ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
B E T W E E N:
KATHY HERRON and KENNETH HERRON O/A K&K FARMS
Applicants
- and –
THE CORPORATION OF THE MUNICIPALITY OF ST. CHARLES
Respondent
- and –
OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION
Respondents
ACTING DRAINAGE REFEREE ) ANDREW C. WRIGHT ) TUESDAY, THE 16TH DAY ) OF JULY, 2019 )
ORDER
The Court of the Drainage Referee having appointed this day for a telephone conference call pre-hearing conference
(a) To identify those who may potentially be affected by any decision of the Referee on the application and to make an Order as to the giving of notice of this proceeding to such persons and the form of notice; and
(b) 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 applicants and counsel for the respondent,
THIS COURT ORDERS that:
- A one-day procedural pre-hearing conference will be held on Wednesday, the 16th day of October, 2019 commencing at 10:30 in the morning at
Sudbury Court House 155 Elm Street, Sudbury, Ontario P3C 1T6
A second day, on Thursday, October 17th, will be held in reserve for this procedural pre-hearing conference should more than one day be required.
- The respondent Municipality 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 on the Lamoureux Drain 1999 issued January 4, 1999 by K. Smart Associates Limited and signed by K.A. Smart, P.Eng, as amended by Addendum No. 1 for the Lamoureux Drain, 1999 dated May 31, 1999 and signed by K.A. Smart, P.Eng. (the “Engineer’s Report”);
(c) For the purposes of paragraph 2(b) of this Order, the lands identified in the Engineer’s Report are those lands assessed or awarded allowances at their respective addresses as shown on the last revised assessment roll;
(d) The applicant Municipality shall also give notice to K. Smart Associates Limited addressed to
K. Smart Associates Limited, 85 McIntyre Drive, Kitchener, Ontario N2R 1H6
and
K. Smart Associates Limited, Unit 2, 584 Clinton Avenue, Sudbury, Ontario P3B 2T2
(e) Notice shall be mailed on or before the Friday September 20, 2019;
(f) The respondent Municipality shall make available for review at the Municipality’s offices at 2 King Street, East, St. Charles, Ontario P0M 2W0 during normal business hours:
(i) a copy of the Notice of Application,
(ii) a copy of the Statement of Defence,
(iii) a copy of this Order.
(g) The respondent Municipality shall make available on its website, http://www.stcharlesontario.ca, all that is mentioned in clause 2(f) above;
(h) The respondent Municipality shall prepare an affidavit proving service in compliance with this Order;
(i) The respondent Municipality shall also produce a copy of the affidavit of service at the commencement of the procedural pre-hearing conference on the 16th day of October 2019.
- Where any document is required or permitted to be served, it shall be served by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service) and shall be sent to:
(a) the party’s representative, if any;
(b) where the party is an individual and is not represented, to that party directly, where that party has provided an address for service and/or an e-mail address;
(c) where that party is a corporation and is not represented, to the corporation directly, to the attention of an individual with apparent authority to receive the document.
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.
Dated at London this July 18, 2019.
Andrew C. Wright Acting Drainage Referee
Court File No.: A-13073 (Sudbury)
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
B E T W E E N:
KATHY HERRON and KENNETH HERRON O/A K&K FARMS
Applicants
- and –
THE CORPORATION OF THE MUNICIPALITY OF ST. CHARLES
Respondent
- and –
OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION
Respondents
APPOINTMENT FOR PRE-HEARING CONFERENCE
The presiding Drainage Referee did, by Order dated the July 16, 2019 order that the respondent Municipality give notice of this proceeding and the procedure to be followed in this matter.
The applicants have made an application to the Court of the Drainage Referee; a copy of the Notice of Application is attached to this Notice as Appendix “A”. The respondent Municipality has filed a Statement of Defence, a copy of which is attached to this Notice as Appendix “B”. The applicants have not provided any affidavit evidence in support of their application; the respondent Municipality has not provided any affidavit evidence in response.
Copies of the Notice of Application and the Statement of Defence may be viewed during normal business at the office of the respondent Municipality at 2 King Street, East, St. Charles Ontario.
The application seeks damages arising from the alleged failure of the respondent Municipality to maintain and repair the Lamoureux Municipal Drain (the “Municipal Drain”). The damage is said to have occurred at the Applicants’ farm located in part of the south half of Lot 1, Concession 1 in the geographic Township of Jennings known municipally as 3239 Highway 535 in the Municipality of St. Charles. The assessment roll number of the Applicants holding is 520400000210400. From the most recent engineer’s report on the Municipal Drain it appears that the Applicants’ lands are comprised of approximately 30 hectares (75 acres), a portion of which land is within the watershed of the Municipal Drain.
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:
Sudbury Court House 155 Elm Street, Sudbury, Ontario P3C 1T6
It will commence at 10:30 a.m. on the 16th day of October 2019.
Whether or not the application is successful and, if so, on what terms may 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 October 2019 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, if necessary;
(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.
At the commencement of the pre-hearing conference, the presiding Drainage Referee will ask that the Municipality to file in evidence the Engineer’s Report, including full-scale plans and profiles, and to call the engineer author of the Engineer’s Report, or some other well-informed engineer familiar with the report, to give background evidence 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 “D”. The completed Memorandum of Appearance should be filed, on or before Friday the 4th day of October, 2019, with the Registrar of the Superior Court of Justice at the Sudbury 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
Agent for the applicants:
Justin Blanger, Paralegal 1 Lisgar Street, P.O. Box 42, Station “B” Sudbury Ontario P3E 4N3
T: (705) 929-3159 F: E: justincaseparalegal@outlook.com
Counsel for the applicants
Gerard E. Guimond Professional Corporation Barriser & Solicitor, 3527 Errington Avenue, North, Chemsford, Ontario P0M 1L0
T: (705) 855-4511 F: (705) 855-5631 E: guimond12@bellnet.ca
Counsel for the Municipality
Matthew Leef, Weaver Simmons LLP, Barristers & Solicitors, 233 Brady Street, Brady Square, Sudbury, Ontario P3B 4H5
T: (705) 671-3297 F: (705) 674-9948 E: mleef@weaversimmons.com
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 18th day of July 2019.
Andrew C. Wright Acting Drainage Referee
ATTACHMENT “A”
Copy of December 20, 2016 Notice of Application
ATTACHMENT “B”
Copy of January 19, 2018 Statement of Defence
ATTACHMENT “C”
Court File No.: A-13073 (Sudbury)
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
B E T W E E N:
KATHY HERRON and KENNETH HERRON O/A K&K FARMS
Applicants
- and –
THE CORPORATION OF THE MUNICIPALITY OF ST. CHARLES
Respondent
- and –
OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION
Respondents
MEMORANDUM OF APPEARANCE
The undersigned intends to respond to this application as a party
Signature of Party or of Solicitor for Party Print Name: Address for service: Telephone number: If available, Facsimile number: If available, E-mail address:
Date:
TO:
Superior Court of Justice Attention: Civil Registrar Sudbury Court House 155 Elm Street, Sudbury, Ontario P3C 1T6
AND TO:
Justin Blanger, Paralegal 1 Lisgar Street, P.O. Box 42, Station “B” Sudbury Ontario P3E 4N3
T: (705) 929-3159 F: E: justincaseparalegal@outlook.com
Agent for the applicants
AND TO:
Gerard E. Guimond Professional Corporation Barriser & Solicitor, 3527 Errington Avenue, North, Chemsford, Ontario P0M 1L0
T: (705) 855-4511 F: (705) 855-5631 E: guimond12@bellnet.ca
Counsel for the applicants
AND TO
Matthew Leef, Weaver Simmons LLP, Barristers & Solicitors, 233 Brady Street, Brady Square, Sudbury, Ontario P3B 4H5
T: (705) 671-3297 F: (705) 674-9948 E: mleef@weaversimmons.com