ODR 2021

The respondent Municipality brought a motion requesting the Acting Drainage Referee recuse himself on the basis of a reasonable apprehension of bias.

The motion was based on the Referee's former partnership at the law firm representing the applicants, and his continued access to some of the firm's office facilities in his retirement.

The Referee dismissed the motion, finding that a reasonable and right-minded person would not apprehend bias given that he had been retired for nearly three years, had no access to the firm's files, and the office access was a standard retirement perquisite.

The Referee also issued procedural orders for the case management of the underlying application regarding the Burk Drainage Works.

The Acting Drainage Referee issued a consolidated procedural order for an upcoming video conference hearing regarding a drainage dispute between the applicants and the respondent municipality.

The order superseded previous procedural orders due to the COVID-19 pandemic and set out the organization of the hearing, protocols for documents and exhibits, the issues to be resolved, and the order of evidence.

The hearing was scheduled for five days commencing in April 2022.

The parties advised the Acting Drainage Referee that their cross-applications had been settled.

On consent, the Referee issued an order superseding a prior case management procedural order and dismissing both applications without costs.

The Acting Drainage Referee convened a case management conference to establish a schedule for a motion by the applicants seeking relief from paying the cost of an engineer's report prepared under section 78 of the Drainage Act, and a cross-motion by the respondent Township seeking dismissal of the application and judgment for the cost of the report.

The Referee issued a comprehensive scheduling order setting deadlines for the filing of motion materials, identifying procedures for participation by other interested parties, and scheduling the hearing of the motions.

The Acting Drainage Referee held a case management pre-hearing conference by video to organize the hearing of the merits regarding a drainage dispute.

The Referee issued a procedural order identifying the parties, setting out the process for completing the record, establishing the order of evidence, and outlining the issues to be determined at the future hearing, including the allocation of expenses under the Drainage Act.

Following a decision in which the respondent municipality was successful, the parties made written submissions on costs.

The Acting Drainage Referee declined to award costs to the successful respondent, noting that the applicants had reasonably relied on a 33-year-old precedent that was ultimately overruled in the main decision.

Because the legal principle raised had significance for the broader drainage community in Ontario, the Referee ordered each party to bear their own costs.

The applicants sought to set aside a 2018 engineer's report proposing improvements to the Filsinger Drain, arguing that section 78 of the Drainage Act does not authorize the abandonment of existing works and the construction of new works with significantly increased capacity.

The Acting Drainage Referee dismissed the application, declining to follow a 1988 Referee decision (Kilberg v. Wallace) that restricted capacity increases under section 78.

The Referee held that section 78 authorizes improvements that increase capacity to meet current engineering standards, and that section 19 permits the abandonment of existing works supplanted by such improvements.

The self-represented appellant appealed a resolution of the City of Ottawa that approved an Engineer's Report under section 40 of the Drainage Act regarding the Hobbs Municipal Drain.

The report had recommended no further work due to the Rideau Valley Conservation Authority's stipulation that there be no hydrological impacts on a provincially significant wetland.

The Drainage Referee found that the Referee has original jurisdiction under section 106 of the Drainage Act to set aside a resolution of council and refer the matter back to the Engineer under section 57.

The Referee set aside the resolution and ordered the Engineer to prepare a revised report based on a specific option, noting the need to balance the obligations under the Drainage Act and the Conservation Authorities Act to control costs while ensuring drainage work occurs.