D. The cross-appeal
 I see no basis to interfere with the trial judge’s exercise
of discretion in assessing the quantum of damages.
 I would dismiss the appeal and award costs to the
respondent in the agreed amount of $53,000. I would dismiss the
cross-appeal and award costs to the appellants in the agreed
amount of $5,000.
Union Gas Limited v. The Corporation of
the Township of Norwich
[Indexed as: Union Gas Ltd. v. Norwich (Township)]
2018 ONCA 11
Court of Appeal for Ontario, LaForme, Pepall and van Rensburg JJ.A.
January 10, 2018
Public utilities — Franchises — Utility required to relocate parts of its
gas pipeline as result of municipality’s construction of drainage works
— Application judge erring in finding that cost-sharing provisions of
franchise agreement between parties could not override provision
of Drainage Act which requires utility to pay entirety of increased cost
of drainage works caused by existence of utility’s works — Provisions in
franchise agreement for sharing of utility’s costs occurred by “
municipal works” applying to dispute between parties — Drainage Act, R.S.O.
1990, c. D.17.
A franchise agreement between the parties permitted the municipality to ask
the utility to relocate any part of the gas system where such relocation was
necessary to alter or improve any municipal work, and provided that the municipality would pay 35 per cent of the resulting costs and that the utility
would pay 65 per cent of the costs. Section 13 of the franchise agreement provided that the agreement was “subject to the provisions of all regulating statutes and all municipal by-laws of general application, except by laws which
have the effect of amending this Agreement”. The utility was required to
relocate parts of its gas pipeline as a result of the municipality’s construction of
drainage works. It issued an invoice to the municipality seeking a 35 per cent
contribution to its costs. When the municipality did not pay the invoice, the
utility brought an application to determine the rights of the parties. The application judge held that the cost-sharing provisions of the franchise agreement
could not override s. 26 of the Drainage Act, which provides for the utility to
assume the entirety of the increased cost of drainage works caused by the
existence of the utility’s works. He ordered the utility to pay the full cost of the
gas line relocation. The utility appealed.