ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
HENDERSON v. CHATHAM-KENT (MUNICIPALITY)
2015 ONDR 1
2015-10-20
2015-01
STATUTE:
Drainage Act
HEARING:
2015-10-14
BETWEEN:
DONALD E. HENDERSON
Appellant
- and —
THE CORPORATION OF THE
MUNICIPALITY OF CHATHAM-KENT
- and —
OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION
Respondents
ACTING DRAINAGE REFEREE )
ANDREW C. WRIGHT )
WEDNESDAY, THE 14TH DAY OF OCTOBER, 2015
ORDER
The Court of the Drainage Referee having appointed this day for a telephone conference call pre-hearing conference
(a) To fix a time for the production of documentation by the Municipality;
(b) To fix a time for the Municipality to deliver pleadings;
(c) To identify those who may potentially be affected by any decision of the Referee and to make an Order as to the giving of notice of this proceeding to such persons and the form of notice; and
(d) To deal with such other matters or things as may arise and which the presiding Referee or Acting Referee may determine it is expedient to permit.
Upon hearing the submissions of counsel for the appellant and for the Municipality,
THIS COURT ORDERS that:
The Municipality shall deliver to the appellant a copy of the engineers report on the McKnight Municipal Drain, including plans and profiles, prepared under the Drainage Act by Dillon Consulting Limited and dated May 29, 2012 and signed by Adam Sullo.
The Municipality shall satisfy the above requirement before the close of business on Friday October 16, 2015 and may do so by electronic e-mail transmission.
The Municipality will deliver to the appellant the Municipality's statement of defence before the close of business on Friday October 16, 2015 and may do so by electronic eÂmail transmission.
The Municipality will search its files and deliver to the appellant as soon as possible copies of all drainage reports on the McKnight Municipal drain prior to the 2012 Engineer's Report referred to in item 1 above, including particulars of drainage works under The Ditches and Watercourses Act.
A one-day procedural pre-hearing conference will be held on Wednesday 16th day of December, 2015 commencing 10:30 in the morning at
Chatham-Kent Court House 425 Grand Avenue, West, Chatham, Ontario N7M 6M8
A second day, on Wednesday December 16th will be held in reserve for this procedural pre-hearing conference should more than one day be required.
- The appellant shall give notice of procedural pre-hearing conference and the following provisions shall apply:
(a) The notice shall be in the form attached to this Order;
(b) The notices shall be given by ordinary mail to the current owners of lands identified in the Engineer's Report referred to in item 1 above;
(c) For the purposes of paragraph (b) of this Order the lands identified in the report are those lands proposed to be assessed or awarded allowances at their respective addresses as shown on the last revised assessment roll;
(d) The Municipality will provide to the appellant, on or before Wednesday November 4, 2015, the names and address according to the last revised assessment roll referred to in item 6(c) above;
(e) The appellant shall also give notice to Dillon Consulting Limited addressed to an address within the Municipality which is to be provide by the Municipality to the appellant, on or before Wednesday November 4, 2015;
(f) Notice shall be mailed on or before the November 18, 2015;
(g) The appellant shall prepare an affidavit proving service in compliance with this Order,
(h) The appellant shall provide a copy of the affidavit of service to counsel for the Municipality on or before the 11th day of December, 2015
(i) The applicant shall also produce a copy of the affidavit of service at the commencement of the procedural pre-hearing conference on the 16th day of December, 2015.
Cost of the day are reserved to the final disposition of this matter.
The presiding Acting Referee is not seized of the hearing of the merits of this application.
October 20th, 2015
APPOINTMENT FOR PRE-HEARING CONFERENCE
The presiding Drainage Referee did, by Order dated the 14th day of October, 2015, order that the appellant give notice of this proceeding and the procedure to be followed in this matter.
The appellant has made an application to the Court of the Drainage Referee; a copy of the Notice of Motion is attached to this Notice as Appendix "A". The Municipality has filed a Statement of Defence, a copy of the Notice of Motion is attached to this Notice as Appendix "B"
No evidence has been provided in support of the application or the defence.
The application deals with the McKnight Municipal Drain. The most recent report on the McKnight Drain was prepared under the Drainage Act by Dillon Consulting Limited and dated May 29, 2012 and signed by Adam Sullo. Changes to the drain are proposed and damages are being claimed.
Take Notice that the presiding Drainage Referee will convene a procedural pre-hearing conference to give procedural direction for the hearing of this case. The pre-hearing conference will be held at:
Court House
425 Grand Avenue, West, Chatham, Ontario N7M 6M8
It will commence at 10:30 on 16th day of December, 2015.
Whether the McKnight Municipal Drain is altered, and, if so, on what terms will affect those in the watershed. These matters will be determined following a hearing of the application on its merits. Since the procedural pre-hearing conference will determine how and when the actual hearing will proceed on the merits, the outcome of the pre-hearing conference may ultimately affect the legal rights of those in the watershed.
The purpose of the procedural pre-hearing conference on Wednesday the 16th day of December, 2015 will be
(a) to identify parties;
(b) to identify the number and nature of witnesses to be called by each party;
(c) to schedule pre-hearing production and exchange of documents, including witness statements for expert witnesses and evidence summaries for other witnesses;
(d) to schedule examinations for discovery;
(e) to identify the order in which parties will call evidence, cross-examine and make final submissions;
(f) to estimate the amount of time required for the hearing;
(g) to set the commencement date for the hearing;
(h) to deal with such other matters or things as may arise and which the presiding Referee may determine it is expedient to permit.
The Court of the Drainage Referee has set aside 2 days for this pre-hearing conference.
At the commencement of the pre-hearing conference, the presiding Drainage Referee will ask that the Municipality to file in evidence most recent report on the McKnight Drain and to call the engineer author of the report, or some other well informed engineer familiar with the report, to give background evidence about it that is factual and not opinion evidence. Questions of the engineer arising from this evidence will be limited to clarification of facts. The purpose of this evidence is to assist the presiding Referee to case manage this application to a hearing of its merits; the case managing Referee is not be seized of the hearing on the merits so any background evidence at pre-hearing conference(s) will not be relied upon and will not form part of the evidentiary record at the time of the hearing of this application on the merits.
If you, or an Ontario lawyer acting on your behalf, wish to be involved as a party to the pre-hearing conference and to the subsequent actual hearing, you or your lawyer should complete a Memorandum of Appearance in substantially the form attached to this Notice as Appendix "C". The completed Memorandum of Appearance should be filed, on or before Tuesday the 8th day of December, 2015, with the Registrar of the Superior Court of Justice at the Chatham-Kent Court House at the address noted above.
A party is entitled to call witnesses, cross-examine parties and witnesses opposite in interest, file material, make submissions and may be subject to a decision with respect to costs.
A copy of the Memorandum of Appearance should also be send by mail, facsimile transmission or e-mail to
The appellant:
Counsel for Chatham-Kent
Thomas G. Chalmers
Barrister & Solicitor
Daniel Byskal
Legal Officer
Parties should attend at the start of the pre-hearing conference at the time and date indicated. Hearing dates are firm; adjournments will not be granted except in the most serious circumstances.
If you do not attend and are not represented at this hearing, the presiding Referee may proceed in your absence and you will not be entitled to any further notice of the proceedings.
DATED at London, this 20th day of October, 2015.
ANDREW C. WRIGHT Acting Drainage Referee