Case Name:

Kawartha Lakes (City) v. Terrill


The Corporation of The City of Kawartha Lakes, respondent

(appellant), and

Dr. Susan Terrill, Gordon Durward, Jane Durward, Betty Brower

and John Brower, applicants (respondents in appeal)

[2004] O.J. No. 778

Court File No. 746/03

Ontario Superior Court of Justice

Divisional Court

MacFarland, Crane and C. Campbell JJ.

Heard: February 6, 2004.

Oral judgment: February 6, 2004. Released: February 25, 2004.

(6 paras.)

Civil Procedure -- Appeals.

Appeal by the City, Kawartha Lakes, from the correcting decision of the referee. Kawartha Lakes sought to set aside the referee's correcting decision and to have his original decision confirmed.

HELD: Appeal dismissed. There was sufficient confusion at the time the matters were heard to justify the correcting decision as it was labelled. Terrill and others were not heard, nor was evidence lead on their behalf. Whether their motion was appropriate, whether it was out of time, or whether the referee had jurisdiction, were matters for the referee.


Valerie M'Garry, for the appellant.

Raymond G. Colautti and Anita Chatterjee, for the respondents.

The judgment of the Court was delivered by

1 MacFARLAND J. (orally):-- The narrow issue before us on this appeal is whether the referee's correcting decision of 9th August, 2002, should be set aside and his original decision of April 26, 2002, confirmed.

2 In our view, there was sufficient confusion at the time these matters were heard to justify the correcting decision as it has been labelled.

3 The respondents on this appeal were not heard nor was evidence lead on their behalf. Whether their motion under s. 47 is appropriate or not, whether it is out of time or indeed whether the referee has jurisdiction, are in our view matters for the referee to determine.

4 As the referee noted in his decision:

  1. "It was the Referee's understanding at the commencement of the Hearing that only a single issue would be dealt with, namely the jurisdiction of the Referee to hear appeals from the Ontario Drainage Tribunal with respect to Section 48 and Section 54 Appeals. There was no formal written agreement with respect to the issues that would be before the Referee, rather matters had proceeded in formally by correspondence between Counsel for the Parties."

5 In all of the circumstances we are of the view that the correcting decision must stand and the appeal is dismissed.

6 The endorsement will read for both the appeal books: "For reasons given, the appeal is dismissed, no costs."