ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
BETWEEN:
THE CORPORATION OF THE TOWN OF PENETANGUISHENE
Applicant
- and –
JOAN ISABEL LEDIARD
Respondent
ACTING DRAINAGE REFEREE ) ANDREW C. WRIGHT ) THURSDAY, THE 13th DAY ) OF OCTOBER, 2022 )
ORDER
- The Court of the Drainage Referee has fixed this day for a case management video conference to begin to address the following:
(a) the status of document production;
(b) the status of the applicants’ preparation of supporting affidavits and to fix a time for the applicants’ delivery of same;
(c) the status of the respondent’s preparation of responding affidavits and to fix a time for the respondent’s delivery of same;
(d) fixing a time for the delivery of other documentation, having regard for section 11 of Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee;
(e) dealing with issues of disclosure;
(f) whether there are others who may be affected by the application and who should have notice and an opportunity to participate, how such notice should be given and the form of notice;
(g) identification of issues for the hearing of the merits;
(h) to make provisions about access to and login credentials for participants in the hearing;
(i) to provide for service by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service);
(j) to identify the number and nature of witnesses to be called by each party;
(k) to schedule pre-hearing production and exchange of documents, including affidavits and/or witness statements for expert witnesses and affidavits and/or witness statement evidence summaries for other witnesses;
(l) to estimating the amount of time required for the hearing of the merits;
(m) to set the commencement date for the hearing of the merits; and
(n) to consider such other matters as may arise.
and having heard from counsel for the respondent that there is a Limitations Act preliminary issue which should be addressed before proceeding further, and having heard from counsel for the applicant, for the reasons, that follow:
THIS COURT ORDERS that
- The presiding Referee may vary or add to these 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.
Limitations Act Motion
On or before Friday, November 18, 2022 the respondent, as moving party, shall deliver to the applicant and to the presiding Drainage Referee the respondents’ motion record with respect to the Limitations Act motion.
On or before Friday December 16, 2022 the parties shall exchange facta with respect to the Limitations Act motion and each shall also provide their respective factums to the presiding Drainage Referee.
The Limitations Act motion will be argued via video conference, commencing at 10:00 am on Wednesday February 1, 2023.
Future Case Management Conferences
- If it is determined that the Limitations Act is not a bar to proceeding further, then future case management video conferences will be scheduled to address:
(a) the status of document production;
(b) the status of the applicants’ preparation of supporting affidavits and to fix a time for the applicants’ delivery of same;
(c) the status of the respondent’s preparation of responding affidavits and to fix a time for the respondent’s delivery of same;
(d) fixing a time for the delivery of other documentation, having regard for section 11 of Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee;
(e) dealing with issues of disclosure;
(f) whether there are others who may be affected by the application and who should have notice and an opportunity to participate, how such notice should be given and the form of notice;
(g) identification of issues for the hearing of the merits;
(h) to make provisions about access to and login credentials for participants in the hearing;
(i) to provide for service by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service);
(j) to identify the number and nature of witnesses to be called by each party;
(k) to schedule pre-hearing production and exchange of documents, including affidavits and/or witness statements for expert witnesses and affidavits and/or witness statement evidence summaries for other witnesses;
(l) to estimating the amount of time required for the hearing of the merits;
(m) to set the commencement date for the hearing of the merits; and
(n) to consider such other matters as may arise.
Video Conference Protocols
- For the Limitations Act motion, and, if it is determined that the Limitations Act is not a bar to proceeding further, case management video conferences and the hearing on the merits to be conducted by video conference, 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) Parties are responsible for arranging to have their witnesses join the Zoom meeting to give their evidence at the time directed by the presiding Referee.
(d) Once logged on, the person will be held in a waiting area pending authorization by the presiding Referee to join the hearing.
(e) Parties intending to call a witness will ensure that the witness has a holy book (Bible or Koran) or an oath-taking article (such as an eagle feather) at hand if they are to be sworn to give evidence; a holy book is not required for a witness who affirms.
(f) Prior to giving testimony, each witness shall affirm to the presiding Referee orally that they are alone in the room and that they are not relying on any undisclosed document, such as speaking notes. Witnesses are not permitted to testify with others present in the room or to use undisclosed documents without the approval of the presiding Referee.
(g) For those joining the hearing to simply observe without participation, their microphone will be muted during the hearing conference.
(h) Those joining the hearing will need a device equipped with a webcam and a microphone and access to a reliable internet connection with adequate bandwidth; the device should always be plugged in to ensure that the battery does not run low.
(i) A smartphone may only be used at the discretion of the presiding Referee; the use of a smartphone is discouraged due to potential disruptions, such as incoming calls and messages, and the risk of running out of battery.
(j) Those joining the hearing will normally be alone in their location; if they are not, the presiding Referee may require such other persons to leave the room during the proceeding. There is an ongoing obligation to inform the presiding Referee if they are joined by someone else during the proceeding.
Documents and Exhibits
- If it is determined that the Limitations Act is not a bar to proceeding further, then, because case management video conferences, motions and the hearing on the merits are to be 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-21-00000414-0000 (Barrie) 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 12(d) above applies mutatis mutandis.
- At the time of this October 13, 2022 Order, the following documents are part of the record:
Application as issued August 16, 2022
The documents that have exhibit numbers will retain their exhibit numbers through the case management hearings and 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 13 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.
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 the party’s representative.
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 not seized of the hearing of the merits of this application.
Dated at London this October 14, 2022.
____________________________________ Andrew C. Wright Acting Drainage Referee
REASONS
The dates for the exchange of documentation and for the hearing of the Limitations Act motion were established in consultation with and on the consent of the parties.
If there are difficulties about document exchange or anything else arising from the Order and these reasons, at the request of either party, I will convene a video conference to deal with it.
Dated at London this October 14, 2022.
____________________________________ Andrew C. Wright Acting Drainage Referee