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Court File No _CV_ 0085108 IN ThE COURT OF ThE DRAINAGE .pdf

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					                                          Court File No. (CV) 0085108
                IN ThE COURT OF ThE DRAINAGE REFEREE

                 IN THE MATTER OF AN APPLICATION FOR
             DIRECTIONS OF THE ONTARIO DRAINAGE REFEREE

                                 )           ThURSDAY THE 20Th
REFEREE ROBERT G. WATERS         )           DAY OF DECEMBER, 2011.
BETWEEN:
           ThE CORPORATION OF THE CITY OF KAWARTHA LAKES
                                                                         Applicant
                                     -and-
 ALL CURRENT OWNERS OF LANDS ASSESSED OR GRANTED ALLOWANCES
PURSUANT TO ThE R.J. BURNSIDE & ASSOCIATES LIMITED REPORT OF MARCH
                             2O, 2006
                                                         Respondents
                                -and
    OThERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION

                                                                     Respondents

                                              Court Files No. (CV) 103/08
                                                     and (CV) 103/08-Al
               IN ThE COURT OF ThE DRAINAGE REFEREE

                IN ThE MATTER OF AN APPLICATION FOR
            DIRECTIONS OF THE ONTARIO DRAINAGE REFEREE

BETWEEN:

   DALE McFEETERS, DARMAR FARMS INC., TAMPA FARMS LIMITED, DALE
HAMILTON, LYNDA HAMILTON, HYSPRUCE HOLSTEINS INC., WILLIAM McKEOWN
                       and SONYA McKEOWN
                                                            Applicants
                               and
                                 -       -




           THE CORPORATION OF THE CITY OF KAWARTHA LAKES
                                                                      Respondent
                                 -and-
GLEN CAMPBELL, EXECUTOR OF THE ESTATE OF LILA MAY CAMPBELL; GLEN
             CAMPBELL LISA NORRIS and BRAD NORRIS
                                                        Third Party

                                                 Court File No. (CV) 0085/08
                               Court File numbers CV0085/08, CV 103/08 and CV 103/08-Al
                                            -2—


                            REASONS FOR DECISION

 Valerie M’Garry Law Office,                     Andrew Osyany,
 37 Millmanor Place,                              Shepherd, Osyany & King LLP
 Delaware ON NOL 1 EO                            Barristers & Solicitors
 519-652-5329                                    155 Main Street West,
 519-652-9773 (fax)                              P.O. Box 760,
        Solicitor for the Applicant              Shelburne ON LON ISO
                                                 519-925-5331
Mr. Paul Courey,                                 519-925-3203 (fax)
Courey Law Office,                                  Solicitor for the Respondents
Barristers & Solicitors,                              and Applicants in Court file
16 Queen St. S, P.O. Box 178,                                            CV1O3/08
Tilbury ON NOP 2L0
519-682-1644
519-682-1146 (fax)
        Solicitor for the Respondents


In accordance with the Referee’s direction contained in his Reasons for Decision dated

May 9th, 2011, a Notice of Motion was brought by Paul Courey returnable on behalf of

the Respondents granted status in the original claim, Glen Campbell, Executor of the

Estate of Lila May Campbell; Glen Campbell, Lisa Norris and Brad Norris et al for an

Order consolidating and particularizing previous Decisions of the Referee with respect

to costs and for an Order assessing the quantum of costs and whether each head of

costs may be charged to the drainage works, as well as other requests for advice and

direction of the Referee.



                               15
                               th,
This Motion, returnable June          2011, was heard in part on that date and by

teleconference between Counsel and the Referee on August        th,
                                                                24
                                                                      2011. September
st,
21
      2011 and December 8, 2011         The Referee ordered costs to be charged to the

drainage works in an Order dated December 20, 2011 in the amount of $92,000.00 for
                              Court File numbers CV0085/08, CV1O3/08 and CV1O3/08-Al


 the Norris parties and in the amount of $249,000.00 for costs of the City of Kawartha

 Lakes, both of which amounts are in accordance with s.73 (1) of the Drainage Act to

 form part of the costs of the drainage works,



 In arriving at costs to be granted to the Norris parties, the Referee took into account the

 calculations submitted by Paul Courey, Counsel for the Norris parties, and an analysis

or calculation of the Courey accounts submitted by Counsel for the City of Kawaratha

Lakes. The Referee accepted the calculations of the City of Kawaratha Lakes as being

more appropriate in this situation and rounding theses costs to the nearest $1 ,000.00

from the amount submitted, as being an acceptable total to be added to the drain, at

$92,000.00.



The issue raised by Counsel for the Norris parties was that there had been an interim

account forwarded to Mr. Courey’s clients which discounted a certain amount of time.

Mr. Courey stated that the account was interim not final. The Referee has no reason

not to believe that the work which was discounted and written off in the past had

actually been performed, however, in my view granting additional costs would increase

the partial indemnity rate I set at 66% by moving the claim for costs to the higher

substanta indemnity scale.



In this matter, costs were awarded, in essence, to all parties. although Counsel for the

McFeeters party received costs which were to be borne out of the general levy of the

City of Kawartha Lakes rather charged to the drain, as a result of the nature of the claim
                               Court File numbers CV0085/08, CV1O3/08 and CV1O3/08-Al
                                            -4—

 being raised by Mr. Osyany on behalf of the McFeeters parties under s. 79 of the

 Drainage Act.



The situation is different, however, in connection with the costs of Mr. Courey’s clients

who opposed the drain in the form which it had been proposed in the report of R.J.

Burnside and Associates Ltd. dated March       20
                                               th,
                                                     2006. Knowing that the Norris parties

did not represent all of the drainage community affected by the drain, the outcome for a

successful litigant under the Drainage Act in the Referee’s opinion is different than in

other forms of litigation. I quote from paragraph 97 of Stellarbridge Management Inc.. v

Magna International Canada Inc. 71 O.R. (3d) 263 in referring to the costs grid in place

at the time.

           In addition, a critical controlling principle for the fixing of costs under the costs
       grid is to ascertain an amount that is a fair and reasonable sum to be paid by the
       unsuccessful litigant, rather than an exact measure of the actual costs to the
       successful litigant: Zesta Engineering Ltd. v. CIoutier [2002] O.J. No. 4495
       (C.A.).

Paragraph 98 of the decision stated:

       In arriving at an amount that is a fair and reasonable sum to be paid by an
       unsuccessful litigant on the partial indemnity scale, the hourly billing rates
       actually charged and the fees actually billed to the successful litigant are
       relevant considerations.

In this matter, the entire drainage community can be described as the unsuccessful

htigant. Throughout this proceeding, I have stressed the costs for the Short and 2A

drainage community should be kept under control. As such I am not g.ranting additional

costs for time that was discounted or written off.
                                 Court File numbers CV0085/08, CV1O3/08 and CV1O3/08-Al
                                              -,—




 During the course of the Motion by teleconference, several issues were raised by

 Counsel in relation to the costs proposed by the City of Kawaratha Lakes to be granted

 to them in this matter and chargeable to the drainage works. Based on instructions

 from the Referee, the proposal of the City of Kawaratha Lakes at the partial indemnity

 rate payable to itself was costs of $269,124.68. Using my discretion in matters under

 the Drainage Act in view of the unique situation faced by the “unsuccessful litigant” i.e.

the drainage community; a reduction of the partial indemnity rate is merited for this trial.

 Mr. Osyany, in argument, proposed a discount of 15% for what he described as

overservicing by the City. In his written submissions dated September         th,
                                                                              6
                                                                                    2011, he

stated:

          This is a totally rural drain, and the drain administration prior to the amalgamation
          was very simple. With the amalgamation has come a huge administrative
          structure, the disappearance of knowledgeable local people and a revolving door
          of new staff. The amount of extra work generated internaNy, the amount of
          extra paper generated internally, the amount of extra education and reporting
          provided by Counsel should not visited on the drain. They do not contribute to
          the drain, they are simply operational features of the municipality over which the
                                                                                -




          drainage community has zero control.

In reviewing the accounts of Ms. M’Garry, Mr. Osyany noted in February of 2010 there

were two Counsel days devoted to preparing a report to the client and attending to

report. Further in April and May, 2011, there was extensive Counsel time for educating

the new” Director of Public Works in regard to drains and the issues. He submitted

these costs should not be put on the drain. I agree.



In addition, the Referee in including the claim under s. 79 of the Drainage Act as part of

the trial process did this for efficiency reasons. In this particular portion of the trial, the

City was not successful and costs were awarded against it to the McFeeters parties.
                               Court File numbers CV0085/08, CV 103/08 and CV 103/08-Al
                                            -6--

 however, during the process of providing accounts for assessment, there was no

 parsing from those accounts the time spent in connection with the Third Party Claim and

 defending the s. 79 claim on the issue of liability to the McFeeters group. Mr. Osyany

 submitted this amount to be approximately $6,000.00 which should be removed from

the City’s costs awarded on the drain. I agree and this is taken into account in arriving

at my award of costs.



Finally, in reviewing some of the most recent accounts submitted to the Referee for

assessment, I noted there were matters related to the remaining claimants under s. 48

of the Drainage Act before the Agriculture, Food and Rural Affairs Tribunal. These are

not costs properly attributable to this drain by order of the Referee. Section 51(1) of the

Drainage Act authorizes the Appeal Tribunal to make such orders as it deems

necessary. If costs are claimed before it, it is not for the Referee to impinge on its

jurisdiction regarding its own procedure and the granting of costs.



In addition. I refer Counsel to s. 109 of the Drainage Act which states:

       The costs of any proceedings before the Referee are in the discretion of the
       Referee. R.S.O. 1990, c,D.17

As a result, 1 view unresolved section 48 appeals still before the Tribunal with regard to

some of the litigants who were unrepresented or did not appear before the Referee as

being within the jurisdiction of and within the discretion of the Tribunal as to costs.



I refer all parties to my Reasons for Decision on a Motion heard December 1 2009. In

my Reasons for Decision dated January’         2010, at that time there were a number of
                              Court File numbers CV0085/08. CV 103/08 and CV 103/08-Al
                                           -7

withdrawals of appeals under s.48 and a subsequent attornment to the Referee’s

jurisdiction. However, there were a number of parties that did not provide their consent,

on these I stated:

        In relation to those parties, I can find no special circumstances that would allow
       me to usurp the right of appeal that remains with those parties with the Tribunal.
       My hearing in this matter as it relates to s. 48 and s. 54, covers only those
       appeals that have been withdrawn with their resultant attornment to my
       jurisdiction. Should any appeal remain outstanding, in absence of special
       circumstances which I do not find exist in this matter, the right of appeal remains
       for those parties with the Tribunal.

As such, I find that the time expended by the City of Kawartha Lakes in connection with

the most recent Tribunal Hearings, should not form part of the costs of the drain unless

ordered by the Tribunal, as they do not represent proceedings before the Referee under

s. 109 of the Drainage Act.



For the reasons above, I reduce the costs to be granted to the drainage works to the

City to $249,000.00 inclusive of legal fees, clerk’s fees, disbursements, HST and GST.



Dated at Strathroy, Ontario, this 20th day of December, 2011.



                                  ONTARIO DRAINAGE REFEREE
                                  ROBERT G. WATERS




                                  Robert G. Waters

				
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