ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
BETWEEN:
ERIE SHORE DRIVE PROPERTY OWNERS ASSOCIATION, TREVOR DIXON, ROWAN DIXON, ROBERT DIXON, RICHARD JOSEPH BARNIER, WENDY ANNE BARNIER, KEITH GORDON PEARCEY, DAVA ROBERTSON PARR, KIMBERLEY ISAAC, RONALD FRANCIS VAN DER PAELT, SARAH-LOUISE VAN DER PAELT, GARY DANIEL JANADIA, MICHAEL KEITH JANADIA, RISARG HUFF, LINDA MAE HUFF, CHERYL ANN WALLACE, JANET CHARLOTTE WALLACE, STEPHANIE BOUDREAU, TRACY ANN HENRY, GLORIA BLONDE BLACK, LYNDA MAE DODMAN, STELLA MARIE DODMAN, MICHAEL SCOTT MORRIS, DEBRA ANN ZIEMBA, EARL HENRY NEAR, JACOBA NEAR, JONATHON MICHAEL SOUTHEN, SHANNON DEANNA WESTGATE, FRANK SPARKS, JENNIFER ANNE SMITH, SIMON HERBERT SMITH, BAVENDRAN ATCHUTHAMPILLAI, EDWIN CLAUDE WOOD, DAVID PATERSON, HOLLY PATERSON, TREVOR RONALD MORTON, FRANK ARTHUR SROKOSZ, DYANNE SROKOSZ, RONALD BRUCE GILLESPIE, Edward Gerard Peck as Estate Trustee of the ESTATE OF WILLIAM ELDON PECK, Deceased, and Betty Peck as Estate Trustee of the ESTATE OF LARRY ALLEN PECK, Deceased; DAVID CHARLES PECK, DENELLE LEA PECK, PAUL MAILLOUX, DANA SMITH, KRISTY TAYLOR, JODIE TAYLOR; HENRY ALLAN DE JONG, MARISKA DE JONG, STIPAN JURKOVIC, MICHELE JURKOVIC, GEOFFREY EDWARD DENNIS, WESLEY ALFRED TROJAND, JEAN ISOBEL HUMPHREY, JUDY LYNN OEHM, CHARLES EDWARD BELBECK, DENNY KEVIN JAKSIC, TERRA DANIELLE CADEAU, MARLENE MARIA SCHERTZER, WILLIAM MICHAEL SCHERTZER, MARIANNE COUSINEAU, JAMES COUSINEAU, ROGER DOUGLAS HOUGHTON, DEBORAH JEAN VINT, LINDA DARLENE HEYNINCK, WERNER KRAUS personally, and in his capacity as Power of Attorney for MARIA KRAUS, DAVID MICHAEL TROTECHAUD, MARJORY ELLEN TORTECHAUD, MELISSA SHARON OGDEN, KIMBERLY MARGARET SNELL, STEVEN BARRY DOBSON, SUSAN ELIZABETH O’BRIEN, DEVY LEANN BROUWER, MARGO TREVOR HINNEGAN, FRANK KEITH ZIEMBA, JEFFREY PETER KNIPFEL, SONYA LYNN KNIPFEL, MURRAY SPENCER, GAIL SPENCER, MICHELLE RUBY PENNEY, ANDREW JOHNATHAN SPENCER, GARY EDWARD BLAIN, SHARON ELAINE BLAIN, SCOTT FRANCIS, ROSEMARIE KATHI JOHANNA FRANCIS, PHILIP ALLAN SMITH, DEBRA LEE JANE SMITH, CLIFFORD-LAWRENCE BARTLETT, LYNDA LEE BARTLETT, ELIZABETH COLLEEN FLETCHER, 2255577 ONTARIO INC., EDWARD JOSEPH REITBERGER, DARWIN ALLAN RICE, JENNY ROSELINDA RICE, TIMOTHY JOHN AARSSEN, ELIZABETH JEAN WEBER, CHRISTOPHER DAVID HAGER, CATHERINE MARIE PANCOE, RONALD KENNETH PESESKI, ROSEMARIE BERNADET PESESKI, JENNIFER ANN VANNECK, DAVID THOMAS RUTTY, DENISE MARYLOU RUTTY, JEANINE DORIS WATT, BERTRAM LEON MARKS, MONIQUE DARNELL MARKS, BARBARA ANN HOYETT, STEVEN EDMUND DEW, NANCY MARIE DEW, STEPHANIE LIN GELUK, CHERYL LUGEAN MASON, MYRON BURNS BUSH, DAVID RICHARD COPLEY, MARILYN MAUDE COPLEY, ACAMPORA FAMILY HOLDINGS INC., DAVID MELVIN DAVIS, MARGARET SUSAN LOUISE DAVIS, JAMES EVAN STERLING ALLIN, BRIAN GERHARD FALLAK, LAURIE ELIZABETH FALLAK, DANA DAUGHERTY, LEONARDO CARO, JANICE LYNN CARO, HARRY LOUIS VAN DYKE, MARY VAN DYKE, TERRANCE GILBERT MAYNARD, STEPHEN GARY MAYNARD, CHERYL ANN MACKENZIE, BRENDA ALICE KARLOVCEC, LORI ELLEN MCKEON, JANE DOE in her capacity as ESTATE TRUSTEE for the ESTATE OF SEAN PANJER (deceased), WILLIAM ROBERT SEATON, JULIE WENDY SEATON, STEPHANIE KATHLEEN COX
Applicants
- and -
THE CORPORATION OF THE MUNICIPALITY OF CHATHAM-KENT
Respondent
and –
OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION
Respondents
ACTING DRAINAGE REFEREE ANDREW C. WRIGHT FRIDAY, THE 3RD DAY OF DECEMBER 2021
ORDER
The Court of the Drainage Referee having appointed November 4, 2021, adjourned to this day, for a case management conference by video conference to deal with:
(a) Phasing of the hearing to deal with liability issues initially before getting into the detail of damages claims or any maintenance and repair orders under subsection 79(1) of the Drainage Act (the "Act")
(b) Identification of issues for at least the first phase of the hearing.
(c) Fixing a time for the applicants to deliver supporting evidence at least the first phase of the hearing.
(d) Fixing a time for the respondent Municipality to deliver responding materials at least the first phase of the hearing.
(e) Fixing a time for the delivery of other documentation, having regard for subsection 11(1) of Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee.
(f) Identifying parties. This includes considering the status of applicants as parties if their properties are not assessed by the most recent engineer's report on the drain or awarded allowances by that engineer's report. It also includes considering those who may potentially be affected by any decision of the Referee on the application and making an Order as to the giving of notice of this proceeding to such persons and the form of notice.
(g) Making provisions about access to and login credentials for participants in the hearing.
(h) Providing for service by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service).
(i) Identifying the number and nature of witnesses to be called by each party at least the first phase of the hearing.
(j) Scheduling pre-hearing production and exchange of documents, including affidavits and witness statements for expert witnesses and affidavits and evidence summaries for other witnesses at least the first phase of the hearing.
(k) Estimating the amount of time required for the first phase of the hearing hearing.
(l) Setting the commencement date for the first phase of the hearing hearing.
(m) Dealing with such other matters or things as may arise and which the presiding Referee may determine it is expedient to permit.
And the Court of the Drainage Referee having received, since the November 4, 2021 case management conference, the respondent Municipality's motion requiring the presiding Referee to recuse himself from proceeding further with this case on the basis of a reasonable apprehension of bias.
Upon hearing the submissions of counsel for the applicants and counsel for the respondent Municipality on both November 4th and today:
THIS COURT ORDERS that:
For the reasons which follow, the respondent Municipality's recusal motion is dismissed.
On or before Friday, February 25, 2022, the applicants will deliver affidavits supporting this application to the other parties and to the presiding Referee and the following provisions shall apply:
(a) The supporting affidavits are to include specificity as to the maintenance and repair work being sought under subsection 79(1) of the Act.
(b) The supporting affidavits are to include proof of damages claims for each of the individual properties referred to in the application.
(c) Details supporting proof of such damages claims and details with respect to any maintenance and repair work to be ordered under subsection 79(1) of the Act will be addressed in a subsequent phase of the hearing of the application if liability for such damages and such a maintenance and repair order is established in earlier phases of the hearing.
Following delivery of the applicants' supporting material as contemplated by paragraph 2 above, a further case management video conference will be scheduled to fix dates for the delivery of responding affidavits by the respondent Municipality and by any other party respondents and to address such other matters or things as may arise and which the presiding Referee may determine it is expedient to permit.
For the purposes of this Order, "Engineers' Reports" shall mean the following Engineers' Reports issued under the authority of the Drainage Act (the "Act") or a predecessor of the Act:
(a) Engineer's Report dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E. including
(i) Plan B dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.
(ii) Extract of Plan B dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.,
(iii) Plan B with Profile dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.
(iv) Profile of Concession Drain dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.
(v) Profile of Third Concession Drainage Works dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.
(b) Engineers' Report dated November 5, 1930 signed by W.G. McGeorge, O.L.S., & C.E. and by Geo. A McCubbin, O.L.S, M.E.I.C. (wooden seawalls and groynes) and attached to and adopted by Harwich Township By-law 2726 including
(i) Plan of Part of the Shore of Lake Erie and Inundated Lands and Roads dated October 8, 1930 and signed by W.G. McGeorge, O.L.S., & C.E. and by Geo. A McCubbin, O.L.S, M.E.I.C.
(ii) Blueprint version of the Plan referred to in item 4(b)(i) above
(c) Engineer's Report dated December 7, 1945 signed by Geo. A McCubbin, O.L.S, M.E.I.C. and Engineer's Report dated January 12, 1946 signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E., and Engineer's Report dated March 26, 1946 all signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by and by W.G. McGeorge, O.L.S., C.E., (wooden seawalls and groynes) and attached to and adopted by Harwich Township By-law 3375 (provisionally adopted April 8, 1946 and finally enacted January 12, 1948) including
(i) Plan and profile of Sheet Pile Sea Wall dated January 12, 1946 and signed by Geo. A McCubbin, O.L.S, M.E.I.C.
(ii) Detail of Piles issued January 22, 1946 by H.E. McKeen & Co. Limited Algoma Steel Sheet Piling – Montreal
(iii) Plan showing lands affected by Lake Shore Protection of Burk Drainage Works dated March 26, 1946 and signed by Geo. A McCubbin, O.L.S, M.E.I.C.
(iv) Blueprint version of the Plan referred to in 4(c)(iii) above.
(d) Engineers' Report dated May 8, 1947 signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E. and Engineers' Report dated June 6, 1947 signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E. and Engineers' Report dated March 12, 1948 signed by Geo. A McCubbin, O.L.S, M.E.I.C. (wooden seawalls and groynes) all attached to and adopted by Harwich Township By-law No. 3401 provisionally passed on April 12, 1948 and finally passed December 15, 1949 including
(i) Plan of Seawall and Groynes for Lakeshore Protection of Burk Drainage Works dated June 6, 1947 and signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E.
(ii) Plan showing Lands affected by Lakeshore Protection of Burk Drainage Works dated March 12, 1948 and signed by Geo. A McCubbin, O.L.S, M.E.I.C.
(e) Engineer's Report dated June 6, 1951 and signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E. including
(i) Plan A showing location of Lake Shore Protection of Burk Drainage Works dated June 6, 1951 and signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E.
(ii) Plan B showing location of Lake Shore Protection of Burk Drainage Works dated June 6, 1951 and signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E. [Note: The June 6, 1951 Engineer's Report cannot be located; only the plans are available.]
(f) Engineer's Report dated May 1, 1968 and signed by E.C. Brisco, P.Eng., O.L.S., M.E.T.C. (wooden seawalls and groynes) attached to an adopted by Harwich Township By-law 4716 provisionally passed on June 10, 1968 and finally passed January 13, 1969. [Note: No plan or profile for this Engineer's Report can be located.]
(g) Engineer's Report for Area A-1 of the Burk Drainage Works Embankment Protection issued by Todgam & Case Limited dated July 23, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. (armour stone over imported clay breakwater berm and embankment improvement)
(h) Engineer's Report for Area A-2 of the Burk Drainage Works Embankment Protection issued by Todgam & Case Limited dated July 23, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. (armour stone over imported clay breakwater berm and embankment improvement) attached to and adopted by Harwich Township By-law No. 5053 provisionally passed on August 23, 1973 and finally passed on January 14, 1974 including
(i) Extract of a plan of Area A-2 signed by the contractor and by the Township
(ii) Plan and Profile of the Erie Beach Drain dated February 1, 1973 and signed by David McGeorge B.A.Sc. O.L.S.
(iii) Plan showing Area A2 of Burk Drainage Works Embankment Protection dated June 1973, last revised November 9, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng.
(iv) Drawing of Typical Cross-Section of Area A2 dated June 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. Book No. 1017 – 73004.A2.2
(v) Drawing of Typical Cross-Section of Area A2 dated June 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. - Book No. 1017 – 73004.A2.3
(vi) Drawing of Typical Cross-Section of Area A2 dated June 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. - Book No. 1017 – 73004.A2.4
(vii) Full version of Drawing of Typical Cross-Section of Area A2 dated June 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. - Book No. 1017 – 73004.A2.3
(i) Engineer's Report for Area A-3 of the Burk Drainage Works Embankment Protection issued by Todgam & Case Limited dated July 23, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. (armour stone over imported clay breakwater berm and embankment improvement) attached to and adopted by Harwich Township By-law No. 5054 provisionally passed on August 23, 1973 and finally passed on January 14, 1974 including
(i) Plan of Profile of proposed works for Area A-3 of Burk Drainage Works Embankment Protection dated June, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng.
(j) Engineer's Report for Area A-1 of the Burk Drainage Works Embankment Protection issued by Todgam & Case Limited dated November 9, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. (armour stone over imported clay breakwater berm and embankment improvement) attached to and adopted by Harwich Township By-law No. 5082 provisionally passed on February 11, 1974 and finally passed on some date in 1974 including
(i) Plan and Profile for Area A-1 of Burk Drainage Works Embankment Protection dated November 3, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng.
(k) Engineer's Report prepared under section 76 of the Act to establish an assessment schedule for future maintenance of the Burk Pumping Scheme issued by Todgham and Case Associates Incorporated dated October 15, 1986 and signed by E.E. Dries, B.A.Sc., P.Eng. [Note: The plan of assessed properties referred to in this Engineer's Report cannot be located.]
(l) Engineer's Report prepared as a preliminary report under section 10 of the Act issued by Todgam & Case Associates Inc. dated May 15, 1998 and signed by E.P. Dries, P.Eng. including
(i) Figure No. 1 being a Plan of the Burk Drainage area dated March 1998
(m) Engineer's Report on the Burk Drainage Works 2013 prepared pursuant to section 78 of the Act, dated June 12, 2013, issued by K. Smart Associated Limited and signed by Neal Morris, P.Eng., including plan and profile.
A case management pre-hearing conference will be held via video conference on Wednesday, February 2, 2022 commencing 10:00 in the morning for the purpose of identifying parties to this application.
The applicants shall give notice of such case management 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 Engineers' Reports, provided that the applicants need not but may give the notices to the applicants;
(c) For the purposes of paragraph 6(b) of this Order the lands identified in the Engineers' Reports are those lands assessed for maintenance, or awarded allowances at their respective addresses as shown on the last revised assessment roll;
(d) The notice will also be given by ordinary mail to the current owners of lands identified by the respondent Municipality as the owners of land fronting on Erie Shore Drive that are not assessed for maintenance by any of the Engineers' Reports and who are not applicants;
(e) The notice will also be given to the Conservation Authority having jurisdiction over the Burk Drainage area;
(f) The respondent Municipality shall provide to the applicants, on or before Friday, December 10, 2021, the names and addresses according to the last revised assessment roll of those referred to in items 6(c) and 6(d) above; the list of names and addresses shall be in machine-readable format;
(g) Notice shall be mailed on or before the Friday, December 17, 2021;
(h) The respondent Municipality shall make available for review at the office of the Municipal Clerk of the respondent Municipality located at the Blenheim Service Centre, 35 Talbot St. West, Blenheim (N0P 1A0) during normal business hours:
(i) a copy of the Notice of Application,
(ii) a copy of the Engineers' Reports, and
(iii) a copy of this Order.
(i) The respondent Municipality shall make available on its website,
www.letstalkchatham-kent.ca/erie-shore-drive-drainage-act-application
all that is mentioned in clause 6(h) above;
(j) The applicants shall prepare an affidavit proving service in compliance with this Order except for compliance with items 6(f), 6(h) and 6(i) above;
(k) The respondent Municipality shall prepare an affidavit confirming compliance with items 6(f), 6(h) and 6(i) above;
(l) The applicants shall deliver the affidavit of service referred to in item 6(j) above to the respondent Municipality by electronic e-mail transmission before the close of business on Friday, January 14, 2022; 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, via the Superior Court of Justice Online One-Key filing portal, a copy of the affidavit of service with the
Superior Court of Justice
Attention: Civil Registrar
Chatham-Kent Courthouse
425 Grand Avenue, West,
Chatham, Ontario. N7M 6M8
(m) The respondent Municipality shall deliver the affidavit referred to in item 6(k) above to the applicants and to the respondent engineers by electronic e-mail transmission before the close of business on Friday, January 14, 2022; 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, via the Superior Court of Justice Online One-Key filing portal, a copy of the affidavit of service with the Superior Court of Justice at the address referred to above.
- The following provisions shall apply to the case management pre-hearing conference referred to in paragraph 5 above:
(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 holy book (Bible or Koran) 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.
- When any document is required or permitted to be served, it shall be served by personal service, courier delivery, 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; and
(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 December 3, 2021.
REASONS FOR DISMISSAL OF RECUSAL MOTION
1I have received and considered the Motion Record from the respondent Municipality seeking to have me recuse myself as the presiding Referee on the grounds that "A reasonable and right-minded person applying themselves to the question and obtaining thereon the required information would apprehend a bias in this case and such apprehension of bias would be reasonable."
2This submission is founded on my association as a former law partner at Siskinds LLP ("Siskinds") where counsel for the applicants, Paula Lombardi, is a partner. The applicants take no position on the respondent Municipality's recusal motion.
3I stepped away from the partnership table at the end of 2015 and I retired from Siskinds and from the practise of law at the end of 2018 after having been in practise for 45 years. My areas of practise were municipal and environmental law and Ms Lombardi and I practised those areas of law together. When I was appointed Acting Drainage Referee under the Drainage Act (sometimes referred to as the "Act") by Order-in-Council on May 13, 2015, I ceased any further practise under the Act as required by subsection 102(5) of the Act. Ethical walls were established by Siskinds such that neither Ms Lombardi nor her staff had access to my Drainage Referee work and I had no access to any of work she may have been doing under the Act.
4When I retired, my former partners allowed me the courtesy of access to a work station at the office, which I could reserve for use when it was not being used by others, and to the mail room and to photocopy and binding facilities. This offer is extended to former partners who leave the Firm for retirement from practise.
5To the extent that mail or courier or photocopies related to my Drainage Referee work, the expense was billed as a disbursement and reimbursed by the Province. My continuing access to Siskinds' "systems" stopped when I retired. I have my own laptop computer and have acquired associated software licenses as well as printer and scanner hardware and I have done my Drainage Referee work and other hearing work I do for the City of London out of my home office. When I occasionally attended at the Siskinds' office I had limited access to my continuing siskinds.com e-mail address via a Siskinds Alumni WiFi router that also gave me access to printers and scanners. I have no access to anything to do with the Siskinds' law practise and no one at Siskinds has any access to my hearing work all of which is secured on my personal laptop computer.
6I am no longer using my siskinds.com e-mail address or the Siskinds mailing address for Drainage Act cases. All such communication is via my personal e-mail address and my home mailing address.
7Since March 2020, because of the Covid 19 pandemic, I have not attended at the office otherwise than to pick up mail. When public health conditions permit, I would hope to resume my previous occasional use of the physical facilities my former partners have made available to me and to other retired partners.
8While I was still in active practise, it was understood that no lawyer from Siskinds would appear before me in my capacity as Acting Drainage Referee. That continued for a couple of years after my retirement.
9It is now a month shy of three years since I retired from active practise.
10The respondent Municipality takes issue with my presiding on the basis that "A reasonable and right-minded person applying themselves to the question and obtaining thereon the required information would apprehend a bias in this case and such apprehension of bias would be reasonable."
11As mentioned, the applicants have taken no position on the respondent Municipality's recusal motion, so it is fair to conclude that they do not have an apprehension of bias.
12The respondent Municipality does not allege that there is or has been any conduct which is indicative of actual bias or any lack of impartiality. Counsel for the respondent Municipality has indicated that the motion is not based on any allegations of misconduct by myself or by Siskinds and has expressed her appreciation of my contributions in advance of the November 4th case management video conference. She advises that her client is concerned about the appearances of the circumstances of my past connection with Siskinds and the continuing retirement perquisites extended to me by my former partners. Counsel advised that the circumstances are not blameworthy in any sense but the matter of the impartiality of the decision-maker must be seen to be done.
13The respondent Municipality relies upon the objective test quoted above and relies mainly upon principles enunciated in The Canadian Judicial Council "Ethical Principles for Judges".
14The Drainage Act entitles the Drainage Referees to some of the privileges of a Superior Court Judge, in terms of access to and the use of courtrooms and retiring rooms for the purpose of holding hearings in courthouses. The Act also requires Superior Court registrars to receive and manage files for the Court of the Drainage Referee. These symbols are important to lend weight and gravitas to the function of the Referee in the scheme of the Act but they do not give the Referee the status of a judge.
15A judge is a full-time appointment. A judgeship is much sought after and represents the pinnacle of a distinguished career in the law; the appointment frequently comes in the midst of a successful and on-going career. With a judgeship comes very comfortable compensation and benefits as well as the provision of an office in a courthouse complete with office equipment and support staff. It is not unreasonable in those circumstances to require judges to severe all connection with former business and law associates.
16In contrast, Drainage Referees are part time appointments with pro bono level hourly rate compensation with no provision for an office or any office equipment or any staff support. While the Referees' role is fulfilling and important work that needs to be done to support the drainage regime of the Act, it is nonetheless being done as a "giving-back" service to the drainage community in the province. It is unreasonable to expect a Drainage Referee to decline the offer made by a law firm to a former partner to make occasional use of a workstation and an e-mail address for other than drainage purposes and the use of mailroom and copy room facilities when none of those things are being provided by the appointing authority.
17The respondent Municipality relies most heavily on the standards required for judges but, quite simply, the appropriately rigorous restrictions of the Canadian Judicial Council "Ethical Principles for Judges" do not apply to Drainage Referees.
18Despite the previously mentioned trappings of a Superior Court Judge, under the Act Drainage Referees are exercising a "statutory power of decision", as defined in the Statutory Powers Procedure Act (the "SPPA"). Subsection 3(2) of that SPPA makes it clear that that legislation does not apply to judges.
19Drainage Referees are operating as an administrative tribunal. A more pertinent guidance document is the "Code of Professional and Ethical Responsibilities For Members of Adjudicative Tribunals" issued by the Society of Ontario Adjudicators and Regulators ("SOAR") in 1996.
20The documentary evidence filed in support of the respondent Municipality's recusal motion includes an August 24, 2021 letter authored by myself with respect to the issue now put in play by the respondent Municipality. In that letter I specifically intimated that counsel for Municipality should address paragraph 14 of the SOAR Code. That paragraph 14 is as follows:
- An adjudicator will not normally be eligible to conduct a hearing involving a party or representative with whom he or she was formerly in a significant professional relationship until a period of [twelve] months has elapsed from the termination of the relationship. A significant professional relationship would include employment, solicitor/client or partnership/association in a law firm.
21Conspicuously absent from the respondent Municipality's submissions is any mention of paragraph 14 – it is not even highlighted in yellow as the respondent Municipality has done with many other previsions for the CJC "Ethical Principles for Judges" and the SOAR Code.
22With respect, it seems clear that after almost 3 years, I am well past the conventional one year "cooling-off" period and am at liberty to hear cases where one of the parties is represented by a Siskinds lawyer.
23The remaining question is whether the occasional use of a Siskinds workstation and access to mailroom and copy room facilities and the use of a Siskinds's e-mail address for other purposes would cause a reasonable and right-minded person applying themselves to the question and obtaining thereon the required information to apprehend a bias in this case and such that such apprehension of bias would be reasonable.
24In this respect, as mentioned, the applicants have taken no position on the respondent Municipality's recusal motion, so it is reasonable to conclude that they do not have an apprehension of bias. Also, as mentioned, counsel for the respondent Municipality has indicated that the motion is not based any allegations of misconduct by myself or Siskinds. She advises that her client is concerned about the appearances of the circumstances of my past connection with Siskinds and the continuing perquisites extended to me by my former partners.
25To the extent that the circumstances troubling the respondent Municipality relate to a "cooling-off" period after my departure from Siskinds, at almost three years I am well past the one year mentioned in paragraph 14 of the SOAR Code.
26While it is not specifically raised in the respondent Municipality's factum, the only other issue gleaned from highlighting in the SOAR Code is the notion that Siskinds' courtesies offered to a retired former partner should be characterized as an inappropriate gift thereby creating a conflict of interest whenever a Siskinds lawyer appears on a matter over which I am presiding. With respect I do not believe that a reasonable, fair-minded person would misunderstand. A reasonable fair-minded person would understand that my former partners are affording to me, and to other former partners, the occasional and modest use of physical office infrastructure in my retirement activities, that they are doing so in recognition of past contributions to the Firm and that their gesture in doing so has no connection with or relevance to Siskinds' continuing law practise in the Court of the Drainage Referee or otherwise.
27I, as the Acting Referee, and the Referee have had regard for all other aspects of the SOAR Code as highlighted or referred to in the respondent Municipality's factum.
28At 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. Neither the Drainage Referee nor the Acting Drainage Referee should recuse themselves from a matter except in the clearest case. With only two of us, if it becomes necessary for one to step away from a case, the work of the Court of the Drainage Referee on that case would need to be squeezed into the case load of the remaining Referee and, in a worst case, would grind to a halt if the remaining Referee were to be unavailable for a period of time on account of health challenges or personal commitments. Even if there were three or four of us serving Ontario, there is not enough bench depth in the Court of the Drainage Referee for any one of the Referees to disqualify themselves from a file unless it is obvious that they must having regard for the SOAR Code.
29Based on the submissions of the respondent Municipality, I am satisfied that a reasonable person, understanding that my former partners are affording me occasional and modest retirement perquisites, would not reasonably have an apprehension of bias when, three years on, a Siskinds lawyer appears before me as counsel. I am therefore going to dismiss the recusal motion.
30My concern in doing so is that others who are not yet parties to this case may have reservations such as have been raised by the respondent Municipality in this recusal motion. Those others have not had an opportunity to be heard on the subject. The respondent Municipality is asking that this motion be disposed of before next steps are taken.
31Those next steps include circulating notice of this proceeding to those who are not parties and who are being assessed for the Burk Drainage works and who may be seriously adversely affected by the outcome of this application. They should be given notice of this proceeding and the opportunity to be parties; that is the purpose of the giving of notice. It is likely that the interests of any added parties will be adverse to the interests of the Municipality and to the interests of the applicants with respect to a number of issues. If, as added parties, they are concerned about impartiality and bias, they should not be estopped from raising the question because of the Municipality's recusal motion was made and decided before they had a chance to be heard. I am dismissing the respondent Municipality's recusal motion for the reasons set out above, but I do so without prejudice to a similar motion being brought by any new party that may be added in future proceedings in this case. In the event of such a future recusal motion by a yet-to-be-added party, this disposition of the respondent Municipality's recusal motion will stand as an estoppel to the respondent Municipality's participation in any such future recusal motion.
Dated at London this December 3, 2021.
Court File No.: CV-21-00000727-0000 (Chatham)
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
BETWEEN:
ERIE SHORE DRIVE PROPERTY OWNERS ASSOCIATION, and many individual owner of properties along Erie Shore Drive
Applicants
- and -
THE CORPORATION OF THE MUNICIPALITY OF CHATHAM-KENT
Respondent
and –
OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION
Respondents
APPOINTMENT FOR CASE MANAGEMENT PRE-HEARING VIDEO CONFERENCE
ON WEDNESDAY, FEBRUARY 2, 2022 AT 10:00 AM
The presiding Drainage Referee did, by Order dated the 3rd day of December 2021 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. The application relates to the Burk Drainage Works which are north and west of Erieau in the geographic Township of Harwich lying southeast of the Clark and Bisnett Sideroads and southwest of the Third Concession Road, now Lagoon Road. A copy of the Notice of Application is attached to this Notice as Appendix "A". Also attached as Appendix "B" to this Notice is a copy of the December 3, 2021 Order. The Order lists a number of Engineering Reports the related to the Burk Drainage Works.
The applicants have not yet provided any evidence in support of their application nor has the respondent Municipality responded.
Copies of the Notice of Application and of the Engineers' Reports may be viewed during normal business at the office of the Municipal Clerk of the respondent Municipality located at the Blenheim Service Centre, 35 Talbot St. West, Blenheim (N0P 1A0). As well copies of the application and the Engineers' Reports are available from the Municipality's website at:
www.letstalkchatham-kent.ca/erie-shore-drive-drainage-act-application
- As mentioned, the application deals with the Burk Drainage Works which are located north and west of Erieau in the geographic Township of Harwich.
The drainage works were established under The Drainage Act, as it then was, under an engineer's report issued in 1914. The purpose was to recover for agricultural use the fertile muck soil in that location by protecting the farmland area from the waters of Rondeau Bay and Lake Erie. This was done by a number of internal and external drains, the construction and enhancement of protective breakwater embankments and the pumping of water from the low-lying land into Rondeau Bay. The drainage scheme is fundamentally the same now as it was initially.
The applicants are many of the property owners along the south side of Erie Shore Drive. Mostly they are the owners of residential or recreational cottage properties constructed on the natural sandbank barrier between the Lake and the protected farm land. Erie Shore Drive has been constructed on top of and on the north side of this sandbank. The applicants allege that the drainage works are not only for the protection of the farm land but also for the protection of their properties and that the Municipality has failed to maintain and repair the drainage works installed under predecessors of the Act. It is alleged that, if the drainage works installed under the Act had been maintained and repaired properly, their properties would not have been damaged by unrelenting erosion of the Lake Erie shoreline from the Lake's unpredictable but inevitable recurring cycles of high and low water and the effects during severe storm events of wind and ice and waves on the beach shoreline.
They seek recovery of those damages and, as well, they seek an order directed to the Municipality requiring it to repair the Burk Drainage Works.
The respondent Municipality has indicated its intention to respond to these allegations as to the facts alleged and as to the law. The respondent Municipality is, however, unable to articulate its response with particularity until it has been provided with the applicants' affidavit evidence.
The applicants have not provided any quantum of damages they are seeking nor have they specified what works they want the Municipality to undertake on the direction of the Court of the Drainage Referee. It is anticipated that the amounts involved will not be insignificant.
Section 118 of the Act provides that any damages awarded and the cost of any ordered maintenance and repair are assessed to the properties within the drainage area. That provision also contemplates that some or all of the damages awarded or maintenance costs incurred may be paid out of the general funds of the Municipality but, for that to happen, the Drainage Referee would need to make findings of improper conduct by the Municipality and to make an Order to deviate from the default position that the drainage works pay in accordance with the most recent assessment schedule. It is fair to anticipate that the Municipality will deny any improper conduct and will propose that any such damages awarded and maintenance costs should assessed to the Burk Drainage Works.
Most who are receiving this notice are amongst the assessed owners who may be required to pay your proportionate share of any damages awarded and of the cost of maintenance and repair required as a result of this proceeding.
Some who are receiving this notice are owners of land that fronts on Erie Shore Drive who are not amongst the applicants, whose land is not assessed for the Burk Drainage Works and whose lands may become assessed for the Burk Drainage Works or otherwise affected by the results of this proceeding.
Whether or not the application is successful and, if so, on what terms will therefore affect those, such as you, who pay assessments for the Burk Drainage Works or whose land who may be added to the assessment roll for the Burk Drainage Works or may be affected by the directions of the Referee. These matters will be determined following a hearing of the application on its merits. The case management pre-hearing conference on February 2nd 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 assessed for the Burk Drainage Works.
Take Notice that the presiding Drainage Referee will convene a case management pre-hearing conference to give procedural direction for the hearing of the merits of this case. The pre-hearing conference will be held by video conference and will commence at 10:00 in the morning Wednesday, February 2, 2022. Details concerning access to the video conference appear later in this notice.
The purpose of the case management pre-hearing conference on Wednesday, February 2, 2022 will be to identify parties.
Subsequent case management pre-hearing conferences will deal with
(a) Phasing of the hearing to deal with liability issues initially before getting into the detail of damages claims or any maintenance and repair orders under subsection 79(1) of the Drainage Act.
(b) Identification of issues for at least the first phase of the hearing.
(c) Fixing a time for the applicants to deliver supporting evidence at least the first phase of the hearing.
(d) Fixing a time for the respondent Municipality to deliver responding materials at least the first phase of the hearing.
(e) Fixing a time for the delivery of other documentation, having regard for subsection 11(1) of Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee.
(f) Making provisions about access to and login credentials for participants in the hearing.
(g) Providing for service by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service).
(h) Identifying the number and nature of witnesses to be called by each party at least the first phase of the hearing.
(i) Scheduling pre-hearing production and exchange of documents, including affidavits and witness statements for expert witnesses and affidavits and evidence summaries for other witnesses at least the first phase of the hearing.
(j) Estimating the amount of time required for the first phase of the hearing hearing.
(k) Setting the commencement date for the first phase of the hearing hearing
(l) Dealing with such other matters or things as may arise and which the presiding Referee may determine it is expedient to permit.
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 "C".
The completed Memorandum of Appearance must be filed, on or before Friday, January 21, 2022, via the Superior Court of Justice Online One-Key filing portal, to the
Superior Court of Justice, Attention: Civil Registrar
425 Grand Avenue, West, Chatham, Ontario. N7M 6M8
- A copy of the Memorandum of Appearance must also be sent by mail or e-mail to
Counsel for the respondent Municipality:
Sheila C. Handler via e-mail to shandler@shillingtonmccall.ca
Jonathan de Vries via e-mail to jdevries@shillingtonmccall.ca
Shillington McCall LLP
Lawyers
1500 - 148 Fullarton Street London ON N6A 5P3
Counsel for the applicants
Paula Lombardi, via e-mail to paula.lombardi@siskinds.com
Siskinds LLP
Unit 1, 275 Dundas Street,
London, Ontario N6V 2G8
Presiding Referee
Andrew C. Wright, 12 The Ridgeway London, Ontario. N6C 1A1 E: andrewcwrightis@outlook.com
For those wishing to simply observe the proceedings without any participation, before Friday, January 21, 2022, 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, as would being a representative of the news media. 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 or 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 3rd day of December 2021.
____________________________________ Andrew C. Wright Acting Drainage Referee
ATTACHMENT "A"
Copy of the May 18, 2021 Notice of Application
ATTACHMENT "B"
Copy of this Order Without the Appointment for Case Management Video Conference
ATTACHMENT "C"
Court File No.: CV-21-00000727-0000 (Chatham)
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
BETWEEN:
ERIE SHORE DRIVE PROPERTY OWNERS ASSOCIATION, TREVOR DIXON, ROWAN DIXON, ROBERT DIXON, RICHARD JOSEPH BARNIER, WENDY ANNE BARNIER, KEITH GORDON PEARCEY, DAVA ROBERTSON PARR, KIMBERLEY ISAAC, RONALD FRANCIS VAN DER PAELT, SARAH-LOUISE VAN DER PAELT, GARY DANIEL JANADIA, MICHAEL KEITH JANADIA, RISARG HUFF, LINDA MAE HUFF, CHERYL ANN WALLACE, JANET CHARLOTTE WALLACE, STEPHANIE BOUDREAU, TRACY ANN HENRY, GLORIA BLONDE BLACK, LYNDA MAE DODMAN, STELLA MARIE DODMAN, MICHAEL SCOTT MORRIS, DEBRA ANN ZIEMBA, EARL HENRY NEAR, JACOBA NEAR, JONATHON MICHAEL SOUTHEN, SHANNON DEANNA WESTGATE, FRANK SPARKS, JENNIFER ANNE SMITH, SIMON HERBERT SMITH, BAVENDRAN ATCHUTHAMPILLAI, EDWIN CLAUDE WOOD, DAVID PATERSON, HOLLY PATERSON, TREVOR RONALD MORTON, FRANK ARTHUR SROKOSZ, DYANNE SROKOSZ, RONALD BRUCE GILLESPIE, Edward Gerard Peck as Estate Trustee of the ESTATE OF WILLIAM ELDON PECK, Deceased, and Betty Peck as Estate Trustee of the ESTATE OF LARRY ALLEN PECK, Deceased; DAVID CHARLES PECK, DENELLE LEA PECK, PAUL MAILLOUX, DANA SMITH, KRISTY TAYLOR, JODIE TAYLOR; HENRY ALLAN DE JONG, MARISKA DE JONG, STIPAN JURKOVIC, MICHELE JURKOVIC, GEOFFREY EDWARD DENNIS, WESLEY ALFRED TROJAND, JEAN ISOBEL HUMPHREY, JUDY LYNN OEHM, CHARLES EDWARD BELBECK, DENNY KEVIN JAKSIC, TERRA DANIELLE CADEAU, MARLENE MARIA SCHERTZER, WILLIAM MICHAEL SCHERTZER, MARIANNE COUSINEAU, JAMES COUSINEAU, ROGER DOUGLAS HOUGHTON, DEBORAH JEAN VINT, LINDA DARLENE HEYNINCK, WERNER KRAUS personally, and in his capacity as Power of Attorney for MARIA KRAUS, DAVID MICHAEL TROTECHAUD, MARJORY ELLEN TORTECHAUD, MELISSA SHARON OGDEN, KIMBERLY MARGARET SNELL, STEVEN BARRY DOBSON, SUSAN ELIZABETH O’BRIEN, DEVY LEANN BROUWER, MARGO TREVOR HINNEGAN, FRANK KEITH ZIEMBA, JEFFREY PETER KNIPFEL, SONYA LYNN KNIPFEL, MURRAY SPENCER, GAIL SPENCER, MICHELLE RUBY PENNEY, ANDREW JOHNATHAN SPENCER, GARY EDWARD BLAIN, SHARON ELAINE BLAIN, SCOTT FRANCIS, ROSEMARIE KATHI JOHANNA FRANCIS, PHILIP ALLAN SMITH, DEBRA LEE JANE SMITH, CLIFFORD-LAWRENCE BARTLETT, LYNDA LEE BARTLETT, ELIZABETH COLLEEN FLETCHER, 2255577 ONTARIO INC., EDWARD JOSEPH REITBERGER, DARWIN ALLAN RICE, JENNY ROSELINDA RICE, TIMOTHY JOHN AARSSEN, ELIZABETH JEAN WEBER, CHRISTOPHER DAVID HAGER, CATHERINE MARIE PANCOE, RONALD KENNETH PESESKI, ROSEMARIE BERNADET PESESKI, JENNIFER ANN VANNECK, DAVID THOMAS RUTTY, DENISE MARYLOU RUTTY, JEANINE DORIS WATT, BERTRAM LEON MARKS, MONIQUE DARNELL MARKS, BARBARA ANN HOYETT, STEVEN EDMUND DEW, NANCY MARIE DEW, STEPHANIE LIN GELUK, CHERYL LUGEAN MASON, MYRON BURNS BUSH, DAVID RICHARD COPLEY, MARILYN MAUDE COPLEY, ACAMPORA FAMILY HOLDINGS INC., DAVID MELVIN DAVIS, MARGARET SUSAN LOUISE DAVIS, JAMES EVAN STERLING ALLIN, BRIAN GERHARD FALLAK, LAURIE ELIZABETH FALLAK, DANA DAUGHERTY, LEONARDO CARO, JANICE LYNN CARO, HARRY LOUIS VAN DYKE, MARY VAN DYKE, TERRANCE GILBERT MAYNARD, STEPHEN GARY MAYNARD, CHERYL ANN MACKENZIE, BRENDA ALICE KARLOVCEC, LORI ELLEN MCKEON, JANE DOE in her capacity as ESTATE TRUSTEE for the ESTATE OF SEAN PANJER (deceased), WILLIAM ROBERT SEATON, JULIE WENDY SEATON, STEPHANIE KATHLEEN COX
Applicants
- and -
THE CORPORATION OF THE MUNICIPALITY OF CHATHAM-KENT
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
Signature of Party or of Solicitor for Party Print Name: Address for service: Telephone number: E-mail address:
Date:
TO:
Superior Court of Justice Attention: Civil Registrar Chatham-Kent Courthouse
425 Grand Avenue, West,
Chatham, Ontario. N7M 6M8
AND TO
Andrew C. Wright, Acting Drainage Referee 12 The Ridgeway London, Ontario. N6C 1A1
E: andrewcwrightis@outlook.com
Presiding Drainage Referee
AND TO:
Sheila C. Handler via e-mail to shandler@shillingtonmccall.ca
Jonathan de Vries via e-mail to jdevries@shillingtonmccall.ca
Shillington McCall LLP
Lawyers
1500 - 148 Fullarton Street London Ontario N6A 5P3
T: (519) 645-7330
F: (519) 645-6955
Counsel for respondent Municipality
AND TO:
Paula Lombardi, via e-mail to paula.lombardi@siskinds.com
Siskinds LLP
Unit 1, 275 Dundas Street,
London, Ontario N6V 2G8
T: (519) 660-7878
F: (519) 660-7879
Counsel for the applicants