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 –
HOLLAND MARSH DRAINAGE SYSTEM JOINT MUNICIPAL SERVICE BOARD Respondent
ACTING DRAINAGE REFEREE: ANDREW C. WRIGHT TUESDAY, THE 12th DAY OF MAY 2022
ORDER
The Court of the Drainage Referee has fixed this day for a case management video conference:
(a) to deal with issues related to document production requested by the applicants, and
(b) to consider such other matters as may arise;
and having heard from the self-represented applicant, Mr. Melidy, and counsel for the Service Board respondent 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.
This Order is supplementary to the March 5, 2022 Order, issued March 6, 2022, and to the May 3, 2022 Order, issued May 4, 2022, both 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.
For the purposes of this Order and the reasons therefor, unless the context requires a different meaning:
(a) the "2013 Delegation of Municipal Drain Authority" means the November 2013, delegation by the Town to the Service Board of
"authority for the control and management of all municipal drains within the geographic boundaries of the Township of King and the Town of Bradford West Gwillimbury, which are outside the boundary of the Holland Marsh Drainage System, whether not existing or which are created in the future"
which is the effect of the November 5, 2013 Committee of the Whole recommendation, its adoption by Council resolution on November 19, 2013 and the adoption and confirmation of same by Town By-law 2013-107; all of which documentation is in Exhibit No.: 3.
(b) the "2020 Tribunal Decision" means the decision issued on March 1, 2020 by the Tribunal in the case of Anthony and Tracey Melidy v Municipality of Bradford West Gwillimbury reported at 2020 ONAFRAAT 3
(c) the "Act" means the Drainage Act, R.S.O. 1990 Chapter D.17, as amended.
(d) the "Board Of The Service Board" means the nine voting members who are to manage or supervise the management of the business and affairs of the Service Board as contemplated by the Agreement dated June 25, 2007 between the Town and the Township respect to the Holland Marsh Drainage System.
(e) "Burnside Engineering" means R.J. Burnside & Associates Limited.
(f) the "FOI" means the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, Chapter M.56, as amended.
(g) the "Rules" means Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee.
(h) the "Service Board" means the Holland Marsh Drainage System Joint Municipal Service Board, which was established under the authority of section 195 and subsection 202(1) of the Municipal Act, 2001 by the Town and the Township with respect to the Holland Marsh Drainage System pursuant to the Agreement dated June 25, 2007 between the Town and the Township; the Service Board is a body corporate acting as the agent of the two municipalities, both jointly and severally.
(i) the "Town" means The Corporation of the Town of Bradford West Gwillimbury.
(j) the "Township" means The Corporation of the Township of King.
(k) the "Tribunal" means the Agriculture, Food and Rural Affairs Appeal Tribunal.
Exchange of Supporting and Responding Affidavits
The applicants shall file with the Court and deliver their supporting affidavits to the Service Board and to the presiding Drainage Referee on or before Friday, June 17, 2022.
Subject to both paragraph 6 and paragraph 7 below, the Service Board shall deliver to the applicants and to the presiding Drainage Referee its responding affidavit(s) on or before Friday, July 22, 2022.
If, after reviewed the applicants' supporting material, the Service Board requires additional time beyond July 22nd, the Service Board will so advise the applicants and the presiding Drainage Referee by Thursday, June 30, 2022 and, when doing so will indicate the date to which the delivery deadline should be extended. The presiding Drainage Referee will give the applicants an opportunity to comment by e-mail on the proposed extension and the presiding Drainage Referee will thereafter fix the date for delivery of the Service Board's responding affidavit material.
No affidavit provided by the Service Board which refers to Exhibit No.: 1, being the February 4, 2021 Letter Report issued by R.J. Burnside & Associates Limited signed by Jeff Dickson, P.Eng. and addressed to Town's Ruth Westlake, will be entered as an Exhibit or otherwise admitted into evidence unless the affidavit provides as exhibits copies of Burnside Engineering's paper and hard copy of electronic records and communication in its file for or related to the Burnside Engineering's Project No.: 300052155.0000 entitled, at least in part, "Validity of Petition", including without limiting the generality of the foregoing:
(a) Details of invoices dated November 16, 2020 and February 4, 2021 providing a date by date description of the engineering services rendered, the person who provided it, the time spent, and the hourly rate for that person.
(b) Lot grading information and approvals provided by the Town or by the Service Board to Burnside Engineering.
(c) Records, minutes or notes of the September 14, 2020 meeting, electronic or in person, between Burnside Engineering personnel and Service Board personnel and of any other meetings, in person or electronic, between Burnside Engineering and the Service Board, including any with its counsel.
Production of Documents
- The Service Board 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.
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 delivery of other documentation, having regard for section 11 of Rules.
(c) Dealing with issues of disclosure.
(d) 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.
(e) Making provisions about access to and login credentials for participants in the hearing.
(f) Providing for service by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service).
(g) Identifying the number and nature of witnesses to be called by each party.
(h) Scheduling pre-hearing production and exchange of documents, including affidavits and witness statements for expert witnesses and affidavits and evidence summaries for other witnesses.
(i) Estimating the amount of time required for the f hearing.
(j) Setting the commencement date for the hearing.
(k) 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 11(d) above applies mutatis mutandis.
- At the time of this May 12, 2022 Order, the following documents are part of the record:
Decision of the Tribunal 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 Burnside Engineering (Jeff Dickson, P.Eng.) and addressed to the Town (Ruth Westlake)
Application, styled Notice of Appeal, dated March 16, 2021
Amended Application
March 5, 2022 Order issued March 6, 2022 by Andrew Wright, presiding Acting Drainage Referee
Exhibit No.: 2
May 17, 2004 Letter dated from Burnside Engineering (Gord Feniak, P.Eng.) addressed to the Town (Juanita Dampster-Evans)
Exhibit No.: 3
April 25, 2022 Letter from Aird Berlis (Brian Chung) to the applicants with the following enclosures:
i. Notice of Appearance by Aird Berlis on behalf of the Town.
ii. Town By-law 2007-090 authorizing the establishment of the Holland March Drainage System Joint Municipal Service Board Agreement attached to which is the Agreement dated June 25, 2007 between the Town and The Corporation of the Township of King and executed by both municipalities that day delegating municipal authority with respect to the Holland Marsh.
iii. Minutes of the meeting of the Town's Committee of the Whole on November 5, 2013 recommending that Council delegate to the Service Board the control and management of municipal drains which lie outside the boundaries of the Holland Marsh Drainage System.
iv. Minutes of the Town Council's meeting on November 19, 2013 adopting resolutions from the Committee of the Whole Meeting on November 5, 2013.
v. Town By-law 2013-107 enacted November 19, 2013 being a by-law adopting and confirming resolutions from the November 19, 2013 Council meeting.
vi. Copy of the applicant's FOI request.
vii. A list of documents produced by the Town in response to that FOI request.
May 3, 2022 Order issued March 4, 2022 by Andrew Wright, presiding Acting Drainage Referee
Exhibit No.: 4
Petition signed by the applicants and received by the Town on September 27, 2019
Exhibit No.:5
Agenda for the June 11, 2020 meeting of the Board Of The Service Board
Exhibit No.: 6
Minutes of the June 11, 2020 meeting of the Board Of The Service Board (receiving 2020 Tribunal Decision)
Exhibit No.: 7
Agenda for August 20, 2020 meeting of the Board Of The Service Board
Exhibit No.: 8
Minutes of the August 20, 2020 meeting of the Board Of The Service Board (appointing Burnside Engineering)
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 12 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.
Costs and Expenses
Pursuant to subsection 118(2) of the Act, it is ordered that all costs and expenses of the Town and of the Service Board of dealing with the matter of the Town's being reinstated as a party respondent on March 5, 2022 and being discontinued against on May 3, 2022 are to be paid out of the general funds of the Service Board. It is also ordered that no part of such costs and expenses of the Town and of the Service Board are to be charged under section 43 of the Act to the applicants as petitioners, if the petition is unsuccessful, and no part of such costs and expenses are to be charged to a resulting Drainage Act project if the petition is successful.
Pursuant to subsection 118(2) of the Act, it is ordered that all costs and expenses of the Town and of the Service Board of dealing with the applicants' request for production of documentation from Burnside Engineering's file for or related to the Burnside Engineering's Project No.: 300052155.0000 are to be paid out of the general funds of the Service Board. It is also ordered that no part of such costs and expenses of the Town and of the Service Board are to be charged under section 43 of the Act to the applicants as petitioners, if the petition is unsuccessful, and no part of such costs and expenses are to be charged to a resulting Drainage Act project if the petition is successful.
The applicants' costs of the day are reserved to the final disposition of this matter.
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.
Andrew C. Wright, Acting Drainage Referee, is not seized of the hearing of the merits of this application.
Dated at London this May 18, 2022.
Andrew C. Wright Acting Drainage Referee
REASONS
The Order to which these reasons are attached is an evolving case management and procedural Order which is a consolidation of previously issued Orders and includes currently operable provisions and eliminates those matters which have been completed.
In my reasons attached to my May 3, 2022 Order I indicated that, if there are difficulties about document production or anything else arising from that May 3rd Order, at the request of either party, I would convene a video conference to deal with it.
The purpose of the video conference hearing on May 12, 2022 was to deal with unsatisfied requests for document production made by the applicants of the Town and the Service Board. This is a continuation of the Service Board's continuing failure to produce requested documents.
Burnside Engineering File
The current difficulty relates to documentation from the file of Burnside Engineering. Jeff Dickson, P.Eng. is the author of the February 4, 2021, Burnside Engineering letter report, which is the foundation of the Service Board's case that the applicants' petition is not valid. The applicants have several specific requests.
The Service Board's position is, in summary, that the Service Board has relayed the applicants' requests to Burnside Engineering, and a very limited response has been forthcoming. The Service Board says that Burnside Engineering claims all else is proprietary. The Service Board has not asked Burnside Engineering for copies of its file related to its Project No. 300052155.0000, which is referenced in the February 4th letter report. The Service Board says that Burnside Engineering is a separate entity over which the Service Board has no control. The suggestion of the Service Board is that the production requirements need to be directed to Burnside Engineering.
It is not clear whether this had been articulated to the applicants previously.
The applicants say that this failure to produce will not interfere with their deliver on the June 17, 2022 date of supporting affidavits as required by my Order, but that production from the Burnside Engineering file will be important for them to challenge the conclusions of the February 4, 2021 Burnside Engineering letter report when it comes to the hearing of the merits.
When asked about Burnside Engineering's rationale or any other basis for not producing copies of its file in support of its February 4, 2021 Burnside Engineering letter report conclusions, the Service Board demurred on the basis that the Service Board and its counsel did not represent Burnside Engineering and could not speak for them.
The Service Board is correct that it and Burnside Engineering are separate entities, and there is no solicitor-client connection between counsel for the Service Board and Burnside Engineering. But it is disingenuous for the Service Board to deny having any ability to influence Burnside Engineering in the circumstances that a Burnside Engineering witness will be the cornerstone of the Service Board's case.
In my view, the credibility of and weight to be given to the Burnside Engineering February 4, 2021 letter report and its author's evidence and the fairness of the hearing process requires the production in advance of the hearing to the applicants and to the presiding Acting Drainage Referee of the contents of the file upon which the February 4, 2021 Burnside Engineering letter report is based, including the particular items requested by the applicants. In my view, particulars of invoices presented for payment by the applicants are not proprietary, nor are documents received from the Town concerning subdivision lot grading and stormwater management, nor are notes or minutes of attendees and subject matter discussed, from meetings, electronic or in person, held by Burnside Engineering to assemble information from the Town and from the Service Board, including from its counsel.
No evidence from Burnside Engineering or from any person, in affidavit form or otherwise, referring to or relying upon the Burnside Engineering February 4, 2021 letter report will be admitted into evidence unless accompanied by copies of the Burnside Engineering file. Item 7 of the Order entrenches that prerequisite.
Board Of The Service Board Minutes and Staff Reports
In response to the particular request of the presiding Drainage Referee, counsel for the Service Board has provided copies of minutes of meetings of the Board Of The Service Board when the 2020 Tribunal Decision was received and when the appointment of Burnside Engineering was made, together with the agendas for those meetings. Other documents were also provided. All of these documents should have been provided long ago perforce of section 11 of the Rules and, more recently, paragraph 4 of the March 5, 2022 Order and paragraph 9 of the May 3, 2022 Order.
The withholding of relevant documents unless specifically asked is discomfiting because the applicants and the court do not have knowledge of the specifics to ask for relevant documents which have not been disclosed. For example, these recent disclosures reveal that Burnside Engineering has a three-year contract with the Service Board for engineering services. It is anticipated that that three-year agreement will recognize and protect the engineer's autonomy required by section 11 of the Act when appointed under the Act to do the Service Board's bidding. Without seeing the three-year contract for engineering services, that expectation cannot be confirmed. The point here is that the Service Board's approach about not producing relevant documents is unhelpful to the process and is to be discouraged.
Cost and Expenses
In the reasons given when issuing the May 3, 2022 Order, I expressed in paragraph 18 of those reasons my concern about document production. This is an ongoing disconcerting disregard by the Service Board of section 11 of the Rules, paragraph 4 of the March 5, 2022 Order and paragraph 9 of the May 3, 2022 Order and is a continuation of a worrying appearance of indicia of a pattern of obstruction and suppression of evidence. The applicants should not bear any of the costs associated with this conduct, so I have made the disposition about costs and expenses found in item 17 of the Order.
If there are any additional difficulties about document production 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 May 18, 2022.
Andrew C. Wright Acting Drainage Referee