Erie Shore Drive Property Owners Association v Chatham-Kent (Municipality), 2022 ONDR 4

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 4

DATE OF DECISION: 2022-10-12

Court File No.: CV-21-00000727-0000 (Chatham)

B E T W E E N:

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 ) TUESDAY, THE 4^th^ DAY ) OF OCTOBER 2022 )

ORDER

The Court of the Drainage Referee had fixed this day to hear the parties’ evidence and submissions with respect to the five preliminary issue questions cast in my April 24, 2022 Order, however, intervening is the applicant’s August 30, 2022 Motion for the recusal of the presiding Referee as well as the proposal by the respondent Municipality for a motion to dismiss the application on the basis of an additional preliminary issue. In these circumstances, at my direction, the parties delivered affidavits by September 16, 2022 as contemplated by paragraph 4 of the April 24, 2022 Order and the applicants delivered on September 30, 2022 their factum with respect to the five preliminary issue questions as contemplated by paragraph 5 of the April 24, 2022 Order and the applicants witnesses were cross-examined on October 4, 2022 after which the hearing of five preliminary issue questions was adjourned to be rescheduled, depending upon the result of the applicants’ recusal motion and the result of the Municipality’s motion to dismiss. There were submissions made on the applicants’ recusal motion after which my decision was reserved. Schedules were then settled for the Municipality’s motion to dismiss, again depending upon the result of the applicants’ recusal motion. Following all of this hearing activity, for the reasons that follow:

THIS COURT ORDERS that

1. 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.

2. This Order is supplementary to the December 3, 2021 Order and the February 2, 2022 Order and the April 24, 2022 Order, all of which remain in effect, as augmented by this Order, except as specifically amended by this Order; and the reasons for those previous decisions remain extant. In the event of a conflict between Orders, the more recent Order shall prevail.

3. The applicant’s motion for the recusal of the presiding Drainage Referee is dismissed.

4. With respect to the Municipality’s proposed motion to dismiss, the following shall apply:

(a) On or before Friday, October 28, 2022 the Municipality shall deliver its motion materials and factum to the applicants and to the presiding Referee.

(b) On or before Friday, November 18, 2022 the applicants shall deliver their responding factum to the Municipality and to the presiding Referee.

(c) On or before Wednesday, November 23, 2022 the Municipality may deliver any reply to the applicants and to the presiding Referee.

(d) The hearing of the Municipality’s motion to dismiss will commence at 10:00 am on Friday, November 25, 2022 with November 28^th^ being held in reserve in the event that submissions cannot be completed on November 25^th^.

(e) For the purposes of the Municipality’s motion to dismiss, the parties may rely on the evidence that is on record as described in the Exhibit List referred to in paragraph 15 below as well as the evidence of the two applicants’ witnesses heard on October 4, 2022.

5. The hearing of the following preliminary issues will resume commencing at 10:00 am on Friday, December 9, 2022:

(a) Should the claims of those applicants who are the owners of properties from Assessment Roll No.: 03600 (Trevor Dixon) on the east to Assessment Roll No.: 14500 (James Allin) on the west be dismissed on the grounds that there is no Drainage Act infrastructure on the Lake Erie shoreline of those properties for which the Municipality has any obligation for maintenance and repair under section 74 of the Drainage Act (sometimes the “Act”) or liability under section 79 of the Act for not doing so?

(b) Does the 1930 McCubbin Seawall as authorized by By-law No.: 2736 have any continuing status under the Drainage Act or has it been subsumed into and been replaced by the Todgham clay dyke/breakwater work in Area A-2 authorized by the engineer’s report adopted in 1973 by By-law No.: 5053?

(c) Does the 800 feet of 1948 McCubbin Seawall authorized by By-law No.: 3375 and the 1,000 feet of 1949 McCubbin Seawall authorized under By-law No.: 3401 have any continuing status under the Drainage Act or has it been replaced by the 1974 Area A-1 work by Todgham under the authority of By-law No.: 5082?

(d) Are the applicants’ damages claims limited to physical injury or harm to property that has occurred after October 15, 2020 (i) which are additional to any injury or harm that may have already occurred prior to October 15, 2020 and (ii) which would not have occurred if Drainage Act authorized infrastructure were present and in good repair as specified in the applicable most recent engineer’s report?

(e) Is the September 1, 2020 letter given to the Municipality as notice under section 79 of the Act sufficient as to identifying the “persons affected by the condition of a drainage works” and as to identifying with “reasonable certainty the alleged lack of maintenance and repair of the drainage works” so as to constitute notice as contemplated and required by section 79 of the Act?

6. Between now and December 9^th^ the parties will confer between themselves and with the presiding Referee to identify a second date to continue this hearing of the five preliminary issues in the event that evidence and submissions cannot be completed on December 9^th^.

Record for Preliminary Issues

7. For the purposes of the preliminary issues, the parties may rely on the evidence that is on record as described in the Exhibit List referred to in paragraph 15 below as well as the evidence of the two applicants’ witnesses heard on October 4, 2022 and the evidence of the two witnesses of the Municipality to be heard commencing on December 9, 2022.

8. The Municipality will deliver its factum with respect to the preliminary issues to the applicants and to the presiding Referee on or before Friday, November 18, 2022.

Order of Evidence at Hearing for Preliminary Issues

9. The order in which evidence will be given at the resumption of the hearing of the preliminary issues on December 9, 2022 will be as follows:

(a) The Municipality will call as witnesses those whose affidavits the Municipality has provided in connection with the five preliminary issues questions; those witnesses will give evidence based on the affidavits by reaffirming or correcting their affidavits and then be subject to cross-examination and questions from the presiding Referee.

(b) The applicants may then call any of their witnesses to give reply evidence.

10. Final submission by the parties will proceed as follows:

(a) the applicants

(b) the Municipality

(c) the applicants will have an opportunity to reply.

11. A party who has provided a supplementary affidavit as contemplated by paragraph 7 above must have the person who signed the affidavit attend the hearing for the preliminary issues 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.

Future Case Management Conferences

12. Future case management video conferences will be scheduled to address:

(a) Identification of issues for the hearing of the merits.

(b) Fixing a time for the Municipality to deliver responding materials.

(c) 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 and dealing with any other issues of disclosure.

(d) Making provisions about access to and login credentials for participants in the video conference hearing.

(e) Providing for service by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service).

(f) Identifying the number and nature of witnesses to be called by each party.

(g) Scheduling pre-hearing production and exchange of documents, including affidavits and witness statements for expert witnesses and affidavits and evidence summaries for other witnesses.

(h) Estimating the amount of time required for the f hearing.

(i) Setting the commencement date for the hearing.

(j) Dealing with such other matters or things as may arise and which the presiding Referee may determine it is expedient to permit.

Video Conference Protocols

13. For 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

14. Because case management video conferences 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-21-00000727-0000 (Chatham) 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, facta, case law, legislation and compendiums of authorities will not be marked as exhibits though Court Orders, the application, notices of motion and facta should be filed with the court and item 14(d) above applies mutatis mutandis.

15. At the time of this Order, the following documents are part of the record:

Notice of Application issued May 18, 2021

Order dated December 3, 2021 and issued the same day by Andrew Wright, Acting Drainage Referee, dealing with the giving of notice of the application

No.: 1

Affidavit of Service of the giving of notice of the application by the applicants sworn by Jean Tousignant on December 13, 2021

No.: 2

Affidavit of compliance by the Municipality with its obligations under the December 3, 2021 Order sworn by Samuel Kirwin on January 5, 2022

Order dated February 2, 2022 and issued the same day by Andrew Wright, Acting Drainage Referee, identifying the parties to the application and giving directions to the applicants about providing supporting affidavits

No.: 3

Engineer’s Report dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E. including

(i) Plan B dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.

(ii) Extract of Plan B dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.,

(iii) Plan B with Profile dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.

(iv) Profile of Concession Drain dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.

(v) Profile of Third Concession Drainage Works dated March 25, 1914 and signed by George McCubbin, O.L.S., C.E.

No.: 4

Engineers’ Report dated November 5, 1930 signed by W.G. McGeorge, O.L.S., & C.E. and by Geo. A McCubbin, O.L.S, M.E.I.C. (wooden seawalls and groynes) and attached to and adopted by Harwich Township By-law No.: 2726 including

(i) Plan of Part of the Shore of Lake Erie and Inundated Lands and Roads dated October 8, 1930 and signed by W.G. McGeorge, O.L.S., & C.E. and by Geo. A McCubbin, O.L.S, M.E.I.C.

(ii) Blueprint version of the Plan referred to in the item above

No.: 5

Engineer’s Report dated December 7, 1945 signed by Geo. A McCubbin, O.L.S, M.E.I.C. and Engineer’s Report dated January 12, 1946 signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E., and Engineer’s Report dated March 26, 1946 all signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by and by W.G. McGeorge, O.L.S., C.E., (wooden seawalls and groynes) and attached to and adopted by Harwich Township By-law No.: 3375 (provisionally adopted April 8, 1946 and finally enacted January 12, 1948) including

(i) Plan and profile of Sheet Pile Sea Wall dated January 12, 1946 and signed by Geo. A McCubbin, O.L.S, M.E.I.C.

(ii) Detail of Piles issued January 22, 1946 by H.E. McKeen & Co. Limited Algoma Steel Sheet Piling – Montreal

(iii) Plan showing lands affected by Lake Shore Protection of Burk Drainage Works dated March 26, 1946 and signed by Geo. A McCubbin, O.L.S, M.E.I.C.

(iv) Blueprint version of the Plan referred to in item (iii) above

No.: 6

Engineers’ Report dated May 8, 1947 signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E. and Engineers’ Report dated June 6, 1947 signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E. and Engineers’ Report dated March 12, 1948 signed by Geo. A McCubbin, O.L.S, M.E.I.C. (wooden seawalls and groynes) all attached to and adopted by Harwich Township By-law No. 3401 provisionally passed on April 12, 1948 and finally passed December 15, 1949 including

(i) Plan of Seawall and Groynes for Lakeshore Protection of Burk Drainage Works dated June 6, 1947 and signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E.

(ii) Plan showing Lands affected by Lakeshore Protection of Burk Drainage Works dated March 12, 1948 and signed by Geo. A McCubbin, O.L.S, M.E.I.C.

No.: 7

Plans dated June 6, 1951 and signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E. being

(i) Plan A showing location of Lake Shore Protection of Burk Drainage Works dated June 6, 1951 and signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E.

(ii) Plan B showing location of Lake Shore Protection of Burk Drainage Works dated June 6, 1951 and signed by Geo. A McCubbin, O.L.S, M.E.I.C. and by W.G. McGeorge, O.L.S., C.E.

No.: 8

Engineer’s Report dated May 1, 1968 and signed by E.C. Brisco, P.Eng., O.L.S., M.E.T.C. (wooden seawalls and groynes) attached to an adopted by Harwich Township By-law No.: 4716 provisionally passed on June 10, 1968 and finally passed January 13, 1969. [Note: No plan or profile for this Engineer’s Report can be located.]

No.: 9

Engineer’s Report for Area A-1 of the Burk Drainage Works Embankment Protection issued by Todgam & Case Limited dated July 23, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. (armour stone over imported clay breakwater berm and embankment improvement)

No.: 10

Engineer’s Report for Area A-2 of the Burk Drainage Works Embankment Protection issued by Todgam & Case Limited dated July 23, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. (armour stone over imported clay breakwater berm and embankment improvement) attached to and adopted by Harwich Township By-law No. 5053 provisionally passed on August 23, 1973 and finally passed on January 14, 1974 including

(i) Extract of a plan of Area A-2 signed by the contractor and by the Township

(ii) Plan and Profile of the Erie Beach Drain dated February 1, 1973 and signed by David McGeorge B.A.Sc. O.L.S.

(iii) Plan showing Area A2 of Burk Drainage Works Embankment Protection dated June 1973, last revised November 9, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng.

(iv) Drawing of Typical Cross-Section of Area A2 dated June 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. Book No. 1017 – 73004.A2.2

(v) Drawing of Typical Cross-Section of Area A2 dated June 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. - Book No. 1017 – 73004.A2.3

(vi) Drawing of Typical Cross-Section of Area A2 dated June 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. - Book No. 1017 – 73004.A2.4

(vii) Full version of Drawing of Typical Cross-Section of Area A2 dated June 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. - Book No. 1017 – 73004.A2.3

No.: 11

Engineer’s Report for Area A-3 of the Burk Drainage Works Embankment Protection issued by Todgam & Case Limited dated July 23, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. (armour stone over imported clay breakwater berm and embankment improvement) attached to and adopted by Harwich Township By-law No. 5054 provisionally passed on August 23, 1973 and finally passed on January 14, 1974 including

(i) Plan of Profile of proposed works for Area A-3 of Burk Drainage Works Embankment Protection dated June, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng.

No.: 12

Engineer’s Report for Area A-1 of the Burk Drainage Works Embankment Protection issued by Todgam & Case Limited dated November 9, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng. (armour stone over imported clay breakwater berm and embankment improvement) attached to and adopted by Harwich Township By-law No. 5082 provisionally passed on February 11, 1974 and finally passed on some date in 1974 including

(i) Plan and Profile for Area A-1 of Burk Drainage Works Embankment Protection dated November 3, 1973 and signed by H.H. Todgam, B.A.Sc., O.L.S., P.Eng.

No.: 13

Engineer’s Report prepared under section 76 of the 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. [Note: The plan of assessed properties referred to in this Engineer’s Report cannot be located.]

No.: 14

Engineer’s Report prepared as a preliminary report under section 10 of the Act issued by Todgam & Case Associates Inc. dated May 15, 1998 and signed by E.P. Dries, P.Eng. including

(i) Figure No. 1 being a Plan of the Burk Drainage area dated March 1998

No.: 15

Engineer’s Report on the Burk Drainage Works 2013 prepared pursuant to section 78 of the Act, dated June 12, 2013, issued by K. Smart Associated Limited and signed by Neal Morris, P.Eng., including plan and profile, adopted by By-law No.: 153-2013 read a first and second time on July 15, 2013 and finally enacted on October 7, 2013.

No.: 16

Affidavit of Terra Cadeau sworn March 22, 2022, including 77 Exhibits A through YYY

No.: 17

Affidavit of John Kuntze, P.Eng. sworn March 22, 2022, including Exhibits A and B

No.: 18

Curriculum Vitae and Acknowledgement of Expert’s Duty of John Kuntze, P.Eng.

No.: 19

Affidavit of Trevor Dixon sworn March 4, 2022, including five Exhibits A through F

Applicants’ Recusal Motion – Notice of Motion dated August 30, 2022

Applicants’ Recusal Motion – Moving Party’s Factum dated August 30, 2022

No.: 20

Affidavit of Terra Cadeau sworn September 16, 2022, including twelve Exhibits A through L

No.: 21

Affidavit of John Kuntze, P.Eng. sworn September 16, 2022, including Exhibit A

No.: 22

Affidavit of John Kuntze, P.Eng. sworn September 16, 2022, including Exhibit A

Applicants’ Factum dated September 30, 2022, with respect to the five preliminary issue questions

No.: 23

Affidavit of Tim Dick sworn September 15, 2022, including 35 Exhibits A through II with Exhibit C being drone video footage of the shoreline.

No.: 24

Affidavit of Mike DeVos, P.Eng. sworn September 16, 2022, including three Exhibits A through C

No.: 25

Memorandum dated August 15, 2019 from John Kuntze, P.Eng. to Murray Spencer an Sean Panjer regarding Erie Shore Drive lakefront properties – Municipality of Chatham-Kent Shoreline protection and the Drainage Act

No.: 26

Extracts from the Erie Shore Drive Property Owners Association website put to the witness Cadeau during her cross-examination on October 4, 2022

16. 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.

17. 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.

18. If counsel or a witness intends to rely upon case law, other than the cases listed in paragraph 15 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

19. 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.

20. For the purposes of this Order, unless otherwise ordered, Andrew C. Wright, Acting Drainage Referee, shall be regarded as the presiding Referee.

21. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness.

22. Costs of the day are reserved to the final disposition of this matter.

23. Andrew C. Wright, Acting Drainage Referee, is not seized of the hearing of the merits of this application.

Dated at London this October 12, 2022.

Andrew C. Wright Acting Drainage Referee

REASONS

1. The principal purpose of these reasons is to explain my dismissal of the applicants’ recusal motion and to provide context for the Municipality’s motion to dismiss.

2. Let me start with a foreword about the effect of the applicants’ recusal motion. If successful, any decision made by me after it was launched would not be acceptable, so it was important that no decisions be taken by me until the recusal motion was considered and disposed of.

3. That said, because the recusal motion is based on allegations that I had prejudged or gave the appearance of prejudging facts and law in my April 24, 2022 reasons for preliminary issue questions without the benefit of submissions from counsel for the applicants, it was essential for me to have the parties’ affidavit evidence otherwise due on September 15, 2022 and the applicants’ factum otherwise due on September 30, 2022 and the applicants’ evidence otherwise scheduled to be heard on October 4, 2022. Without those things, I would not have been able to evaluate the extent to which my view of the applicants’ evidence deviated from the findings the applicants sought and, similarly, the applicants’ submissions as to the interpretation of the Drainage Act.

4. The affidavit evidence was provided in accordance with the April 24, 2022 Order, as was the applicants’ factum. After the evidence of the applicants’ witnesses was heard on October 4^th^, the preliminary issues hearing was adjourned to be resumed on December 9, 2022 if I decided not to recuse myself; and, if I decided to recuse myself, further proceeding would be held in abeyance pending the assignment of and directions from an alternative Referee. With the same caveat about being able to continue, dates were schedule for the hearing of the Municipality’s motion to dismiss and pre-hearing exchange of documents.

Applicants’ Recusal Motion

5. The applicants brought a motion requiring me to recuse myself from proceeding further as the presiding Referee in this case. The grounds are at length but the gist of it is that, in the reasons given by me for preliminary issues questions in my Order dated April 24, 2022, it is said that I gave the appearance of having prejudged certain facts as well as aspects of the law before having received submissions about the evidence and the law.

6. The motion was brought four months after the April 24, 2022 decision was delivered and two weeks before affidavits on the preliminary issues were due.

7. The Municipality took no position on the applicants’ recusal motion.

8. Counsel for the applicants proposed that the motion be dealt with in writing, but I asked for submissions on October 4, 2022.

9. During submissions on the recusal motion, counsel for the applicants asserted that, as the decision maker in an adversarial process, I had no business prescribing preliminary issues. The role of the Court of the Drainage Referee is to decide issues put to the Court by the parties; it was said that the Court has little or no role in delineating what the issues are.

10. It was also said that, to the extent the Court engages in the delineation of issues, it should not give reasons for the preliminary questions because doing so risks creating the appearance of having prejudged the answers to the questions.

11. I disagree for the following reasons.

12. The applicants say the stated intention of the April 24 ,2022, Order is to spare the expenditure of municipal resources on matters which are not pertinent. This ignores paragraph 2 and 3 of the reasons which was as follow:

13. In this connection, it should be remembered that the Municipality is the administrator of the Drainage Act (sometimes referred to as the “Act”) and is not the ultimate payor for the costs incurred; those who pay are those that use the drainage works. In this case, when referring to the expenditure of municipal resources required by this application, it should be in contemplation that, in the normal course, the municipal expenditures will be passed on, by way of assessment, to the predominantly farm community that is assessed for the Burk Drainage Works described in paragraph 18 below. It is important therefore to try to limit, as much as possible, the expenditure of municipal resources on this application. A number of those in that farm community, though not parties, have observer status for hearings in this case.

14. None of the applicants are assessed for the Burk Drainage Works.

15. While the Municipality pays in the first instance, the expenses are passed on, by way of assessment, to the farm community behind the protective barriers of the Burk Drainage works; those assessed owners are the Municipality, a few non-farm lots along Bisnett Line and in the order of 65 farm properties.

16. As the decision-maker and administrator of the process in the Court of the Drainage Referee, I have a role to play to try to focus the parties’ efforts and associated costs.

17. In her submissions, counsel for the applicants was not prepared to engage in any discussion of an estimate of the cost to the Municipality of processing 75 damages claims asserting that she and counsel for the Municipality had discussed ways and means of proceeding as with a class action which was sure to save money. I do not doubt the good intentions of counsel but am skeptical about the resultant savings.

18. If, at a hearing, an average of three claimants can be heard each day, that requires 25 hearing days. I expect the Municipality’s costs of processing 75 damages claims will be substantial, running to hundreds of thousands of dollars.

19. That should not be undertaken lightly and not before the threshold issues of liability are determined, and then it is important to be sure that the Municipality’s expenditures are reserved for claims which are eligible for recovery having regard for the limitations of section 79 of the Act.

20. Having received the applicants’ supporting affidavits, it was clear to me that there were 75 affidavits, each of which focused on specific damages claims related to each of 75 individual properties. It is not improper for the Referee to insist that preliminary issues relating to liability and eligibility for recovery be resolved before the Municipality was put to the expense of preparing responding material and processing 75 damages.

21. The concern raised in the applicants’ recusal motion is that my April 24, 2022 reasons for the preliminary issue questions give the appearance of having prejudged a determination of the facts before receiving submissions about the evidence. That submission ignores or discounts paragraph 10 of the reasons, which is as follows:

22. I have also relied upon many of the applicants’ 75 supporting affidavits which were provided on March 24, 2022. Some of the supporting affidavits, with multiple exhibits, run to a thousand pages in length. At this stage of this process, these reasons reflect the applicants’ untested, unchallenged best case. In time, as the application progresses, my understanding of the evidence will likely evolve, but to refine the issues to what are germane, some evidentiary basis is required, and just now, that is the Engineers’ Reports and the applicants’ best evidentiary case.

23. It was important for me to have the supplementary evidence from the applicants and from the respondent before making a decision on the applicants’ recusal motion. That evidence, particularly the Municipality’s witnesses’ history of the Burk Drainage works with explanation, context and perspective for documents assembled by the applicants, has allowed me to know how and the extent to which I need to change my understanding of the evidence.

24. Suffice it to say that the effect of preliminary issue question 3(a) has been to bring to the surface an important point for debate and decision, question 3(b) has resulted in the lessening of controversy, and question 3(c) identifies a matter which needs to be debated and decided. Questions 3(d) and 3(e) are more focused on legal issues. All of this will ensure that a processing of the applicants’ individual damage claims will focus on those claims for which liability has been determined and eligibility for recovery prescribed.

25. In the same vein, the applicants express concern that, in my reasons for the preliminary issues questions, I have or have given the appearance of having prejudged questions of law. That submission ignores or discounts paragraph 13 of the reasons which is as follows:

26. Also, in these reasons I have expressed my understanding of the law as it relates to a municipality’s obligations under section 74 and section 79 of the Drainage Act and as to the nature and extent of a municipality’s liability for failing to discharge those obligations satisfactorily. My view of the law is to be understood to be open to debate via submissions by counsel supported by applicable legislation and relevant jurisprudence. Again, the point of the preliminary issues is to identify and decide legal questions before municipal resources are expended on matters which are not pertinent. A good example is the considerable effort that would be required to respond to damages claims which pre-date the giving of the 45-day notice contemplated by section 79. Those efforts would be a waste of resources if those pre-notice claims are determined to be ineligible for recovery simply on the basis of when they were incurred. It is important to settle, in principle, what is eligible for recovery in advance, and that requires a consideration of applicable law before the applicants’ 75 damages claims are examined at length and in detail.

27. It is not inappropriate for me to have reviewed my understanding of the operation and scheme of the Drainage Act as context for preliminary issue questions; part of my mandate is to understand the Drainage Act as my home statute. Without background and context for the questions, counsel would be left to guess.

28. As with the evidence of the parties on the preliminary issues questions, it was important for me to have the applicants’ factum on the preliminary issues questions before making a decision on the applicants’ recusal motion. That submission has allowed me to know if and the extent to which I need to reassess my preliminary view of the law around a municipality’s obligations under section 74 and section 79 of the Drainage Act.

29. In my view, a reasonable person would understand the importance of dealing with these preliminary issues questions early in the process. A reasonable person would understand and appreciate that, in order to raise the preliminary issues questions, it was reasonable and desirable to frame the questions in the reasons for putting the questions by providing a review of the then available evidence and an understanding of the applicable law. A reasonable person would not think the decision maker had prejudged the facts when, in the impugned reasons, he has indicated that he is amenable to being corrected and open to debate by the parties about different interpretations of the documents and the Drainage Act.

30. I am satisfied that a reasonable person, viewing the April 24, 2022 reasons realistically and practically – having thought the matter through – would not conclude that the decision maker had prejudged facts or the law when it is or becomes apparent that they are contested or controversial and I therefore dismiss the applicants’ recusal motion.

Municipality’s Motion to Dismiss

27 I now turn to the Municipality’s motion to dismiss. I was first approached about this in the last week before the October 4^th^ hearing date by the applicants in the context of an adjournment request to allow the Municipality to bring a motion based on the application being not actionable under the provisions of the Drainage Act.

28 My reaction was that I was not prepared to delay the preliminary issues questions process to accommodate such a nebulous proposed motion. In response, counsel for the Municipality provided a very preliminary draft of a future factum to assist me to understand what was being proposed. From that I was able to extract a sense of the proposed motion to dismiss as follows:

(a) Property owners along the shoreline of Lake Erie have no actionable claim against anyone for damage caused by Lake flooding from rising water levels, storm surge and wave uprush or from the action of Lake ice or from erosion, all of which have been and are exacerbated by climate change.

(b) It is not the purpose of Section 79 to create an actionable claim where none otherwise exists.

29. This summary is not to be taken as my agreement with it, nor does it limit counsel’s framing of the motion material as she, in her discretion, decides.

30. The summary in paragraph 28 does, however, demonstrate that the Municipality’s motion is not an ill-defined excuse to delay the process. As importantly, it is sufficiently substantive that, if successful, it would result in the final disposition of the application. For those reasons, the Municipality’s motion to dismiss has been allowed to proceed separately from the five preliminary issue questions and in advance of the resumption of the hearing of the preliminary issue questions.

Dated at London this October 12 , 2022.

Andrew C. Wright Acting Drainage Referee