ONTARIO SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Goetz v South Bruce (Municipality), 2020 ONDR 3

DATE OF DECISION: 2020-11-19

Court File No.: CV-20-18 (Walkerton)

BETWEEN:

MARK GOETZ, DAWN KENNEDY and PATRICIA GOETZ Applicants

• and –

THE CORPORATION OF THE MUNICIPALITY OF SOUTH BRUCE Respondent

ACTING DRAINAGE REFEREE: ANDREW C. WRIGHT THURSDAY, THE 13th DAY OF NOVEMBER 2020

ORDER

The Court of the Drainage Referee having appointed this day for a procedural Pre-Hearing conference by video conference

(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 estimate the amount of time required for the hearing;

(e) to set the commencement date for the hearing;

(f) to deal with such other matters or things as may arise and which the presiding Referee may determine it is expedient to permit.

Upon hearing the submissions of counsel for the applicants and counsel for the respondent Municipality, for the reasons which follow:

THIS COURT ORDERS that:

1. The presiding Referee may vary or add to these rules at any time, either on request or as it sees fit. He may alter this Order by an oral ruling, or by another written Order.

Organization of the Hearing

2. The hearing will begin via video conference on Monday, February 1, 2021 at 10:00 a.m. 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 hearing; that includes counsel, any witnesses and those giving instructions to counsel.

(b) Parties and those with a recognized interest in the proceeding, including news media, 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 hearing.

(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.

(e) For those joining the hearing to simply observe without participation, their microphone will be muted during the pre-hearing conference.

3. The length of the hearing will be about three (3) days.

4. The parties identified at the prehearing conference are:

Mark Goetz, Dawn Kennedy, and Patricia Goetz, Applicants Valerie M’Garry

The Corporation of the Municipality of South Bruce, Municipal Respondent Paul Courey

5. The Issues are:

(a) Is an engineer’s report prepared in response to a request for improvement under section 78 of the Drainage Act (the “Act”) which abandons the then existing drainage works established under the Act and authorizes the construction of new drainage works in its place something that is authorized by section 78 of the Act?

(b) If not, then is 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 “2018 Engineer’s Report”) such a report?

(c) If the answer to item 5(b) above is yes, should the 2018 Engineer’s Report be set aside, and if yes, what ancillary relief should the Referee order to respond to the September 2, 2014 request for improvement made by George Spence?

(d) Is there any improper action, neglect, default or omission on the part of the Municipality that would justify the Referee directing, pursuant to subsection 118(2) of the Act, that the whole or any part of the costs and expenses of the Municipality should be borne out of the general funds of the Municipality as opposed to those costs and expenses being assessed to the Drain as contemplated by subsection 118(1) of the Act; and, if yes, what portion, if not all should be paid out of the general funds of the Municipality?

There will be no changes to this list unless the presiding Referee permits, and a party who asks for changes may have costs awarded against it.

6. Because the hearing of the merits is being conducted by video conference, protocols concerning the entering of exhibits are warranted and the following apply in that connection:

(a) A document, including a plan or photograph, to be relied upon at a hearing must be identified as an exhibit.

(b) To be identified as an exhibit, the document must be provided to the presiding Referee and to all other parties at least 2 days in advance of the video conference hearing at which it is to be presented as an exhibit; the presiding Referee may abridge this time.

(c) The presiding Referee will decide whether to enter the document as an exhibit and, if it is allowed, the presiding Referee will assign an exhibit an alpha/numeric identifier.

(d) Once the document has been entered as an exhibit, the party that introduced the exhibit shall, within 3 business days following the conclusion of the video conference hearing, send hard copy or an electronic copy of the exhibit to the court at:

Superior Court of Justice Attention: Civil Registrar via e-mail to Hanna.Burnie@Ontario.ca Walkerton Court House 207 Cayley Street, Walkerton, Ontario N0G 2V

and when doing so shall identify the court file no.: Court File No. CV-20-18 and the exhibit identifier assigned by the presiding Referee; a copy of the letter or e-mail of transmittal shall be provided to the presiding Referee.

(e) Court Orders, the application, notices of motion, factums, case law, legislation and compendiums of authorities will not be marked as exhibits though Court Orders, the application, notices of motion and factums should be filed with the court and item 6(d) above applies mutatis mutandis.

7. At the time of the November 13, 2020 procedural pre-hearing conference, the following documents are part of the record:

Notice of Application issued March 13, 2020

Procedural Order issued April 22, 2020 giving directions as to the giving of notice of the procedural pre-hearing to be held on September 10, 2020

Exhibit No.: 1

Affidavit of Mark Goetz sworn March 4, 2020 with Exhibits “A” through “O” filed in support of the application - applicants to advise the court registrar of Exhibit No.

Exhibit No.: 2

Respondent Municipality’s Record in response including the Affidavit of Stephen Brickman, P.Eng. sworn July 9, 2020 with Exhibits “A” through “D”, the Affidavit of Leanne Martin sworn July 9, 2020, the Affidavit of Sid Vander Veen, P.Eng. sworn July 9, 2020 with Exhibit “A”, and the Affidavit of George Spence sworn July 9, 2020 - respondent Municipality to file, if not already done or, if it has, to advise the court registrar of Exhibit No.

Exhibit No.: 3

Affidavit of service by mail on August 14, 2020 of notice of the September 10, 2020 procedural pre-hearing conference sworn by Ian Nielson on August 26, 2020. - applicants to file if not already done or, if it has, to advise the court registrar of Exhibit No.

Exhibit No.: 4

Affidavit confirming that notice of the September 10, 2020 procedural pre-hearing conference and of other documentation referred to in the notice were available for inspection at the Municipal respondent’s offices and on the Municipal respondent’s website sworn by Tracy Grubb on July 21, 2020. - respondent Municipality to file if not already done or, if it has, to advise the court registrar of Exhibit No.

Exhibit No.: 5

Copy of the notice of the September 10, 2020 procedural pre-hearing conference referred to above. - to be filed by the applicants.

Exhibit No.: 6

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 plan and profile (the “2018 Engineer’s Report”). - to be filed by respondent Municipality.

Decision of the Agriculture, Food and Rural Affairs Tribunal (the “Tribunal”) related to the Filsinger Municipal Drain and appeals under sections 48 and 54 of the Drainage Act which decision was issued December 16, 2019 and is reported at 2019 ONAFRAAT 20 (the “Tribunal Decision”)

Exhibit No.: 7

Engineer’s 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 “1970 Engineer’s Report”). - to be filed by the respondent Municipality.

Decision of Referee O’Brien issued April 26, 2002 in the case of King v. Kawartha Lakes (City), reported at 2002 ONDR 5

Decision of Justice MacFarland for the Divisional Court released February 25, 2004 in the case of King v. Kawartha Lakes (City), reported at [2004] O.J. No. 974

Exhibit No.: 8

Curriculum Vitae of Stephen Brickman, P.Eng. and his Acknowledgement of Expert’s Duty. - to be filed by respondent Municipality.

Exhibit No. 9

Curriculum Vitae of Sid Vander Veen, P.Eng. and his Acknowledgement of Expert’s Duty - to be filed by the respondent Municipality.

Decision of Referee William Turville issued March 17, 1988 in the case of Kilberg v Wallace (Township), reported at 1988 ONDR 1

Exhibit No. 10

Respondent Municipality’s Motion Record dealing with jurisdictional issues and the striking of evidence, including Notice of Motion and supporting affidavit sworn by Awstin Pettit on August 31, 2020 including Exhibit A - respondent Municipality to file if not already done or, if it has, to advise the court registrar of Exhibit No.

Interim Procedural Order issued September 29, 2020 reflecting a procedural hearing held on September 10, 2020 and continued on September 18, 2020 disposing for preliminary matters.

8. The documents that have exhibit numbers will retain their exhibit numbers through the hearing(s) on the merits of this case. New exhibits will be identified by the next ensuing exhibit number and be added to the list as the hearing(s) progresses.

9. The documents listed are intended to reflect those things which would normally be filed in court or which would be used in the course of the hearing; it does not include but does not intend to dispense with routine items such as appearances, affidavits of service required by the court staff for filings such as the application, appearances, any motions and routine affidavits of service for supporting affidavits.

10. If counsel or a witness intends to rely upon case law, other than the cases listed in paragraph 7 above, or legislation, other than the Act, copies must be provided to the presiding Referee and to all other parties at least 2 days in advance of the video conference hearing at which it is to be referred to; the presiding Referee may abridge this time.

Order of Evidence at Hearing

11. The order in which evidence will be given at the hearing will be as follows:

(a) Mr. Stephen Brickman, P.Eng., one of the engineers who authored the 2018 Engineer’s Report shall give factual background evidence;

(b) The applicants will then call their evidence; the applicants’ witness is:

(i) Mark Goetz who will provide factual evidence based in his affidavit sworn March 4, 2020 having regard for the court’s order dated September 18, 2020 and issued September 29th as to the parts thereof which are germane;

(c) The respondent Municipality will call its witnesses; the respondent Township’s witnesses, in no particular order, are

(i) Stephen Brickman, P.Eng. will be re-called to provide both factual and opinion evidence based in his affidavit sworn July 9, 2020,

(ii) Sid Vander Veen, P.Eng. will be called to provide factual and opinion evidence based on this affidavit sworn on July 9, 2020,

(iii) Leanne Martin will be called to provide factual evidence based on her affidavit sworn on July 9, 2020, and

(iv) George Spence will be called to provide factual evidence based on his evidence sworn on July 9, 2020.

(d) The applicants may then call reply evidence.

12. Final submission by the parties will proceed in the same order as specified in item 11 above.

Requirements Before the Hearing

13. On or before Wednesday December 23, 2020, the respondent Municipality shall, pursuant to subsection 11(1) of Regulation 232/15 being the Rules of Practice and Procedure in Proceedings Before The Referee (the “Rules”) deliver to the applicants and to the presiding Referee a legible copy of the petition which initiated the process resulting in the 1970 Engineer’s Report if it, or a copy of the petition can be found.

14. A person wishing to change written affidavit evidence must make a written motion to the presiding Referee.

15. A party who has provided an, affidavit must have the witness attend the hearing to give oral evidence, unless the party notifies the presiding Referee at least seven (7) days before the hearing that the written evidence is not part of their record.

16. 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.

17. For the purposes of this Order, unless otherwise ordered, Andrew C. Wright, Acting Drainage Referee, shall be regarded as the presiding Referee until the commencement of the trial at which time the Referee or Acting Referee presiding at the hearing shall become the presiding Referee for the purposes of this Order.

18. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness.

19. Costs of the day are reserved to the final disposition of this matter.

20. Andrew C. Wright, Acting Drainage Referee, is not seized of the hearing of the merits of this application.

Dated at London November 19, 2020.

Andrew C. Wright Acting Drainage Referee

REASONS

1This procedural pre-hearing conference was held by video conference on November 13, 2020.

2The parties estimated that the evidence could be completed in two and a half days and that a full three days would be required for flexibility and final submissions.

3Mr. Courey raised the matter of subrule 8(3) of the Rules which provides that:

The referee or acting referee who conducts a pre-hearing conference in a proceeding shall not preside at the hearing.

He wanted to be sure that Andrew Wright, Acting Drainage Referee, would be recusing himself from presiding at the hearing on the merits given that Mr. Wright had presided at the pre-hearing procedural conferences.

4The presiding Acting Drainage Referee advised that he would take the matter under advisement before scheduling the hearing on the merits.

5To fully appreciate subrule 8(3), it should be considered in the context in which it appears, that is Rule 8 which is as follows:

8.(1) The referee may order that a pre-hearing conference be held if the referee determines one is desirable in order to consider any of the following matters:

1. The possibility of settlement of any or all of the issues in the proceeding.

2. Simplification of the issues.

3. The possibility of obtaining admissions that may facilitate the hearing.

4. The question of liability.

5. The amount of damages, if damages are claimed.

6. The estimated duration of the hearing.

7. The advisability of having the referee appoint an expert.

8. In the case of an action, the number of expert witnesses and other witnesses that may be called by each party, and dates for the service of any outstanding or supplementary expert reports.

9. The advisability of fixing a date for the hearing.

10. Any other matter that may assist in the just, most expeditious and least expensive disposition of the proceeding.

(2) The parties shall participate in the pre-hearing conference in accordance with the referee’s order.

(3) The referee or acting referee who conducts a pre-hearing conference in a proceeding shall not preside at the hearing.

6A significant element of Rule 8, coupled with Rule 6, is case management. This involves the giving of notice to those affected and giving them the opportunity to participate; it includes narrowing and focusing the issues to be addressed at the hearing. Case management also entails estimating the time required to conduct the hearing and to establish a start time and date. Case management can also include requiring a schedule for the pre-hearing exchange of documents and affidavits or witness statements. This sort of case management has been done in this case by Andrew Wright, Acting Drainage Referee in the course of procedural pre-hearing conferences on April 22, 2020 (giving directions for giving notice), September 10, 2020 (hearing factual evidence in aid of focusing and narrowing issues), September 18, 2020 (hearing preliminary motions to focus and narrow issues) and November 13, 2020 (scheduling a hearing on the merits).

7Another aspect of Rule 8 is to encourage settlement by enabling the Referee or Acting Referee presiding at a pre-hearing conference to engage with the parties in settlement negotiations as a mediator. In order for that sort of mediation exercise to be fruitful, it is necessary for the parties to share freely confidential information and negotiating positions with the confidence that the ultimate decision maker will not have access to or be privy to such information. The purpose of subrule 8(3) is to ensure that, if the Referee or an Acting Referee engages in such a mediation exercise in the course of a pre-hearing conference, that mediator will not preside at the hearing in the event that settlement discussions are unsuccessful.

8In this case Andrew Wright never engaged in mediation or any other form of settlement or negotiation discussions with the parties in the course of the procedural pre-hearing conferences or otherwise. Mr. Wright is not privy to any confidential information from any party.

9Applying a purposive interpretation to Rule 8, subRule 8(3) relates only to a Referee or an Acting Referee who has engaged with the parties in settlement discussions. It does not apply to preclude the Referee or an Acting Referee from presiding at a hearing on the merits when he has presided at prehearing conferences to simply case manage the matter to get it ready for a hearing on the merits.

10This purposive interpretation does not derogate from the importance of subRule 8(3) in the case when the Referee or an Acting Referee engages with the parties in settlement negotiations. Settlement of contentious matters locally by the parties is always to be preferred to an imposed result from outside. Settlements are to be encouraged and, if the Referee or an Acting Referee can facilitate a solution, that is an object to be desired. To make that work, it needs to be understood that the discussions are "off the record" and cannot be used if and when the parties get to a hearing on the merits. The point of this is to allow people to propose compromises to their legal position without being stuck with those compromises at the hearing. With an agreement or understanding of confidentiality in place, each party is able to bargain toward settlement without worrying that the other side will use their settlement proposals, or the information disclosed during mediation against them. Without such an understanding, parties would be unable to budge from their starting positions. In the same vein, the parties must know that the Referee presiding at the hearing on the merits will not be privy to confidential details disclosed in the course of a pre-hearing mediation; that is the purpose of subrule 8(3).

11However, if there has been no negotiation in the course of a case management pre-hearing conference, it is not the purpose of subrule 8(3) to preclude the case-managing Referee from presiding at the hearing of the merits. No purpose would be served by a different interpretation; subRule 8(3) does not and is not intended to prohibit a case-managing Referee from presiding at the hearing.

12There is a considerable advantage to having the case managing Referee preside at the hearing, if possible, as the presiding Referee is familiar with the background and will have a much less steep learning curve at the hearing than would a Referee who is coming into the hearing cold. This sort of efficiency for the parties and for the presiding Referee is important to the Drainage Act scheme of things considering that, at present, there is only one Referee and one Acting Referee serving the Province of Ontario; both of whom are appointed by Order-in-Council on a part-time basis. If it were necessary, in each case, for one to case manage and the other to take the hearing, the result would be a system that would be inefficient, time consuming and costly. It would also require the work of the Court of the Drainage Referee to grind to a halt if either one of the two were to be unavailable for a period of time on account of health challenges or personal commitments.

13Because he was not involved in any settlement negotiation nor is he privy to any confidential information, Andrew Wright, Acting Drainage Referee, if tasked to take the hearing, will not recuse himself from presiding at the hearing on the merits, notwithstanding that he presided at four case management, procedural pre-hearing conferences.

14The result of the pre-hearing case management has been to distill a focused legal issue out of the extremely broadly cast, prolix application. That issue is whether the 1988 decision in Kilberg v Wallace reflects the current state of the law and whether the project proposed by the 2018 Engineer’s Report is authorized by section 78 of the Act in accordance with the current state of the law. It is expected that the applicants will focus their evidence and submissions accordingly. It is also expected that the respondent Municipality will be forthright and fulsome in the evidence provided to the hearing so that a well-informed decision can be made by the presiding Referee.

15The hearing will commence at 10:00 am on Monday, February 1, 2021