ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
B E T W E E N:
MARK GOETZ, DAWN GOETZ, WILLIAM GOETZ and PATRTICIA GOETZ Applicants
- and –
THE CORPORATION OF THE MUNICIPALITY OF SOUTH BRUCE Respondent
- and –
OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION Respondents
ACTING DRAINAGE REFEREE ) ANDREW C. WRIGHT ) WEDNESDAY, THE 22nd DAY ) OF APRIL, 2020
ORDER
The Court of the Drainage Referee having appointed this day for a video pre-hearing conference
(a) To fix a time for the Respondent Municipality to deliver responding materials;
(b) 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
(c) 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 of counsel for the respondent Municipality,
THIS COURT ORDERS that:
The respondent Municipality will deliver to the applicants responding material before the close of business on Friday, July 10, 2020 and may do so by electronic e-mail transmission; concurrently the respondent Municipality will deliver a copy of such responding material to the presiding Referee and shall do so electronically.
The respondent Municipality shall forthwith deliver by courier to the presiding Referee copies of
(a) the Engineer’s Report on the Filsinger Municipal Drain issued September 12, 2018 by Dietrich Engineering Limited and signed by William J. Dietrich, P.Eng. and by Stephen Brickman, P.Eng., including plans and profile, and
(b) the report on the Filsinger Municipal Drain issued January 7, 1970 by Gamby and Mannerow Limited and signed by Wm J. Mannerow, P.Eng., including plans and profile.
The applicants shall forthwith make very reasonable effort to obtain from the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) the audio recording of its hearing held on November 12, 13 and 14, 2019 of appeals under sections 48 and 54 of the Drainage Act with respect to the Filsinger Municipal Drain. Once it is obtained, the applicants shall deliver the audio recording to the respondent Municipality by electronic e-mail transmission and concurrently, the applicants will deliver a copy of the audio recording by electronic transmission to the presiding Referee. If this delivery has not been effected by Friday, May 29, 2020, the applicants shall make a written report to the presiding Referee, with a copy to the respondent Municipality, detailing the steps taken to obtain the audio recording and providing an explanation for the delay and a status report as to when the audio recording will most likely become available.
A procedural pre-hearing conference will be held via video conference on Thursday, the 10th day of September 2020 commencing 10:00 in the morning and the following provisions shall apply:
(a) The Parties shall provide to the presiding Referee and names and e-mail addresses of those who will be on hand at the video conference; that includes counsel, any witnesses and those giving instructions to counsel.
(b) Parties, those seeking party status and those with a recognized interest in the proceeding will be provided by the presiding Referee with access credentials, including a password, to log into the video conference at the appointed time.
(c) Once logged on, the person will be held in a waiting area pending authorization by the presiding Referee to join the pre-hearing conference.
(d) Parties intending to call a witness will ensure that the witness has a bible at hand if they are to be sworn to give evidence; a bible is not required for a witness who affirms. For those joining the pre-hearing conference to simply observe without participation, their microphone will be muted during the pre-hearing conference.
- The applicants shall give notice of the procedural pre-hearing conference and the following provisions shall apply to the giving of notice:
(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 Filsinger Municipal Drain issued September 12, 2018 by Dietrich Engineering Limited and signed by William J. Dietrich, P.Eng. and by Stephen Brickman, P.Eng., as modified by the decision of the Agriculture, Food and Rural Affairs Appeal Tribunal issued December 16, 2019 (the “Engineer’s Report”);
(c) For the purposes of paragraph 5(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 respondent Municipality shall provide to the applicants, on or before Friday, July 24, 2020, the names and addresses according to the last revised assessment roll of those referred to in item 5(c) above; the list of names and addresses shall be in machine-readable format;
(e) The applicant shall also give notice to Dietrich Engineering Limited addressed to
Dietrich Engineering Limited, 155 Frobisher Drive, Unit G-116 Waterloo, Ontario. N2V 2E1
(f) Notice shall be mailed on or before the Friday, August 14, 2020;
(g) The respondent Municipality shall make available for review at the Municipality’s offices at 21 Gordon Street, East, Teeswater, Ontario during normal business hours:
(i) a copy of the Notice of Application,
(ii) a copy of the affidavit of Mark Goetz made in support of the application including the exhibits referred to therein,
(iii) a copy of responding material provided by the respondent Municipality, including exhibits referred to therein,
(iv) a copy of this Order,
(v) a copy of the Engineer’s Report, including plans and profile, as well as a copy of the decision of the Agriculture, Food and Rural Affairs Appeal Tribunal issued December 16, 2019, and
(vi) a copy of the report on the Filsinger Municipal Drain issued January 7, 1970 by Gamby and Mannerow Limited and signed by Wm J. Mannerow, P.Eng., including plans and profile.
(h) The respondent Municipality shall make available on its website,
http://www.town.southbruce.on.ca/
all that is mentioned in clause 5(g) above;
(i) The applicants shall prepare an affidavit proving service in compliance with this Order except for compliance with items 5(d), 5(g) and 5(h) above;
(j) The respondent Municipality shall prepare an affidavit confirming compliance with items 5(d), 5(g) and 5(h) above;
(k) The applicants shall deliver the affidavit of service referred to in item 5(i) above to the respondent Municipality by electronic e-mail transmission before the close of business on Friday, August 28, 2020; concurrently the applicants will deliver a copy of such affidavit of service by electronic transmission to the presiding Referee; and the respondent Municipality shall forthwith file a copy of the affidavit of service with the
Superior Court of Justice Attention: Civil Registrar Walkerton Court House 207 Cayley Street, Walkerton, Ontario N0G 2V0
(l) The respondent Municipality shall deliver the affidavit referred to in item 5(j) above to the applicants by electronic e-mail transmission before the close of business on Friday, August 28, 2020; concurrently the respondent Municipality will deliver a copy of such affidavit by electronic transmission to the presiding Referee; and the respondent Municipality shall forthwith file a copy of the affidavit of service with the Superior Court of Justice at the address referred to above.
- When 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.
Costs of the day are reserved to the final disposition of this matter.
The presiding Acting Referee may be spoken to should clarification or further directions are required or desired in connection this this Order.
The presiding Acting Referee is not seized of the hearing of the merits of this application.
Dated at London this April 22, 2020.
Andrew C. Wright Acting Drainage Referee
Court File No.: CV-20-18
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
B E T W E E N:
MARK GOETZ, DAWN GOETZ, WILLIAM GOETZ and PATRTICIA GOETZ Applicants
- and –
THE CORPORATION OF THE MUNICIPALITY OF SOUTH BRUCE 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 22nd day of April, 2020, order that the applicants 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”. Also attached as part of Appendix “A” is a copy of the affidavit of Mark Goetz made in support of the application without the exhibits referred to therein. The respondent Municipality has filed responding material, a copy of which is attached to this Notice as Appendix “B”, again without exhibits.
Copies of the Notice of Application and supporting affidavit, including exhibits, may be viewed during normal business at the office of the respondent Municipality at 21 Gordon Street, East, Teeswater, Ontario. As well copies of the responding material provided by the respondent Municipality are available to be reviewed during normal business hours at the Municipality’s office. Copies of the Notice of Application, of the supporting affidavit of Mark Goetz, including exhibits, and of responding material from the respondent Municipality are also available from the Municipality’s website at: http://www.town.southbruce.on.ca.
The application deals with the Filsinger Municipal Drain (the “Municipal Drain”). The application relates to the work proposed on the Filsinger Municipal Drain by the Engineer’s Report issued September 12, 2018 by Dietrich Engineering Limited and signed by William J. Dietrich, P.Eng. and by Stephen Brickman, P.Eng. as modified by the decision of the Agriculture, Food and Rural Affairs Appeal Tribunal issued December 16, 2019 (the “Engineer’s Report”). The Engineer’s Report was prepared in response to a request for improvement of the Filsinger Municipal Drain made under section 78 of the Drainage Act (the “Act”). The application challenges the Engineer’s Report and the drainage works proposed in the Engineer’s Report. The details of the grounds for the challenge and the relief being sought appear in the application and supporting affidavit, a copy of which is attached to this notice. The respondent Municipality asserts that what is proposed by the Engineer’s Report is within its jurisdiction and authority under section 78 of the Act. The basis for that assertion is detailed in the responding material provided by the Municipality, a copy of which is also attached to this notice.
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 by video conference and will commence at 10:00 in the morning Thursday, September 10, 2020. Details concerning access to the video conference appear later in this notice.
Whether or not the application is successful 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 Thursday, September 10, 2020 will be
(a) to identify parties;
(b) to identify the issues;
(c) to identify the number and nature of witnesses to be called by each party;
(d) to schedule pre-hearing production and exchange of documents, including witness statements for expert witnesses and evidence summaries for other witnesses;
(e) to schedule examinations for discovery;
(f) to identify the order in which parties will call evidence, cross-examine and make final submissions;
(g) to estimate the amount of time required for the hearing;
(h) to set the commencement date for the hearing;
(i) 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 Referee will ask that the respondent Municipality to call one of the engineer authors of the Engineer’s 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 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.
The pre-hearing conference will, as previously mentioned, be held by video conference. The parties and those seeking party status will be provided, via e-mail, with sign-in credentials, including a password, a few days before the scheduled pre-hearing conference. Similarly, those with an interest in the matter who wish to hear and observe the proceedings, sign-in credentials, including a password, will be provided, via e-mail, a few days in advance of the per-hearing conference.
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.
For those seeking party status, 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 must be filed, on or before Friday, August 28, 2020, with the Registrar of the Superior Court of Justice at the Walkerton Court House at 207 Cayley Street, Walkerton, Ontario. N0G 2V0.
A copy of the Memorandum of Appearance must also be sent by mail or e-mail to
Counsel for the respondent Municipality: Paul Courey, Barrister & Solicitor, 25 Young Street, P.O. Box 178, Tilbury, Ontario, N0P 2L0 T: (519) 682-1644 E: pc@coureylaw.com
Counsel for the applicants: Valerie M’Garry, Barrister & Solicitor, 37 Millmanor Place, P.O. Box 263, Delaware. Ontario, N0L 1E0 T: (519) 652-5329 E: valerie@citylaw.ca
Presiding Referee: Andrew C. Wright, c/o Siskinds LLP, 680 Waterloo Street, London, Ontario. N6A 3V8 E: andrew.wright@siskinds.com
For those wishing to simply observe the proceedings without any participation, before Friday, August 28, 2020, they must provide to the presiding Referee and to counsel for the applicants and for the respondent Municipality their name, mailing address, e-mail address and telephone number together with an indication of their interest in the case; an assessed owner or a family member or other representative of such owner would have a sufficient interest for this purpose. That information can be given by mail or by e-mail. To observe the proceedings, a computer and internet access will be required; audio access will also be available by telephone.
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 22nd day of April, 2020.
Andrew C. Wright Acting Drainage Referee
ATTACHMENT “A”
Copy of the March 13, 2020 Notice of Application and Copy of Affidavit of Mark Goetz sworn March 4, 2020 (without exhibits)
ATTACHMENT “B”
Responding material of the Municipality of South Bruce (without exhibits)
ATTACHMENT “C”
Court File No.: CV-20-18
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
B E T W E E N:
MARK GOETZ, DAWN GOETZ, WILLIAM GOETZ and PATRTICIA GOETZ Applicants
- and –
THE CORPORATION OF THE MUNICIPALITY OF SOUTH BRUCE 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.
Date:
Signature of Party or of Solicitor for Party Print Name: Address for service: Telephone number: E-mail address:
TO: Superior Court of Justice Attention: Civil Registrar Walkerton Court House 207 Cayley Street, Walkerton, Ontario N0G 2V0
AND TO: Andrew C. Wright, Acting Drainage Referee c/o Siskinds LLP, 680 Waterloo Street, London, Ontario. N6A 3V8 E: andrew.wright@siskinds.com Presiding Drainage Referee
AND TO: Paul Courey, Barrister & Solicitor, 25 Young Street, P.O. Box 178, Tilbury, Ontario, N0P 2L0 T: (519) 682-1644 F: E: pc@coureylaw.com Counsel for The Corporation of the Municipality of South Bruce
AND TO: Valerie M’Garry, Barrister & Solicitor, 37 Millmanor Place, P.O. Box 263, Delaware. Ontario, N0L 1E0 T: (519) 652-5329 F: (519) 652-9773 E: valerie@citylaw.ca Counsel for the Applicants