ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-111
DATE: 20121219

BETWEE N:

THE CORPORATION OF THE TOWNSHIP OF GEORGIAN BLUFFS

R.M. Thomson, for the Applicant

Applicant

• and -

ROSS ANTHONY CHIARAMONTE, ANNA CHIARAMONTE and CIBC MORTGAGES INC.

Allen Wilford, for the Respondents

Respondents

HEARD: October 29, November 1, 2, and December 17, 2012

REASONS FOR JUDGMENT

Conlan J.

Introduction and the Issues

[ 1 ] What should be done about Mr. Chiaramonte’s failed residential septic system, and should Mr. Chiaramonte have to pay all, part or none of more than $12,000.00 claimed by the Township as fees incurred by the Municipality to fix the problem?

[ 2 ] Those are the basic issues to be decided by this Court.

[ 3 ] This trial was held in Owen Sound on October 29, November 1, November 2 and December 17, 2012. The Court reserved its Judgment.

[ 4 ] The Respondents, Anna Chiaramonte and CIBC Mortgages Inc., took no part in the trial.

[ 5 ] In its Notice of Application issued on April 12, 2012, the Applicant, the Corporation of the Township of Georgian Bluffs (“Township”), seeks the following relief.

a) An Order confirming that the sewage disposal system located on the property of the Respondents, Ross Anthony Chiaramonte and Anna Chiaramonte located at Lot 27, Plan 1077, in the Township of Georgian Bluffs, in the County of Grey, PIN 37037-0324 (LT) known municipally as 119 Ishwar Drive, Kemble, Ontario (The “Property”) has failed and requires remedial work to remedy the failure.

b) An Order confirming that the residence of the Respondents, Ross Anthony Chiaramonte and Anna Chiaramonte on the Property may not be occupied or used by the Respondents, Ross Anthony Chiaramonte and Anna Chiaramonte or any other person until the failure of the sewage disposal system is remedied in accordance with the Order Prohibiting Use or Occupancy of Unsafe Building, dated March 13, 2012.

c) An Order confirming that the monies expended by the Applicant in respect of the Property may be recovered in their entirety and may be added to the tax roll of the Property.

d) Its costs of this action on a substantial indemnity basis.

e) Such further and other relief as this Honourable Court deems just.

[ 6 ] In its Factum dated May 17, 2012, the Township requests the following Orders.

a) IT IS ORDERED that the Order to Remedy Unsafe Building, dated March 2, 2012 is confirmed as being properly issued.

b) IT IS ORDERED that the Order Prohibiting Use of Occupancy of Unsafe Building, dated March 13, 2012 is confirmed as being properly issued.

c) IT IS ORDERED that no one, including but not limited to Ross Anthony Chiaramonte and Anna Chiaramonte or their children, is to occupy the Property until an Occupancy Certificate is issued by The Township of Georgian Bluffs.

d) IT IS ORDERED that all monies expended by The Township of Georgian Bluffs in respect of the Property, including but not limited to the pumping of the septic tank, engineering reports, and any construction or remedial work on the septic system currently in the amount of $11,492.86 together with all legal expenses on a solicitor and his own client basis may be recovered in their entirety and may be added to the tax roll of the Property.

e) IT IS ORDERED that The Township of Georgian Bluffs shall have its costs on this Application fixed in the amount of $________.

The Evidence

[ 7 ] In addition to the 38 exhibits filed by the parties, the following is a brief summary of the testimony adduced at trial.

June Kate Clarke – for the Township

[ 8 ] Ms. Clarke lives adjacent to the Chiaramonte property. She moved there in April or May 2011.

[ 9 ] In June 2011, Ms. Clarke contacted the Township about what she believed was sewage seeping from the Chiaramonte property on to her lot.

[ 10 ] Photographs of the area and the alleged sewage were introduced through Ms. Clarke.

[ 11 ] In cross-examination, Ms. Clarke confirmed that it is not possible to see the sewage from the Chiaramonte residence.

Josh Planz – for the Township

[ 12 ] Now the Chief Building Official for a nearby Municipality, Mr. Planz was employed by Georgian Bluffs as a building official for four to five years.

[ 13 ] He issued an Order to Comply dated June 17, 2011. That Order required Mr. and Mrs. Chiaramonte to “fix unsafe septic system”, specifically, “pump tank, investigate and correct failed bed” by June 17, 2011 (the same day that the Order was issued).

[ 14 ] That deadline was obviously unreasonable. I so find. The Township’s position is that, in reality, only the septic tank pumping was required to be done immediately.

[ 15 ] Mr. Planz, in answer to a question posed by the Court, stated that Mr. Chiaramonte knew that he was liable to pay for the Township’s pumping of the septic tank until the problem with the system was understood and fixed.

[ 16 ] According to Mr. Planz, Mr. Chiaramonte never followed his suggestion to hire an expert and never submitted a proposal to fix the problem.

[ 17 ] In cross-examination, Mr. Planz confirmed that the septic system was approved by the Health Unit, twice; that it was installed by a licensed installer, Mr. Barfoot; that Mr. Chiaramonte never refused to remedy the problem; and that the problem was believed by Mr. Planz to be an undersized septic bed.

[ 18 ] In re-examination, Mr. Planz testified that Mr. Chiaramonte was aware of ongoing problems with the septic system after Mr. Barfoot had visited the property on behalf of Mr. Chiaramonte a few days after the issuance of the June 17, 2011 Order to Comply.

[ 19 ] Mr. Planz acknowledged that Mr. Chiaramonte never received, or at least never read, Mr. Planz’s August 30, 2011 letter which specified a firm deadline for the remedial work to be done.

William Klingenberg – for the Township

[ 20 ] Mr. Klingenberg has been the Chief Building Official for the Township for six years. He was a building inspector prior to that.

[ 21 ] He testified that there is no proof that the storm water design conforms to what was originally approved.

[ 22 ] Mr. Klingenberg stated that Mr. Chiaramonte never took any real steps to remedy the failed septic system.

[ 23 ] He was unsure whether the Township’s statements of account which included pumping costs and fees to obtain an engineer’s report were ever sent to the Chiaramontes for payment.

[ 24 ] Mr. Klingenberg was adamant that it is not the Township’s responsibility to determine the cause of the failure of the septic system.

[ 25 ] The Township received the engineer’s report on January 16, 2012. An Order to Remedy Unsafe Building was issued on March 2, 2012, with a one-week compliance period to reconstruct the septic system. Mr. Klingenberg acknowledged that it takes two months to get a report from a professional who inspects a septic system.

[ 26 ] Without a doubt, the one-week deadline was unreasonable. I so find.

[ 27 ] As a result of the Chiaramontes doing nothing, an Order Prohibiting Use or Occupancy of Unsafe Building was issued on March 13, 2012.

[ 28 ] Mrs. Chiaramonte and the children continue to live in the home today.

[ 29 ] The Burnside engineering report was provided to Mr. Chiaramonte and his counsel on March 8, 2012. Mr. Klingenberg acknowledged that he did not know what the problem was before he received the Burnside report, and he had no reason to believe that the Chiaramontes knew either.

[ 30 ] I find that it was unreasonable for the Township to have delayed the provision to Mr. Chiaramonte of the Burnside report.

[ 31 ] Mr. Klingenberg admitted that his electronic mail to counsel for Mr. Chiaramonte dated December 22, 2011 implied that the Township would fix the problem with the septic system. The Township did not.

[ 32 ] Mr. Klingenberg was steadfast that Mr. Chiaramonte has always been free to remedy the failed septic system but has taken no real concrete steps to do so.

[ 33 ] Let me be clear. Notwithstanding the assertions by Mr. Chiaramonte that Mr. Klingenberg has engaged in some conspiracy and/or witch hunt to ruin Mr. Chiaramonte because of a petition that the latter signed against the former in the context of a dispute between another taxpayer and Georgian Bluffs, I make no such finding. There is nil evidence to support that.

Rhonda Shannon – for the Township

[ 34 ] Ms. Shannon is a senior environmental officer with the Ontario Ministry of the Environment.

[ 35 ] She has attended the Chiaramonte property five times. On October 12, 2012, her last visit, she observed green dye in water located between the Chiaramonte and Clarke properties. Her conclusion is that the said dye is from the Chiaramonte septic system.

[ 36 ] E coli levels in water samples taken on July 10, 2012 are above provincial standards but not high enough for her to conclude that the e coli is from the Chiaramonte septic tank.

Robert Hart – for the Township

[ 37 ] Mr. Hart is the Health Unit’s Public Health Manager. He has over thirty years of experience with Public Health.

[ 38 ] The Health Unit has concluded that the Chiaramonte septic system has failed and needs to be repaired.

Andrew Barton – for the Township

[ 39 ] On October 12, 2012, this Program Manager at the Health Unit observed the same green dye along the property line that was spoken about by Ms. Shannon in her testimony.

Robert Mayberry – for the Township

[ 40 ] Without objection, Mr. Mayberry was tendered and accepted by the Court as an expert witness entitled to give opinion evidence regarding the examination and analysis of all issues pertaining to the Chiaramonte septic system.

[ 41 ] Mr. Mayberry was, in the Court’s opinion, the most impressive witness called at trial. He is a senior civil engineer with more than 25 years of experience.

[ 42 ] I accept his evidence.

[ 43 ] Mr. Mayberry testified that what was installed at the Chiaramonte property was indeed approved, but that what was approved was not in accordance with the Ontario Building Materials Evaluation Commission’s authorization.

[ 44 ] Mr. Mayberry explained, in competent and plain language, that this septic system failed for two major reasons: (i) its footprint was too small; and (ii) the nature of the underlying soils and clay caused the effluent to move through the path of least resistance as opposed to spreading and distributing properly.

[ 45 ] Mr. Mayberry testified that nitrate and e coli levels in test results suggest that sewage leaked from the Chiaramonte septic system. The system failed and needs to be redesigned and reconstructed.

[ 46 ] Mr. Mayberry stated that his report would have been helpful to the homeowner trying to remedy the failed system, and he testified further that, if he was the homeowner, he would give his report to the designer/installer.

[ 47 ] Mr. Mayberry stated that it is “a bit of a stretch” to say that the septic system could have been redesigned and rebuilt in seven days. Perhaps the process could have been started, however.

Ron Nickason – for Mr. Chiaramonte

[ 48 ] With more than 40 years of experience in the plumbing business and being licensed to design and install septic systems, Mr. Nickason testified that a primary reason why this system experienced a problem is that the sloping of the ground is improper.

[ 49 ] He visited the Chiaramonte property in May 2012. Afterwards, he told counsel for Mr. Chiaramonte what he observed. He has not been asked to prepare an application for a new septic system, although there was time to do the work in the summer of 2012.

[ 50 ] Mr. Nickason testified that Mr. Klingenberg told him on the telephone that an engineer was required to design the new septic system.

Ross Chiaramonte

[ 51 ] Mr. Chiaramonte is a dentist.

[ 52 ] He stated that he first found out about potential problems with the septic system in June 2011. Because he was in the middle of a divorce case which prevented him from attending at the home, he contacted Mr. Barfoot to handle the matter.

[ 53 ] In September 2011, he discovered that nothing had really been done to fix the problem.

[ 54 ] As Mr. Klingenberg had told Mr. Chiaramonte that Mr. Barfoot could not do the work, Mr. Chiaramonte retained an engineering firm approved of by the Township: Genivar. But Mr. Chiaramonte ultimately cancelled Genivar’s proposed water tests at the property because, according to Mr. Chiaramonte, Mr. Klingenberg said that the Township would not accept those water tests.

[ 55 ] Upon receiving the Burnside report in March 2012, Mr. Chiaramonte arranged for Mr. Nickason to visit the property. He also hired Gamsby and Mannerow, engineers.

[ 56 ] According to Mr. Chiaramonte, the Township refused to allow Mr. Nickason to do the remedial work without an engineering report.

[ 57 ] Mr. Chiaramonte testified that he wants to obtain a report from Gamsby and Mannerow right away so that Mr. Nickason can fix the problem as soon as possible. Mr. Chiaramonte wants the home sold. It has been for sale for a long time.

[ 58 ] As per Mr. Chiaramonte, the delay has been on the part of the engineer. Once that report is done and submitted to and approved by the Township, Mr. Nickason will do the work.

[ 59 ] Mr. Chiaramonte testified that he is still not convinced today that the septic system is leaking sewage, but he would support the Court making an Order setting out a reasonable timetable for the remedial work to be done (not at his expense though). He also refuses to pay for the septic tank pumping costs and the fees associated with the Burnside report.

William Dubeau – for the Township, in Reply

[ 60 ] As an engineer with Gamsby and Mannerow, Mr. Dubeau contradicted Mr. Chiaramonte’s evidence that authorization had been granted to prepare a topographical survey of the property. Mr. Dubeau denied having received that authorization from Mr. Chiaramonte.

Chris Wilson – for the Township, in Reply

[ 61 ] As an engineer with Genivar, Mr. Wilson stated that he never personally spoke with Mr. Chiaramonte about doing water tests at the property.

Mr. Klingenberg, again – for the Township

[ 62 ] Because of a violation of the rule in Browne and Dunn , the Court allowed the Township to recall Mr. Klingenberg to address alleged material communications between Mr. Klingenberg and Mr. Chiaramonte that were testified about in Mr. Chiaramonte’s direct examination but which were never put to Mr. Klingenberg in his earlier cross-examination.

[ 63 ] Mr. Klingenberg denied ever having told Mr. Chiaramonte that Mr. Barfoot could not do the work to remedy the failed septic system. And he denied ever having discussed Genivar with Mr. Chiaramonte.

The Positions of the Parties

The Township

[ 64 ] The Township submits that it is entitled to recover $12,793.46 as municipal taxes against the Chiaramonte property. That sum is comprised of pumping costs for the septic tank and $7,031.26 for fees associated with the Burnside study. The Township relies upon subsection 15.9(10) of the Ontario Building Code Act , 1992 (“ BCA”) , S.O. 1992, c.23, as amended. That provision provides as follows:

Lien

(10) If the building is in a municipality, the municipality shall have a lien on the land for the amount spent on the renovation, repair, demolition or other action under clause (6) (b) and the amount shall have priority lien status as described in section 1 of the Municipal Act, 2001 or section 3 of the City of Toronto Act, 2006 , as the case may be. 2002, c. 17 , Sched. C, s. 4 (1); 2006, c. 32 , Sched. C, s. 3 (5).

[ 65 ] The Township also points to subsection 15.9(11) of the BCA .

Deemed taxes

(11) If the building is in territory without municipal organization, the amount spent on the renovation, repair, demolition or other action under clause (6) (b) is a debt owing to the Crown and may be collected under the Provincial Land Tax Act, 2006 as if it was tax imposed under that Act. 2002, c. 9, s. 26 ; 2006, c. 33 , Sched. Z.3, s. 4 (2).

[ 66 ] Finally, the Township relies upon section 398 of the Municipal Act , 2001, S.O. 2001, c.25, as amended.

Debt

398. (1) Fees and charges imposed by a municipality or local board on a person constitute a debt of the person to the municipality or local board, respectively. 2001, c. 25, s. 398 (1) ; 2006, c. 32 , Sched. A, s. 170 (1).

Amount owing added to tax roll

(2) The treasurer of a local municipality may, and upon the request of its upper-tier municipality, if any, or of a local board whose area of jurisdiction includes any part of the municipality shall, add fees and charges imposed by the municipality, upper-tier municipality or local board, respectively, to the tax roll for the following property in the local municipality and collect them in the same manner as municipal taxes:

1. In the case of fees and charges for the supply of a public utility, the property to which the public utility was supplied.

2. In all other cases, any property for which all of the owners are responsible for paying the fees and charges. 2001, c. 25, s. 398 (2) ; 2006, c. 32 , Sched. A, s. 170 (2).

[ 67 ] As authority for this Court to confirm the two Orders issued by the Township in March 2012, Georgian Bluffs relies upon subsections 15.10(7) and (8) of the BCA .

Application to court

(7) As soon as practicable after subsections (5) and (6) have been complied with, the chief building official shall apply to the Superior Court of Justice for an order confirming the order made under subsection (1) and the court shall hold a hearing for that purpose. 2002, c. 9, s. 26 .

Powers of court

(8) In disposing of an application under subsection (7), the court shall,

(a) confirm, modify or rescind the order; and

(b) determine whether the amount spent on measures to terminate the danger may be recovered in whole, in part or not at all. 2002, c. 9, s. 26 .

[ 68 ] The Township submits that the test for the Court’s confirmation of the said Orders is whether they were reasonable. No jurisprudence was provided by either party on that point.

[ 69 ] The Township concedes that, if the Court confirms the March 13, 2012 Order issued by the Municipality, that is the equivalent of the Court making an Order that nobody occupy the Chiaramonte home until the septic system is remedied.

[ 70 ] The Township supports the Court making an Order setting out a timetable for the septic system to be fixed. The following are the suggested deadlines: January 10, 2013 for Mr. Nickason to submit an application; January 17, 2013 for the Township’s approval or disapproval; and May 1, 2013 for the work to be completed and the septic system fixed.

Mr. Chiaramonte

[ 71 ] Mr. Chiaramonte argues that he has no liability to pay for the Burnside report; limited liability to pay for septic tank pumping costs for a couple of months after the June 17, 2011 Order to Comply was issued by the Township; and no liability to pay to fix the septic system. He does agree to a timetable being ordered by the Court.

[ 72 ] Mr. Chiaramonte asserts that Mr. Klingenberg is incompetent and that this proceeding is an abuse of process.

Analysis and Conclusions

Order to Remedy Unsafe Building

[ 73 ] In its Factum, the Township asks for an Order confirming the said March 2, 2012 Order as being properly issued.

[ 74 ] That relief was not specifically pleaded in the Notice of Application, however, it is akin to paragraph 1(a) of the Application, and thus, available.

[ 75 ] Unfortunately for the Township, the Court has no jurisdiction to grant that relief. I raised this issue during the closing submissions by counsel for the Township.

[ 76 ] The Township argues that the March 2, 2012 Order is one issued under subsection 15.10(1) of the BCA .

Emergency order where immediate danger

15.10 (1) If upon inspection of a building an inspector is satisfied that the building poses an immediate danger to the health or safety of any person, the chief building official may make an order containing particulars of the dangerous conditions and requiring remedial repairs or other work to be carried out immediately to terminate the danger. 2002, c. 9, s. 26 .

[ 77 ] I accept that.

[ 78 ] Subsection 15.10(7) of the BCA , however, makes it clear that the Application to the Superior Court of Justice shall be made as soon as practicable after subsections 15.10(5) and (6) have been complied with.

Service

(5) If the order was not served before measures were taken to terminate the danger, the chief building official shall serve copies of the order in accordance with subsection (2) as soon as practicable after the measures have been taken and each copy of the order shall have attached to it a statement by the chief building official describing the measures taken and providing details of the amount spent in taking the measures. 2002, c. 9, s. 26 .

Service of statement

(6) If the order was served before the measures were taken, the chief building official shall serve a copy of the statement mentioned in subsection (5) in accordance with subsection (2) as soon as practicable after the measures have been taken. 2002, c. 9, s. 26 .

[ 79 ] Here, neither subsection 15.10(5) or (6) was complied with.

[ 80 ] Counsel for the Township alleges that, because the Township took no measures to terminate the danger, neither subsection needed to be complied with. I reject that submission. It is contrary to the plain wording of the legislation. Further, the Township did take remedial measures – the pumping of the septic tank.

[ 81 ] In addition, there is no evidence that the March 2, 2012 Order was posted at the Chiaramonte property as required under subsection 15.10(2) of the BCA .

[ 82 ] For those reasons, there is no proper Application before this Court under subsection 15.10(7) of the BCA , and thus, no jurisdiction for this Court to exercise its authority under subsection 15.10(8) to confirm, rescind or modify the March 2, 2012 Order.

Order Prohibiting Use or Occupancy of Unsafe Building

[ 83 ] In its Factum, the Township asks for an Order confirming the said March 13, 2012 Order as being properly issued.

[ 84 ] That relief was not specifically pleaded in the Notice of Application, however, it is akin to paragraph 1(b) of the Application, and thus, available.

[ 85 ] For the same reasons as above, there is no proper Application before this Court under subsection 15.10(7) of the BCA , and thus, no jurisdiction for this Court to exercise its authority under subsection 15.10(8) to confirm, rescind or modify the March 13, 2012 Order.

Postscript

[ 86 ] After the conclusion of closing submissions by counsel, the following morning, the Court received correspondence by facsimile from counsel for the Township. That correspondence is dated 18 December 2012 and was copied to the Township and to counsel for Mr. Chiaramonte.

[ 87 ] The said correspondence directs the Court to something that was not addressed in closing submissions by counsel. It relates to the issue of jurisdiction. The direction is to subsection 38(1) of the BCA which provides as follows.

Restraining order

38. (1) Where it appears to a chief building official that a person does not comply with this Act, the regulations or an order made under this Act, despite the imposition of any penalty in respect of the non-compliance and in addition to any other rights he or she may have, the chief building official may apply to the Superior Court of Justice for an order directing that person to comply with the provision. 1992, c. 23, s. 38 (1); 2002, c. 9, s. 54 .

[ 88 ] That direction does not change my conclusions reached above, for two reasons. First, a request for an Order directing Mr. Chiaramonte to comply with the March 2012 Orders issued by the Township is not necessarily the same as a request for an Order confirming the said Orders issued by the Township. The former was not specifically pleaded in the Township’s Notice of Application. The latter was not either but is akin to what was pleaded in paragraphs 1(a) and (b) of the said Notice of Application. Generally, parties ought to be held strictly to their pleadings. Second, and likely more important, in my view subsection 38(1) of the BCA does not displace the clear wording of subsection 15.9(7) of the BCA , which in turn refers to subsections 15.9(5) and (6). The Township’s position is that the within Application to the Superior Court of Justice is pursuant to subsection 15.9(7). I see no reason to conclude that subsection 38(1) overrides subsection 15.9(7) and the requirement that subsections 15.9(5) and (6) be complied with. In my opinion, the position now advanced by the Township in the 18 December 2012 correspondence from its counsel is contrary to the normal rules of statutory interpretation.

[ 89 ] My conclusions remain despite the correspondence from the Township’s counsel dated 18 December 2012.

[ 90 ] I should add that, if I am wrong in that regard, I would not have confirmed either Order issued by the Township in any event. The March 2, 2012 Order was unreasonable in mandating a one-week compliance period, and the March 13, 2012 Order was tainted by that unreasonableness. I would have rescinded both Orders and, pursuant to subsection 15.9(8) of the BCA and essentially on consent of the parties, replaced them with an Order as discussed herein under the heading “A Final Suggestion”. I would have permitted occupancy of the Chiaramonte home pending compliance with that Court Order.

The $12,793.46 Being Collected as Taxes Against the Chiaramonte Property

[ 91 ] I am satisfied that, by virtue of subsections 15.9(10) and (11) of the BCA and section 398 of the Municipal Act , this Court has the jurisdiction to order that all or part of the $12,793.46 be “added to the tax roll of the Property” (to use the Township’s words).

[ 92 ] In my view, it was unreasonable for the Township to have delayed the disclosure of the Burnside report to Mr. Chiaramonte and his counsel. That report ought to have been provided to the homeowner immediately. The evidence of Mr. Mayberry, which I accept, leads inescapably to that conclusion.

[ 93 ] Consequently, it would be unfair in my opinion to require the Chiaramontes to pay for the $7,031.26 in fees associated with the Burnside report.

[ 94 ] The septic tank pumping costs ought to be borne by Mr. Chiaramonte. The Township acted reasonably in pumping the septic tank in an effort to stop the seepage of sewage from what was undoubtedly and without question a failed septic system (I accept the evidence of Mr. Mayberry that the system failed). And Mr. Chiaramonte has acted less than diligently to correct the problem between June 2011 and today.

[ 95 ] In those circumstances, there is no good reason why Mr. Chiaramonte should not pay the $5,762.20 in septic tank pumping costs incurred by the taxpayers of Georgian Bluffs.

[ 96 ] For all of the above reasons, the relief sought at paragraphs 1(a) and (b) of the Township’s Notice of Application issued on April 12, 2012 is denied. The Township bore the burden of proving those claims on a balance of probabilities. It has failed to do so.

[ 97 ] The relief sought at paragraph 1(c) of the said Notice of Application is allowed in part. This Court orders that Judgment is granted in favour of the Township against Mr. and Mrs. Chiaramonte, jointly and severally, in the amount of $5,762.20. This Court orders further that the said Judgment shall constitute a priority lien against the Chiaramonte property that is enforceable through taxation; the said amount shall be added to the property’s tax roll.

[ 98 ] Should the parties be unable to settle the issue of costs, counsel shall contact the Trial Coordinator in Owen Sound to schedule a brief Court attendance to address the same. Filings can be made at that time.

A Final Suggestion

[ 99 ] Although this Court has no jurisdiction to make an Order for a timetable to fix the failed septic system because that would be the same as modifying the March 2012 Orders issued by the Township, I will offer these comments. These comments are suggestive only. They are not an Order.

[ 100 ] Both parties appear content to abide by a timetable. The timetable ought to be that proposed by counsel for the Township in his closing submissions. There is no need to involve Mr. Dubeau, in my view. And Mr. Chiaramonte ought to pay for the work required. He may have a valid claim for indemnification from Mr. Barfoot, now deceased, and/or the Health Unit that approved what was originally installed, but that is not the Township’s problem.

[ 101 ] I thank Mr. Thomson and Mr. Wilford for their assistance throughout the trial.

Conlan J.

Released: December 19, 2012

COURT FILE NO.: 12-111
DATE: 20121219

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: THE CORPORATION OF THE TOWNSHIP OF GEORGIAN BLUFFS Applicant - and - ROSS ANTHONY CHIARAMONTE, ANNA CHIARAMONTE and CIBC MORTGAGES INC. Respondents REASONS FOR JUDGMENT Conlan J.

Released: December 19, 2012