ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
CITATION: Erie Shore Drive Property Owners Association v Chatham-Kent (Municipality), 2022 ONDR 2
DATE OF DECISION: 2022-02-02
Court File No.: CV-21-00000727-0000 (Chatham)
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
ACTING DRAINAGE REFEREE: ANDREW C. WRIGHT WEDNESDAY, THE 2nd DAY OF FEBRUARY 2022
ORDER
The Court of the Drainage Referee having appointed this day for a case management video conference to deal with identifying parties as contemplated by the Procedural Order issued on December 3, 2021 and such other matters are may arise;
Upon hearing the submissions of counsel for the applicants and counsel for the respondent Municipality and the submissions of Jessica Dufresne (Roberts):
THIS COURT ORDERS that, for the reasons which follow:
The parties to this application are the applicants and the respondent Municipality, provided that the party status of some of the applicants remains to be considered after the applicants have delivered affidavits in support of this application.
The time for the applicants to deliver affidavits supporting this application as set out in paragraph 2 of the December 3, 2021 Procedural Order is extended to Friday, March 18, 2022.
In at least one of the affidavits supporting this application, a list will be provided of the applicants, the municipal address of the property each applicant owns or in which the applicant has an interest and the assessment roll number of that property.
On or before Friday, February 25, 2022, the respondent Municipality shall deliver to the other parties and to the presiding Drainage Referee:
(a) A copy of the Council’s May 31, 2021 resolution appointing Mr. Richard Spencer, P.Eng. to prepare an engineer’s report under section 78 of the Drainage Act together with documentation indicating the work contemplated by the appointment includes consideration of lake incursions along the Lake Erie shoreline.
(b) A copy of the By-law adopting the K. Smart Engineer’s Report on the “Burk Drainage Works 2013” dated June 12, 2013 and signed by Neal Morris, P.Eng.
(c) A copy of the By-law adopting the Engineer’s Report prepared under section 76 of the Drainage 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.
(d) Copies of the text from the respondent Municipality’s comprehensive Zoning By-law No.: 216-2009 for the site-specific Zoning Exceptions RLR-13, RLR-12, RLR-96. RLR-848. RLR-67, RLR-25.
This Order is supplementary to the December 3, 2021 Procedural Order, which remains in effect, as augmented by this Supplementary Order, except as specifically amended by this Supplementary Order.
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 February 2, 2022.
REASONS
1In accordance with the Procedural Order issued on December 3, 2021, notice of this case management video conference was given to all those assessed for the Burk Drainage Works alerting them to this application and giving them an opportunity to seek party status. Such notice was also given to those owning properties along Erie Shore Drive who are not applicants.
2The notice also advised of the opportunity to observe the proceedings from a virtual galley. A number availed themselves of that opportunity.
3The only person to seek party status is Jessica Dufresne. She is the owner of 8650 Bisnett Line, a property which is assessed for the Burk Drainage Works and, as such, she has an interest in this application and would qualify for party status. During the video conference, Ms. Dufresne wondered if she should not simply be an observer rather than a party. I provided a summary of the rights and obligations of being a party and observed that, as an observer, she would not have a voice in the proceedings, nor would she receive any of the documentation exchanged between the parties. Ms. Dufesne elected not to be a party but asked to be kept on the list of observers.
4As a result, the only parties are the applicants and the respondent Municipality, subject to consideration of the party status of some of the applicants after the applicants have delivered affidavits in support of this application.
5Paragraph 2 of this Supplementary Order extending the time for the delivery of the applicants’ supporting affidavit was made with the consent of the respondent Municipality.
6Paragraph 3 of this Supplementary Order about providing a list of the applicants, the municipal address of the properties they own and the associated assessment roll numbers was made with the agreement of counsel for the applicants.
7Paragraph 4 of this Supplementary Order requiring the respondent Municipality to produce documentation was made with the agreement of counsel for the respondent Municipality.
8The clause 4(a) of this Supplementary Order deals with the appointment of Mr. Richard Spencer, P.Eng. to prepare an engineer’s report under section 78 of the Drainage Act and the consideration of lake incursions along the Lake Erie shoreline as part of that work. Half an hour before the video conference a bulk of material was sent to me and to counsel for the applicants. It may or may not provide the requested information, but the last-minute receipt of that material has not permitted an in-depth review so clause 4(a) of this Supplementary Order has been included.
Dated at London this February 2, 2022.