ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Chrustie v Ottawa (City), 2021 ONDR 1

DATE OF DECISION: 2021-01-20

Court File No.: CV-20-83031 (Ottawa)

BETWEEN:

BRUCE DAVID CHRUSTIE Plaintiff/Appellant

-and-

CITY OF OTTAWA Defendant/Respondent

-and-

RIDEAU VALLEY CONSERVATION AUTHORITY and OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION Respondents

DRAINAGE REFEREE: ROBERT G. WATERS HEARING HELD: MONDAY, THE 11TH DAY OF JANUARY 2021

THIS COURT ORDERS THAT:

REASONS FOR DECISION

The Appellant, Bruce David Chrustie, filed an Appeal in the Court of the Drainage Referee at the Court House in Ottawa, Ontario, on March 3, 2020. In the Appeal, he requested the following remedies:

1. An Order that the City of Ottawa provide sufficient outlet for the Hobbs Municipal Drain.

2. In the alternative, an Order that the City of Ottawa provide sufficient outlet for the Hobbs Municipal Drain by extending the Hobbs Municipal Drain to sufficient outlet.

3. In the alternative, an Order that the City of Ottawa provide sufficient outlet for the Hobbs Municipal Drain by altering the course of the Hobbs Municipal Drain upstream and west of Conley Road.

4. An Order that the Engineer provided affected landowners injuring compensation under Section 32 of the Drainage Act R.S.O. 1990, c.D.17 for insufficient outlet of the Hobbs Municipal Drain.

5. An Order that the City of Ottawa remove the diversion of flow from Upper Flowing Creek Municipal Drain into the Hobbs Municipal Drain.

6. An Order that the Rideau Valley Conservation Authority fund any requested Environmental Assessment deemed necessary for completion of the work under the Drainage Act and the Conservation Authorities Act.

7. In the alternative, an Order that the City of Ottawa payout of its general funds the cost of any requested Environmental Assessment deemed necessary for the completion of this work under the Drainage Act and the Conservation Authorities Act.

8. Damages for nuisance of flooding, trespass of flooding from March 2017 onwards

9. Punitive, Aggravated and General Damages against the City of Ottawa for failure to address insufficient outlet of the Hobbs Municipal Drain payable to all affected landowners prorated on a per acre ownership basis.

10. Costs for the Plaintiff on a Substantial Indemnity basis.

11. Pre and post judgement interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C43 as amended.

12. Such further and other relief that to this Court may seem just.

The City of Ottawa responded to the Appeal by filing a Notice of Appearance on April 24, 2020. Given that the filing of the Appeal in this matter came shortly before Emergency Orders from the Province of Ontario relating to the Covid 19 Pandemic, difficulties ensued with regard to filing of documentation while the Referee and the parties to this matter worked out case management issues through Procedural Orders.

This Appeal flows from a Report on the Hobbs Municipal Drain Outlet Extension pursuant to Section 40 of the Drainage Act, dated August 20, 2019. The Report and including Appendix A contained a number of options. As a response, the Rideau Valley Conservation Authority circulated a Technical Memorandum dated April 10, 2018, which was included in Appendix B to the Robinson Consultants Inc. Report. The staff at Watershed Science & Engineering Services (WSES)of the Rideau Valley Conservation Authority (RVCA) concluded, "WSES staff concluded that, as per O.Reg. 174-06 and without evidence to the contrary, such as from extensive monitoring and modelling of the system, the proposed development would likely diminish the wetland's control of flooding and pollution for the area that it controls. In addition, we should note here that the proposed development would also have serious impacts to the conservation of land in the watershed, since the natural hydrologic functions of this area would be diminished which would result in the diminishment of related ecological functions and the wetland feature itself."

The Engineer, A.J. Robinson, in his Report, quoted the RVCA stipulation there "be no hydrological impacts or ecological implications to the form and function of the PSW as a result of any work". The Report of Mr. Robinson went on to state that, while the RVCA could request an Environmental Appraisal under Section 6 of the Ontario Drainage Act, the RVCA indicated "they do not intend to pay such costs associated with the Environmental Appraisal, therefore, an Environmental Appraisal has not been completed". The Report went on to state: "Additionally, it is not clear that if completed, an "Environmental Appraisal" would result in a suitable finding to permit work under the stated standard of no impact."

In addressing the lack of timeliness in the filing of the appeal described previously, an appeal prepared by Mr. Chrustie a self-represented Appellant, appears to have been delivered to the City of Ottawa around the time that the City Council approved the Report on November 27t11, 2019. Given the procedural difficulties at the Superior Court of Justice, a teleconference occurred with the Referee, the Appellant and the City of Ottawa's counsel. As a result of that Procedural Hearing a revised Appeal was prepared and filed as described above on March 3^rd, 2020.

Although the Rideau Valley Conservation Authority had received the Notice of Appearance of the City of Ottawa, it only received documentation regarding the Appeal at the time the Referee contacted the Rideau Valley Conservation Authority to schedule a Procedural Hearing.

On October 8^th, 2020, a Procedural Hearing was held with the participation of David Bruce Chrustie, the City of Ottawa and the Rideau Valley Conservation Authority through its counsel and certain staff members. The Order which arose from that meeting, which is attached as Schedule "A" to these Reasons, required the production of materials relating to the Claim and Appeal of Bruce David Chrustie by November 16, 2020, with a Hearing to be held after review of such materials on the 25^th day of November 2020. The Respondent Municipality was ordered to provide the Referee with copies of the Engineer's Report on the Hobbs Municipal Drain, the Flowing Creek Municipal Drain Phase II, the Report on the Lackey Award Drain, which did not appear to have been located, and any and all Reports related to the Hobbs Municipal Drain and Branches of the said Municipal Drain.

At the time of the second Procedural Hearing on November 25^th, 2020, a case management Order of the Referee, as contained in the Order attached as Schedule B, ordered the continuation of the Procedural Hearing on January 11, 2021; the delivery of the Notice of Appeal and Claim in this matter to Robinson Consultants Inc. In addition, the Order required the delivery by the City of Ottawa to the presiding Referee of assessment mapping of the Hobbs Municipal Drain, including all proposed routes in the Report of Robinson Consultants Inc. dated August 19, 2019; assessment mapping for all assessed owners on the Hobbs Drain described in the Report of A.J. Graham Engineering Consultants dated March 1^st, 1972; copies of assessment mapping in readable form for all assessed owners of the Hobbs Drain Extension described in the Report of Totten Sims Hubicki Associates dated September 22^nd, 1988, and copies of assessment mapping in readable form for all the assessed owners located within the diversion from the watershed of the Upper Flowing Creek Municipal Drainage Works to the Conley Road Branch of the Hobbs Municipal Drain. In addition, copies of assessment mapping was requested for assessed owners of quarries who may have been discharging water presently or in the past into the Hobbs Municipal Drain and its branches.

HEARING JANUARY 11, 2021

The Procedural Hearing of January 11, 2021, being a continuation of the prior two Hearings, led to the Order of the Referee attached hereto as Schedule "C". To summarize that Order, Robinson Consultants Inc. is to prepare a Report based on data contained in the Report of August 2019, as it relates to Option No. 4 described in that Report.

The Resolution of the Council of the City of Ottawa dated November 27^th, 2019, approving the Report of Robinson Consultants Inc. under Section 40 of the Drainage Act is to be set aside. The Referee has ordered the City of Ottawa, pursuant to Section 57 of the Drainage Act, to make a referral back to Robinson Consultants Inc. for a reconsideration of the Report of August 2019, as ordered in Schedule "C", completing the same by the 19ih day of March 2021.

The Referee, in that Order, left open the provision of an Environmental Appraisal or Benefit Cost Statement upon completion of the Report at the discretion of the Referee.

ISSUES ARISING FROM THE PROCEDURAL HEARINGS

As a result of the supply of documentation with regard to the Hobbs Municipal Drain, its various branches and extensions, the Hearing on November 25t11, 2020, revolved around the issue raised in the Report of Robinson Consultants Inc. by A.J. Robinson, more particularly described as Appendix B. This was a memorandum dated April 10^th, 2018 prepared by Claire A. Milloy of the WSES Staff, that, among other things, said there should be "no net loss" of currently existing wetlands and raised concern that there would be a dewatering of upland parts of the wetland in the zone of impact around the drain alignment, but indicated lower elevation sections around the drain would not likely dewater.

The Report, as mentioned previously, went on to say, "WSES staff concluded that, as per O.Reg. 174-06 and without evidence to the contrary, such as from extensive monitoring and modelling of the system, the proposed development would likely diminish the wetland's control of flooding and pollution for the area that it controls. In addition, we should note here that the proposed development would also have serious impacts to the conservation of land in the watershed, since the natural hydrologic functions of this area would be diminished which would result in the diminishment of related ecological functions and the wetland feature itself."

A further memo in a letter to David Ryan, Municipal Drainage Manager, which would form part of the Report in which it stated: "extensive hydrotechnical studies will be required to satisfy the Authority that there would be no hydrological impacts or ecological implications to the form and function of the PSW as result of any work".

Given this criteria, Mr. Robinson felt obligated to present a Section 40 Report as he maintained there was no way forward if there were to be no hydrological impacts for the work on the drain.

It is somewhat unique in that a Section 40 report itself does not require any further work to occur "unless the decision of the Engineer is reversed on Appeal" (Section 40). There is nothing in Section 40 stating that the report needs to be approved by a provisional by-law and, although at first glance it appeared that the Report could be set aside on the assumption that a provisional by-law was passed. It has come to the attention of the Referee that the Report was approved by a Resolution of the Council of the City of Ottawa on November 27^th, 2019. There is little, if any, case law on the situation of the Municipality under Section 57 referring the matter back to the Engineer.

While there is case law with regard to the setting aside reports, I refer the parties to the City of Niagara Falls vs. the Township of Niagara 1966 CanLII 486 (ON DR), in which Clunis County Court Judge as Drainage Referee provided his opinion with regard to the powers of the Referee.

The case decided in June of 1966 in a predecessor of this Act, was in response to a question which arose as to "whether or not there exists the right to apply to quash a provisional by-law under the Drainage Act, 1962-1963". While ultimately deciding that the right to quash a by-law was not specifically granted in any section of the Drainage Act, Referee Clunis came to the point of view that the right was inherent to the Referee in 1966 as a result of the passage of the Drainage Act, 1962-63, that there was granted to the Referee, under Section 67(2) of the then Drainage Act, the following power, “67(2) The referee has power to determine the validity of all petitions, resolutions, reports and provisional and other by-laws, whether or not objections thereto have been stated as grounds for appeal to him and to amend and correct any provisional by-law in question, and with the Engineer's consent upon evidence given amend the report in such manner as appears just ” (P. 552)

In the decision of Referee Clunis, he goes on to say: "I have already indicated that, in my view, this section does not create one's rights but is to be regarded as outlining the Referee's powers" "There is a clear right to have the Referee review a report after it has been adopted by council. The means of adoption of a report is by provisional by-law."

While in the particular situation of the Report entitled the Hobbs Municipal Drain Outlet Extension Works Cannot be Constructed Section 40 Engineer's Report, after reviewing the agenda and minutes for the Council for the City of Ottawa, it is evident that there was no provisional by-law passed but that the Report was adopted by Resolution. This leads the Referee to the current law, and more particularly to Section 106 of the Drainage Act. In that Section it states in part:

S. 106(1) The referee has original jurisdiction,

(a) to entertain any appeal with respect of the engineer under Section 47;

(b) to determine the validity of, or to confirm, set aside or amend any petition, resolution of a council, provisional by-law or by-law relating to drainage works under this Act or a predecessor of this Act;.....

(e) to entertain applications for orders restraining anything proposed or purporting to be done under this Act or a predecessor of this Act; and

(f) over any other matter or thing in relation to which application may be made to him or her under this Act, R.S.O. 1990, c. D.17, s. 106(1).

I am satisfied this allows me as Referee to set aside the Resolution of Council and refer the matter back to Council and the Engineer under Section 57 of the Drainage Act.

DIFFICULTIES IN HARMONIZING THE CONSERVATION AUTHORITY ACT AND THE DRAINAGE ACT

The Rideau Valley Conservation Authority acquires its jurisdiction in this matter pursuant to the Conservation Authorities Act, R.S.O. 1990 c. C.27. Under Section 28, Regulations by authority re area under its jurisdiction, this section states:

"28 (1) Subject to the approval of the Minister, an authority may make regulations applicable in the area under its jurisdiction, ....

(b) prohibiting regulating or requiring permission of the authority for straightening, changing, dive1iing or interfering in any way with the existing channel of a river, creek, stream or watercourse, or for changing or interfering in any way with a wetland;

(c) prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development;"

The regulation for the Rideau Valley Conservation Authority O.Reg. 174/06 does not define development, nor does the Conservation Authorities Act.

Under the heading Permission to Develop in 0. Reg. 174/06, it is stated in Section 3(1):

"The Authority may grant permission for development in or on the areas described in subsection 2(1) if, in its opinion, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land will not be affected by the development."

Section 2, subsection (1), states:

"Subject to section 3, no person shall unde1iake development or permit another person to undertake development in or on the areas within the jurisdiction of the Authority that are, among other matters...

(c) hazardous lands;

(d) wetlands; or

(e) other areas where development could interfere with the hydrologic function of a wetland including areas within 120 metres of all provincially significant wetlands and wetlands greater than 2 hectares in size, and areas within 30 metres of wetlands less than 2 hectares in size."

Section 2, subsection (2) states:

"All areas within the jurisdiction of the Authority that are described in subsection (1) are delineated as the "Regulation Limit" shown on a series of maps filed at the head office of the Authority under the map title "Ontario Regulation 97/04: Regulation for Development, Interference with Wetlands and Alterations to Shorelines and Watercourses"."

There is no mention of the Drainage Act or municipal drains in the Conservation Authorities Act or in Ontario Regulation 174/06.

However, it should be noted that under the Provincial Policy Statement, 2020, approved by Order in Council No. 229/2020, there is a provision under Natural Heritage, Section 2.1, more particularly 2.1.4:

"Development and site alteration shall not be permitted in:

(a) significant wetlands in Ecoregions 5E, 6E and 7E; and

(b) significant coastal wetlands".

In the same section however, Section 2.1.9 states:

"Nothing in policy 2.1 is intended to limit the ability of agricultural uses to continue."

It should be noted, however, that under the Definition section of the Provincial Policy Statement, 2020, on page 42, Development is defined:

"Development: means the creation of a new lot, a change in land use, or the construction of buildings and structures requiring approval under the Planning Act, but does not include: .....

(b) works subject to the Drainage Act. "

Finally, under the Environmental Assessment Act, R.R.O. 1990, Reg. 334, as amended, exempts a municipality from section 5 of the Environmental Assessment Act in certain circumstances. Section 5 of the Act states: "5(1) Every proponent who wishes to proceed with an undertaking shall apply to the Minister for approval to do so." Environmental Assessment Act, R.S.O. 1990, c.E.18

The Regulation RR.O 1990, Reg. 334, being the General Regulation of the Environmental Assessment Act, in Section 5(2) states:

"An undertaking by a municipality is exempt from section 5(1) of the Act where.....

(c) it is a drainage works regulated under the Drainage Act."

The dichotomy in the various legislation sets up, at the minimum, an issue regarding conflict of laws, but I would suggest imposes upon the parties an obligation to balance their respective interests. Astronomical cost will occur if each of the parties pursues their respective legislative obligations without regard to the possibility of moderation. In my Order which directs revision of Hobbs Drain Report, the Referee intends to ensure that such costs be controlled while achieving a balance between the Drainage Act and the Conservation Authorities Act but to also insure that work on the drain occurs.

Dated at Strathroy, this 20th day of January 2021.

Robert G. Waters

Drainage Referee

SCHEDULE "A"

Court File No.: CV-20-83031

ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE

BETWEEN:

BRUCE DAVID CHRUSTIE Plaintiff/Appellant

-and-

CITY OF OTTAWA Defendant/Respondent

-and-

RIDEAU VALLEY CONSERVATION AUTHORITY and OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION Respondents

DRAINAGE REFEREE: ROBERT G. WATERS THURSDAY, THE 8^TH DAY OF OCTOBER 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 fix a time for the Respondent, Rideau Valley Conservation Authority, to deliver responding materials;

(c) To fix a time for the Appellant to deliver further material relating to his Claim and Appeal.

(d) 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 the Appellant, counsel for the Respondent Municipality, and counsel for the Rideau Valley Conservation Authority ("Rideau").

THIS COURT ORDERS that:

1. The respondent Municipality will deliver responding material to the appellant and Rideau before the close of business on November 16^th, 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.

2. The respondent Rideau Valley Conservation Authority (Rideau) will deliver responding material to the appellant and the Municipality on or before the close of business on November 1 II, 2020, and may do so by electronic e-mail transmission; concurrently, the respondent Rideau will deliver a copy of such responding material to the presiding Referee and shall do so electronically.

3. The appellant shall deliver responding material to the Municipality and Rideau on or before the close of business on November 16^th, 2020, and may do so by electronic e-mail transmission; concurrently the appellant will deliver a copy of such responding material to the presiding Referee and shall do so electronically.

4. The Respondent Municipality shall forthwith deliver by courier to the presiding Referee copies of:

(a) the Engineer's Report on the Hobbs Municipal Drain and

(b) the report on the Lackey Award Drain;

(c) the Flowing Creek Municipal Drain Phase II;

(d) any and all reports relating to the Hobbs Municipal Drain and branches to the said Municipal Drain

5. A procedural pre-hearing conference will be held via video conference on Wednesday, the 25^th day of November 2020, commencing at 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.

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

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

7. The presiding Referee may be spoken to should clarification or further directions be required or desired in connection with this Order.

8. The Referee is not seized of the hearing of the merits of this application at this time.

Dated at Strathroy, this 8^th day of October.

Robert G. Waters Drainage Referee

SCHEDULE "B"

Court File No.: CV-20-83031

ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE

BETWEEN:

BRUCE DAVID CHRUSTIE Plaintiff/Appellant

-and-

CITY OF OTTAWA Defendant/Respondent

-and-

RIDEAU VALLEY CONSERVATION AUTHORITY and OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION Respondents

DRAINAGE REFEREE: ROBERT G. WATERS THURSDAY, THE 25^TH DAY OF NOVEMBER 2020

ORDER

The Court of the Drainage Referee having appointed this day for a video pre-hearing conference in which the Parties have requested additional time to narrow possible options set out in a Report of Robinson Consultants Inc. No. 17042 of August 2019, Appendix A dealing with options regarding moving the Hobbs Municipal Drain and Hobbs Drain Extension and associated lands to sufficient outlet.

(a) To fix a time to continue the Hearing including the presence of the Drainage Engineer, A.J. Robinson of Robinson Consultants Inc., Consulting Engineers;

(b) To identify those who may potentially be affected by any Decision of the Referee on Appeal and make an Order as to giving Notice of this proceeding to such persons and a form of Notice;

(c) To fix a time for the Appellant to deliver further material relating to his Claim and Appeal.

(d) 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 the Appellant, counsel for the Respondent Municipality, and counsel for the Rideau Valley Conservation Authority ("Rideau").

THIS COURT ORDERS that:

1. Continuation of the Procedural Hearing of this date shall be moved to on or after January 11, 2021, when this Procedural Hearing shall be reconvened. Parties shall provide to the Referee a proposal with regard to an Environmental Appraisal for agreed options set out in the Report of Robinson Consultants dated August 2019.

2. The Respondent, City of Ottawa, shall give Notice of the appeal and claim in this matter to Robinson Consultants Inc. addressed to: Robinson Consulting Inc., 350 Palladium Drive, Ottawa, ON. K2V 1A8. Such Notice shall include copies of this and the prior Order of the Referee.

3. The City of Ottawa shall forthwith deliver by courier to the Presiding Referee :

a. Copies of Assessment Mapping in readable form for all assessed owners for each of the proposed routes set out in Appendix A to the Report of Robinson Consulting Inc. dated August 19, 2019;

b. Copies of Assessment Mapping in readable form for all of the assessed owners in the Hobbs Drain described in the Report of A.J. Graham Engineering Consultants March 1, 1972 as revised;

c. Copies of Assessment Mapping in readable form for all of the assessed owners in Hobbs Drain Extension described in the Report of Totten Sims Hubicki Associates dated September 22, 1988;

d. Copies of Assessment Mapping in readable form for all the assessed owners located within the diversion from the watershed of the Upper Flowing Creek Municipal Drain to the Conley Road Branch of the Hobbs Municipal Drain as described in the Engineer's Report of Robinson Consultants Inc. dated March 31, 2010 Project No B06026;

e. Copies of Assessment Mapping in readable form for all assessed owners of Quarries discharging water presently or in the past to the Hobbs Municipal Drain and its branches, whether or not those quarries are in part or wholly within the assessment mapping described in Section 3(a)(b)(c)(d) described above.

4. Such procedural pre-hearing conference will be held via video conference on Monday, the 11^th day of January 2021, or such alternate date as the Referee chooses, commencing at 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; which 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.

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

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

6. The presiding Referee may be spoken to should clarification or fm1her directions are required or desired in connection this this Order.

7. The Referee is not seized of the hearing of the merits of this application at this time.

Dated at Strathroy, this 25^th day of November 2020.

Robert G. Waters

Drainage Referee

SCHEDULE "C"

Court File No.: CV-20-83031

ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE

BETWEEN:

BRUCE DAVID CHRUSTIE Plaintiff/Appellant

-and-

CITY OF OTTAWA Defendant/Respondent

-and-

RIDEAU VALLEY CONSERVATION AUTHORITY and OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION Respondents

DRAINAGE REFEREE: ROBERT G. WATERS HEARING HELD: MONDAY, THE 11^TH DAY OF JANUARY 2021

ORDER

The Court of the Drainage Referee having appointed this day for a video procedural pre-hearing conference in which the Parties have requested additional time to narrow the possible options set out in a Report of Robinson Consultants Inc. No. 17042 of August 2019, Appendix A dealing with options regarding moving the Hobbs Municipal Drain and Hobbs Drain Extension and associated lands to sufficient outlet.

(a) To fix a time for a Report from the Drainage Engineer, A.J. Robinson of Robinson Consultants Inc., Consulting Engineers, on Option 4 previously described in the Report of Robinson Consultants Inc. dated August 2019, Appendix A;

(b) To afterward identify those who may potentially be affected by any Decision of the Referee on Appeal and make an Order as to giving Notice of this proceeding to such persons and a form of Notice upon the supply of the Report by Robinson Consultants Inc.;

(c) To consider the necessity for an Environmental Appraisal pursuant to Section 6 of the Drainage Act.

(d) 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 the Appellant, counsel for the Respondent Municipality, and counsel and staff for the Rideau Valley Conservation Authority ("Rideau"), the Drainage Engineer previously appointed on the Hobbs Drain, A.J. Robinson, and the Drainage Department for the City of Ottawa:

THIS COURT ORDERS that:

1. Robinson Consultants Inc. is to prepare a Report using the data contained in the Report of August 2019, by Robinson Consultants Inc., File No. 17042, and such other data as may be necessary on or before the 19th day of March 2021, on the drainage route described as Option No. 4 in the above-described Report.

2. The Resolution of the Council of the City of Ottawa, dated the 27th day of November 2019, approving the Report of Robinson Consultants Inc., File No. 17042, dated August 2019, which recommended no further work on the proposed Hobbs Municipal Drain Outlet Extension under Section 40 of the Drainage Act be set aside.

3. There be a referral by the City of Ottawa, pursuant to Section 57 of the Drainage Act, for a reconsideration of the said Report of August 2019, by returning the report back to the Engineer for such reconsideration and the production of a Report as it a relates to Option No. 4 contained in Appendix A of the original report, made pursuant to Section 40 of the Drainage Act, described above.

4. Notwithstanding the requirements of Section 5 of the Drainage Act, the Municipality and the Rideau Valley Conservation Authority may request to be granted, at the discretion of the Referee, an Environmental Appraisal and/or a Benefit Cost Statement as defined in Sections 6 and 7 of the Act. Such requests to Referee to occur within th.i.i1y days of the receipt of the Report described in Paragraph 1 of this Order.

5. This procedural pre-hearing conference shall be adjourned sine die to be rescheduled at the discretion of the Referee, upon the receipt of the revised Report of Robinson Consultants Inc. by the parties to this hearing and further representations of the Municipality and the Rideau Valley Conservation Authority, if any, relating to Paragraph 4 of this Order.

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

7. The presiding Referee may be spoken to should clarification or fw1her directions are required or desired in connection this this Order.

8. The Referee is not seized of the hearing of the merits of this Appeal at this time.

9. Reasons for decision to follow in fifteen (15) days.

Dated at Strathroy, this 18^th day of January 2021.

Robert G. Waters Drainage Referee