ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE ONTARIO
CITATION: Howe v Zorra (Township), 2021 ONDR 5
DATE OF DECISION: 2021-10-25
Court File No.: CV-15-00000151-0000 (Woodstock) Originally Court File No.: 151/15
B E T W E E N:
GORDON J. HOWE and HOWE FARMS (ONTARIO) LTD.
Applicants
and
THE CORPORATION OF THE TOWNSHIP OF ZORRA
Respondent
and
UPPER THAMES RIVER CONSERVATION AUTHORITY
Intervenor
ACTING DRAINAGE REFEREE ) ANDREW C. WRIGHT ) MONDAY, THE 25th DAY ) OF OCTOBER 2021 )
ORDER
The Court of the Drainage Referee having appointed this day for a case management Pre-Hearing conference by video conference
(a) to identify parties;
(b) to identify the number and nature of witnesses to be called by each party;
(c) to schedule pre-hearing production and exchange of documents, including affidavits and witness statements for expert witnesses and affidavits and evidence summaries for other witnesses;
(d) to estimate the amount of time required for the hearing;
(e) to set the commencement date for the hearing;
(f) to deal with such other matters or things as may arise and which the presiding Referee may determine it is expedient to permit.
Upon hearing the submissions of counsel for the applicants, counsel for the respondent Township and counsel for the intervenor UTRCA, for the reasons which follow:
THIS COURT ORDERS that:
- The presiding Referee may vary or add to these rules at any time, either on request or as it sees fit. He may alter this Order by an oral ruling, or by another written Order.
Organization of the Hearing
- The hearing of the merits in this matter will be via video conference to commence on a date to be established at a future case management procedural conference; and the following provisions shall apply:
(a) The Parties shall provide to the presiding Referee and names and e-mail addresses of those who will be on hand at the video conference hearing; that includes counsel, any witnesses and those giving instructions to counsel.
(b) Parties and those with a recognized interest in the proceeding, including news media, will be provided by the presiding Referee with access credentials, including a password, to log into the video conference at the appointed time.
(c) Once logged on, the person will be held in a waiting area pending authorization by the presiding Referee to join the hearing.
(d) Parties intending to call a witness will ensure that the witness has a holy book (Bible or Koran) at hand if they are to be sworn to give evidence; a holy book is not required for a witness who affirms.
(e) For those joining the hearing to simply observe without participation, their microphone will be muted during the hearing conference.
The length of the hearing of the merits will be estimated at a future case management video conference.
The parties identified at the case management conference are:
Gordon J. Howe and Howe Farms (Ontario) Ltd., Applicants
Paula L. Lombardi
The Corporation of the Township of Zorra (the “Township”), Respondent
Peter Pickfield
Upper Thames River Conservation Authority (“UTRCA”), Intervenor
Marcia J. Oliver
Completing the Record
The parties will prepare an agreed statement of facts which will provide a chronological, factual update of what has transpired since January 2016. This chronology will not include anything that is cloaked in the without prejudice confidentiality of negotiations. This update will be provided in the form of an affidavit or written document signed, in counter-parts if needed, by all counsel. It will be provided on or before Friday, December 15, 2021. This agreed statement of facts or affidavit will be exchanged between the parties and will be provided to the presiding Referee.
Each of the parties may provide additional affidavits to supplement the affidavits which were filed, and which are part of the record prior to January 2016. The parties will delivery any supplementary affidavits to the other parties and to the presiding Referee on or before Friday, January 28, 2022.
Preliminary Motions
Counsel for UTRCA advised that she may receive instructions to bring a motion challenging the authority of the Court of the Drainage Referee to proceed with this matter at this time. It is ordered that, if UTRCA intends to bring such a motion, the other parties and the presiding Referee must be so advised on or before Friday November 12, 2021. In the event that such advice is given, a case management procedural conference will be convened promptly for the purpose of scheduling delivery of motion records and reply records and to schedule a time and date for the argument of the preliminary motion as soon as possible.
No other preliminary motions are contemplated.
Issues
- The issues are to be settled at a future case management procedural conference but will include some variation of:
(a) What is a suitable form of a resolution replacing the June 2, 2015 Township Council resolution with one that refers the Engineer’s Report back to the Engineer for integration into the Engineer’s Report implementation, in compliance with the Conservation Authorities Act and Regulations, of the restoration order made by Justice of the Peace C. Anderson on May 31, 2016?
(b) What is included as “expenses incurred by the Township in connection with the petition and the report” under section 43 of the Drainage Act (the “Act”) in the event that the applicants’ December 2013 petition is withdrawn before the Engineer’s Report, or a variation thereof, is adopted by provisional by-law of the Township? Do those expenses include all expenses of the Township in relation to the processes flowing from the originating petition, including the 2015 appeal to the Tribunal and this proceeding before the Court of the Drainage Referee?
(c) Is there any improper action, neglect, default or omission on the part of the Municipality that would justify the Referee directing, pursuant to subsection 118(2) of the Act, that the whole or any part of the costs and expenses of the Municipality should be borne out of the general funds of the Municipality as opposed to those costs and expenses being assessed to the drainage works as contemplated by subsection 118(1) of the Act; and, if yes, what portion, if not all should be paid out of the general funds of the Municipality?
(d) If the Engineer’s Report, or some variation of it, is adopted by a provisional by-law of the Township and the Township’s expenses of the processes flowing from the originating petition are be charged to the drainage works contemplated by the Engineer’s Report, should the Referee’s order, under section 118 of the Act, be that those expenses be assessed according to the construction assessment schedule or to the maintenance assessment schedule?
(e) What do the expenses to be charged to the drainage work for the purposes of clause 9(d) above include? Do those expenses include all expenses of the Township in relation to the processes flowing from the originating petition, including the 2015 appeal to the Tribunal and this proceeding before the Court of the Drainage Referee?
Once the Issues List is settled at a future case management conference, there will be no changes to the list unless the presiding Referee permits, and a party who asks for changes may have costs awarded against it.
- Because the hearing of the merits is being conducted by video conference, protocols concerning the entering of exhibits are warranted and the following apply in that connection:
(a) A document, including a plan or photograph, to be relied upon at a hearing must be identified as an exhibit.
(b) To be identified as an exhibit, the document must be provided to the presiding Referee and to all other parties at least 2 days in advance of the video conference hearing at which it is to be presented as an exhibit; the presiding Referee may abridge this time.
(c) The presiding Referee will decide whether to enter the document as an exhibit and, if it is allowed, the presiding Referee will assign an exhibit an alpha/numeric identifier.
(d) Once the document has been entered as an exhibit, the party that introduced the exhibit shall, within 3 business days following the conclusion of the video conference hearing, file an electronic copy of the exhibit with the court via the One-Key portal and, when doing so, shall identify Court File No.: CV-15-00000151-0000 (Woodstock) 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 10(d) above applies mutatis mutandis.
- At the time of the October 25, 2021 case management conference, the following documents are part of the record:
Exhibit No.
Exhibit Description
Decision of the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) issued August 7, 2015, being Exhibit 17 to Exhibit 2 reported at 2016 ONDR 1.
Application in this matter issued September 21, 2015
Exhibit 1
Howe Drain 2014 Report issued by Spriet and Associates and signed by Michael P. DeVos, P.Eng dated November 10, 2014 as resubmitted May 4, 2015 (the “Engineer’s Report”), being Exhibit 11 to Exhibit 2
Exhibit 2
Affidavit of Gordon J Howe, with Exhibits 1 through 17, sworn September 14, 2015
Exhibit 3
Affidavit of Michael Hughes sworn March 27, 2013, being Exhibit 4 to Exhibit 2, above
Exhibit 4
Affidavit of Charlie Reeves sworn March 27, 2013, being Exhibit 2 to Exhibit 2, above
Procedural Order issued by Acting Referee Oldfield dated November 24, 2015
Exhibit 5
Affidavit of Donald MacLeod, with exhibits 1, 2 and 3, sworn December 4, 2015, in connection with UTRCA’s application to be added as an intervenor party
Exhibit 6
Affidavit of Karen Winfield, with exhibit “A”, sworn November 30, 2015 in connection with UTRCA’s application to be added as an intervenor party
Exhibit 7
Affidavit of Karen Winfield, with exhibits 1 to 4, sworn November 30, 2015.
Exhibit 8
Affidavit of Gordon J. Howe, with exhibits “A” to “D”, sworn December 21, 2015, in connection with UTRCA’s application to be added as an intervenor party
Reasons for Conservation Authority Act conviction of applicants issued by Justice of the Peace C. Anderson on December 14, 2015
Procedural Order issued by Acting Referee Oldfield dated January 7, 2016, adding UTRCA as an Intervenor party
Exhibit 9
Affidavit of Donald Macleod, with exhibits 1 to 10, sworn February 19, 2016
Exhibit 10
Reply Affidavit of Gordon J. Howe sworn March 4, 2016
Reasons for sentencing issued by Justice of the Peace C. Anderson on May 31, 2016 with respect to Conservation Authority Act conviction of applicants
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.
If counsel or a witness intends to rely upon case law, other than the cases listed in paragraph 11 above, or legislation, other than the Act, copies must be provided to the presiding Referee and to all other parties at least 2 days in advance of the video conference hearing at which it is to be referred to; the presiding Referee may abridge this time.
Order of Evidence at Hearing
- The order in which evidence will be given at the hearing will be as follows:
(a) Michael P. DeVos, P.Eng, the engineer who authored the Engineer’s Report shall give factual background evidence based on the Engineer’s Report;
(b) The applicants will then call their evidence; the applicants’ witnesses are:
(i) Gordon J Howe who will provide factual evidence based on his affidavit sworn September 14, 2015, and his affidavit sworn December 21, 2015, and his affidavit sworn March 4, 2016 and upon any supplementary affidavit which may be provided in accordance with paragraph 6 above.
(ii) John Kuntze, P.Eng. may be called to provide opinion evidence and, if the applicants decide to call him as a witness, his evidence will be based on an affidavit to be provided in accordance with paragraph 6 above.
(iii) Michael Hughes may be called by the applicants to provide evidence based on his affidavit sworn March 27, 2013. If the applicants decide not to call Mr. Hughes to give evidence, the applicants will, at the request of any party, make him available to the hearing on the merits to be cross-examined upon his affidavit.
(iv) Charlie Reeves who will provide evidence based on his affidavit sworn March 27, 2013. If the applicants decide not to call Mr. Reeves to give evidence, the applicants will, at the request of any party, make him available to the hearing on the merits to be cross-examined upon his affidavit.
(v) Any other person who has provided a supplementary affidavit in accordance with paragraph 6 above and their evidence will be based on that supplementary affidavit.
(c) UTRCA will then call their evidence; UTRCA’s witnesses are:
(i) Karen Winfield who will provide evidence based on her two affidavits both sworn November 30, 2015 and upon any supplementary affidavit which may be provided in accordance with paragraph 6 above.
(ii) Any other person who has provided a supplementary affidavit in accordance with paragraph 6 above and their evidence will be based on that supplementary affidavit.
(d) The respondent Township will call its witnesses; the respondent Township’s witnesses are
(i) Michael P. DeVos, P.Eng, who will be re-called to provide both factual and opinion evidence based on the Engineer’s Report and upon any supplementary affidavit which may be provided in accordance with paragraph 6 above.
(ii) Donald MacLeod who will provide evidence based on his affidavit sworn December 4, 2015 and his affidavit sworn February 19, 2016 and upon any supplementary affidavit which may be provided in accordance with paragraph 6 above.
(iii) Any other person who has provided a supplementary affidavit in accordance with paragraph 6 above and their evidence will be based on that supplementary affidavit.
(e) The applicants may then call reply evidence.
The final witness list and the affidavits to be spoken to by the witnesses will be settled at a future case management procedural conference.
Final submissions by the parties will proceed in the same order as specified in item 15 above.
Requirements Before the Hearing
Pursuant to subsection 11(1) of Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee (the “Rules”), the respondent Township is tasked to produce all documents in its possession or under its control relating the drainage works unless the Referee otherwise orders. On or before Friday, November 12, 2021 counsel for the applicants and for UTRCA will advise counsel for the Township of any documents which they wish to have produced and the Township will produce those documents to the parties and to the presiding Referee on or before Friday, December 17, 2021. It is ordered that no other documents need be produced pursuant to subsection 11(1) of the Rules.
A person wishing to change written affidavit evidence must make a written motion to the presiding Referee.
A party who has provided an affidavit must have the witness attend the hearing to give oral evidence, unless the party notifies the presiding Referee at least seven (7) days before the hearing that the written evidence is not part of their record.
When any document is required or permitted to be served, it shall be served by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service) and shall be sent to:
(a) the party’s representative, if any;
(b) where the party is an individual and is not represented, to that party directly, where that party has provided an address for service and/or an e-mail address;
(c) where that party is a corporation and is not represented, to the corporation directly, to the attention of an individual with apparent authority to receive the document.
For the purposes of this Order, unless otherwise ordered, Andrew C. Wright, Acting Drainage Referee, shall be regarded as the presiding Referee.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness.
Costs of the day are reserved to the final disposition of this matter.
Andrew C. Wright, Acting Drainage Referee, is seized of the hearing of the merits of this application.
Dated at London October 25, 2021.
____________________________________ Andrew C. Wright Acting Drainage Referee
REASONS
- This case management conference was held by video conference on October 25, 2021.
The Parties
The first matter of concern was whether there are property owners or others whose rights and obligations may be affected by the result of this proceeding and who should be given notice of this proceeding and an opportunity to participate as parties.
If the Engineer’s Report, or some variation on it, is adopted by a provisional by-law of the Township, all those assessed or awarded allowances by the Engineer’s Report will have avenues of appeal under the Act to the Tribunal. In that event, some part or all of the expenses of the processes flowing from the originating petition, including the 2015 appeal to the Tribunal and this proceeding before the Court of the Drainage Referee, will be borne by the Township out of its general funds or will be charged to the drainage works contemplated by the Engineer’s Report and any discontent about charges to the drainage works can be addressed in the context of appeals to the Tribunal if and when the Engineer’s Report, or a variation on it, is adopted by a provisional by-law. The rights and obligations of anyone potentially affected by the adoption of the Engineer’s Report, or a variation on it, do not arise until final disposition of appeals to the Tribunal. Those potentially affected persons would have the right to be notified and the opportunity to participate fully in the hearing of those appeals to the Tribunal.
If the Engineer’s Report is not adopted, then the expenses of the processes flowing from the originating petition will be borne by the applicants and/or by the Township. No other person will be affected.
I am satisfied that the applicants, the Township and the intervenor UTRCA are the only parties whose rights and/or obligations will be affected by the result of this proceeding in the Court of the Drainage Referee.
Counsel for the Township advised that his client has asked him to provide the County of Oxford with a report of developments in this proceeding and that there is a possibility that the County may seek to be involved as a party. The County has already had input to the Engineer’s Report and appears to have had its issues addressed. The County, as an assessed owner under the Engineer’s Report, would have rights of appeal to the Tribunal as mentioned in paragraph 3 of these reasons. I would, of course, entertain a motion by the County to be a party but would expect such a motion to be brought in a timely manner after the County has been advised of this day’s proceedings and Order.
Updating Record
This proceeding in the Court of the Drainage Referee was held in abeyance from January 2016 until now to give the parties an opportunity to explore settlement. That worthwhile exercise has now been exhausted without success. As a result, the case is back to the original application based on the record as it was prior to the hiatus for negotiation.
As appears from the Order to which these reasons are attached, the parties have agreed to prepare an agreed statement of facts which will provide a chronological, factual update of what has transpired since January 2016. This chronology will not include anything that is cloaked in the without prejudice confidentiality of negotiations. This update will be provided in the form of an affidavit or written document signed by all counsel. It will be provided on or before Friday, December 15, 2021. This agreed statement of facts or affidavit will be exchanged between the parties and will be provided to the presiding Referee.
Each of the parties may provide additional affidavits to supplement the affidavits which were filed, and which are part of the record prior to January 2016. The parties will delivery any supplementary affidavits to the other parties and to the presiding Referee on or before Friday, January 28, 2022.
No Preliminary Motions
I have asked the parties if there are any preliminary motions to be argued before getting to the hearing on the merits.
Counsel for UTRCA advised that she may receive instructions to bring a motion challenging the authority of the Court of the Drainage Referee to proceed with this matter at this time. It is ordered that, if UTRCA intends to bring such a motion, the other parties and the presiding Referee are to be so advised on or before Friday November 12, 2021. In the event that such advice is given, a case management procedural conference will be convened promptly for the purpose of scheduling delivery of motion records and reply records and to schedule a time and date for the argument of the preliminary motion as soon as possible.
No other preliminary motions were mentioned.
Issues
The issues list for the hearing on the merits needs to be settled and the parties will liaise in advance of the next case management video conference with a view to refining the issues list.
One of the issues from the perspective of the presiding Referee is how to cast a resolution replacing the June 2, 2015 Township Council resolution with one that has the effect of referring the Engineer’s Report back to the Engineer for integration into the Engineer’s Report implementation, in compliance with the Conservation Authorities Act and Regulations, of the restoration order made by Justice of the Peace C. Anderson on May 31, 2016. This will require technical and procedural input from the Township and from the engineer Mike DeVos, P.Eng. What is the proposed form of replacement resolution?
Another issue for the presiding Referee is what is included as “expenses incurred by the Township in connection with the petition and the report” under section 43 of the Act should the December 2013 petition be withdrawn before the Engineer’s Report, or a variation of it, is adopted by provisional by-law. Do those expenses include all expenses of the processes flowing from the originating petition, including the 2015 appeal to the Tribunal and this proceeding before the Court of the Drainage Referee?
If the Engineer’s Report, or some variation on it, is adopted by a provisional by-law of the Township and the Township’s expenses of the processes flowing from the originating December 2013 petition be charged to the drainage works contemplated by the Engineer’s Report, should the Referee’s order under section 118 of the Act that those expenses be assessed according to the construction assessment schedule or to the maintenance assessment schedule?
Do the Township’s expenses referred to in paragraph 16 above include to Township’s expenses in connection with the 2015 appeal to the Tribunal and this proceeding before the Court of the Drainage Referee,
Estimated Time for Hearing and Start Date
Until supplementary affidavits have been completed, witness lists compiled, and the issues list settled, it is not possible to determine how much time the hearing on the merits will require or to schedule a starting time and date.
When those matters have been attended to another case management video conference will be scheduled to establish the commencement for the hearing on the merits and to settle the final procedural Order for the Hearing.
The presiding Acting Referee may be spoken to should clarification or further directions are required or desired in connection this this Order.
Dated at London this October 25, 2021.
____________________________________ Andrew C. Wright Acting Drainage Referee