ODR 2020

Due to the COVID-19 pandemic, the scheduled in-person hearing before the Drainage Referee was adjourned.

The Referee issued a supplemental procedural order establishing protocols for rescheduling the hearing, either in-person once safe to do so, or by video conference if the applicants elect to proceed earlier.

The order also extended deadlines for the applicants to provide witness lists and statements, and established procedures for entering exhibits in a video conference format.

The applicants and respondent participated in a procedural pre-hearing conference before the Acting Drainage Referee to organize the hearing of a drainage dispute.

The respondent raised the issue of whether the Acting Referee was required to recuse himself from the hearing on the merits under subrule 8(3) of the Rules of Practice and Procedure, having presided over the pre-hearing conferences.

The Acting Referee held that subrule 8(3) only requires recusal if the presiding officer engaged in settlement negotiations or mediation.

Because the pre-hearing conferences were strictly for case management and no confidential settlement information was shared, the Acting Referee declined to recuse himself.

A procedural order was issued setting the hearing dates and protocols.

At a procedural pre-hearing conference, the Acting Drainage Referee addressed a jurisdictional motion by the respondent municipality and a motion to extend time by the applicants.

The Referee determined that the Court of the Drainage Referee has no jurisdiction to hear an appeal or judicial review of a decision of the Agriculture, Food and Rural Affairs Appeal Tribunal under sections 48 and 54 of the Drainage Act.

Consequently, portions of the applicants' affidavit relating solely to the Tribunal proceedings were deemed irrelevant and will be disregarded.

The Referee also granted the applicants' motion to extend the time to commence the application under section 113 of the Drainage Act, finding no prejudice to the municipality.

The applicants challenged an Engineer's Report regarding the proposed improvement of the Filsinger Municipal Drain under section 78 of the Drainage Act.

The Acting Drainage Referee held a video pre-hearing conference and issued a procedural order establishing a timetable for the delivery of responding materials, the production of the Engineer's Report and previous reports, and the obtaining of an audio recording from the Agriculture, Food and Rural Affairs Appeal Tribunal.

The order also set the date for a further procedural pre-hearing conference and detailed the notice requirements for affected landowners in the watershed.