ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Hessels v Wainfleet (Township), 2021 ONDR 6

DATE OF DECISION: 2021-06-15

Court File No.: 10805-15

B E T W E E N:

TED HESSELS and WIESJE DOBRUCKI and RICK DOBRUCKI

Applicants

• and –

THE CORPORATION OF THE TOWNSHIP OF WAINFLEET

Respondent

• and –

OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION

Respondents

Court File No.: 10848-15

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

B E T W E E N:

THE CORPORATION OF THE TOWNSHIP OF WAINFLEET

Applicant

• and –

TED HESSELS and WIESJE DOBRUCKI and RICK DOBRUCKI

Respondents

• and –

OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION

Respondents

ACTING DRAINAGE REFEREE ) ANDREW C. WRIGHT ) TUESDAY, THE 15th DAY ) OF JUNE 2021 )

ORDER

The presiding Drainage Referee convened a case management conference in connection with these two applications after receiving a letter from Mr. Hessels advising that Mr. Hessels intends to bring a motion seeking relief from paying for the cost of an engineer’s report prepared under section 78 of the Drainage Act (the “Act”). That engineer’s report (the “Engineer’s Report”) is entitled “Indian Creek Municipal Drain 2020”; it was issued by Dietrich Engineering Limited on November 27, 2020 and signed by Stephen Brickman, P.Eng.

The conference was conducted by video conference using the Zoom platform.

The purpose of the case management conference was

(a) to establish a schedule for Mr. Hessels to prepare, file with the court and serve his formal Notice of Motion and supporting affidavit material; and

(b) to establish the time thereafter within which the Township is to prepare, serve and file responding material; and

(c) to establish the time for the argument of the motion.

During the case management conference, counsel for the Township indicated that he was anticipating instructions to bring a cross-motion on the basis of Minutes of Settlement (the “Minutes of Settlement”) entered into by the parties on February 5, 2019, seeking dismissal of the application under Court File No.: 10805-15 (the “2015 Hessels Application”) and judgement for the cost of the Engineer’s Report in the application under Court File No.: 10848-15 (the “2015 Township Application”). The purpose of the case management conference was expanded to include

(d) establishing a schedule for the Township to prepare, file with the court and serve its Notice of Motion and supporting affidavit material and

(e) establishing the time thereafter within which the other parties are to prepare, serve and file responding material, and

(f) establishing the time for the argument of both motions.

Upon hearing submissions from Mr. Hessels and Mr. Dobrucki and from counsel for the Township.

THIS COURT ORDERS that:

1. The presiding Referee may vary or add to this Order rules at any time, either on request or as he sees fit. He may alter this Order by an oral ruling, or by another written Order.

Pre-Hearing Scheduling

2. On or before Friday, August 20, 2021, Mr. Hessels shall file with the court and serve his Notice of Motion and supporting affidavit(s) on

(a) the presiding Drainage Referee by e-mail;

(b) the Township to its counsel by e-mail;

(c) Wiesje Dobrucki and Rick Dobrucki by e-mail;

(d) Dietrich Engineering Limited by ordinary mail addressed to

Dietrich Engineering Limited 155 Frobisher Drive, Unit G-116 Waterloo, Ontario. N2V 2E1;

(e) the current owners of lands identified in the Engineer’s Report by ordinary mail addressed to their respective addresses as shown on the last revised assessment roll and for this purpose the lands identified in the Engineer’s Report are those lands assessed or awarded allowances.

3. On or before Friday July 9, 2021, the Township shall provide to Mr. Hessels the names and addresses according to the last revised assessment roll of those referred to in item 2(e) above; the list of names and addresses shall be in machine-readable format or in some format that can be used for or as address labels.

4. On or before Friday, July 9, 2021, the Township shall provide to Mr. Hessels an electronic copy of the Indian Creek Municipal Drain report prepared by R. Blake Erwin, O.L.S., dated September 5, 1949, including plan and profile.

5. Mr. Hessels’ Notice of Motion and supporting affidavit(s) referred to in item 2 above shall identify the relief he is seeking from the Court of the Drainage Referee, the section(s) of the Act upon which he is relying for such relief and the section(s) of the Act that he submits give jurisdiction to the Drainage Referee to grant such relief. The affidavit material in support of Mr. Hessels’ motion shall include reference to and copies of the following:

(a) The Notice of Application under Court File No.: 10805-15 together with supporting affidavit (a) and responding material as filed with the court;

(b) The Notice of Application under Court File No.: 10848-15 together with supporting affidavit (a) and responding material as filed with the court;

(c) The Indian Creek Municipal Drain report prepared by R. Blake Erwin, O.L.S., dated September 5, 1949, including plan and profile;

(d) The Engineer’s Report, including plan and profile;

(e) The Minutes of Settlement; and

(f) This Order.

6. On or before Friday September 24, 2021, the Township shall file with the court and serve its affidavit material responding to Mr. Hessels’ Notice of Motion and supporting affidavit(s) on

(a) the presiding Drainage Referee by e-mail;

(b) Mr. Hessels by e-mail;

(c) Wiesje Dobrucki and Rick Dobrucki by e-mail;

(d) Dietrich Engineering Limited by ordinary mail addressed to

Dietrich Engineering Limited 155 Frobisher Drive, Unit G-116 Waterloo, Ontario. N2V 2E1;

(e) the current owners of lands identified in the Engineer’s Report by ordinary mail addressed to their respective addresses as shown on the last revised assessment roll and for this purpose the lands identified in the Engineer’s Report are those lands assessed or awarded allowances.

7. If counsel for the Township is so instructed, on or before Friday September 24, 2021, the Township shall also file with the court and serve on the same persons referred to in item 6 above its Notice of Cross-Motion and supporting affidavit material seeking dismissal of the 2015 Hessels Application and reimbursement for the cost of the Engineer’s Report from Mr. Hessels and Mr. and Mrs. Dobrucki by way of judgement under the 2015 Township Application,

8. The Township’s affidavit material shall include reference to the then current status of the Engineer’s Report and provide copies, as applicable, of the following:

(a) Minutes of the Township Council’s meeting(s) to consider the Engineer’s Report;

(b) Minutes of the Court of Revision consideration of assessment appeals from the Engineer’s Report;

(c) Whether there were any appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) from the Engineer’s Report and/or the decision of the Court of Revisions and, if there were, a copy for the Tribunal’s disposition of those appeals.

(d) The by-law adopting the Engineer’s Report, including the dates when it was given first and second reading and when it was given third and final reading.

(e) A statement of the cost of the Engineer’s Report.

(f) A summary of any work done under the authority of the Engineer’s Report.

9. On or before Friday, October 15, 2021, Mr. Hessels may file with the court and serve affidavit material responding to the Township’s cross-motion.

Additional Parties and Observers

10. Whether or not Mr. Hessel’s motion or the Township’s cross-motion are successful and, if so, on what terms, could affect the legal rights of those in the watershed of the Indian Creek Municipal Drain, being the current owners of lands identified in the Engineer’s Report, so it is important that each be afforded an opportunity to observe the proceedings and to have the opportunity to participate as parties. 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.

11. For those wishing to simply observe the proceedings without any participation, on or before Friday, October 29, 2021, they must provide to the presiding Referee and to counsel for the Township and to Mr. Hessels and to Mr. and Mrs. Dobrucki 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; the press would have a sufficient interest. 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.

12. For those wishing to participate as parties, on or before Friday, October 29 2021, they must so advise the presiding Referee, counsel for the Township, Mr. Hessels and Mr. and Mrs. Dobrucki and, on or before Friday, October 29, 2021, provide their name, mailing address, e-mail address and telephone number together with an indication of their interest in the case and as well file with the court and serve those same persons with affidavit material setting out their positions and the evidence upon which they will reply.

13. The mailing address, e-mail address and telephone number of the presiding Referee, of counsel for the Township, of Mr. Hessels and of Mr. and Mrs. Dobrucki are as follows:

(a) Andrew Wright, Acting Drainage Referee, 12 The Ridgeway, London, Ontario. N6C 1A1 T: (519) 671-5786 E: andrewcwrightis@outlook.com

(b) T. David Marshall Counsel for Wainfleet Township, Duxbury Law, Trial & Tribunal Lawyers, Suite 500, 1 King Street, West, Hamilton, Ontario. L8P 1A4 T: (905) 973-9396 E: david@duxburylaw.ca

(c) Ted Hessels, 73272 Robertson Road, Wellandport, Ontario. L0R 2J0 T: (905) 658-1311 E: tedhessels@gmail.com

(d) Mr. & Mrs Rick Dobrucki, P.O. Box 10, Wellandport, Ontario, L0R 2J0 T: (905) 736-1021 E: dobrucki_farms@sympatico.ca

14. On or before Friday, August 13, 2021 the Township shall send by ordinary mail addressed to the current owners of lands identified in the Engineer’s Report a copy of this Order together with a covering letter which alerts them to Mr. Hessel’s motion and to the Township’s cross-motion and focusses attention on items 10 through 13 above and how they may exercise the opportunity to observe or seek party status in Mr. Hessels’ motion and the Township’s cross-motion; and for this purpose the lands identified in the Engineer’s Report are those lands assessed or awarded allowances at their respective addresses as shown on the last revised assessment roll.

Proof of Service

15. Mr. Hessels shall prepare an affidavit proving service in compliance with item 2 above of this Order.

16. The Township shall prepare an affidavit confirming compliance with item 3 and 4 above of this Order and proving service in compliance with items 6 and 7 above of this Order.

17. Mr. Hessels and the Township shall deliver the affidavits of service referred to in items 15 and 16 above, respectively, to the other parties and to the presiding Referee by electronic e-mail transmission before the close of business on Friday, October 29, 2021; and Mr. Hessels and the Township shall file the affidavits referred to in items 15 and 16 above, respectively, with the

Superior Court of Justice - Civil Registrar Attention: Kimberly Straughan Welland Courthouse 102 East Main Street Welland Ontario L3B 3W6

Hearing of Motion and Cross-Motion – Commencing November 15, 2021

18. The hearing of the motions will commence at 10:00 am on Monday, November 15, 2021.

19. Five (5) days in advance of the commencement of the hearing, the parties shall provide the presiding Referee with 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.

20. As previously mentioned, the hearing will be held by video conference using the Zoom platform. Those identified by the parties in accordance with item 18 above and those seeking party status will be provided, via e-mail, with sign-in credentials, including a password, a few days before the scheduled 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 hearing conference.

21. Once logged on, the person will be held in a waiting area pending authorization by the presiding Referee to join the hearing.

22. 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.

23. For those joining the hearing to simply observe without participation, their microphone will be muted during the hearing.

24. Mr. Hessels’ motion and the Township’s cross-motion will be heard together and the evidence for each will apply to the other. The hearing will proceed as an hybrid motion argued on affidavit evidence and viva voce evidence by way of cross-examination on affidavits filed. The following will apply to the hearing proceeding:

(a) any preliminary matters will be considered, including whether those seeking party status should be afforded that status;

(b) the Township will have available the engineer author of the Engineer’s Report who may be called by the presiding Referee to give background evidence;

(c) Mr. Hessels will call the authors of the affidavit(s) filed in support of his motion and in response to the Township’s cross-motion; these witnesses will affirm their respective affidavits and hold themselves available for cross-examination;

(d) Any parties who are more aligned in interest with Mr. Hessels will then call the authors of the affidavit(s) filed in support of their position; these witnesses will affirm their respective affidavits and hold themselves available for cross-examination;

(e) The Township will call the authors of the affidavit(s) filed in support its cross-motion and in response to Mr. Hessels’ motion; these witnesses will affirm their respective affidavits and hold themselves available for cross-examination.

(f) Any parties who are more aligned in interest with the Township will then call the authors of the affidavit(s) filed in support of their position; these witnesses will affirm their respective affidavits and hold themselves available for cross-examination.

(g) Mr. Hessels will have an opportunity to call reply evidence.

(h) Final submissions will be in the same order as the calling of evidence.

25. A person wishing to change written affidavit evidence must bring a written motion to the presiding Referee.

26. 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 and the other parties at least seven (7) days before the hearing that the written evidence is not part of their record.

Exhibits

27. Because the hearing 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) All affidavits filed in support of Mr. Hessels’ motion and in response to that motion and all affidavits filed in support of the Township’s cross-motion and in response to that motion shall be entered as exhibits. Admission of such affidavits in evidence does not preclude challenges to the relevance of and/or weight to be given the contents of such affidavits and any exhibits attached thereto.

(c) To be identified as an exhibit, any other the document must be provided to the presiding Referee and to all other parties at least 3 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.

(d) The presiding Referee will decide whether to enter such other document as an exhibit and, if it is allowed, the presiding Referee will assign an exhibit alpha/numeric identifier.

(e) Once the document has been entered as an exhibit, the party that introduced the exhibit shall, within 3 business days following the conclusion of the video conference hearing, send hard copy or an electronic copy of the exhibit to the court at:

Superior Court of Justice - Civil Registrar Attention: Kimberly Straughan via e-mail to Kimberly.Straughan@Ontario.ca Welland Courthouse 102 East Main Street Welland ON L3B 3W6

and when doing so shall identify Court File No. 10805-15 and Court File No. 10848-15 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.

(f) Court Orders, applications, notices of motion, factums, case law, legislation and compendiums of authorities will not be marked as exhibits though Court Orders, applications, notices of motion and factums should be filed with the court and item 26(e) applies mutatis mutandis.

28. 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.

29. The documents entered as exhibits 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 applications, appearances, any motions and routine affidavits of service for supporting affidavits.

General Matters

30. 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.

31. For the purposes of this Order, unless otherwise ordered, Andrew C. Wright, Acting Drainage Referee, shall be regarded as the presiding Referee until the commencement of the hearing at which time the Referee or Acting Referee presiding at the hearing shall become the presiding Referee for the purposes of this Order.

32. No adjournments or delays will be granted before or during the hearing except in the most serious circumstances such as serious hardship or illness.

33. Costs of the day are reserved to the final disposition of Mr. Hessels’ motion and the Township’s cross-motion.

34. Andrew C. Wright, Acting Drainage Referee, is not seized of the hearing of the merits.

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

36. If persons do not attend or are not represented at the hearing, the presiding Referee may proceed in their absence and the non-attending persons will not be entitled to any further notice of the proceedings.

Dated at London this June 15, 2021.

Andrew C. Wright Acting Drainage Referee