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ONTARIO SUPERIOR COURT OF JUSTICE
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## IN THE COURT OF THE DRAINAGE REFEREE
**CITATION:** Penetanguishene (Town) v Lediard, 2023 ONDR 8
**DATE OF DECISION:** 2023-02-01
**Court File No.:** CV-22-00001002-0000 (Barrie)
**B E T W E E N:**
THE CORPORATION OF THE TOWN OF PENETANGUISHENE
Applicant
- and –
JOAN ISABEL LEDIARD
Respondent
ACTING DRAINAGE REFEREE ) ANDREW C. WRIGHT ) WEDNESDAY, THE 1^st^ DAY ) OF FEBRUARY, 2023 )
## ORDER
The Court of the Drainage Referee previously fixed October 13, 2022, for a case management video conference to begin to address the following:
(a) the status of document production;
(b) the status of the applicants’ preparation of supporting affidavits and to fix a time for the applicants’ delivery of same;
(c) the status of the respondent’s preparation of responding affidavits and to fix a time for the respondent’s delivery of same;
(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) whether there are others who may be affected by the application and who should have notice and an opportunity to participate, how such notice should be given and the form of notice;
(g) identification of issues for the hearing of the merits;
(h) providing for 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) identifying the number and nature of witnesses to be called by each party;
(k) scheduling pre-hearing production and exchange of documents, including affidavits and/or witness statements for expert witnesses and affidavits and/or witness statement evidence summaries for other witnesses;
(l) estimating the amount of time required for the hearing of the merits;
(m) setting the commencement date for the hearing of the merits; and
(n) considering such other matters as may arise.
On October 13, 2022, having heard from counsel for the respondent that there is a Limitations Act preliminary issue which should be addressed before proceeding further, and having heard from counsel for the applicant, the court established a schedule for the exchange of motion records and facta and a hearing of the motion on February 1, 2023.
The court then received a joint request by counsel for an adjournment, sine die, of all proceedings in this case to allow them to pursue settlement negotiations and, by Order issued January 4, 2023, the schedule for the February 1^st^ hearing of the respondent’s motion to dismiss were held in abeyance pending a report from the parties on February 1^st^.
Having heard from counsel today that the parties have been unable to achieve a settlement but are continuing to negotiate; and having heard counsels’ renewed joint request for an adjournment, sine die, 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 he sees fit. He may alter this Order by an oral ruling, or by another written Order.
2. This Order is supplementary to the October 13, 2022 Order (issued on October 14, 2022) and the Order issued January 4, 2023, both of which remains in effect, as augmented by this Order, except as specifically amended by this Order; and the reasons for the previous decision remain extant. In the event of a conflict between Orders, the more recent Order shall prevail.
### Respondent’s Limitations Act Motion
3. On or before Friday, February 17, 2023 the respondent, as moving party, shall deliver to the applicant Town and to the presiding Referee any reply evidence in connection with the respondent’s motion to dismiss.
4. On or before Monday March 6, 2023 the parties shall exchange facta in connection with the respondent’s motion to dismiss and shall deliver same to the presiding Referee.
### Town’s Application
5. On or before Friday, March 24, 2023, the applicant Town shall deliver to the respondent and to the presiding Referee affidavits in support of its application.
6. On or before Friday, April 14, 2023, the respondent shall delivery to the applicant Town and to the presiding Referee affidavits in response to the Town’s application.
7. On or before Friday, April 28, 2023, the applicant Town shall deliver to the respondent and to the presiding Referee any reply evidence in connection with this application.
### Drainage Engineer Expert Witnesses
8. The parties have or intend to retain and to call as expert witnesses independent drainage engineers experienced in matters under the Drainage Act (sometimes referred to as the “Act”) and, with respect thereto, the following shall apply:
(a) The Town has retained Sid Vander Veen, P.Eng. and, on or before Wednesday, March 1, 2023, the Town’s counsel will confirm to the respondent and to the presiding Referee that the Town is contractually committed to the retainer of Mr. Vander Veen and provide the engineer’s curriculum vitae, the engineer’s acknowledgement of expert’s duty, and the engineer’s acknowledgement that they are bound by the duties of section 11 of the Act when undertaking the work.
(b) On or before Wednesday, March 1, 2023, counsel for the respondent shall advise the Town and the presiding Referee of the identity of the drainage engineer retained by the respondent and confirm that the respondent has contractually committed to the engineer’s retainer and provide the engineer’s curriculum vitae, the engineer’s acknowledgement of expert’s duty.
(c) For the purposes of this paragraph 8, “engineer” has the same meaning as defined in the Drainage Act; and to qualify as a drainage engineer experienced in matters under the Drainage Act, the engineer must have authored and signed a number of Drainage Act reports in the previous three years.
### Time of Hearing
9. The hearing of the respondent’s motion to dismiss and the applicant Town’ application will be heard together and will begin on Tuesday, May 23, 2023 at 10:00 a.m. and will be conducted via video conference using the Zoom platform.
10. The length of the hearing will be about five (5) days; and, after commencing on Tuesday, May 23, 2023, the hearing will continue on Wednesday, May 24, 2023, and will resume on Friday, May 26, 2023 and will resume on Monday, May 29, 2023 and on Tuesday, May 30, 2023.
### Order of Proceeding
11. The order in which evidence will be given at the hearing will be as follows:
(a) The applicant’s witnesses will be, in the order of counsel’s choosing:
(i) Bryan Murray, P.Eng. who will give factual evidence based on his affidavit sworn December 21, 2022 [Exhibit No.: 3(a)] and on any additional affidavit(s) he may have provided as contemplated by paragraphs 5 and 7 above.
(ii) Christopher Ealey who will give factual evidence based on his affidavit(s) which are to be provided as contemplated by paragraphs 5 and 7 above.
(iii) Sid Vander Veen, P.Eng., who will give factual and opinion evidence based on his affidavit(s) which are to be provided as contemplated by paragraphs 5 and 7 above.
minicounsel