OTTAWA COURT FILE NO.: 11-52947

DATE: 2015/07/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Shirley Mills and Clayton Mills

Plaintiffs

– and –

Minto Developments Inc., Minto Group Inc., Minto Commercial Properties Inc., Minto Communities Inc. and Minto Land Development Corporation

Defendants

Cameron Grant, for the Plaintiffs

Christine A. Powell, for the Defendants

HEARD AT OTTAWA: January 5-7, 9, 2015

REASONS FOR JUDGMENT

KERSHMAN J.

Introduction

Introduction

1On April 11, 2008, a flood occurred in the basement of the Plaintiffs’ home. The parties agree that the flood caused $65,328.99 in damages. Liability is at issue.

2By order dated September 5, 2014, the action against various Defendants was dismissed on a without costs basis. The remaining Defendant is Minto Communities Inc. (“Minto”), a custom home building company that built the home located at 3 Staghorn Green.

Factual Background

Factual Background

3The Plaintiffs are the owners of a single family home located at 5 Staghorn Green, in the City of Ottawa, Ontario. The Plaintiffs built their home in approximately 1984. At the time, the Plaintiff, Shirley Mills, held a Doctorate in mathematics and was employed by Carleton University as an Associate Professor of Mathematics and Statistics. Her husband, Clayton Mills, held a master’s degree in statistics, and was employed by Statistics Canada as a statistician. At the time of the flood, the Plaintiffs’ daughter, Kathryn Mills, was staying with her parents, and was employed a manager with the Canada Border Services Agency.

4The land adjacent to the Plaintiffs’ property, 3 Staghorn Green, was a vacant bush lot. The property was purchased by the Defendant, who began building a home on the property in the fall of 2007.

5On April 11, 2008, at around 7:00 a.m. Shirley Mills, Clayton Mills and Kathryn Mills heard an alarm sound in their basement, which turned out to be the freezer alarm. When Shirley and Kathryn Mills went to the top of the basement stairs they noticed water on the basement floor. They testified that there was about two inches of water. Neither Shirley nor Kathryn went down into the basement for fear of being electrocuted.

6At around 7:00 a.m., Clayton Mills put on a pair of rubber boots and went into the basement to check the existing sump pump, which was a 1/3 HP sump pump (“Sump Pump #1”). The evidence is that Sump Pump #1 was installed about three to four years prior to the flood. Clayton Mills testified that when he went down to the basement that the Sump Pump #1 was hot to touch and was not operating.

7Both Shirley Mills and Kathryn Mills went over to 3 Staghorn Green. They found a Minto employee and told him about the water problem in the basement.

8Kathryn Mills went home to get a camera because she saw someone from Minto clearing debris from the ditch next to the sump pump outlet at the Mills’ home. The outlet was located in a ditch along the lot line between 3 and 5 Staghorn Green.

9Kathryn Mills took a series of pictures at approximately 7:40 a.m. to record the events at that time. She took a second series of pictures at approximately 12:40 p.m.

10Shirley Mills left the house at around 8:00 a.m. to go to Carleton University where she was supervising student examinations. Clayton Mills called the insurance company to report the flood. He then went to a local hardware store and purchased a 1/2 HP sump pump (“Sump Pump #2”). He installed Sump Pump #2 next to Sump Pump #1 and did not remove Sump Pump #1. The installation of Sump Pump #2 included the installation of a check valve and a second drainage line outlet, located closer to the front of the house than the drainage line for Sump Pump #1.

11Shirley Mills testified that when she returned from Carleton University between 12:00 noon and 12:30 p.m., she saw and heard both sump pumps operating.

12Crawford & Company Inc., (“Crawford”), the insurance adjusters, were hired by the home insurer, Cumis General Insurance (“Cumis”), to deal with the damage claim.

13The evidence of both Shirley and Clayton Mills is that Sump Pump #1 was removed from the home, but they are not sure by whom or when. It was in the home as of April 14, 2008, when Crawford prepared its report. Sump Pump #1 was no longer in the home as of May 2014.

14Guy Savoie, an insurance adjuster from Crawford, testified that Crawford had no record of who removed Sump Pump #1, or when or what happened to it. He explained that pump was not collected by Crawford and was not in their evidence room. Crawford had no information to suggest that the Plaintiffs requested that Sump Pump #1 be removed or destroyed.

15The evidence of the Plaintiffs and their daughter was that there had been no history of flooding at their home prior to the 2008 flood.

Driveway at 3 Staghorn

Driveway at 3 Staghorn

16In the fall of 2007, when Minto originally started working on the home located at 3 Staghorn Green, an access driveway was built over the municipal ditch to allow construction equipment onto the property. The access driveway did not include a culvert and was located near the sump pump outlet at 5 Staghorn Green.

17According to Clayton Mills, the Defendant’s employees buried the outlet for the 5 Staghorn sump pump discharge line when they built this access driveway. Clayton Mills testified that he complained to the Minto employees about the blockage of the discharge line. The access driveway was then moved to an area between 1 and 3 Staghorn Green.

18No evidence was tendered to suggest that the location of the new driveway between 1 and 3 Staghorn Green hindered the flow of water from the sump pump outlet.

Issue:

Issue

1. Have the Plaintiffs proven that the Defendant interfered with or obstructed the drainage pattern of the municipal ditch in front of 3 and 5 Staghorn Green, causing the water to backup into 5 Staghorn Green and flood their home?

Position of the Plaintiffs

Position of the Plaintiffs

19The Plaintiffs claim that the Defendant interfered with the historic drainage pattern of their sump pump by obstructing or changing the grade of the municipal drainage ditch that runs along the front of 3 Staghorn Green. As a result, water backed-up the trench and into the Mills’ home, resulting in the flooding of their basement and $65,238.99 in damages.

20The Plaintiffs claim that Minto is liable in both negligence and nuisance. The Plaintiffs also argue in the alternative that, even if the Court is to accept the Defendant’s primary theory of causation, that there was no check valve in place, the Plaintiffs would only be contributorily negligent; the Defendant would be negligent.

Negligence

Negligence

21According to the City of Ottawa Drainage Bylaw (See: Tab 2, Plaintiff’s Book of Authorities):

2(1) No Owner or Occupant shall, or shall permit any person to, Alter, fill, block, interfere with, Obstruct, or cause or contribute to the Obstruction of a Drain, Private Drain, or lot grade such that the flow of storm, rain, ground, surface, or subsurface water is increased, impaired or deviated from the existing drainage pattern or approved drainage pattern.

22Based in part on this bylaw, the Plaintiffs submit that the Defendant had a duty not to obstruct the municipal ditch that the Plaintiffs relied on. They submit that the Defendant breached this duty by allowing fill from the jobsite to obstruct the municipal ditch. The obstructed ditch caused flooding and the resulting damage to the Plaintiffs’ home, all of which was foreseeable.

Nuisance

Nuisance

23The Plaintiffs submit that the blockage of the municipal drainage ditch constituted a nuisance, in that it unreasonably and substantially interfered with the Plaintiffs’ enjoyment of their land (See: Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594, at p. 605). The blockage of a drainage ditch has been recognized as a nuisance for centuries and continues to be considered a nuisance today (See: The Law of Nuisance in Canada, Pun and Hall, LexisNexis Canada Inc. 2010, at p.20; Lanark (County) v. Marrow, 2012 ONCA 64, [2011] O.J. No. 2949; and Kapeluck v. Yablonski (1995), 53 A.C.W.S. (3d) 1346, [1995] S.J. No. 125 (Sask. Q.B.)).

24The Plaintiffs argue that, as the blockage in this case was substantial, changing the grade of the municipal ditch from downhill to uphill and causing pooling of water to a height above the height of sump pump outlet at 5 Staghorn Green, this blockage was unreasonable. Further, the Plaintiffs allege that the Defendant was informed about the presence of the sump pump outlet but failed to install culverts or prevent fill from being deposited around the outlet.

Contributory Negligence

Contributory Negligence

25The Plaintiff’s submit that, even if the Court accepts the Defendant’s primary theory of causation and finds that there was no check valve in place, they would at worst be contributorily negligent; the Defendant would be accountable for their relative blameworthiness. The Plaintiff notes that in cases where a Defendant is wholly to blame for a negligent act, but damages could have been avoided had the Plaintiff used proper safety equipment, the Plaintiff’s liability for their contributory negligence is capped at 25 percent. This is the case even where safety equipment could have completely prevented the Plaintiff’s injuries (See: Snushall v. Fulsang (2005), 2005 34561 (ON CA), 258 D.L.R. (4th) 425, 78 O.R. (3d) 142 (ON CA)).

26The Plaintiffs rely on the case of Heeney v. Best (1979), 1979 2084 (ON CA), 28 O.R. (2d) 71, 108 D.L.R. (3d) 366 (ON CA) [Heeney], in which a defendant truck driver drove into the hydro poles near a plaintiff farmer’s land. The resulting loss of power disabled the ventilation system for the farmer’s chicken coops, killing 31,000 chickens. While the farmer had an alarm on the ventilation system that was to sound in the case of emergencies, the alarm was not plugged in and did not sound. The farmer admitted that, had the alarm sounded, he could have saved his chickens.

27The Court of Appeal found that the farmer’s failure to properly employ a piece of safety equipment was analogous to a passenger failing to wear a seatbelt and being rear-ended by another vehicle; even if the injuries could have been avoided had the plaintiff worn a seatbelt, the defendant remains liable to the extent that he was negligent (Heeney at para 10 and 15). As Justice MacKinnon A.C.J.O. explained, at para. 14 of Heeney:

The appellant's negligence only contributed to the damages he suffered, the respondent being wholly to blame for the negligent act which set in train the events that caused the ultimate injury or damage to the appellant. Under the circumstances, I assess the degree of fault or negligence of the appellant at 25 per cent and of the respondent at 75 per cent.

28The Plaintiffs’ suggest that Minto’s conduct in this case is analogous to the defendant truck driver’s in Heeney. Therefore, even if the Court were to accept that the Plaintiffs’ failure to install a check valve could have prevented the damage, the Defendant remains at fault for the negligent act of blocking the drainage ditch. The Plaintiffs submit that, in these circumstances, the Defendant’s share of the liability for the loss should be 75 percent.

Position of the Defendant

Position of the Defendant

29The Defendant submits that the key issue in this matter is causation. If there is no evidence of water pooling in the ditch where the obstruction is alleged to have been located, how can the Defendant have caused or contributed to the flood?

Negligence

Negligence

30The Defendant submits that the Plaintiffs took great care to inspect the sump pump and sump pump outlet regularly. They would check the water level within the sump pit, make sure that the outlet was kept clear of any snow or debris, and listen to the sound of the pump for any irregularities. When the spring thaw came, the sump pump would be checked even more regularly.

31The Defendant notes that in 2004, Clayton Mills installed the 1/3 HP Flotec sump pump himself (Sump Pump #1). In so doing, he failed to replace the original check valve and was uncertain whether there was an intake screen to filter out debris.

32In the fall of 2007, the Plaintiffs raised concerns with the Defendant regarding the temporary driveway blocking their sump pump outlet. The Plaintiffs and Defendant all testified to the fact that, as a result, the Defendant relocated the driveway to the opposite side of 3 Staghorn Green, closer to 1 Staghorn Green. The Defendant also removed dirt and debris from the ditch. Mr. Mills testified that the water flowed freely.

33The Defendant argues that there is no evidence to suggest that the Plaintiffs had any concerns regarding water drainage from the fall of 2007 until the date of the flood. Clayton Mills testified that the water was flowing normally in a southward direction along the drainage ditch on April 10, 2008, the day before the flood. The Kathryn Mills testified that she did not see any pooling on the date of the flood or during the preceding two weeks. All of the Plaintiffs’ witnesses testified that, in the spring of 2008, the water was travelling southward in the drainage ditch under the snow by way of a rivulet. This was evidenced by the creation of a snow arch, as seen in Exhibit A, Tab A6.

34The Defendant disagrees that a mixture of earth and aggregate from the original access driveway caused or contributed to the flood. The Defendant claims that it took the following steps because these were neighbourly actions to take:

(1) removing the driveway located between 3 and 5 Staghorn Green;

(2) installing the culvert and driveway between 1 and 3 Staghorn Green; and

(3) on April 11, 2008, clearing the snow out of the ditch with a backhoe.

The Defendant submits that its subsequent remedial measures cannot be taken as an admission of liability (See: Sandhu v. Wellington Place Apartments, 2008 ONCA 215, 291 D.L.R. (4th) 220, at para. 62).

35The Defendant notes that when Clayton Mills went down to the basement on April 11, 2008, the sump pump pit was full, the motor was not running, and it was hot to the touch. The Defendant claims that there is no evidence to explain why the Sump Pump #1 was not working. Furthermore, as Sump Pump #1 was removed after the flood and not preserved, the Defendant was deprived of an opportunity to lead evidence and make full argument regarding the cause of the sump pump failure.

36The Defendant relies on the case of Szkaluba v. Petro-Canada, 2005 ABQB 291, [2005] A.J. No. 417, at p. 1 [Szkaluba], to assert that the Plaintiff has not established the Defendant’s negligence. In Szkaluba, the defendant dredged a ditch alongside a road to try and alleviate drainage problems. The plaintiff argued that this caused their land to flood. The Court held that the flooding was likely due to a combination of factors and that there was insufficient proof to show that the defendant negligently caused the flood. The Court found that the dredging did not increase the flow of water; it merely filled the ditch with water. The Court also noted that spring snow and rainfall could have caused the flood.

37The Defendant submits that even in cases where negligence of the defendant is established, the Plaintiff is still required to prove causation. The Defendant submitted the case of Zippilli v. Hamilton (City), 2010 ONSC 3949, [2010] O.J. No. 295 [Zippilli] to support this point. In Zippilli the Court found that, despite the City’s negligent failure to inspect a culvert for blockage, and the fact that the blockage and flooding of the plaintiff’s home occured on the same day, the causal link was not established. Although there were significant amounts of pooled water around the culvert, experts explained that there was insufficient time for the water to seep through the foundation. The timing and physical evidence was not enough to prove the plaintiff’s theory of causation on a balance of probabilities.

Nuisance

Nuisance

38The Defendant submits that the Plaintiff’s failed to tender any evidence relevant to the elements of a claim for private nuisance. Namely, they did not offer evidence to suggest that the nature of the Plaintiffs’ property was substantially altered, interfering with the use of the property. Furthermore, if there was interference, it would be reasonable (ie. minor erosion and gravel) in light of the relevant circumstances.

Summary of the Expert Opinions

Plaintiffs’ Expert

Summary of the Expert Opinions

39Mr. Tim Beattie, a professional engineer, gave evidence on behalf of the Plaintiffs. He was qualified to give expert opinion evidence regarding residential drainage issues. The Court notes that Mr. Beattie does not have the expertise to provide any quantitative analysis of the ground water or surface water flow.

Plaintiffs’ Expert

40Mr. Beattie’s opinion was that the flood was caused because of the blockage of the municipal ditch in front of 3 Staghorn Green by fill from the Minto jobsite. That blockage created an uphill grade, which meant that for water to escape, it had to pool up over the 5 Staghorn Green sump pump outlet.

41The sump pump discharge line (of which the outlet is part) sits in a trench. The bottom of the trench was photographed filled with aggregate, which Mr. Beattie testified was hydrologically conductive, meaning water could flow through it relatively easily. If the water in the municipal ditch got high enough, it would be pushed through the aggregate in the trench back towards 5 Staghorn Green. When this water reached the earth which had been excavated during the construction of 5 Staghorn Green (now part of the weeping tile system), much of it would return to the sump pit.

42According to Mr. Beattie, this would effectively create a loop; some of the water being pumped away from 5 Staghorn Green by the sump pump would flow back into the drainage system. This would increase the amount of water coming into the sump pit, and reduce the cooling down time between sump pump cycles. Eventually, the sump pump would overheat and shut down, resulting in a flood.

43Mr. Beattie acknowledged that he did not undertake a numerical analysis of his ditch backup theory. He testified (including in cross-examination) that a mathematical model could not reasonably be constructed to explain the analysis for this failure. Too many assumptions would have had to have been made for such an analysis. It was Mr. Beattie’s expert opinion that the construction activities of the Defendant at 3 Staghorn Green, prior to and on April 11, 2008, impaired the flow of water into the drainage ditch. In particular, presence of dirt in the ditch and the absence of a culvert below the driveway created the blockage.

44Mr. Beattie was also of the opinion that the April 11th, 2008, rainfall, combined with previous day’s snow melting, increased the water flowing into the basement sump pump at 5 Staghorn Green. The absence of a clear unimpeded drainage ditch in front of 3 Staghorn Green prevented the water from flowing away from 5 Staghorn Green. The added strain on the sump pump caused it to shut off, thereby worsening conditions.

Defendant’s Expert

Defendant’s Expert

45The Defendant’s expert, Robert Passmore, is a senior environmental engineer. He has a bachelor of engineering and has taken several courses on the Ontario Building Codes as they pertain to sewage systems. He has also been an instructor, teaching courses on soils and the movement of water through soil, as well as courses on pumps - including the type of sump pump installed at the Plaintiffs’ home. Mr. Passmore’s expertise included specialization in residential sewage system design, lot reading, drainage plans, sewage system inspections, and drainage investigations.

46On consent, the Court qualified Mr. Passmore to give expert evidence on hydrogeology and geotechnical engineering, with a focus on residential drainage systems.

47Mr. Passmore’s evidence was that both the surface and subsurface topography of the property behind 5 Staghorn Green tends downwards, causing water to flow towards 5 Staghorn Green. His theory was that the flood was caused by a sump pump malfunction. In particular, he suggested that the sump pump may have: (1) overheating due to the intake screen being clogged; (2) something being lodged into the impeller housing causing the impeller to stop; or, (3) debris entering into the impeller housing resulting in damage to the impeller.

Analysis

Negligence

Analysis

48The Plaintiff bears the onus of proving all the elements of negligence. As explained In the Law of Torts in Canada by Fridman (3d) at page 383, and quoted by the Divisional Court in Daneluzzi v. 876336 Ontario Ltd., 2015 ONSC 220, 2015 CarswellOnt 109, at para. 19 (Div. Crt.):

The general rule is that the plaintiff must prove all of the elements of the tort of negligence. Thus, in addition to establishing that the defendant owed him or her a duty of care, the plaintiff must also show that the defendant breached that duty by some act or omission that constitutes negligence, the failure to observe the appropriate standard of care. The plaintiff's obligation is to convince the court on the balance of probabilities that it was more likely than not that his or her loss was caused by negligence on the part of the defendant. If this is done, the defendant then has the task of calling into question the prima facie inference of negligence. Throughout, however, the ultimate or legal burden of proof is on the plaintiff. By establishing a prima facie case, the plaintiff succeeds in shifting the evidentiary or provisional burden of proof onto the defendant. If the defendant is subsequently able to discharge that burden by providing satisfactory evidence of non-negligence, nothing more is required of him or her, leaving the legal burden on the plaintiff as it was at the beginning of the trial. Should the plaintiff fail to adduce evidence that proves negligence, or fail to produce evidence from which a reasonable inference may be drawn that the defendant acted negligently, the plaintiff will not succeed.

Negligence

49If the Plaintiff is able to convince the Court, on a balance of probabilities, that it was more likely than not that their loss was caused by negligence on the part of the Defendant, the Defendant will be liable for their losses.

50Based on the expert evidence given at trial, the Court was left with extremely divergent and conflicting expert opinions as to the cause of the flood. With such conflicting expert evidence, the Court’s role is to determine what evidence of each of the experts to accept, or which expert’s theory of causation is preferable.

51The Court notes that Mr. Passmore has more practical experience in relation to sump pumps than Mr. Beattie. He was qualified as an expert in hydrogeology and geotechnical engineering with a focus on residential drainage systems. Mr. Beattie was only qualified to give evidence in the field of residential drainage issues; he could not speak to any potential failure of the sump pump.

52The Court does not accept the theory put forward by Mr. Beattie that fill or blockage caused water from the municipal ditch to travel through the trench into the basement of the Mills’ property.

53Mr. Beattie’s theory, that fill or blockage effectively changed the grade of the ditch and created a loop of water flowing back into the trench, overburdening the pump, would require evidence of such fill or blockage. Mr. Beattie suggested that the presence of dirt in the ditch and the absence of a culvert below the driveway created these necessary conditions.

54However, both Mr. Beattie and Mr. Passmore testified that the dirt in the ditch was hydrologically conductive, meaning water could flow through it relatively easily. Moreover, initially while the Defendant’s driveway did not contain a culvert, the Defendant relocated the driveway to the opposite side of the property - far away from the Plaintiffs’ sump pump outlet which included a culvert. This was done at least several days if not weeks prior to the flood. If the absence of a culvert prevented the necessary flow of water or caused water to flow back towards 5 Staghorn Green, there would be some evidence of pooling; there was not.

55Mr. Beattie testified that rainfall and the melting of snow increased the flow of water and pressure on the sump pump. No evidence of the rainfall or groundwater levels was tendered. The photos taken by Kathryn Mills in the morning and at around noon on the day of the flood do not show a blocked outlet or the pooling of water in the ditch or near drainage outlet. There is minor evidence of melted snow however, the ditch is relatively dry. Moreover, the snow arch, as seen in Exhibit A, Tab A6, suggested that the water near the ditch was moving properly under the snow and away from 5 Staghorn Green, as it had in the past.

56A review of the photographs taken at 7:40 A.M. does not show evidence of rain. The Court notes that other photographs taken later on in the day do show evidence of rain, however this is at a time after the flood had occurred. The Court finds that the rainfall after the flood occurred was not a contributing factor to the flood.

57Furthermore, the Court finds that the more plausible explanation for the flooding was given by Mr. Passmore; the surface and subsurface water from behind 5 Staghorn Green flowed downhill towards 5 Staghorn Green in the springtime, seeping into the weeping tiles and eventually flooding the Mills’ home. Given the flooding and the fact that the sump pump was hot to the touch, it is evident that the Mills’ sump pump stopped working. What we don’t know is why or when.

58It is unfortunate that Sump Pump #1 disappeared and was not available for inspection. No one knows where it went - only that it is no longer viewable. Had the pump been available, the Court may have been able to determine whether or not it was working properly prior to water filling the pit. Unfortunately for the Plaintiffs, the Court does not have that benefit; and they bare the onus of proving causation.

59The Court finds it more likely that spring water ran downhill towards 5 Staghorn Green, seeping into the weeping tile, eventually flooding the Mills’ home. The sump pump either malfunctioned prior to the spring thaw, or malfunctioned as a result of it; neither of which is the fault of the Defendant. Given that there is no evidence to support the theory that the Defendant obstructed the drainage ditch or blocked the sump pump outlet, the Court finds it more likely that the water flowed downhill from behind the Mills home, not up the municipal ditch. This is supported by the expert testimony of Mr. Passmore. His theory that the intake screen may have been clogged is increasingly likely in light of the fact that Mr. Mill’s installed Sump Pump #1 himself, and was unsure of whether he installed an intake screen filter.

60The Court wishes to add that the Plaintiffs did not argue that the Defendant breached the standard of care with regard to blocking or obstructing the Plaintiff’s sump pump outlet with any vigour. Even if they had, the Court would have likely found that the Defendant’s choice to move the driveway away from the Plaintiff’s sump pump outlet and clear the ditch of debris met the standard of care.

61The Plaintiffs have, therefore, been unable to convince the Court that the Defendant engaged in negligent conduct, causing their loss; their negligence claim fails.

Contributory Negligence

Contributory Negligence

62Contributory negligence is an exercise that seeks to apportion the liability for a loss between a plaintiff and defendant who are both partially at fault. A finding that the Defendant is liable is a necessary pre-requisite to this exercise. Therefore, the Plaintiffs’ alternative argument, that they are at most contributory negligent for their losses (which wasn’t even argued by the Defendant), is dismissed.

Nuisance

Nuisance

63The Plaintiffs also argued that the Defendant was liable for their losses, in that they created a substantial and unreasonable nuisance. Having found on a balance of probabilities that the Defendant did not obstruct or block the drainage outlet and thereby cause the flood, the Court similarly finds that it did not create such a nuisance.

Conclusion:

Conclusion

64The Court finds that the Plaintiffs have failed to prove their case on a balance of probabilities. On that basis, the Plaintiffs’ claims are dismissed.

Costs:

Costs

65The parties shall have 14 days after the release of this decision to resolve the issue of costs. If they are unable to do so, the Plaintiffs shall have 14 days to submit written costs submissions of no more than three pages, together with a Costs Outline and any Rule 49 Offers to Settle. The Defendant shall have a further 14 days to submit written costs submissions of no more than three pages, together with a Costs Outline and any Rule 49 Offers to Settle. Thereafter, the Plaintiffs shall have a further 10 days for a reply, of no more than three pages. All costs submissions shall comply with Rule 4.01 of the Rules of Civil Procedure.

66Order accordingly.