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
ACTING DRAINAGE REFEREE ANDREW C. WRIGHT
WEDNESDAY, THE 20^th^ DAY OF MAY 2020
SUPPLEMENTAL PROCEDURAL ORDER
The Court of the Drainage Referee having appointed this day for a further procedural Pre-Hearing conference conducted by video conference
(a) to re-organize the hearing scheduled to commence on June 1, 2020 in the Sudbury Courthouse as stipulated in the October 16, 2019 procedural Order (issued October 28, 2019);
(b) to include provisions to allow for a video conference hearing, including identification of exhibits and the provision of access to the parties, their representatives, and their witnesses and access by interested members of the public;
(c) to adjust the time for the parties to identify witnesses and provide witness statements as required by the October 2019 procedural Order;
(d) to amend the October 2019 procedural Order as to the time when the hearing on the merits will commence; and
(e) to deal with such other matters or things as may arise and which the presiding Referee may determine it is expedient to permit.
Because of the current COVID 19 pandemic, the trial scheduled to commence on June 1, 2020 in a courtroom in Sudbury must be adjourned and, on that account, the October 16, 2019 procedural Order that was issued on October 28, 2019 (the “Procedural Order”) needs to be amended; and after hearing submissions from counsel for the applicants and counsel for the respondent Township, for the reasons that follow:
THIS COURT ORDERS that the Procedural Order is amended as follows:
11. Paragraph 2 of the Procedural Order shall be replaced by the following:
- The hearing will commence at a time and on a date to be fixed by the presiding Drainage Referee, and the following provisions shall apply:
(a) After the courthouse in Sudbury is open and after the presiding Drainage Referee is satisfied that he and the parties and their witnesses may safely attend and be accommodated in Sudbury for the duration of the hearing, after consulting with the Parties, the presiding Drainage Referee will fix the date and time for the commencement of the hearing.
(b) If at any time before a hearing date is established, as contemplated by item 2(a) above, the applicants wish the hearing to proceed at an earlier date by video conference, the applicants shall so advise the presiding Drainage Referee and the respondent Municipality and, when doing so, must, if they have not already done so, provide concurrently a list of the witnesses the applicants will call and a witness statement or expert witness statement for each witness identified; the presiding Drainage Referee will consult with the Parties and will fix the date and time for the commencement of the hearing by video conference and the following provisions shall apply:
(i) 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.
(ii) Parties 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.
(iii) Once logged on, the person will be held in a waiting area pending authorization by the presiding Referee to join the hearing.
(iv) 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.
(v) For those joining the hearing to simply observe without participation, their microphone will be muted during the pre-hearing conference.
(c) If by Wednesday, June 1, 2022 a hearing has not been scheduled to commence either in the Sudbury courthouse under item 2(a) above or by video conference under item 2(b) above, the presiding Drainage Referee will, after liaising with the Parties, fix and time and date for a video conference status hearing to canvass with the Parties their readiness to proceed and to discuss ways and means of moving toward a hearing on the merits.
22. Paragraph 6 of the Procedural Order is amended so that the delivery date for witness lists is extended from Tuesday, April 14, 2020 to a date in advance of the hearing on the merits to be fixed by the presiding Drainage Referee on or before the time when the date for the commencement of the hearing is established.
33. Paragraph 16 of the Procedural Order is amended so that the date for providing witness statements and expert witness statements is extended from Thursday, April 30, 2020 to a date in advance of the hearing on the merits to be fixed by the presiding Drainage Referee on or before the time when the date for the commencement of the hearing is established.
44. The following provisions are added to the end of the Procedural Order:
- In case the hearing of the merits is to be conducted by video conference, protocols concerning the entering of exhibits are warranted and the following apply in that connection whether the hearing(s) on the merits is conducted in court or by video conference:
(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: Leona Redden, Trial Coordinator - Civil via e-mail to: Sudbury.SCJ.TC@ontario.ca Sudbury Court House
155 Elm Street,
Sudbury, Ontario P3C 1T9
and, when doing so, shall identify the court file no.: Court File No. A- 13073-16 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 25(d) above applies mutatis mutandis.
- As of May 20, 2020, the following documents are part of the record:
Application issued December 20, 2016
Statement of Defence dated January 19, 2018
Reply dated February 8, 2018
Procedural Order dated December 19, 2017 and issued that date by Acting Referee, G. Edward Oldfield
Procedural Order dated March 6, 2018 and issued that date by Acting Referee G. Edward Oldfield
Procedural Order dated July 16, 2019 and issued July 18, 2019 by Acting Referee Andrew C. Wright
Exhibit No.: 1
Affidavit of service by mail of the Notice for the October 16, 2019 procedural pre-hearing conference (already in Court file)
Procedural Order dated October 16, 2019 (the date of the pre- hearing conference) and issued October 28, 2019 by Acting Referee Andrew C. Wright
Supplementary Procedural Order dated May 20, 2020 and issued that day by Acting Referee Andrew C. Wright
Exhibit No.: 2
Respondent Municipality’s document brief dated February 8, 2018 including Tabs 1 through 20 (to be filed by Municipality)
By-law 99-009 being a by-law of The Corporation of the Municipality of St. Charles adopting the Engineer’s Report provisionally given two readings on March 9, 1999 and given third reading and finally passed on August 10, 1999 is found at Tab 5 of the respondent Municipality’s document brief (Exhibit 2)
The Engineer’s Report on the Lamoureux Drain 1999 issued by K. Smart Associates Limited on January 4, 1999 and signed by K.A. Smart. P.Eng., including plan and profile, which was adopted by By-law 99-009 and which is found at Tab 1, Tab 2 and Tab 3 of the Municipality’s document brief (Exhibit 2)
Addendum No. 1 to the Engineer’s Report on the Lamoureux Drain 1999 dated May 31, 1999 and signed by K.A. Smart, P.Eng. which is found at Tab 4 of the respondent Municipality’s document brief (Exhibit 2)
Exhibit No.: 3
Respondent Municipality’s supplementary document brief dated December 20, 2019 (to be filed by Municipality)
Exhibit No.: 4
Applicants’ undated document brief including Tabs 1 through 12 (already in Court file; applicants to advise court of Exhibit No.).
Exhibit No. 5
Applicants’ Damages Brief served and filed on January 9, 2020 (already in the Court File; applicants to advise court of Exhibit No.)
Exhibit No.: 6
Letter dated August 29, 2018 from Beef Farmers of Ontario, signed by Dan Ferguson and addressed to the applicants pertaining to the applicants’ damages claims (to be filed by applicants)
Exhibit No.: 7
Letter dated April 30, 2020 from Weaver-Simmons signed by Matthew Leef providing respondent Municipality’s witness list and witness statement for witnesses: John Kuntze, P.Eng., Garth J. Noecker, CET, Royal Lafleur and Robert Timone. (to be filed by the Municipality)
Exhibit No. 8
Curriculum Vitae of John Kuntze, P.Eng. together with his acknowledgement of Expert’s Duty (to be filed by Municipality)
Exhibit No.: 9
Forensic Report dated May 4, 2020 issued by Dover Forensic Accounting and signed by Gregory R. Silas, MBA, CPA, CA, including his Curriculum Vitae and acknowledgment of Expert’s Duty (to be filed by Municipality)
Cronk v Central Elgin decision of Acting Referee issued June 6, 2018 – unreported
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.
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.
In all other respects the Procedural Order is re-affirmed. Dated at London this May 20, 2020.
Andrew C. Wright Acting Drainage Referee
REASONS
On October 16, 2019 a procedural pre-hearing conference was held in the Sudbury courthouse. Following that pre-hearing conference, a procedural Order was issued organizing the hearing of the merits which was scheduled to commence in the Sudbury courthouse on June 1, 2020. That procedural Order (“October 2019 Procedural Order”) is dated October 16, 2019, the date of the pre-hearing conference, and was issued October 28, 2019. It also prescribed a number of requirements of the Parties in advance of the hearing.
The October 2019 Procedural Order was the result of the consensus between the Parties at the procedural pre-hearing conference on October 16, 2019.
In the intervening months, due to the current COVID-19 pandemic, the Sudbury courthouse, along with all others in Ontario, has been closed for trials, so it is necessary to adjourn the June 1, 2020 hearing; the purpose of this Supplementary Order is to do that and the chart a path forward.
The October Procedural Order, as mentioned, specified a number of requirements of the Parties in advance of the hearing. Amongst other things, the Parties were to exchange witness lists and witness statements for those witnesses who are not to be qualified to give opinion evidence and expert witness statements for those who are. This exchange was to be well in advance of the June 1^st^ scheduled commencement of the hearing on the merits. The respondent Municipality provided those things; the applicants have not.
55. It should also be mentioned that the October Procedural Order included an Issues List. The first of the issues was the question of liability. In March 2020 counsel for the respondent Municipality advised counsel for the applicants that the Municipality was conceded the issue and accepted that the Municipality was liable for damages attributable to the non-repair of the Lamoureux Drain after May 3, 2015. What remains in issue is the measure of damages and whether some part or all should be paid out of the general funds of the Municipality under subsection 118(2) of the Drainage Act or be assessed to the Drain by default under subsection 118(1) of that Act.
66. When it was clear that the hearing scheduled to commence on June 1^st^ could not be held in the Sudbury courthouse, I, as the presiding Drainage Referee, convened a video conference with counsel for the Parties to canvass with them how to move forward in the circumstances. As an alternative to waiting for the pandemic to subside such as to permit normal operations and the availability of a courtroom for the hearing, I offered that the hearing might proceed by video conference almost immediately. Counsel were asked to confer with their respective witnesses and clients.
77. During the video conference today, May 20, 2020, counsel for the respondent Municipality advised that his client is ready to proceed in court or by video conference as soon as possible and that, after consulting with the several witnesses he will be calling, they all have or can get access to high-speed internet connection for a video conference hearing.
88. Counsel for the applicants is not ready to proceed; he has not named his clients’ witnesses nor provided witness statements or expert witness statements as specified in the October 2019 Procedural Order. Counsel for the applicants also advised that his clients do not have and could not readily get access to high-speed internet access, so they would not be able to access a video conference hearing. At this time, the applicants would be required to travel a considerable distance from their farm to their counsel’s office in order to have the needed internet access. Counsel for the applicants also advised that he did not believe he could satisfactorily cross-examine witnesses through the vehicle of a video conference.
99. As for his not having identified the witnesses he intends to call or to provide witness statements for them, counsel for the applicants is quite casual about having not complied with the October 2019 Procedural Order.
1010. Counsel for the applicants, while concerned about the time it is taking to have his clients’ claims addressed, believes that the hearing should proceed as soon as a courtroom is available whenever the pandemic subsides sufficiently to permit it.
1111. With respect, the applicants are not ready to proceed. The respondent Municipality has conceded liability, but the applicants need to prove their damages. The sooner this is done, the sooner the applicants will have their money.
1212. I have decided that, if the applicants are not agreeable to proceeding with a video conference hearing, I will not force the issue. It is the applicants’ case to make and their choice to wait. I have also decided that I should provide for the possibility that the applicants will tire of waiting and elect to proceed via video conference hearing.
1313. It is recognized that there are limitations associated with video conference hearings, but the trade-off is that, so long as pandemic-related constraints persist, such hearings can be held whilst ensuring the physical separation needed to secure the safety of all involved. Important to a video conference hearing is that all essential participants have the ability to access the hearing. Should the applicants elect to continue with a video conference hearing, I will want assurances that the applicants have that access before I would be prepared to proceed.
1414. I have also decided that, if a commencement date for a hearing, in a courtroom or via video conference, has not been set by June 1, 2022, there needs to be a status hearing by video conference. The specific date for such a status hearing will be fixed by the presiding Drainage Referee in consultations with counsel for the Parties.
Dated at London this 20^th^ day of May 2020
Andrew C. Wright Acting Drainage Referee