Larwill et al. v. City of Ottawa, 2023 ONAFRAAT 23

Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1 Stone Road West

Guelph, Ontario N1G 4Y2

Tel: (519) 826-3433, Fax: (519) 826-4232

Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2

Tél.: (519) 826-3433, Téléc.: (519) 826-4232

Courriel: AFRAAT@ontario.ca

2023 ONAFRAAT23

FILE NO.: 011Cranberry22

DATE: 2023/12/28

IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Lisa D. Larwill, David and Bronwyn Harper, Shannon and Jeff Storie, Jacqueline H. Leger, Marc MacDonald, Dennis and Patricia Boyer, Carol and Robert MacDonald, Ronald and Constance Whitmore, Wanda Bracken, Sandra Lueck and Scott Carrigan, and Phyllis Begg, under Section 54 of the Drainage Act, with respect to the Cranberry Creek Drain in the City of Ottawa.

AND IN THE MATTER OF a motion is to be held in writing pursuant to Rule 30 of the Tribunal’s Rules of Procedure.

BETWEEN:

Lisa D. Larwill, David and Bronwyn Harper, Shannon and Jeff Storie, Jacqueline H. Leger, Marc MacDonald, Dennis and Patricia Boyer, Carol and Robert MacDonald, Ronald and Constance Whitmore, Wanda Bracken, Sandra Lueck, Scott Carrigan, Phyllis Begg

Appellants

– and –

City of Ottawa

Respondent

Self-Represented

Represented by Paul Courey and Eric Florjancic

Heard in Writing

Before: Christine Greydanus, Vice-Chair

MOTION DECISION

1These motions were held in writing with documents due to be filed with the Tribunal by November 29, 2023.

2There are four motions being considered at this time. They are as follows;

a. A motion brought by Appellant Lisa D. Larwill requesting disclosure and an extension of time to file documents.

b. A motion brought by Appellants David and Bronwyn Harper requesting the disclosure of documents.

c. A motion brought by Appellant Jacqueline Leger requesting an extension of time to file documents.

d. A motion brought by Appellants Constance and Ronald Whitmore for the disclosure of documents.

3A Prehearing Conference (PHC) was held on June 28, 2023. At the PHC a timeline for disclosure, and submission of documents was agreed to with the input of all the parties. The timeline was included in the PHC Order released by the Tribunal on July 11, 2023.

4The PHC Order states at “[2] The Respondent shall produce documents to the Appellants on or before September 15, 2023.” And at “[3] The Appellants shall provide the list of documents they will be relying on, their witness list and witness statement to the Respondent on or before October 27, 2023.”

Lisa D. Larwill

5Appellant Larwill’s motion for disclosure provided a list, requesting documents, emails, briefing notes and correspondences from the City of Ottawa and the reasons the City of Ottawa refused to produce the items. The City of Ottawa gave the same reasons for denying each of the requests as, “no document has been requested, too broad in scope, not relevant to your appeal, nor is it proportionate.”

6Appellant Larwill provided a statement in her submissions that indicated that as a stakeholder in the Cranberry Creek Municipal Drain, she needs to ensure that a proper process has been followed in preparing the Engineer’s Report and has requested all the documents associated with this report.

7Appellant Larwill’s appeal before the Tribunal is pursuant to Section 54 of the Drainage Act (“DA”) arguing that their land has been assessed too high. Appellant Larwill’s submissions did not provide the relevance between her appeal before the Tribunal of her assessment being too high, and the documents or items she requested be disclosed.

8Appellant Larwill also requested an extension of 60 days to provide her documents to the City of Ottawa. This request is divided into 30 days from the date of this order for the City of Ottawa to produce disclosure and 30 additional days for the Appellant to provide her documents to the City.

9Appellant Larwill’s submissions did not provide an affidavit or the statutory grounds she was arguing for the relief she sought.

David and Bronwyn Harper

10Appellants David and Bronwyn Harper in their motion for disclosure of documents assert that the City of Ottawa did not produce all the documents requested by Appellants Harper until November 24, 2024.

11Appellants David and Bronwyn Harper’s Appeal before the Tribunal is pursuant to Section 54 of the DA arguing that their land has been assessed too high, and that other land or road have been assessed too low.

12The Harpers request is for documents related to Land Use Factors. This or these documents were entitled “Land Use Factor Calculation for The Future Maintenance of Section(s) of The Cranberry Creek Municipal Drain, Project no. B2 1065. Date: 28-SEP-22”.

13Appellants Harper argue that their property has been assessed too high and that others have been assessed too low and that the requested information will support this argument.

Jacqueline Leger

14On October 26, 2023, Appellant Leger sent an email to the Tribunal stating she was bringing a motion and asking for an extension of 30 days to provide documents to the Tribunal. Ms. Leger’s email was in the form of a reply to an email of Appellant Harper dated October 24, 2023.

15Appellant Leger noted that the City of Ottawa refused her requests for discovery and as such she “probably” needed a 30-day extension to find the information from an alternative route.

Constance and Ronald Whitmore

16On October 27, 2023 Appellant Whitmore filed a motion for disclosure of documents withheld by the City of Ottawa. Appellant Whitmore’s appeal to the Tribunal is under Section 54 of the DA arguing that the assessment of her property is too high, and the assessment of the City of Ottawa and the Ministry of Transportation is not high enough.

17Appellant Whitmore disclosure request is as follows:

a. The request for maintenance/repair specified in the City’s Report to Agriculture and Rural Affairs Committee and Council submitted on 5 July 2021 which requested the appointment of Robinson Consulting as the Engineer to undertake a Section 76 Report on Cranberry Creek Municipal Drain (1^st sentence of paragraph 3 of the “Background” Section of this report). This document is a subset of those requested of the City in the Request for Disclosure submitted by Constance Whitmore in August, 2023. (Item 3 in original Whitmore request for disclosure);

b. Identification (a list) of Source data used to support ER 2022 and its’ assessment schedules in ER 2022 including date of data (Items 6 and 8 in original Whitmore request for disclosure);

c. Assessment formula currently in use for Cranberry Creek Municipal Drain (item 9 in Whitmore request for disclosure);

d. Copies of any Statement of Work, direction regarding work to be done, status reports or communications regarding ER 2022 (item 16 in original Whitmore request for disclosure);

e. Identification and copies of any contract or call-up against a standing offer expended or committed against a budget associated with Cranberry Creek Municipal Drain and copies of any invoices to the City associated with the same drain (Item 17 in original Whitmore request for disclosure);

f. Any communications (emails, notes regarding phone conversations, etc.) regarding ER 2022 sent by Cranberry Creek watershed landowners and received by the Robinson Consulting regarding Cranberry Creek, especially those related to the On-Site meeting for this Drain held on November 9, 2021, and held virtually.

18Appellants Whitmore notes in their submissions that the City of Ottawa responded to their requests with one or several of the following arguments, a) not relevant to the appeal nor your appeal; b) not a proportionate request, and c) too broad in scope.

19Appellants Whitmore argue that they consider these arguments to be unsound. First the lack of relevancy of the documents requested is refuted as the Whitmores argue the City of Ottawa is not privy to their lines of argument and that the items requested are relevant to the Engineer’s report that is under consideration.

20Second, the request being not proportionate, Appellants Whitmore argue that they have not provided the name of the document requested or the file, as they have not seen the documents requested but believe that the files must exist, and therefore should be relatively easy to find.

21Third, the scope of the request is too broad, Appellants Whitmore details the perspective that items requested are not too broad and outlines in detail the specifics as to what each request is and what document or documents should correspond to the request.

22Appellants Whitmore contest the City of Ottawa’s production of the Assessment schedule from the 1969 Engineer’s Report as not being the current assessment formula, and state that they do not consider that document as a fulfillment of their request for the current assessment schedule.

City of Ottawa

23The Responding City of Ottawa argues that the four motions before the Tribunal should fail. The motions are; a) the motion of David and Bronwyn Harper, b) the motion of Lisa Larwill, c) the motion of Jacqueline Leger, and d) the motion of Constance and Ronald Whitmore.

24The City of Ottawa opposes the motions on the grounds that;

a. The Moving Parties have not complied with the procedural requirements for a Notice of Motion as provided in the Rules of Procedure for the Agriculture, Food and Rural Affairs Appeal Tribunal (“AFRAAT Rules”) by failing to include affidavits with the Moving Parties’ motion materials;

b. The Moving Parties have provided no evidentiary basis upon which the Tribunal can make any decision regarding the motion;

c. The Moving Parties were informed by email on October 30, 2023, that the Responding Party considered the Moving Parties’ motion materials were not in compliance with the AFRAAT Rules;

d. The Moving Parties were informed by email on November 16, 2023 that the Responding Party specifically took the position that the Moving Parties had no evidence properly before the Tribunal;

e. In the email of October 30, 2023 and November 16, 2023, the Responding Party indicated that the Moving Parties needed to amend their motion materials to be in compliance with the AFRAAT Rules.

f. The Moving Parties have not demonstrated relevance for their requests.

25The City of Ottawa submits that pursuant to Rule 30.03 (v) of the AFRAAT Rules “30.03 Contents of motion record, A motion record shall,” at “v. be accompanied by an affidavit of a person having knowledge or information and belief regarding the facts deposed to, if such information is to be used at the hearing of a motion”.

26The City of Ottawa submits that the Moving Parties have not complied with Rule 30.03 v. and consequently, there is no evidentiary record upon which the Tribunal can make any decision with respect to the motion.

27The City of Ottawa submits that if the Tribunal does review the materials submitted by the Moving Parties, then the onus is on the Moving Parties to establish the relevance of the documents they are seeking. The City of Ottawa further submits that the Moving Parties have the obligation to meet the legal test to compel the production of documents arising out of a Procedural order, which requires such documents to be relevant to the Appeal, and listed and further notes that this is not a fishing expedition.

Discussion and Findings

28The Tribunal notes that five weeks after the deadline for the City of Ottawa to produce documents to the Appellants had past, during the week of October 23, 2023, the first request for a motion for production of disclosure was brought to the Tribunal.

29The Tribunal finds that the submissions of Appellant Lisa D. Larwill did not provide the Tribunal with any grounds for an extension of time or for the disclosure of the requested documents.

30The Tribunal finds that the Appellants Harper request for the production of documents relating to assessments is relevant to their appeal.

31The Tribunal finds that Appellant Leger submission did not provide an affidavit or the statutory grounds she was arguing for the relief sought.

32The Tribunal finds that Appellant Leger failed to provide the minimum requirements to have a motion brought before the Tribunal. The Tribunal notes that if it were to accept Appellant Leger’s motion as been properly before the Tribunal, the submissions do not provide grounds for her request for an extension of time.

33The Tribunal finds that Appellants Whitmore’s disclosure request for the production of documents relating to current assessment schedule is relevant to their appeal. However, the Tribunal notes that the request, for the production of the “assessment formula currently in use or Cranberry Creek Municipal Drain” has been provided by the City of Ottawa’s the production of the 1969 Engineer’s Report (Engineer’s Report – Cranberry Creek Municipal Drain – Township of North Gower, prepared by Graham, Berman and Associates Limited, dated March 24, 1969).

34The Tribunal finds that the Moving Parties did not provide affidavits with their motion materials pursuant to AFRAAT Rules at Rule 30.03 (v).

35The Tribunal notes that Appellants Harper and Whitmore did attempt to correct their pleadings and filed affidavits after the November 13, 2023 date for the service and filing of their motion materials, resubmitting their original material, in the format of an affidavit.

Order

36After consideration of the material submitted to the Tribunal, the Tribunal hereby orders,

a. That the motion of Jacqueline Leger is dismissed.

b. That the motion of Lisa D. Larwill is dismissed.

c. That the motion of Constance and Ronald Whitmore is dismissed.

d. That the City of Ottawa produce a copy of the unredacted Document “Land Use Factor Calculation for The Future Maintenance of Section(s) of The Cranberry Creek Municipal Drain, Project no. B2 1065. Date: 28-SEP-22” to Appellants David and Bronwyn Harper within 7 days of the release of this order.

37With respect to these motions, the Respondent has requested costs of the motion against the Moving Parties and allege that the motions are unreasonable, frivolous, vexatious and made in bad faith. The Tribunal is not prepared to grant that request today.

Christine Greydanus, Vice-Chair