ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE
BETWEEN:
DAVID WHITE
Appellant
- and-
THE CORPORATION OF THE TOWN OF FORT ERIE; and THE CORPORATION OF THE CITY OF NIAGARA FALLS
Respondent
DRAINAGE REFEREE ROBERT G. WATERS
HEARING HELD THE 5th DAY OF DECEMBER 2023
ORDER
A motion for Summary Judgement was heard on December 5, 2023, followed by my written reasons dated February 2, 2024, and supplemental reasons dated February 21, 2024, which I filed with the Superior Court of Justice in Welland pursuant to s. 115 of the Drainage Act, R.S.O. 1990, c. D. 17 which for the purposes of s. 121 of the Drainage Act, R.S.O. 1990, c. D. 17 commences the time in which any decision can be appealed. The parties to the Motion for Summary Judgment could not agree to the terms of an Order arising from my written decision on February 2, 2024, and supplemental reasons on February 21, 2024. A case conference was held on April 16, 2024, to discuss the contents of the Order; I sought further clarification from the parties to the Motion for Summary Judgement on April 22, 2024 and received responses back from the parties to the Motion for Summary Judgment; Although the parties to the Motion for Summary Judgment were ultimately able to agree to the contents of a Draft Order, I felt it necessary to make changes so that the Order better reflects the events leading up to its issuance as well as the contents of my decision; for the reasons issued February 2, 2024 as supplemented by reasons issued February 21, 2024, THIS COURT ORDERS THAT:
The Summary Judgment Motion of the Respondent, the Corporation of the City of Niagara Falls (herein "Niagara Falls") is dismissed;
The Summary Judgment Motion of the Respondent, the Corporation of the Town of Fort Erie (herein "Fort Erie") is dismissed;
The Limitation Period in s. 111 of the Drainage Act, R.S.O. 1990, c. 0.17 is extended to the date when the Statement of Claim was delivered, in accordance with s. 113 of the Drainage Act, R.S.O. 1990, c. D. 17;
The Respondents are liable for all claims by the Appellant for damages incurred on or after September 24, 2013, including any claims related to Catherine White from September 24, 2013 until the transfer of title from Catherine White to David White on November 21, 2017. The Appellant is entitled to damages as against the Respondents for injuries incurred on or after September 24, 2013, subject to any future findings respecting a lack of mitigation by the Appellant;
All claims for damages prior to September 24, 2013 are dismissed;
A trial or continuation of the Summary Judgment Motion shall be held to determine the respective proportionate liability, if any, of the Respondents. The trial or Summary Judgment Motion shall address the following issues, which do not limit the claim for damages:
a. The calculation of income from cropping of the arable lands in the 24-acre parcel at issue, excluding losses attributable to George and Catherine White,
b. The accounting regarding restoration (if any) of farm buildings and ponds,
c. Further accounting of incidental damages claimed,
d. The future assessed costs if the petition of May 2023 proceeds, and
e. The proportionate liability, for damages, if any, of each of the Respondents;
A trial or continuation of the Summary Judgment Motion shall be held to determine the respective liability of the Respondents, which determination would be subject to any applicable lack of mitigation by the Appellant;
The parties to this proceeding shall have discretion as to whether the issues of damages and liability are to be decided at a trial or at a continuation of the Summary Judgment Motion with fresh submissions; and
Costs shall be decided in the event of the cause.
DATED this 6th day of May 2024,
ROBERT G. WATERS Ontario Drainage Referee