Held, the appeal should be allowed.
Parties can contract out of benefits conferred by statute, unless it would be
contrary to public policy or prohibited by the statute itself. There is nothing
in the Drainage Act which expressly or by necessary implication prohibits
a utility and a municipality from arriving at their own agreement respecting
the sharing of costs where the construction of the drainage works requires the
relocation of a pipeline. Moreover, there is nothing in the legislative scheme to
suggest that the ability to contract for the allocation of relocation costs between
a municipality and a utility is contrary to public policy. There was nothing in
the franchise agreement that would exclude drainage works from “municipal
works” or that would remove from its cost-sharing provisions the drainage
works undertaken by the utility in this case. Section 13 of the franchise
agreement did not assist the municipality. “Regulating statute”, in the context
of that agreement, should be interpreted as referring to health and safety,
environmental and other like statutes that would regulate the construction of
and work on a gas system by the utility within the regional municipality. Section 13 did not exempt the parties from the cost-allocation provisions to which
they had agreed.
Ontario (Human Rights Commission) v. Etobicoke (Borough),  1 S.C.R.
202,  S.C.J. No. 2, 132 D.L.R. (3d) 14, 40 N.R. 159, J.E. 82-193, 82 CLLC
¶17,005 at 1037, 13 A.C. W.S. (2d) 1, 3 C.H.R.R. D/781, apld
Other cases referred to
Brand v. National Life Assurance Co.,  M.J. No. 41, 44 D.L.R. 412 (K.B.);
Fleming v. Massey (2016), 128 O.R. (3d) 401,  O.J. No. 399, 2016 ONCA 70,
394 D.L.R. (4th) 647, 344 O.A.C. 279, 261 A.C. W.S. (3d) 1048 [Leave to appeal to
S.C.C. refused  S.C.C.A. No. 113, 2016 CarswellOnt 9353]; Seidel v. Telus
Communications Inc.,  1 S.C.R. 531,  S.C.J. No. 15, 2011 SCC 15,
301 B.C.A.C. 1, 412 N.R. 195, 2011EXP-936, J.E. 2011-498, EYB 2011-187826,
329 D.L.R. (4th) 577,  6 W. W.R. 229, 16 B.C.L.R. (5th) 1, 82 B.L.R. (4th) 1,
1 C.P.C. (7th) 221, 199 A.C. W.S. (3d) 1064
Statutes referred to
Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 128 [as am.], 129
Drainage Act, R.S.O. 1990, c. D.17, ss. 4, 5 [as am.], 8 [as am.], 21, 22, 23, 24, 26,
48 [as am.], (1) [as am.], 58 [as am.], 74
Municipal Franchises Act, R.S.O. 1990, c. M.55
Ontario Human Rights Code, R.S.O. 1970, c. 318 [rep.], s. 4(6)
APPEAL from the order of Garson J. of the Superior Court of
Justice dated September 7, 2016.
Crawford Smith and Emily Sherkey, for appellant.
Roberto Aburto and Jacob Polowin, for respondent.
Philip Tunley, for intervenor Ontario Energy Board.
The judgment of the court was delivered by
VAN RENSBURG J.A.: —