ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Schall v Fort Erie (Town), 2024 ONDR 10

DATE OF DECISION: 2024-12-16

Court File No. CV-21-00013656-0000 (Welland)

BETWEEN:

JEFFREY SCHALL and MARTINA CATHERINE SCHALL

Applicants

• and -

THE CORPORATION OF THE MUNICIPALITY OF FORT ERIE

Respondent

• and -

OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION

Respondents

ACTING DRAINAGE REFEREE ANDREW C. WRIGHT

MONDAY, THE 16th DAY OF DECEMBER, 2024

ORDER

The Court of the Drainage Referee proposed to convene a case management video conference hearing to begin case management of this application to address the following:

(a) Providing for the delivery directly to the presiding Referee of anything a party is required to provide to the other party(ies) or is filed with the Court concurrently with its delivery or filing with the Court.

(b) Clarifying and correcting, if necessary, the name of Fort Erie in the style of cause and the address of the applicants’ property as set out in the application.

(c) Identifying parties, including those who may be affected by the result of this application, establishing a means of putting those potentially affected persons on notice of this application and giving them an opportunity to participate as a party.

(d) Fixing a time for the delivery by the Town of documentation, having regard for subsection 11(1) of Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee.

(e) Fixing a time for the delivery of copies of the contents of the files of Paul C. Marsh, P.Eng of EWA Engineering Inc. relating to or referenced in the Fort Erie Public Information Centre presentation dated March 21, 2022.

(f) Fixing a time for the applicants to deliver supporting evidence.

(g) Fixing a time for the respondent to deliver responding materials.

(h) Identifying preliminary issues.

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

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

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

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

(m) Estimating the amount of time required for the hearing.

(n) Setting the commencement date for the hearing.

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

and counsel for the parties have jointly proposed a plan to address many of these procedural items, and this Order incorporates much that the parties have settled and some additional technical and procedural matters; accordingly, for the reasons that follow:

THIS COURT ORDERS that

1. The presiding Referee may vary or add to this Order 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.

2. 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. Delivery shall be in machine-readable electronic format; a hard copy may also be delivered in addition to the electronic version.

Definitions

3. For the purposes of this Order and the reasons therefor, unless the context requires a different meaning:

(a) the “Act”, referred to as the “Drainage Act”, means the Drainage Act, R.S.O. 1990 Chapter D.17, as amended.

(b) the “Engineer” means Paul C. Marsh, P.Eng. and EWA Engineering Inc.

(c) the “Town” means The Corporation of the Municipality of Fort Erie, the respondent.

(d) the “Rules” means Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee.

Parties and Representation

4. The applicants are represented by Paula Lombardi, a lawyer with the London office of Siskinds LLP.

5. The Town is represented by Paul Courey, a lawyer in the Tilbury office of Legal Focus LLP.

Exchange of Documentation

6. The applicants shall deliver the applicants’ supporting affidavit or affidavits to the Town on or before Tuesday, January 7, 2025.

7. The applicants shall deliver all relevant documents in their possession and control to the Town on or before Friday, February 7, 2025, to the extent that they have not already been provided with the applicants’ supporting affidavit or affidavits.

8. The Town shall deliver its responding affidavit or affidavits to the applicants on or before Friday, February 7, 2025.

9. To the extent not already been provided with the Town’s responding affidavit or affidavits, on or before Friday, February 7, 2025, the Town shall deliver to the applicants all documentation related to the Point Abino Drain that is in the possession or control of or accessible by the Town, in accordance with subsection 11(1) of the Rules.

10. For the purposes of paragraphs 8 and 9 of this Order, all documentation related to the Point Abino Drain, which is in the possession or control of or accessible by the Engineer, shall be deemed to be in the possession or control of or accessible by the Town.

11. The applicants may deliver any reply affidavit or affidavits to the Town on or before Friday, February 21, 2025.

12. In addition to providing supporting affidavit(s) as contemplated by paragraph 6 above, the applicants will deliver the applicants’ expert’s report to the Town on or before Friday, May 30, 2025.

13. In addition to the responding affidavit(s), as contemplated by 8 above, the Town will deliver to the applicants the Town’s expert’s report on or before Monday, June 30, 2025.

14. The applicants may deliver to the Town a responding expert’s report on or before Tuesday, July 15, 2025.

Examinations for Discovery

15. After all the affidavit evidence has been exchanged, as contemplated by paragraphs 6 to 11 above, if the parties agree to cross-examinations before a court reporter outside of the hearing on the merits, such examinations will occur on Monday, March 31, 2025. Transcripts of such cross-examinations will be provided to the presiding Referee promptly after the completion of such cross-examinations.

16. If there are any disputes about any undertakings given or not given during examinations, motions may be brought on or before Wednesday, April 30, 2025 returnable at the time of the September 17, 2025 case management video conference hearing referred to in paragraph 19 below.

17. Notwithstanding that there may have been examinations before a court reporter outside of the hearing on the merits, parties who have delivered affidavits or an expert’s report will, at the time of the hearing of the merits, call as witnesses each person who has sworn an affidavit or authored the expert’s report. Witnesses to be called during the hearing of the merits will be limited to those who have previously filed affidavits or expert’s reports. Witnesses will be asked to reaffirm or correct their affidavits or expert’s report and then be subject to cross-examination by the other party or parties and questions from the presiding Referee.

Preliminary Motions

18. If either the applicants or the Town intend to bring preliminary motions, such preliminary motion or motions shall proceed as follows:

(a) The moving party’s preliminary motion record or records will be delivered by Tuesday, July 15, 2025.

(b) Responding affidavit or affidavits are to be delivered by Wednesday, July 30, 2025,

(c) Any reply affidavits are to be delivered by Friday, August 15, 2025.

(d) Preliminary motion facta are to be delivered by Friday, August 30, 2025, and

(e) The preliminary motion or motions will be returnable on and argued at the September 17, 2025 case management video conference hearing referred to in paragraph 19 below. A party who has provided an affidavit in support of or in response to a preliminary motion must have the person who signed the affidavit attend the September 17, 2025 case management video conference hearing for cross-examination unless the party notifies the presiding Referee at least seven (7) days before the hearing that the affidavit evidence is not part of their record. Witnesses will be asked to reaffirm or correct their affidavits and then be subject to cross-examination by the other party and questions from the presiding Referee.

September 17, 2024 Case Management Conference

19. There will be a case management video conference hearing on Wednesday, September 17, 2025, commencing at 10:00 am, the purpose of which will be

(a) to give directions for the giving of notice to those who may be affected by the result of this application and establishing a process for giving them an opportunity to participate as a party;

(b) to clarify and correct, if necessary, the name of Fort Erie in the style of cause as set out in the Notice of Application;

(c) to hear motions concerning undertakings given or not given in the course of discoveries;

(d) to hear preliminary motions; and

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

20. The case management conference will be conducted via video conference using the Zoom platform. A day or two before the case management video conference hearing, counsel will receive login credentials via e-mail.

21. If the parties do not attend or are not represented at this hearing, the presiding Referee may proceed in their absence, and they will not be entitled to any further notice of the proceeding. This notice is being given in accordance with the Statutory Powers Procedure Act, R.S.O. 1990, Chapter S.22.

22. No adjournments or delays will be granted before or during the case management video conference hearing except for serious hardship or illness.

23. For the purpose of giving notice of this application to those who may potentially be affected by the result of this application and giving them an opportunity to participate as a party, on or before Friday, August 30, 2025, the Town shall deliver to the applicant

(a) a list of the names and addresses, according to the last revised assessment roll, of the current owners of all lands assessed or awarded allowances for the Point Abino Drain;

(b) the address of the Town office where hearing-related material will be made available for review by members of the public during normal business hours; and

(c) the URL (Uniform Resource Location) for the part of the Town’s website where that material will posted and made available for review by the public.

24. There will be a further case management video conference hearing on a date to be determined during the September 17, 2025 case management video conference hearing, the purpose of which will be

(a) to determine who, amongst those seeking party status, are to be added as parties and to establish a schedule for any added party to provide a position or witness statement and to produce any documentation upon which they intend to rely, including any supporting affidavits;

(b) to amend the Style of Cause of the application to reflect the parties proceeding with the hearing of the merits; and

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

25. Future case management video conference hearings will be scheduled to address:

(a) Establishing an issues list for the hearing of the merits and scheduling pre-hearing production and exchange of documents, including affidavits or witness statements for expert witnesses and affidavits or evidence summaries for other witnesses.

(b) Identifying the number and nature of witnesses to be called by each party, the order in which the parties are to proceed and the witnesses they each will call to give evidence.

(c) Estimating the amount of time required for the hearing of the merits.

(d) Setting the commencement date for the hearing of the merits.

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

Video Conference Protocols

26. In order 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.

27. Case management video conference hearings and the hearing on the merits will be conducted by video conference using the Zoom platform. After each video conference hearing, the presiding Referee shall provide the parties with an MP4 audio-video file of the hearing and a machine-generated transcript. The hearing on the merits may be held in a courtroom in the Welland courthouse (1) if the parties ask that an in-person hearing be held and (2) if the parties or one of them commits to funding the presence of a court reporter during the hearing and the production of a transcript of the courtroom proceedings and the delivery of the transcript to the presiding Referee promptly after the conclusion of the hearing on the merits (because the Attorney General does not provide transcription services for Referee in-court hearings) and (3) so long as a courtroom in the Welland courthouse is available.

Documents and Exhibits

28. 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 CV-21-00013656-0000 (Welland) 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 28(d) above applies mutatis mutandis.

29. At the time of this Order, the following document is part of the record:

Exhibit No.

Notice of Application issued August 19, 2021

30. This list will expand as production occurs and affidavits and expert’s reports are exchanged, as contemplated by paragraphs 6 to 14 of this Order, and any transcripts, as contemplated by paragraph 15 of the Order are delivered.

31. The documents with exhibit numbers will retain their exhibit numbers through the case management hearings and the hearing(s) on the merits of this case. New exhibits will be identified by the next ensuing exhibit number and added to the list as the hearing(s) progress.

32. 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.

33. If counsel or a witness intends to rely upon case law, other than the cases listed in paragraph 29 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

34. 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.

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

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

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

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

Dated at London the 16th day of December 2024.

Andrew C. Wright Acting Drainage Referee

REASONS

1. The Order to which these reasons are attached (the “Order”) is part of an evolving case management and procedural process intended to prepare for a hearing of the merits.

2. Words and phrases defined in the Order have the same meaning when used in these reasons.

Exchange of Documents and Affidavits

3. The parties settled the timetable for exchanging documents and dealing with preliminary motions; and the Order incorporates that consensus.

Engineer’s Documents

4. The Engineer has advised the court that, except for the Final Report, he has made available to the Town the entire contents of his file regarding the Point Abino Drain, hence paragraph 10 of the Order.

Notice to Others Who May be Affected

5. This application is for damages alleged to be attributable to the non-repair of the Point Abino Drain and for an Order compelling the maintenance and repair of the Drain. In accordance with subsection 118(1) of the Drainage Act, damages and costs payable by a municipality for failing to maintain and repair a municipal drain are levied upon the lands and roads assessed for the drainage works. In the usual course, costs of maintenance and repair of a municipal drain are levied upon the lands and roads assessed for the drainage works. The owners of lands assessed for the Point Abino Drain may, therefore, be affected by the outcome of this application, so they should be given notice of this application and an opportunity to participate as a party.

6. Subsection 118(2) of the Drainage Act goes on to provide that the Referee may direct that the whole or part of such damages and costs are to be paid out of the municipality’s general funds if there has been some improper action, neglect, default or omission by the municipality. The owners of lands assessed for the Point Abino Drain thus have an interest not only in whether any damages and costs are to be paid but also whether any such damages and costs are to be charged to the Point Abino Drain or are to be paid out of the Town’s general funds.

7. The parties’ jointly proposed procedural schedule does not provide for giving notice to the owners of land assessed for the Point Abino Drain or giving them an opportunity to participate as a party, so the court will give directions to that end at the September 17, 2025 case management video conference hearing.

8. If there are difficulties with document and affidavit exchange or anything else arising from the Order and these reasons, at the request of either party, a video conference will be convened to deal with it.

Dated at London this 16th day of December 2024.

Andrew C. Wright Acting Drainage Referee