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Monday, December 12, 2011

Court throws out damages claims related to municipal drainage repairs

The Ontario Superior Court has dismissed a claim by a landowner for damages relating to a municipal drain (the "Cazabon Drain") located on the landowner's property.  The landowner claimed damages for nuisance (for unnecessary damage caused by undue delay by the municipality to remedy a drain problem), damages for negligence (for poor quality of workmanship in relation to repairs undertaken), and damages for "intentional infliction of economic harm" and "intentional infliction of mental suffering".  These last two claims were apparently related to the harm the landowner's reputation suffered after the municipality obtained a permanent injunction against him under the Drainage Act to prevent interference with efforts to repair the drain.

On a summary judgment motion by the municipality, the Court dismissed the landowner's claims for nuisance and negligence on the basis that insufficient notice of the claims as required by Section 111 of the Drainage Act had been given.  The judge allowed, however, that the landowner could commence new claims for nuisance and negligence.  The claims for economic harm and mental suffering were dismissed outright on the basis that there was no issue for trial. 

The Court also noted in the course of its decision that claims for damages related to the construction or repair of drainage works do not necessarily have to go to the Agricultural, Food and Rural Affairs Tribunal.  The Tribunal does not have exclusive jurisdiction over such claims.  The municipality had argued in this case that the landowner's claim based on negligence should be dismissed because it should have gone to the Appeal Tribunal.

Read the decision at: Hud v. West Nipissing.