled as it relates to the Capacity Issue. After carefully consideration and anxious deliberation, I took the latter course.

4That does not mean that the appellants were wrong to rely upon and assert the principles enunciated by a well-respected Referee more than 30 years ago.

5The respondent Municipality did nothing wrong either, at least as it pertains to the matters before me.

6While technically, the respondent Municipality was successful, the principle raised by the applicants and the resulting decision have significance for the broader drainage community in the Province.

7In those circumstances I am reluctant to visit costs consequences on either party. Each is to bear their own costs of this proceeding, and I so order.