ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
B E T W E E N:
ANTHONEY MELIDY and JACQUELINE TRACEY MELIDY
Applicants
- and –
THE CORPORATION OF THE TOWN OF BRADFORD WEST GWILLIMBURY and HOLLAND MARSH DRAINAGE SYSTEM JOINT MUNICIPAL SERVICES BOARD
Respondents
ACTING DRAINAGE REFEREE ) ANDREW C. WRIGHT ) SATURDAY, THE 5th DAY ) OF MARCH 2022 )
ORDER
The Court of the Drainage Referee has fixed this day for a case management video conference:
(a) to understand the status of document production,
(b) to consider The Corporation of the Town of Bradford West Gwillimbury (the “Town”) as a party respondent,
(c) to consider whether there are others who may be affected by the application and who should have notice and an opportunity to participate, and
(d) to consider such other matters as may arise;
and having heard the self-represented applicant, Mr. Melidy, and counsel for the municipal respondents via video conference this day, 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 it sees fit. He may alter this Order by an oral ruling, or by another written Order.
The Town is added as a party respondent and the style of cause is amended accordingly.
The appearance entered by the Holland Marsh Drainage System Joint Municipal Services Board (the “Service Board”) is to be regarded as an appearance on behalf of both the Town and the Service Board (together referred to as the “Municipality”).
The Municipality shall product to the applicants all relevant documents; and, if that documentation discloses the existence of additional documentation, that additional documentation shall also be produced to the applicants.
A further case management video conference will be convened on Tuesday, May 3, 2022 commencing at 10:30 am to deal with:
(a) the status of document production,
(b) the status of the applicants’ supporting documentation and, if possible, the setting of a time for their delivery, and
(c) such other matters as may arise.
Future Case Management Conferences
- 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 applicants to deliver supporting evidence.
(c) Fixing a time for the municipal respondents Municipality to deliver responding materials.
(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) Identifying parties; this includes considering those who may potentially be affected by any decision of the Referee on the application and making an Order as to the giving of notice of this proceeding to such persons and the form of notice.
(g) Making provisions about access to and login credentials for participants in the hearing.
(h) Providing for service by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service).
(i) Identifying the number and nature of witnesses to be called by each party.
(j) Scheduling pre-hearing production and exchange of documents, including affidavits and witness statements for expert witnesses and affidavits and evidence summaries for other witnesses.
(k) Estimating the amount of time required for the f hearing.
(l) Setting the commencement date for the hearing.
(m) 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
- 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
- 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-21-00000414-0000 (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 7(d) above applies mutatis mutandis.
- At the time of this March 5, 2022 Order, the following documents are part of the record:
Decision of the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) Decision issued March 1, 2020 in the case of Anthony and Tracey Melidy v Municipality of Bradford West-Gwillimbury reported at 2020 ONAFRAAT 3
Exhibit No.: 1.
February 4, 2021 Letter Report issued by R.J. Burnside & Associates Limited (Jeff Dickson) and addressed to Town of Bradford West Gwillimbury (Ruth Westlake)
Application as issued
Amended Application
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 8 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:
(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 not seized of the hearing of the merits of this application.
Dated at London this March 5, 2022.
____________________________________ Andrew C. Wright Acting Drainage Referee
REASONS
This application was commenced in early 2021 naming The Corporation of the Town of Bradford West Gwillimbury (the “Town”) as respondent, not the Holland Marsh Drainage System Joint Municipal Services Board (the “Service Board”).
This case arises in the following context:
(a) The applicants brought a petition under subsection 4(1) of the Drainage Act (the “Act”) which was denied by the Town on October 10, 2019.
(b) The applicants appealed this decision under subsection 5(2) of the Act to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”).
(c) By decision issued March 1, 2020, the Tribunal found that the applicants had established that they have a drainage issue, allowed the applicants’ appeal and directed the Town to accept the petition and to appoint an engineer as set out in section 8 of the Act.
(d) The Town appointed R.J. Burnside & Associates Limited and Jeff Dickson, P.Eng. was the assigned engineer (the “Engineer”).
(e) The Engineer issued a letter report dated February 4, 2021 concluding that the petition was insufficient on the basis that the area requiring drainage, as determined by the Engineer, was such that more signatures were required than just the applicants’ signatures.
(f) It is from that engineer’s determination and conclusion that this application has been brought.
After the application was launched naming the Town as respondent, the applicants were advised by the Town that the proper respondent was the Service Board. In reliance on this representation, the applicants agreed to amend the style of cause by consent dated April 26, 2021.
Despite the court’s requests of the Service Board for clarification of the jurisdiction and authority which had been delegated to it under section 198 and section 202 of the Municipal Act, 2001, no information has been provided or promised. From the Service Board’s website:
The Holland Marsh, located 50 kilometres (km) north of Toronto, Ontario, is commonly referred to as Ontario's ‘vegetable patch’ because of its incredible variety and copious amounts of fresh produce. Produce selections range from more traditional crops such as carrots, onions and celery, to more diverse options like Chinese broccoli, Asian radish, and water spinach. The ability to grow and harvest these crops, which cumulatively amount to over $50 million worth of produce per year, results from a combination of dedicated farmers and incredible muck soil.
In the early 1900s, successful vegetation experiments by Professor William H. Day demonstrated that there was fertile muck soil on what was previously unoccupied Holland Marsh swampgrounds. The Holland Marsh Drainage Scheme, consisting of canals and dykes constructed around the Marsh, drained the swamp which exposed the fertile Marsh grounds that farmers have been using ever since.
The Marsh occupies approximately 2,833 hectares (ha), and is primarily organic soils. The canal and dyke system is 28 kilometres (km), which circles the marsh, acting to keep storm water and upstream drainage from entering the marsh.
Today, the Marsh System is governed by the Holland Marsh Drainage System Joint Municipal Service Board. The Service Board was formed in 2007 in joint partnership with the Township of King and Town of Bradford West Gwillimbury with the mission to maintain and manage the Holland Marsh drainage system, to plan any future development for the Holland Marsh and tackle any possible environmental issues.
The Holland Marsh drainage works are a major drainage system that enables the productive agricultural use of a particularly fertile area that straddles two municipalities. While the Service Board has not produced the by-law or resolution or agreement delineating its delegated jurisdiction and authority, it is reasonable to think that such authority would focus primarily, if not exclusively on the Holland Marsh drainage works or system.
The applicants’ drainage problem has nothing to do with the productive agricultural uses in the Holland Marsh. Their property is a single-family residence in a predominantly single-family residential subdivision in the Town. From a review of the 2020 Tribunal decision the drainage problem is, at least in part, related to lot grading within the subdivision. Amongst the possible issues are that the municipally approved lot grading plan was not suitable, or it was poorly implemented when the subdivision was developed or subsequent homeowners in the subdivision have changed from the approved grades. There are also potential issues related to storm sewers and roads and a utilities easement to the west of the applicants’ residence. These things are more likely to fall under the aegis of the Town’s engineering and planning departments than within the Service Board’s responsibility for the Holland Marsh.
It is noteworthy that, according to the Service Board’s website, the Service Board was established in 2007 and that it was the Town, not the Service Board, that was the party to the 2020 Tribunal appeal. Counsel for the Town before the Tribunal is the same as counsel for the Service Board in this matter. The same counsel advised the applicants that the Town was not properly the party respondent. Counsel has been asked for an explanation and he has no instructions to provide information or explanation.
The inquiry by the court was made to counsel about the Service Board’s delegated authority. The court should know what authority and jurisdiction has been delegated to the Service Board under the Municipal Act, 2001. The courts should know if the Service Board has delegated authority with respect to roads and storm sewers in the residential subdivision in which the applicants’ home is located. The Court should know if the Service Board has authority with respect to subdivision stormwater management and subdivision lot grading approvals, implementation, and maintenance. And whether the Service Board has the authority to speak for the utilities’ corridor west of the applicants’ property and for the infrastructure on or in it.
In accordance with subsections 197(2) and 197(3) of the Municipal Act, 2001, the Service Board a local board of and is the agent for the Town to the extent that the Service Board is acting within its delegated authority. To the extent that facets of this case are within the delegated authority of the Service Board, the Town is indirectly involved as the agent’s principal; to the extent that elements of this case go beyond the scope of the delegated authority, the Town is directly involved.
One of the reasons why this is cogent relates to the disclosure and production of documents.
After the applicants had been directed to replace the Town for the Service Board as a respondent, the applicants sought the production of documentation from the Town and the Service Board. When nothing was produced, the applicants made a formal request under the Municipal Freedom of Information and Protection of Privacy Act (the “FoI Act”). This is unusual in my experience; normally production of documents occurs in good faith and collaboratively under the guidance of subsection 11(1) of Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee (the “Rules”). The FoI Act process has resulted in a series of generalized and broadly cast requests which have put all involved to unnecessary effort, expense and delays. The matter of disclosure, or lack of it, is of concern.
The FOI request was directed to the Town. It is not clear that the Town’s response included documents from the Service Board. No documentation has been produced in response to the applicants’ requests made to the Service Board and its counsel.
Another reason for the Town to be a party is that it may well be affected by the result should the petition be found to be valid, and a drainage project results which may affect the subdivision grades and/or the Municipality’s roads, storm sewers and/or utilities corridor. For the same reasons the Town should be a party to any consideration of a solution to or resolution of the applicants’ drainage issue as found by the Tribunal.
I will be open to considering the removal of the Town as a party respondent once sufficient detail about the delegated authority of the Service Board has been provided to show how and why all of the pertinent issues are entirely within the scope of the Service Board’s jurisdiction. In the meantime, I will reinstate the Town as a party respondent and Mr. Courey’s appearance is to be regarded as an appearance on behalf of both the Town and the Service Board (together referred to as the “Municipality”). If the Town feels the need of separate representation, a notice of change of solicitors can be file.
I now turn to the matter of document production and a schedule for the applicants to provide supporting affidavits.
The applicants are self-represented parties. They are not lawyers; they have conferred with a solicitor who has not been retained to appear on their behalf in this case. I am less concerned about form as I am with the substance, and regardless of the form of the initiating document, this is not an appeal of the Tribunal decision; the applicants were successful in that matter. The gist of the application is to have the Referee determine the validity of the petition they signed. That question largely turns on a determination of the “area requiring drainage” for the purpose of section 4 of the Act. These matters are within the jurisdiction of the Referee.
If the petition is not valid, then that is the end of the matter; if it is, then the Engineer, or some other engineer appointed for the purpose, will need to proceed to prepare a report to address the drainage problem identified to the satisfaction of the Tribunal. If there is such an engineer’s report, it will be processed under the Act, including rights of appeal, most of which are to the Tribunal.
The applicants understand they need to prepare supporting affidavit material and they are in the process of assembling material and preparing affidavits. They have been and are being hampered by delays in obtaining documentation from the Municipality. My hope, indeed expectation is that the Municipality will be forthcoming with all pertinent documentation and, if in doubt about relevance, will err on the side of making a more fulsome disclosure.
I am therefore going to adjourn the case management process for two months to give the applicants the opportunity to advance their preparation. On Tuesday, May 3, 2022, commencing at 10:30 am, there will be a further case management video conference to receive a status report and, if possible, to set time for the delivery of the applicants’ supporting affidavit(s). In the meantime, if there are difficulties about document production, at the request of either party, I will convene a video conference to deal with it.
Through counsel, the Municipality has expressed disquiet and uncertainty about procedure, so let me explain how I proposed that this case be conducted procedurally.
Once the applicants’ supporting affidavits have been provided, I will want to consider if there are other persons whose rights may be affected by the result of this application. If there are, I will want such persons to be given notice of the application and an opportunity to become a party. This will be the subject of a further case management video conference.
Also, once the applicants’ supporting affidavits have been provided, I will want to consider if any of what the applicants have set out in their affidavits and/or what they are seeking is pertinent to that which is within my power to grant; if not, that should be identified in order that the respondents are not put to the effort of responding to things which are not germane.
Once the parties have been identified, the preparation of responding affidavits will be scheduled. This will also be the subject of a further case management video conference.
The applicants will be afforded the opportunity to reply to the respondents’ responding material. This will be particularly important should documentation and information be forthcoming in the respondents’ responding material not previously disclosed to the applicants.
Further case management video conferences will be scheduled from time to time until all of the items referred to in paragraph 5 of the above Order have been addressed and the case is ready to proceed to a hearing of the merits.
When the case gets to the hearing of the merits, parties will call the witnesses who have filed affidavits to reaffirm or correct their affidavits and to be subject to cross-examination and questions from the presiding Referee. It is important in this process that there be full disclosure in advance of the hearing of the merits; there will be no walk-on witnesses or surprise exhibits.
Counsel for the Municipality expressed his concern that case management conferences are not authorized by the Rules. He asserts that case management conferences are pre-hearing conferences as contemplated by the Rules and that the presiding Referee at a pre-hearing conference is disqualified from hearing the case on the merits. He is concerned that there should be a more procedurally rigorous process, with notices of motion and court Orders, about the production of documents and exchange of supporting affidavits and other material; hence, the part of the formal order requiring production. He also expressed views about how the hearing on the merits should be conducted; these things can be addressed later in the process when we are closer to the hearing and settling the procedural order for the hearing. I do not do justice to all that was said in the extensive submissions made by counsel.
While I have heard counsel’s submissions, as I have indicated previously, I am less concerned about formalities as I am with narrowing the issues to what is relevant and then getting to the core of the matter to be decided. In the same vein, I am more concerned about fulsome disclosure than with the form of or requirement for formal notices of motion.
Dated at London this March 6, 2022.
____________________________________ Andrew C. Wright Acting Drainage Referee