ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE
B E T W E E N:
KATRINA COLLINS
Plaintiff
- and -
MUNICIPALITY OF MIDDLESEX CENTRE
Defendant
- and -
OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION
Respondents
ACTING DRAINAGE REFEREE
ANDREW C. WRIGHT
HEARD ON TUESDAY,
THE 12th DAY OF DECEMBER, 2023
ORDER
The Court of the Drainage Referee fixed this date for a pre-hearing conference to begin case management of this action, to address the following:
(a) Fixing a time for the delivery of the Statement of Defense.
(b) Fixing a time for the delivery of any other pleadings, including any Reply.
(c) Fixing a time for delivery by the defendant Municipality of documentation contemplated by subsection 11(1) of Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee (the “Rules”) prescribed under the Drainage Act, R.S.O. 1990, C D.17, as amended (the “Act”).
(d) Providing for delivery to the presiding Referee of the documentation referred to in item (c) concurrently with its delivery to the plaintiff.
(e) Providing for the delivery directly to the presiding Referee of anything a party files with the Court concurrently with its filing with the Court.
(f) Identifying parties, including those who may be affected by the result of this action and establishing a means of putting those potentially affected persons on notice of this action and giving them an opportunity to participate as a party.
(g) Scheduling production of documentation by the parties and examinations for discovery.
(h) Scheduling pre-hearing production and exchange of documents, including affidavits or witness statements for expert witnesses and affidavits or evidence summaries for other witnesses.
(i) Identifying the number and nature of witnesses to be called by each party.
(j) Estimating the amount of time required for the hearing.
(k) Setting the commencement date for the hearing.
(l) Making provisions about access to and login credentials for participants in the hearing.
(m) Providing for service by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service).
(n) Dealing with such other matters or things as may arise and which the presiding Referee may determine is expedient to permit.
and after hearing the submissions of counsel, 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. The presiding Referee may alter this Order by an oral ruling, or by another written Order.
A copy of anything that is required by this Order to be delivered by a party to another or to be filed with the Court shall be delivered directly to the presiding Referee concurrently with delivery to the other party or its filing with the Court.
Parties and Representation
The plaintiff is represented by Samuel Kirwin, a lawyer in the Law Office of Samuel Kirwin Professional Corporation.
The defendant (sometimes referred to as “Middlesex Centre”) is represented by Jonathan de Vries, a lawyer with the law firm of Shillington McCall LLP, Lawyers.
Others may be added as parties following the circulation of notice of this action in accordance with directions to be given in the future, and if they are added as parties, they and their representative will be added.
Exchange of Documentation
On or before January 31, 2024, the plaintiff shall deliver to Middlesex Centre all documents within her possession and control that are relevant to this action.
On or before February 29, 2024, Middlesex Centre shall deliver to the plaintiff Middlesex Centre’s statement of defence.
On or before March 31, 2024, Middlesex Centre shall deliver to the plaintiff the documentation referred to in subsection 11(1) of the Rules, which relates to the Forsyth Drain (sometimes referred to as the “Drain”).
The documentation specified in paragraph 8 above includes the production of documents from the files of Spriet Associates London Limited which relate to the 2006 Engineer’s Report (defined in 16 below), provided that, if Spriet and Associates Limited London Limited objects to such document production or some aspect of it, counsel for Middlesex Centre shall advise the presiding Referee who shall then schedule a video conference to hear the objections.
On or before March 31, 2024, Middlesex Centre shall deliver to the plaintiff documentation pertaining to any municipal infrastructure works constructed or installed since the 2006 Engineer’s Report, such as storm sewer, sanitary sewer, water mains and road works, including changes in elevation of the road allowance, paving and/or the installation of curbs and gutters, on or in the vicinity of the plaintiff’s property at 15 York Steet or the intersection of York Street and Wellington Street in the community settlement area of Delaware in the Municipality of Middlesex Centre.
The plaintiff may deliver reply pleadings on or before April 30, 2024.
Documents to be delivered as contemplated by paragraphs 6, 7, 8, 10, and 11 shall be in machine-readable electronic format. Hard copy may also be delivered in addition to the electronic versions.
Future Case Management Conferences
- Future case management video conferences will be scheduled to address:
(a) Hearing of preliminary motions.
(b) Identifying parties, including those who may be affected by the result of this action and establishing a process for putting those potentially affected persons on notice of this action and giving them an opportunity to participate as a party.
(c) Scheduling examinations for discovery.
(d) Scheduling pre-hearing production and exchange of documents, including affidavits or witness statements for expert witnesses and affidavits or evidence summaries for other witnesses.
(e) Identifying the number and nature of witnesses to be called by each party.
(f) Estimating the amount of time required for the hearing.
(g) Setting the commencement date for the hearing.
(h) Making provisions about access to and login credentials for participants in the hearing.
(i) Providing for service by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service).
(j) Dealing with such other matters or things as may arise and which the presiding Referee may determine 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 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) Before 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 registrar and, when doing so, shall identify Court File No.: CV-23-00001995-0000 (London) 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 pleadings, notices of motion, facta, case law, legislation and compendiums of authorities will not be marked as exhibits though Court Orders, pleadings, notices of motion and facta should be filed with the court and item 15(d) above applies mutatis mutandis.
- At the time of this Order, the following document is part of the record:
Exhibit
Statement of Claim issued September 20, 2023
No.: 1
Engineer’s Report on the Forsyth Drain dated August 19, 1965 issued by A.M. Spriet & Associates Ltd., and signed by A.J. DeVos, P.Eng. including plan and profile. (the “1965 Engineer’s Report”)
No.: 2
Engineer’s Report on the Forsyth Drain Garden Avenue Branches 2006 dated October 19, 2006 issued by Spriet Associates London Limited and signed by M.P. DeVos, P.Eng. including plan and profile. (the “2006 Engineer’s Report”)
This list of documents will expand as production occurs, as contemplated by paragraphs 6, 7, 8, 10, and 11 above.
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 pleadings, 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 16 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 action.
Dated at London this December 12, 2023.
____________________________________ Andrew C. Wright Acting Drainage Referee
REASONS
The Order to which these reasons are attached (the “Order”) is the start of an evolving case management and procedural process intended to prepare for a hearing of the merits.
Words and phrases defined in the Order have the same meaning when used in these reasons.
Middlesex Centre was established on January 1, 1998, as the result of the municipal restructuring amalgamation of the Township of London, the Township of Lobo and the Township of Delaware.
The defendant's name has appeared in different forms in the statement of claim and in its appearance document. The proper formal name is the: “Municipality of Middlesex Centre” and the style of cause has been amended accordingly.
Before the municipal restructuring, the Forsyth Drain was located in the Village of Delaware in the Township of Delaware. The Forsyth Drain is a closed drain the origins of which date back to the early decades of the twentieth century. It was most recently reconstructed and repaired in accordance with the 1965 Engineer’s Report. It provided drainage to an area in the southeast of the Village of Delaware. The Forsyth Drain outlets to the Thames River south of Highway No.:2, now County Road No. 2 (Longwoods Road) to the east of John Street.
The Drain is now located in and is the responsibility of Middlesex Centre under the Act. The Drain is within the community settlement area of Delaware, so designated by the Middlesex Centre Official Plan.
In 2006, the Garden Avenue Branches, which had been constructed as part of the servicing and development of a then-new residential subdivision, were incorporated into and became part of the Forsyth Drain in accordance with the 2006 Engineer’s Report. The subdivision lands were within the drainage area of the Drain identified in the 1965 Engineer’s Report.
These Garden Avenue Branches outlet into the Forsyth Drain just north of County Road No.2 (Longwoods Road) about 675 feet (205 metres) downstream of the plaintiff’s property.
The plaintiff’s property is known municipally as 15 York Street and is part of Lot 16 registered plan 47 (assessment Roll # 393901902108900).
In 2022, Middlesex Centre undertook road infrastructure works in the vicinity of the plaintiff’s property, which included replacing parts of the Forsyth Drain in York Street with storm sewers. These works were not undertaken under the authority of the Act, and the replacement sewers are not part of the Forsyth Drain.
At this stage, the parties have agreed on the dates for the delivery of pleadings and document production. Those dates are set out in the Order.
Thereafter, there will be a further pre-hearing conference(s) to hear preliminary motions and to consider providing notice to others who may be affected by the result of this action and an opportunity and process to be involved as parties.
The notice contemplated by paragraph 11 above would provide public access to all the documentation exchanged by the parties in this proceeding to the time of the giving of notice. That public access would be via the Middlesex Centre website, so it is important that documents to be delivered as required by the Order be in machine-readable electronic format as specified by paragraph 12 of the Order.
If there are difficulties with document exchange or anything else arising from the Order and these reasons, at the request of either party, I will convene a video conference to deal with it.
Dated at London this December 12, 2023.
____________________________________ Andrew C. Wright Acting Drainage Referee