ONTARIO SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
CITATION: Chrustie v Ottawa (City), 2023 ONDR 3
DATE OF DECISION: 2023-06-26
Court File No.: CV-20-83031 (Ottawa)
BETWEEN:
BRUCE DAVID CHRUSTIE
Plaintiff/Appellant
-and-
CITY OF OTTAWA
Defendant/Respondent
RIDEAU VALLEY CONSERVATION AUTHORITY, MICHAEL WESTLEY, BARBARA WESTLEY, TOMLINSON DEVELOPMENT CORPORATION, WILLIAM TOMLINSON IN TRUST, 5010697 ONTARIO INC. o/a R.W. TOMLINSON LTD., XIANG FANG, HUI CHEN, LLOYD MARC CHARTRAND, CHARLENE ANN CHARTRAND, WILLIAM KINKADE, JULIE KINKADE, JOHN CHARLES COMPTON, MARY LUCY ELIZABETH COMPTON, GOPAL MOUDGIL, SUDERSHAN MOUDGIL, GORDON ARGUE, VALERIE HARVEY, DOUG ARGUE, STEVEN SELTENREICH, ANITA BOLGER, VANGALDER CONSTRUCTION CO., RIDEAU VALLEY CONSERVATION FOUNDATION
Added Parties
DECISION ON THE MOTION
Appearances:
Willms & Shier, Environmental Lawyers, LLP 1 Toronto Street, Suite 900 Toronto, On. MSC 2D6
Anand Srivastrava, LSO #698811 asrivastava@willmsshier.corn
Bruce David Chrustie (self represented) 8485 Copeland Road
Ashton, On. K0A IB0 bruce@blackdogbrewing.org
City of Ottawa, Legal Services
110 Laurier Avenue West, 3rd Floor Ottawa, On. KlP lJl
Nazgol Namazi LSO #69710T nazgol.namazi@ottawa.ca
Remaining Added Parties attending but not participating
This matter was commenced by a Notice of Motion dated the 12th day of April, 2023, arising from a Procedural Hearing held on the 2ist day of February, 2023, in which the party bringing this Motion, the Rideau Valley Conservation Foundation, raised a dispute as to the jurisdiction of the Drainage Act and the Drainage Referee, and the Administrator of the Drain, the City of Ottawa. This Motion was authorized, and the procedure set by paragraph 1 of the Order of February 2I5t, 2023.
In accordance with Rule 7, of the Rules of Practice and Procedure in Proceedings Before the Referee, O.Reg. 232/15, a Response was filed by Bruce David Chrustie, the Appellant in this matter, on April 19, 2023, and by the City of Ottawa, on the 3rd day of May, 2023.
As this was a preliminary matter, it was deemed by the Referee that the Motion should proceed before the remaining provisions in the Order of February 21st, 2023 be dealt with.
The Motion of the Rideau Valley Conservation Foundation ("RVCF") is for "an Order that the Appellant's Appeal seeking the extension of the Hobbs Drain be dismissed and/or the Engineer's Report is required to be revised insofar as the Hobbs Municipal Drain Outlet Extension is proposed to traverse and alter the RVCF property".
During the course of this appeal, at the direction of the Drainage Referee Robinsons Consultants Inc. finalized its report on the Hobbs Municipal Drain Outlet Extension on June 24, 2021 (the "Engineer's Report").
The said Report proposed that the Hobbs Municipal Drain Outlet Extension cross three times through a 50 acre property within the Richmond Fen, a Provincially Significant Wetland, owned by the Rideau Valley Conservation Foundation ("RVCF" or "RVCF Property"). The RVCF in its Motion "opposes the extension of the Hobbs Drain through the RVCF Property as the RVCF Property is legally prohibited from being altered".
As further grounds, it is stated that the City of Ottawa and the Rideau Valley Conservation Authority cannot authorize the construction of a drain extension at, on, or beneath the RVCF Property. To do so would put the RVCF in immediate contravention of the RVCF legal requirements to manage, protect and control the RVCF Property as part of a land trust.
The Foundation purports through grounds counsel stated, "There is a Landholding Agreement registered on title to the RVCF Property as of January 16, 2013 that prohibits the alteration of the RVCF Property". The Landholding Agreement is made between the RVCF and the Nature Conservancy of Canada.
The RVCF maintains that, as the Property was acquired through the Environmental and Climate Change Canada's Ecological Gifts Program, that prior to any disposition or changes in the use of the Ecological Gift, approval must be obtained from the Federal Minister of the Environment.
The Foundation's position is that "the application of the legal regime under the Drainage Act, including the implementation of an Engineer's Report cannot unilaterally direct any alteration of the RVCF Property."
At the date of the Motion, it was acknowledged by the RVCF that no application has been made to receive an authorization from the Federal Minister of the Environment and Climate Change for the proposed alteration.
Finally, the Motion asks for such further and other grounds as its lawyers may advise.
Response to the Motion by Bruce Chrustie
In response to the grounds set out in the Motion of the RVCF, Bruce David Chrustie, the Appellant in this matter, in his Factum, takes the position that the Foundation argues incorrectly, that there is a prohibition to the change in use of lands enrolled in the Ecological Gifts Program within the Income Tax Act. He maintains the Income Tax Act, RSC 1985, c. 1 (5th Supp) ("ITA") makes no such prohibition, but rather implicitly alters through "change of use" the applicability of Capital Gains Tax Exemptions granted to the donor. He acknowledges "the ITA clearly states there may be Capital Gains taxes due should there be a change in use as determined at the sole discretion of the Environment and Climate Change Canada." (Para 8 Chrustie Factum)
Mr. Chrustie maintains "the argument put forth by RVCF of Federal Paramountcy is moot since there is no actual prohibition on land use changes under the Ecological Gifts Program. There is no conflict in law between the ITA and the Drainage Act." (Para 8 Chrustie Factum). Mr. Chrustie further states that the RVCF has offered no legal argument as to why it should not be subject to assessments under the Drainage Act as a landowner.
As Appellant on the Hobbs Drain, Mr. Chrustie takes no issue with the agreement between a vendor and a purchaser to place a conservation easement on the title of the land, i.e. the Landholding Agreement.
In paragraph 30 of the Factum of Mr. Chrustie he argues that a change in use is permitted considering at the time of requesting authorization "whether the disposition or change in use is within the control of the recipient of the ecological gift". (Publication: Environment and Climate Change Canada, Disposition or Change in Use Ecological Gifts P. 3)
He goes on to add "the guidelines do not state that a change in use is prohibited. Inferring a prohibition is an error in interpretation of documentation provided by Environment and Climate Change Canada. The guidelines simply state that there are tax implications for any potential change in use, and Environment and Climate Change Canada's evaluation criteria also accounts for changes that are beyond the control of the recipient such as the construction of a municipal drain under the Drainage Act." (Para 30 Chrustie Factum)
In the Affidavit of Bruce Chrustie, attached as Tab 5, there is an issue for Mr. Chrustie if the recipient of the donation tax benefit "fails to enforce the terms of the conservation easement, covenant or servitude, which results in negative impacts on the Ecological condition of the property”. This is in contrast with paragraph 30 of the Factum by putting an obligation on RVCF to enforce its agreement.
Mr. Chrustie, in his factum, goes on to acknowledge in paragraph 24, the tax benefit of the gift and additional obligations imposed as described in paragraphs 28 and 29, the taxes payable in connection with the disposition or change of the property. While there is some argument that there would be no Capital Gains involved given the original acquisition of the property at an appraised value of $22,000.00 and given the situation of its Official Plan and Zoning Recognition as a wetland, the RVCF argues there is still a taxation problem. In response, Mr. Chrustie previously quoting the Publication "Environment and Climate Change Canada, Disposition or Change of Use of Ecological Gifts" points out a number of factors which would come with a request for authorization. The most important being "whether the disposition or change in use is within the control of the recipient of the Ecological Gift".
In a final argument, quoting from Tab 5 in the Chrustie documentation, the Canadian Ecological Program Handbook on page 14, there is a description of the change of use as pointed out by the RVCF, which states as follows:
Change In use
ECCC considers a recipient to have changed the use of an ecological gift if the recipient:
Undertakes any action that results in or could result in a diminution of the ecological condition or protection of the ecological gift;
Fails to take reasonable action to manage and protect the ecological condition of the ecological gift;
Changes any of the terms of an eligible interest or right in land (conservation easement, covenant or servitude), which do not constitute a disposition; or
Fails to enforce the terms of the conservation easement, covenant or servitude, which results in or could result in negative impacts on the ecological condition of the property.
Mr. Chrustie maintains that this disposition is not within the control of the recipient of the Gift and by this Motion by implication has taken reasonable action to manage and protect the Ecological Gift as described above.
Response of the City of Ottawa
The first thing that should be noted is that the City of Ottawa does not dispute the facts as put before the Referee by the RVCF.
The City of Ottawa takes the position that the route chosen by Robinson Consultants Inc. took into account an effort to mitigate any deleterious affects of the route brought about by the Order of the Referee of February 16th, 2021, by going down a pre-existing hydro corridor and mitigating any other negative affects through design by Robinson Consultants Inc.
The City, in its Factum, Paragraph 10, maintains "the Drainage Act does not grant any special status to lands that are subject to the Federal Ecological Gifts Program.
The Property Management Plan (2007) implemented by the Nature Conservancy of Canada and the RVCF with respect to the subject property specifically states:
"The Ruiter property and majority of its surrounding land is zoned as Significant Wetland under the category of Natural Environment in the City of Ottawa Official Plan. This land use designation prohibits development or alteration including the creation of new lots, change of land use, and the construction of buildings and structures requiring approval under the Planning Act. These restrictions exclude activities required for the environmental assessment process or for the purposes of the Drainage Act, or any activities which do not adversely affect the natural characteristics of the wetland" [Emphasis added]
The Ruiter property was transferred to the RVCF.
In the view of the City the restrictions contained within the definition of Significant Wetland do not exclude activities under the Drainage Act.
It is the City's view, given the Affidavit of Andrew Robinson, that the mitigation efforts of the City will not adversely affect the natural characteristics of the Wetland.
Given the nature of the Property Management Plan entered into between the Nature Conservancy and the RVCF, the City replies that drainage activities will not represent a change of use, which is something that is specifically contracted between the two parties to the Landholding Agreement, being RVCF and the Nature Conservancy of Canada.
The City further argues that, in Campbell vs. Mariposa (Town), Referee O'Brien, in describing the use of a professional drainage engineer stated "such critical decisions as determining the area requiring drainage, the design of the work and the assessment schedule are the prerogative of the Drainage Engineer. A coterie of experienced and talented Drainage Engineers has ensured the integrity of Municipal Drains throughout the Province." (Campbell v Mariposa (Town) 2000 ONDR 1)
The Municipality argues that deference should be given to the work of Mr. Robinson in this matter.
RVCF Reply to Response of Chrustie and Ottawa
In response to the position taken by Bruce Chrustie regarding tax liability, the RVCF asserts that, if there was a present day change in use that would bring a present-day tax and such "change in use" would be regarded as a disposition for purposes of the Ecological Gifts under the Income Tax Act. No opinion was put forward by the RVCF as to whether there would be an increase in the value of the property as a result of the change, the situation having been that there was a valuation made in 1997 of $22,000.00 for the property. Current value of the property with regard to the Zoning and Official Plan mandates was not addressed more fully.
In accordance with paragraph 77 of the Affidavit of Diane Downey, roughly 7.9% to 15.8% of the RVCF property wetland features would be altered. The calculations in paragraph 76 of her Affidavit indicate that between 1.6 hectares or 3.95 acres would be directly impacted, or 3.2 hectares or 7.9 acres of its wetland habitat.
Given that the tax implications might be minor to the RVCF relying on whether the work under the Drainage Act would result in a change of use; the RVCF put forward its view that the stronger argument in this matter is the Landholding Agreement between the Nature Conservancy of Canada and Rideau Valley Conservation Foundation, the landowner. It is the view of RVCF that the Landholding Agreement would be the dominant documentation as to the jurisdiction of the Drainage Act.
The recitals in this Agreement confirm that the Conservancy is a Not-for-Profit Corporation for which the purposes and objects include "acquisition of natural areas for preservation". In the same recitals, the landowner, being RVCF, is incorporated pursuant to the laws of the Province of Ontario for purposes and objects "which include the acquisition of natural areas for preservation".
Pursuant to the Landholding Agreement in paragraph 1, the landowner is to hold title to the lands so long as the landowner uses the lands for the purposes of maintaining, enhancing, restoring or creating habitat....in accordance with a Management Plan for the lands pursuant to paragraph 2.1 of the Landholding Agreement.
Paragraph 3 of the Agreement states "the landowner shall manage, protect and monitor the lands in accordance with the management plan subject to any amendments thereto as may be agreed upon by the parties from time to time acting reasonably".
Paragraph 4.1 of the Landholding Agreement is the default clause. This states that "in the event of default by the landowner of its obligations under the terms of this Agreement or the Management Plan, the Conservancy, may, at its option, and without affecting any other remedies available to it, on giving 60 days’ notice to the landowner, require the landowner to convey good and marketable title to the lands to the Conservancy, or as it direct (at the landowner's expense).
Provisions within this Agreement in paragraph 6 allow the landowner to transfer the lands to a government agency or a Not-for-Profit Conservation Corporation defined as a Conservation Body under the Conservation Land Act, R.S.O. 1990, C. c 28.
The Landholding Agreement contains no provision that indicates that a change mandated by the Drainage Act represents a change in use. It mandates that a Management Plan pursuant to paragraph 2.1 must be developed governing management of these lands. Paragraph 2.1 requires no alteration of the lands from their current state except under the Management Plan; however, as set out in Paragraph 21 of Ottawa's response there are limits to the Management Plan.
It appears the main obligation, according to the recitals in the Landholding Agreement, is the acquisition of natural areas for preservation.
This Agreement was registered on title by a Notice as Instrument No. OC1445811, on January 16, 2013.
In Exhibit 5 to the Motion of the RVCF, a letter dated October 30th, 2012, confirms the permission of Environment Canada through the Nature Conservancy of Canada to make the transfer to the RVCF. Such notice confirms that the RVCF as new owner will be subject to the provisions of Section 207.31 of the Income Tax Act. The said letter quoted from the Ministry of the Environment reads "the issuance of the enclosed authorization does not constitute an authorization by Minister of any change of use or disposition regarding future intentions of the RVCF with respect to this provision of the Income Tax Act."
The letter further states "authorization of any future dispositions or changes in use would need to be requested separately". Ex. 5 Diane Downey Affidavit.
The RVCF disputes the interpretation of the Property Management Plan of the Ruiter Property dated June 2007, Exhibit 6. More specifically the interpretation of the planning context of the said management plan quoted by the City of Ottawa in its response to the original Motion. However, it does not describe how the exclusion of the Drainage Act by exempting it from a prohibition of development in the Wetland would have an effect in the Property Management Plan.
The RVCF acknowledges the provisions of the Canadian Land Trust Standards and Practices, Exhibit #2, Standard 2 Compliance with Laws, which states under the heading Paragraph A, Compliance with Laws "l. Comply with all applicable Federal, Provincial and Municipal laws and regulations." The issue raised is the applicability of the Drainage Act to this property in this circumstance.
Case Law
As I have said during the Motion, the most relevant case relied upon by RVCF is the Canadian Western Bank vs. Alberta, 2007, SCC 22, 2007 Carswell Alta 702. The case which is lengthy, starting on page 15 of 49, under Analysis, the Supreme Court deals with the issues. It was interesting in this case (paragraph 20) that the Judges' note they are not confronted with a dispute between the Federal government and Alberta, rather appellant banks are independently making a claim to carry on insurance activities in Alberta free of insurance regulations imposed on all other promoters and vendors of insurance products in the Province. So, the essence here is that, while insurance is normally controlled by the Province, the Banks maintain because they are Federal Banks they are not subject to Provincial regulation.
Under Constitutional Questions, one of the first things the Court discusses is the Doctrine of Pith and Substance. Under this Doctrine, two aspects of the law must be examined - the purpose of the enacting body and the legal effect of the law. My note on this particular paragraph 27 applied to the matter before me was "the true purpose to remove the land from the area watershed". The definition of Pith and Substance is found in paragraph 29, and I quote: "The Pith and Substance Doctrine is founded on the recognition that it is, in practice, impossible for a legislature to exercise its jurisdiction over a matter effectively without incidentally affecting matters within the jurisdiction of another level of government".
Another reference to this Doctrine is found in paragraph 32 of the same case, says "it must also be acknowledged that, in certain circumstances, the powers of one level of government must be protected against intrusion, even incidental ones, by another level." For this purpose, the Courts have developed two Doctrines, the first being the Doctrine of Intra-jurisdictional Immunity which recognizes that our Constitution is based on the allocation of exclusive powers to both levels of government, not concurrent powers, and that these powers are bound to interact in the realities of the life of our Constitution. The second Doctrine is Federal Paramountcy which recognizes when the laws of the Federal and Provincial levels come into conflict, there must be a rule to resolve the impasse in the Supreme Court. Under our system, the Federal law prevails, and Beetz J. goes on to discuss it:
"an integral and vital part of [Parliament's] primary legislative authority over federal undertakings. If this power is exclusive, it is because the Constitution, which could have been different but is not, expressly specifies this to be the case; and it is because this power is exclusive that it pre-empts that of the legislatures both as to their legislation of general and specific application, in so far as such laws affect a vital part of a federal undertaking."
- Then in paragraph 34, the Court deals with areas of exclusivity of the Constitution Act, and I quote portions.
"The doctrine is rooted in references to "exclusivity" throughout ss. 91 and 92 of the Constitution Act, 1867. The opening paragraph of s.91 refers to the "exclusive [l]egislative [a]uthority of the Parliament of Canada"......
Equally, s. 92 (headed "Exclusive Powers of Provincial Legislatures") is introduced by the words "In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next herein-after enumerated", including "Property and Civil Rights in the Province" (s. 92(13)) and "Generally all Matters of a merely local or private Nature in the Province" (s. 92(16))......
Its modern application expresses a continuing concern about risk of erosion of provincial as well as federal competences (Bell Canada (I 988), at p. 766). At the same time, the doctrine of interjurisdictional immunity seeks to avoid, when possible, situations of concurrency of powers (Laskin C.J. in Natural Parents v. Superintendent of Child Welfare, 1975 CanLII 143 (SCC), [1976] 2 S.C.R. 751, at p. 764)."
Paragraph 47 deals with Interjurisdictional Immunity and the Court m this case summarizes its position, "For all these reasons, although the doctrine of interjurisdictional immunity has a proper part to play in appropriate circumstances, we intend now to make it clear that the Court does not favour an intensive reliance on the doctrine, nor should we accept the invitation of the appellants to turn it into a doctrine of first recourse in a division of powers dispute."
Under the heading "A More Restricted Approach to Interjurisdictional Immunity" Binnie, LeBel state:
"Even in situations where the doctrine of interjurisdictional immunity is properly available, we must consider the level of the intrusion on the "core" of the power of the other level of government which would trigger its application. In Bell Canada (1988) Beetz J. wrote, at pp 859-60: In order for the inapplicability of provincial legislation rule to be given effect, it is sufficient that the provincial statute which purports to apply to the federal undertaking affects a vital or essential part of that undertaking, without necessarily going so far as impairing or paralyzing it. [Emphasis added.][Proper citation Bell Canada(1988) is Bell Canada v. Quebec (Commission de la Sante et de la Securite du Travail),(SCC),1988 CanLII 81 (SCC), [1988] 1 SCR 749
"Our colleague Bastarache J. agrees with the substitution in Bell Canada (1988) of "affects" for "impairs". He writes: ..... the meaning of the word "affects" should be interpreted as a kind of middle ground between the perhaps overly vague or broad standard of "touches on" and the older and overly restrictive standard of "sterilizes" or "impairs". Without requiring complete paralysis of the core of the federal power or the operations of the undertaking, the impact of the application of the by-law must be sufficiently severe and serious to trigger immunity. (British Columbia (Attorney General) v. Lafarge Canada Inc., [2007] 2 S.C.R. 86 2007 SCC 23, at para.139)"
With great respect, we cannot agree. We believe that the law as it stood prior to Bell Canada (1988) better reflected our federal scheme. In our opinion, it is not enough for the provincial legislation simply to "affect" that which makes a federal subject or object of rights specifically of federal jurisdiction. ..... It is when the adverse impact of a law adopted by one level of government increases in severity from "affecting" to "impairing" (without necessarily "sterilizing" or "paralyzing") that the "core" competence of the other level of government (or the vital or essential part of an undertaking it duly constitutes) is placed in jeopardy, and not before. (Paragraph 48 Canadian Western Bank v. Alberta)
- Finally the Court held:
"In Irwin Toy Ltd. v. Quebec (Attorney General), 1989 Can LII 87 (SCC), [1989] 1 S.C.R. 927, Dickson C.J. and Larner and Wilson JJ. Observed in passing that a distinction could be drawn between the direct application of provincial law (where the operative verb is "affects") and the indirect application (where the operative verb may still be "impairs") (p. 957). This further exercise in line drawing signalled a measure of dissatisfaction with the "affects" test without doing anything about it. At this point, we should complete the reassessment begun in Irwin Toy and hold that, in the absence of impairment, interjurisdictional immunity does not apply." (Paragraph 49)
Regarding the Doctrine of Federal Paramountcy, the Court states, "the Doctrine applies not only to cases in which the Provincial Legislature has legislated pursuant to its ancillary powers to trench on an area federal jurisdiction, but also to a situation in which the Provincial Legislature acts within its primary powers and the Parliament pursuant to its ancillary powers". (Paragraph 69)
Quoting paragraph 70 in full & 71 as highlighted, the Court comes to a middle ground: "Thus, according to this test, the mere existence of a duplication of norms at the Federal and Provincial levels does not itself constitute a degree of incompatibility capable of triggering the application of the Doctrine". The quote goes on "moreover, a Provincial law may, in principle, add requirements that supplement the requirements of the Federal legislation..... In both cases, the laws can apply concurrently, and their citizens can comply with either of them without violating the other. (Para 72)
Finally, in, paragraph 75, it is stated, "to sum up, the Provincial laws are in fact incompatible by establishing either that it is impossible to comply with both laws, or that, to apply the Provincial law would frustrate the Federal Law." An incompatible federal intent must be established by the Party relying on it.
Summary
While I appreciate the concerns of the RVCF, its position regarding change in use of the ecological gift does not trigger a form of Federal Paramountcy.
Given my review of the phrases "affects" in relation to "impairment", while unproven at this point in time, I am unable to see an actual affect, let alone impairment, by this Drainage Report.
In paragraph 27 of the RVCF response to Bruce Chrustie's position that there is no prohibition to a change in use under the Income Tax Act, even accepting RVCF's argument that a tax liability could occur; it is highly unlikely that the property previously evaluated and limited by its location as a PSW would rise in its fair market value resulting in little to no tax consequences. Regardless, one such tax consequence is a cost, not an impairment of its ability to preserve the property as a wetland.
The position of the RVCF on the Landholding Agreement that a change in use violates this Agreement may be valid. But the consequences are spelled out in para. 4.1 of that Agreement. I might add that the Agreement is registered on title pursuant to "Property and Civil Rights" provisions, which are within Provincial exclusive powers. In other words, the property can be returned or given to another charitable environmental organization.
In its Motion RVDF's Exhibit #2, Canada Land Trust, Standards and Practices, Standard #2 requires that this trust should "comply with all federal, provincial and municipal laws and regulations". I find that, in essence, the Drainage Act is an applicable provincial law.
I further find that the RVCF has, by its Motion, met its obligations as set out in The Canadian Ecological Gifts Program Handbook, p. 14 (Tab 5, Chrustie Affidavit) Change of Use test, in that, by bringing this motion it took "reasonable action to manage and protect the ecological condition of the ecological gift."
I, therefore, dismiss the RVCF's Motion.
Costs
During the course of this hearing, Bruce Chrustie, has asked for costs against the RVCF. The Municipality of Ottawa has not asked for costs but simply that the Motion be dismissed. On behalf of the RVCF, Mr. Srivastrava pointed out that the Referee asked that this matter be heard because it is somewhat foundational to this proceeding and given the novel nature of the matter, costs would be inappropriate.
The Referee is of the opinion that costs will be decided in the event of the cause and further divided as a matter of fairness for the following reasons:
a) Up until the January 18th, 2021 Decision of the Referee, a limited number of parties were involved with this appeal. This is itemized in Exhibit No. 24 in the Documents of Record. Up until that time, costs will be segregated from costs for the later participants who joined this matter after the Order of June 28th, 2021, and the Report of Robinson Consultants Inc. of June 24, 2021. Where there is a repetition, however, in relation to the costs going forward, this will be reviewed by the Referee.
b) Subsequent to that time, costs will be viewed in relation to the revised Style of Cause and the added parties.
c) Having said that, given the novel nature of this particular Motion, special consideration may be given with regard to costs at the completion of this matter in relation to costs arising from this particular Motion.
DATED at Strathroy, this 26th day of June, 2023.
ROBERT G. WATERS
ONTARIO DRAINAGE REFEREE