Court File and Parties
Court File No.: CV-16-00013073-0000 (Sudbury) Originally Court File No.: A-13073-16 (Sudbury) Date of Decision: 2021-12-22 Citation: Herron v St. Charles (Municipality), 2021 ONDR 8
Ontario Superior Court of Justice In the Court of the Drainage Referee
Between: Kathy Herron and Kenneth Herron O/A K&K Farms Applicants
- and –
The Corporation of the Municipality of St. Charles Respondent
Acting Drainage Referee: Andrew C. Wright Heard: Wednesday, the 22nd day of December 2021
Revised Procedural Order
The Court of the Drainage Referee having issued a procedural Order on October 16, 2019 (issued October 28, 2019) pertaining to a hearing scheduled to commence on June 1, 2020 and a supplementary procedural Order issued on May 20, 2020 after the onset of the COVID-19 pandemic adjourning the hearing and, the Court having determined that the hearing is to proceed by video conference and has determined to issue this consolidated procedural Order to consolidate and supersede the two previous Orders into a single Order pertaining to a hearing to proceed by video conference commencing at 10:00 am on Monday, April 25, 2022; and having heard counsel for the parties via video conference this day;
THIS COURT ORDERS that
The Procedural Order issued on October 16, 2019, and the supplementary procedural Order issued on May 20, 2020, are superseded and replaced by this consolidated procedural Order; while the procedural Orders of October 16, 2019, and May 20, 2020, are superseded, the reasons for those previous decisions remain extant.
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 at 10:00 a.m. on Monday, April 25, 2022; and the following provisions shall apply:
(a) The Parties shall provide to the presiding Referee the 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 to be at least 5 days.
The parties to the hearing are:
Kathy Herron and Kenneth Herron O/A K&K Farms, Applicants
Gerard E. Guimond Professional Corporation and Justin Bélanger, Paralegal
The Corporation of the Municipality of St. Charles, Respondent
Matthew Leef
Documents and Exhibits
- 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) 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-16-00013073-0000 (Sudbury) 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 6(d) above applies mutatis mutandis.
- At the time of the December 22, 2021 consolidated procedural Order, the following documents are part of the record:
Application issued December 20, 2016
Statement of Defence dated January 19, 2018
Reply dated February 8, 2018
Procedural Order dated December 19, 2017 and issued that date by Acting Referee, G. Edward Oldfield
Procedural Order dated March 6, 2018 and issued that date by Acting Referee G. Edward Oldfield
Procedural Order dated July 16, 2019 and issued July 18, 2019 by Acting Referee Andrew C. Wright
Exhibit No.: 1
Affidavit of service by mail of the Notice for the October 16, 2019 procedural pre-hearing conference (already in Court file)
Procedural Order dated October 16, 2019 (the date of the pre-hearing conference) and issued October 28, 2019 by Acting Referee Andrew C. Wright
Supplementary Procedural Order dated May 20, 2020 and issued that day by Acting Referee Andrew C. Wright
By-law 99-009 being a by-law of The Corporation of the Municipality of St. Charles adopting the Engineer’s Report provisionally given two readings on March 9, 1999 and given third reading and finally passed on August 10, 1999 is found at Tab 5 of the respondent Municipality’s document brief (Exhibit 2)
Exhibit No.: 2
Respondent Municipality’s document brief dated February 8, 2018 including Tabs 1 through 20 (to be filed by Municipality)
The Engineer’s Report on the Lamoureux Drain 1999 issued by K. Smart Associates Limited on January 4, 1999 and signed by K.A. Smart. P.Eng., including plan and profile, together with Addendum No. 1 issued May 31, 1999, Appendix No. 2 dated April 22, 1999 and Appendix No. 3 issued April 22, 1999 (the “Engineer’s Report”) which was adopted by By-law 99-009 and which is found at Tab 1 of the Municipality’s document brief (Exhibit 2)
Addendum No. 1 to the Engineer’s Report on the Lamoureux Drain 1999 dated May 31, 1999 and signed by K.A. Smart, P.Eng. which is found at Tab 4 of the respondent Municipality’s document brief (Exhibit 2)
Exhibit No.: 3
Respondent Municipality’s supplementary document brief dated December 20, 2019 (to be filed by Municipality)
Exhibit No.: 4
Applicants’ undated document brief including Tabs 1 through 12 (already in Court file; applicants to advise court of Exhibit No.).
Exhibit No. 5
Applicants’ Damages Brief served and filed on January 9, 2020 (already in the Court File; applicants to advise court of Exhibit No.)
Exhibit No.: 6
Letter dated August 29, 2018 from Beef Farmers of Ontario, signed by Dan Ferguson and addressed to the applicants pertaining to their damages claims (to be filed by applicants)
Exhibit No.: 7
Letter dated April 30, 2020 from Weaver-Simmons signed by Matthew Leef providing witness list and witness statement for witnesses: John Kuntze, P.Eng., Garth J. Noecker, CET, Royal Lafleur and Robert Timone. (to be filed by the Municipality)
Exhibit No. 8
Curriculum Vitae of John Kuntze, P.Eng. together with his acknowledgement of Expert’s Duty (to be filed by Municipality)
Exhibit No.: 9
Forensic Report dated May 4, 2020 issued by Dover Forensic Accounting and signed by Gregory R. Silas, MBA, CPA, CA, including his Curriculum Vitae and acknowledgment of Expert’s Duty (to be filed by Municipality)
Cronk v Central Elgin decision of the Acting Referee issued June 6, 2018 and reported at: 2018 ONDR 3
Exhibit No.: 10
Letter dated June 15, 2015 from K. Smart Associates Limited (signed by Garth Noecker) addressed to Municipality of St. Charles which is found at Tab 6 of the respondent Municipality’s document brief (Exhibit 2)
Exhibit No.: 11
Analysis Report issued by SGS (signed by David Boyle) issued March 13, 2018 and addressed to K&K Farms (to be filed by applicants)
Exhibit No.: 12
Witness statement of Kenneth Herron unsigned and undated and delivered on December 21, 2021 (to be filed by applicants)
Exhibit No.: 13
Undated, handwritten price quote signed by Dan Schwartzentruber of Northland Farms (to be filed by applicants)
Exhibit No.: 14
Undated, handwritten statement by Gabriel Lemieux (to be filed by applicants)
Exhibit No.: 15
Letter dated June 9, 2016 signed by Jean Marc Chrétien addressed To Whom It May Concern (to be filed by applicants)
Exhibit No.: 16
Letter dated May 7, 2016 signed by Norm LaForest and addressed to Ken Herron (to be filed by 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 7 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.
Completing the Record
- Each of the parties may provide additional affidavits or witness statements or documents to supplement the materials which have been were filed, and which are part of the record prior to December 22, 2021. The parties will delivery any supplementary affidavits or witness statements or documents to the other parties and to the presiding Referee on or before Friday, January 28, 2022.
Issues
- The issues to be resolved at the hearing are as follows:
(a) Given that the respondent Municipality has conceded liability to the applicants for damages arising after May 3, 2015 from the non-repair of the Lamoureux Drain, was there any improper action, neglect, default or omission on the part of the Municipality in the maintenance and repair of the Lamoureux Drain that would justify the Referee directing, pursuant to subsection 118(2) of the Drainage Act (the “Act”), that the whole or any part of damages and costs the Municipality may be required to pay should be borne out of the general funds of the Municipality as opposed to those damages and costs being assessed to the Drain 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?
(b) If some or all such damages and costs are to be assessed to the drainage works contemplated by the Engineer’s Report (the “Lamoureux Drain”), 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?
(c) What are the damages to the applicants’ property (roll # 2-104) resulting from the continuing inundation of the applicants’ property after May 3, 2015, as a result of the non-repair of the Lamoureux Drain, including
(i) crop loss after May 3, 2015;
(ii) damage to or loss of hay in storage on the applicants’ property which had not already occurred prior to May 3, 2015,
(iii) rehabilitation costs to restore the applicants’ property following its inundation to the extent such rehabilitation would not have been required as a result of inundation before May 3, 2015,
(iv) damage and injury to Quarter Horses on the applicants’ property as a result of its continuing inundation after May 3, 2015 and the cost of treating such injury to such beef cattle, and
(v) business loss to the applicants’ Quarter Horses operation on the applicants’ property as a result of continuing inundation after May 3, 2015?
(vi) damage and injury to beef cattle on the applicants’ property as a result of its continuing inundation after May 3, 2015 and the cost of treating such injury to such beef cattle, and
(vii) business loss to the applicants’ beef cattle operation on the applicants’ property as a result of continuing inundation after May 3, 2015?
(d) What, if any of such damages could have been mitigated by the applicants?
(e) Was the material excavated from the Lamoureux Drain in the course of the maintenance and repair of that Drain in 2015 and 2016 placed within the working area specified in the Engineer’s Report and, if not, what damage was done to the applicants’ property (roll # 2-104) on that account?
- There will be no changes to this list unless the presiding Referee permits, and a party who asks for changes may have costs awarded against it.
Order of Evidence at Hearing
- The order in which evidence will be given at the hearing will be as follows:
(a) John Kuntze, P.Eng. and Garth J. Noecker, CET who will be called together as a panel. After Mr. Kuntze is qualified to give expert opinion evidence and he would be the chair of the panel, even though it is anticipated that most of the evidence will be from Mr. Noecker. This panel will provide background evidence, in this connection, instead of having Mr. Noecker repeat at length what he said in court on October 16, 2019, he will be asked to refer to the reasons from that day and confirm or correct or provide elaboration upon what was said in paragraphs 6 through paragraph 23 (excluding paragraph 8).
(b) The applicants will then call their evidence; the applicants witnesses are:
(i) Kenneth Herron who will provide factual evidence of damages based on the applicants’ Damages Brief served and filed on January 9, 2020 and marked as Exhibit No.: 5, the Applicants’ Book of Exhibits marked as Exhibit No.: 4 and Mr. Herron’s witness statement marked as Exhibit No.: 12,
(ii) Kathy Herron who will provide factual evidence of damage related to the applicants’ Quarter Horse operation and other elements of the damages claim based on the applicants’ Damages Brief served and filed on January 9, 2020 and marked as Exhibit No.: 5 and the Applicants’ Book of Exhibits marked as Exhibit No.: 4.
(iii) Gabriel Lemieux who will provide evidence based on the Agricultural Land Use Agreement which appears under Tab 7 of the Applicants’ Book of Exhibits marked as Exhibit No.: 4 and upon his undated letter which is marked at Exhibit No.: 14.
(iv) Dan Lamarche of Blue Sky Farm who will provide evidence based on the statement which appears under Tab 8 of the Applicants’ Book of Exhibits marked as Exhibit No.: 4.
(v) Lisa Reed who will provide evidence based on the July 5, 2016 statement which appears under Tab 8 of the Applicants’ Book of Exhibits marked as Exhibit No.: 4.
(vi) Joanne Woods who will provide evidence based on the June 14, 2016 statement which appears under Tab 8 of the Applicants’ Book of Exhibits marked as Exhibit No.: 4.
(vii) Robert Richter who will provide evidence based on the September 2, 2016 statement which appears under Tab 8 of the Applicants’ Book of Exhibits marked as Exhibit No.: 4.
(viii) Kevin Eady of William Day Construction Limited who will provide evidence based on the June 7, 2016 letter which appears under Tab 8 of the Applicants’ Book of Exhibits marked as Exhibit No.: 4.
(ix) Charles Clement of Les Burch and Son who will provide evidence based on the April 4, 2016 letter which appears under Tab 8 of the Applicants’ Book of Exhibits marked as Exhibit No.: 4.
(x) Daniel Therrien of Dunnet Construction Ltd. who will provide evidence based on the June 15, 2016 quotation which appears under Tab 11 of the Applicants’ Book of Exhibits marked as Exhibit No.: 4.
(xi) Dan Schwartzentruber of Northland Farms who is the author of the June 18, 2016 quote which appears under Tab 11 of the Applicants’ Book of Exhibits marked as Exhibit No.: 4 who will provide evidence based on that quote and as well on the undated letter which is marked as Exhibit No.: 13.
(xii) Gerry Dignard of Canadian Shield Consultants Agency Inc, who will provide evidence based on the June 28, 2016 letter which appears under Tab 11 of the Applicants’ Book of Exhibits marked as Exhibit No.: 4.
(xiii) Dan Ferguson of Beef Farmers of Ontario who will provide evidence of damages to the applicants’ beef cattle operation based on his letter dated August 29, 2018 and addressed to the applicants pertaining to their damages claims being Exhibit No.: 6.
(xiv) David Boyle, PhD of SGS Canada Inc who will provide evidence based on the Analysis Report marked as Exhibit 11.
(xv) Norm LaForet who will provide evidence based on the letter which is marked as Exhibit 16.
(xvi) Jean Marc Crétien who will provide evidence based on the letter which is marked as Exhibit 15.
(c) The respondent Municipality will then call its evidence; the respondent Municipality’s witnesses are:
(i) John Kuntze, P.Eng. and Garth J. Noecker, CET who will be called as a panel to give factual and opinion evidence based on the respondent Municipality’s Brief of Documents and Supplementary Brief of Documents being Exhibits No.: 2 and No.: 3;
(ii) Royal Lafleur who will give evidence based on based on the respondent Municipality’s Brief of Documents and Supplementary Brief of Documents being Exhibits No.: 2 and No.: 3;
(iii) Robert Timone who will give evidence based on based on the respondent Municipality’s Brief of Documents and Supplementary Brief of Documents being Exhibits No.: 2 and No.: 3;
(iv) Gregory R. Silas, MBA, CA, CPA, who will give evidence based on this Forensic Report dated May 4, 2020 issued by Dover Forensic Accounting being Exhibit No.: 9.
(d) The applicants may then call reply evidence.
Final submissions by the parties will proceed in the same order as specified in paragraph 15 above.
A party who has provided a document or written evidence for the record must have the person who signed the document or written evidence attend the hearing to give oral evidence, unless the party notifies the presiding Referee at least seven (7) days before the hearing that the document or written evidence is not part of their record.
General Matters
- 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 this December 22, 2021.
Andrew C. Wright Acting Drainage Referee