ONTARIO SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: White v Niagara Falls (City), 2024 ONDR 2

DATE OF DECISION: 2024-02-02

Court File No.: 16-11326

BETWEEN:

DAVID WHITE Appellant

• and –

THE CORPORATION OF THE TOWN OF FORT ERIE; and THE CORPORATION OF THE CITY OF NIAGARA FALLS Respondents

DRAINAGE REFEREE ) HEARING HELD THE 5^th DAY OF ROBERT G. WATERS ) DECEMBER, 2023

APPEARANCES:

Aird & Berlis LLP Barristers & Solicitors Brookfield Place, 181 Bay St., Suite 1800 Toronto, On. M5J 2T9 Brian Chung – LSO No. 66232Q Lawyer for Corporation of City of Niagara Falls

Paul Courey – LSUC 32630L Courey Law Professional Corporation 18 Queen St. S., P.O. Box 178 Tilbury, On. N0P 2L0 Lawyer for The Corporation of the Town of Fort Erie

Law Office of Samuel Kirwin P.C. 472 Ridout Street North London, On. N6B 2G7 Samuel Kirwin – LSO# 81800K Lawyer for the Plaintiff, David White

REASONS FOR DECISION

1. This matter was commenced by a Notice of Appeal on behalf of David White, Court File No. 16-11326, at Welland, through a form described as Notice of Appeal to Referee, Form 117 (Municipal World Inc. – a corporation which provided forms for various municipal undertakings). The original Notice of Appeal was received by Acting Referee William D. Turville, B.A. LL.B., QC, dated August 10^th, 2012, and was also received by the Council of the Corporation of the City of Niagara Falls (Niagara Falls), the Council of the Corporation of the Town of Port Colborne, the Council of the Corporation of Niagara Region, and the Council of the Corporation of the Town of Fort Erie (Fort Erie).

2. Unusually the St. John’s Marsh Drain impacts four different municipalities described above. Two are directly involved with maintenance of this drain within their boundaries. The drain commences in the City of Niagara Falls at the North end of the watershed near the location of the Appellant’s property on which he is assessed. The Drain proceeds southerly into the Town of Fort Erie to its eventual outlet as a tributary to the Black Creek Drain travelling through the Marsh Drain. The drain crosses Regional Road 25 (Netherby Road) in the Region of Niagara. Additionally in the Fort Erie portion of the drain there are several hectares of land in the watershed located in the City of Port Colborne; hence the involvement of all four jurisdictions.

3. During the period leading to the hearing of this Motion before the Referee for Summary Judgment, David White retained the services of Mr. Terrance Green, Green & Associates, Melissa Brodhurst, a paralegal, Valerie M’Garry, and subsequently as the result of Change of Lawyer due to health issues of Valerie M’Garry, the Law Office of Samuel Kirwin.

4. To provide a brief history, procedural audio conference motions occurred after the retirement of William Turville, before myself on December 12, 2012 and continued February 5, 2013. The matter was to be adjourned ‘sine die’ on the proposal that Mr. Green would proceed to the Tribunal on Mr. White’s behalf (Agriculture and Rural Affairs Appeal Tribunal “AFRAAT”) directed at Fort Erie and Niagara Falls. On December 15, 2014, Green and Associates Law Office requested the matter be returned to the Referee “with the intent to setting a timeline for closure on this issue”. Eventually motions were brought by the City of Port Colborne and the Regional Municipality of Niagara to be removed from this action in October, 2017. As a result of such separate motions by the Corporation of the City of Port Colborne and the Regional Municipality of Niagara on Consent of Counsel for David White, both the Regional Municipality of Niagara and the Corporation of the City of Port Colborne were removed as parties to this action by Referee’s Order dated October 19, 2017:

"subject to their rights of appeal or request for standing on Drainage Reports on the St. John’s Marsh Drain by the Town of Fort Erie and the City of Niagara Falls." (Attached as Schedule “A”)

5. A further Order dated October 19^th, 2017 was granted as a result of the Procedural Hearing on the 19^th day of October, 2017, in which Mr. White was required, as Appellant, to issue a Statement of Claim for damages against Fort Erie and Niagara Falls within 30 days of October 19, 2017, and which Order dealt with further and other procedural matters, including a direction that such pleadings should be brought in 15 days from that date. (Attached as Schedule “B”)

6. Counsel at the time for Mr. White, A. Melissa Brodhurst, of Rideau Legal Services, later pursued an Application before the Agricultural, Food and Rural Affairs Appeal Tribunal (AFRAAT) under Sections 48 and 54 (1) of the Drainage Act, R.S.O. 1990 c. D19 (Drainage Act) as amended, relating to the report of the City of Niagara Falls on its work on the St. John’s Marsh Drain in 2017. After the hearing of the matter before AFRAAT, held on September 18^th, 2018, and after its Decision on February 7^th, 2019. A. Melissa Brodhurst appears to have been suspended by the Law Society of Ontario as a result of lack of cooperation with the Law Society on an investigation in February, 2021.

7. This possible lack of representation left Mr. White in somewhat of a quandary and he brought an Appeal in writing to the City of Niagara Falls received the 3^rd day of January, 2020. As a result of this self-prepared Appeal, the City of Niagara Falls advised the Referee of this issue. This led to the retention of new counsel. As a result of Orders on April 24^th, 2020 and a further Procedural Order on May 29^th, 2020, the matter moved forward with Counsel, Valerie M’Garry acting on behalf of David White. The issue, at that time, was that Ms. Brodhurst had proceeded to the Tribunal without notifying the Tribunal or its staff that she was bound by an Order of the Referee to proceed in a prescribed fashion which would have included a right to appeal the Report of the Engineer for the City of Niagara Falls, on the St. John’s Marsh Drain.

8. Subsequently, the parties have proceeded very slowly, but in the normal course, proceeding towards trial with an Affidavit of Documents previously supplied by the Appellant, his cross-examination and a further Affidavit of Documents ordered by the Referee to be supplied by September 26, 2023, by the Appellant to the Respondents. At this time the Respondents asked that they be granted the opportunity to proceed with a Motion for Summary Judgment in this matter. As a result of the hearing held on the 18^th day of September, 2023, the procedure for such Motion was set out in which the Respondents jointly and/or individually were to deliver a Motion pursuant to the Rules of Practice & Procedure in Proceedings Before the Referee. Documentation in relation to this Motion has been supplied and the matter in accordance with the Order of the Referee, dated the 21^st day of September, 2023, provided for a hearing on December 5^th, 2023.

MOTION FOR SUMMARY JUDGMENT BEFORE THE REFEREE

9. In the Motions of the City of Niagara Falls and the Town of Fort Erie there are two different procedures suggested in the grounds for the Motion. In proposing the course of the Motion Mr. Chung on behalf of the City of Niagara Falls quoted Rule 20.04(2) in the Rules of Civil Procedure, in paragraph (p) of the Motion Grounds requested the Court to grant Summary Judgment if there is no genuine issue requiring trial. Paragraph (q) of the same Motion states:

"Rule 20.01 and 20.04 of the Rules of Civil Procedure Pursuant to Rules 20.01(3) and 20.04(2) of the Rules of Civil Procedure, a defendant may, after delivering a Statement of Defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the Statement of Claim and where the Court is satisfied that there is no genuine issue requiring a trial with respect to a claim, the Court shall grant summary judgment accordingly".

10. The grounds for the motion of the Town of Fort Erie were based on O.Reg. 232/15, Rules of Practice and Procedure in Proceedings Before the Referee generally, and Rule 7 particularly. While it is acknowledged by both parties bringing the motions that given the length of time and the need for resolution of this matter, the idea of proceeding for summary judgment would resolve many of the delays which have occurred in the past number of years.

11. The Referee, while acknowledging this procedure, notes in the Rules of Practice and Procedure in Proceedings Before the Referee, O.Reg. 232/15, paragraph 17, the following:

"17. The referee may consider the Rules of Civil Procedure when determining a procedural matter not expressly provided for in these Rules."

I put the emphasis on "may".

12. The Referee takes the position that he is to be guided by the Rules of Civil Procedure where they are not at odds with the general spirit of the Drainage Act. The Referee is also mindful of his jurisdiction as found in Section 106(1) of the Drainage Act, and 106(3), which I quote:

"106(3) The referee has jurisdiction to entertain and dispose of any interlocutory application relating to any matter otherwise within his or her jurisdiction and his or her order thereon is final."

LACK OF NOTICE UNDER SECTION 79(2) OF THE DRAINAGE ACT

13. In the Motion Record of the City of Niagara Falls, under Grounds for Motion, it is stated:

"(n) Mr. White’s claim is also barred by s. 79(2) of the Drainage Act, which provides that a municipality cannot be held liable in damages by reason of non-repair of the drainage works until service of a notice under s. 79(1) is given, describing with reasonable certainty the alleged lack of maintenance and repair of the drainage works."

Further:

"(o) Mr. White has never delivered such notice and, accordingly, his claim ought therefore be dismissed."

14. Likewise, in the Notice of Motion, Grounds for the Town of Fort Erie, Mr. Courey, in his Motion Record stated in Tab 1, Grounds for Motion, paragraph 3,

"The Plaintiff has not given the required notice upon which to base a claim for damages for the non-repair required by the Act."

15. During the course of submissions on this motion the Motion Record of the Plaintiff/Responding Party to this Motion, David White, through counsel, addressed the issue with regard lack of notice by eliciting a response in paragraph 19 of its Factum which stated,

"On or about August 10^th, 2012, a lawyer named Terrance Green prepared a Notice of Appeal to the Referee that was addressed to the Council of the Corporation of Niagara Falls. Mr. Green represented David White who was the named Appellant. The following is written on the Notice of Appeal “Blockage of St. John’s Drain and the drainage system leading to St. John’s Drain”."

16. Further in the Factum of David White regarding the Town of Fort Erie, it is stated in paragraph 22, "Another Notice of Appeal was prepared by David White on August 10^th, 2012. The Notice was received in the Fort Erie’s clerk’s office on August 16^th, 2012, as evidenced by the Clerk’s stamp. The following is written on the Notice of Appeal, “Blockage of St. John’s Drain and the drainage system leading into St. John’s Drain”."

17. The form used by Terrance Green on behalf of Mr. White for each municipality was a Municipal World form described previously. The issue raised during the course of argument by Mr. White’s counsel on the motion of Fort Erie and Niagara Falls was that this Notice, (a) reached the Clerk; (b) described the issue with regard to repair with enough particularity that the municipality could proceed with a repair.

18. This leads to the further question, was there a form of notice that could be used or was the notice a requirement of the party complaining to describe with particularity what needed to be fixed. Evidence that the notice was received is found in that Notices of Appearance were filed. This assumes that the Clerk in receiving the Notice of Appeal and retaining counsel met the requirements of Section 79(2) in that retaining counsel surely must have been retained on the provision of the instructions by Council, which, in turn, would have been directed to Council by the Clerk at the time of the Notice being received.

19. The form used by Mr. Green was not, in the estimation of the Referee, a form specifically created for notice of non-repair. In fact, in looking at legislation of the time, and in the forms brought about by Regulation 274 R.O. 1990, there was no specific form in that regulation that could have brought about notice to the municipal clerk of the non-repair of a drain. In fact, one of the forms which was used at the time was that created by the Municipal World, described previously, was confusing in that it also provided with further wordage which states,

"Take notice of the appeal of the undersigned to the referee because of dissatisfaction with the report of the engineer on grounds that [it does not comply with the requirements of the Drainage Act]".

20. This obviously led to confusion to a certain extent, however a review of the documentary evidence before the Referee leads the Referee to believe that the words regarding "blockage in the St. John’s Drain", which was misnamed evenutally led to procedural hearings before the Referee dealing with the accusation that there was lack of repair on the St. John’s Marsh Drain. This culminated in the procedural hearing on October 17^th, 2017, before the Referee.

21. Parties should be aware that on a search of the Central Forms Repository, interestingly enough, there was a form created in November of 2022 which reads as "Notice of Request for Drainage Maintenance and/or Repair".

22. No other search indicated any form, but it should be noted further that under the Legislation Act, 2006, S.O. 2006 c. 21, schedule F, there is discretion related to deviations from a required form, and although the form involved from the Municipal World was not mandated. This section reads as follows:

"84. Deviations from a form whose use is required under an Act does not invalidate the form if, (a) they do not affect the substance, and are likely to mislead; and (b) the form is organized in the same or substantially the same as the form whose use is required."

In other words, it can be taken that the form although it represents a deviation from a format that could properly be used, (a) there were no forms existing in the legislation at the time; and (b) the use of the Municipal World form was unlikely to mislead any party who is party to this matter. The Referee, not having addressed the Legislation Act at the hearing of this motion, has asked for separate submissions regarding the same. Supplementary comments will be provided by the Referee as to the application of the Legislation Act in 30 days from this decision.

23. It was raised by Mr. White’s counsel that on cross-examination of the municipality’s Niagara Falls’ Drainage Superintendent, at the time the matter came forth, was unaware of the existence of the St. John’s Marsh Drain within its boundaries. Equally Mr. White, through prior counsel, could be forgiven for not being totally cognizant of the requirements given the legislation’s lack of forms alleging lack of repair. It should be further noted that in the Factum of David White, paragraph 48, it is stated, "It is also noted that Ontario’s Open for Business Act, 2010, provided that s. 79(1) was amended by striking out “in writing”. It is not clear that any decision of the Court of the Drainage Referee has addressed the impact of this amendment on notice, so it is respectfully submitted that this change means that s. 79 notice is no longer necessary required to be in writing. (Open for Business Act, 2010, S.O. 2010, c. 16, s. 65(29))

24. Contrarily Mr. White, through counsel, raised a position that, "As stated in Section 79 (1) upon 45 days’ notice served by any person affected by the condition of drainage work". This indicates to the Referee that a party can be affected by the condition of drainage works while not owning the property. This, of course, limits damages claimed, but does not prevent the notice being given to the Clerk of the local municipality. For example, Section 80 (1) deals with drainage works obstructed by a dam, low bridge, fence, washing out of a private drain or other obstruction for which the owner or occupant of land adjoining the drainage works is responsible, so that the free flow of water is impeded thereby. In such situations, persons owning or occupying the land shall upon reasonable notice sent by the Council shall remove such obstruction, etc. In addition, regarding the issue of particularity, those injured can rely on the fact that the Drainage Superintendent or the municipality has had the notice come to its attention. The Drainage Superintendent’s position in this situation should be somewhat strict in that he or she should make the inquiries and not simply sit back and wait for more particulars before removal of, for example, a "blockage".

25. It should be noted that Fort Erie in response to the Appeal of David White appointed John Kuntze of K. Smart & Associates Ltd. who provided a report to Council in which he states, "I will outline the present status of St. John’s Marsh Drain and other drainage issues within the St. John’s Marsh Drain watershed that you have brought to my attention." This report was dated May 2^nd, 2012. (Motion Record Fort Erie Tab 2, Affidavit of Troy Davidson Exhibit I)

26. In a further report from Henri Bennemeer, Drainage Superintendent of Port Colborne, on March 1^st, 2013, gave his opinion as follows, "In my opinion it is the duty of the City of Niagara Falls to ensure that St. John’s Marsh Drain is in a proper state of repair and ensure the current Engineer’s report reflects a fair and equitable assessment." Further in this report it is Mr. Bennemeer’s opinion, "although we know that Mr. White should only have to request from the City of Niagara Falls that they undertake maintenance of the St. John’s Marsh Drain, we are also aware that a new report should be prepared, at the very least due to the fact that there are lands in Port Colborne via Schihl Drain Watershed, for example, that are not assessed." He goes on to state, "I believe a report under Section 78 and possibly Section 4 (new branch drain) Chapter D17 of the Drainage Act, R.S.O. 1990 is required before maintenance can be undertaken." It should be emphasized that Mr. Bennemeer was the Drainage Superintendent for the City of Port Colborne which, at that time, was under appeal by Mr. White as was the Regional Municipality of Niagara. This report in the form of an email was sent to all parties’ counsel in the Appeal at that time. (Fort Erie Motion Record Affidavit of Troy Davidson Tab 2, Exhibit J)

27. After the transfer of this matter to this Referee from Acting Referee Turville, a procedural conference was held between all of the parties at that time, being Mr. White’s counsel, Green and Associates Law Offices, Sullivan, Mahoney LLP, Counsel for the Regional Municiplaity of Niagara, Niagara Falls’ Legal Department and Courey Law Professional Corporation on behalf of Fort Erie, and finally, Henri Bennemeer, Drainage Superintendent for Port Colborne. That procedural hearing dated the 12^th day of December, 2012, and continued on February 5^th, 2013, was not followed up by a procedural order by this Referee, although an Order was to be drafted by one of the counsel on consent. There is no doubt in the Referee’s mind that the parties, at that time, had adequate knowledge of the issues with regard to the "blockage" of St. John’s Marsh Drain, and further the Referee’s comments with regard to the commencement of liability will confirm the adequacy or inadequacy of notice provided pursuant to Section 79 of the Drainage Act. (Description of the two Procedural Hearings contained in the Referee’s letter of February 4, 2014 found in Motion Record The Corporation of the City of Port Colborne and The Regional Municipality of Niagara Affidavit of Henri Bennemeer Exhibit I)

PROCEEDINGS INSTITUTED BY NOTICE UNDER SECTION 111(1) of THE DRAINAGE ACT R.S.O. 1990, c.D. 17

28. In the Factum of the City of Niagara Falls, it is the City’s interpretation, as set out in paragraph 38 of the Factum, "In addition to notice required under s. 79, there is a further requirement to give notice under s. 111 of the Drainage Act. That section provides, with a heading:

Proceedings Instituted by Notice:

111(1) Proceedings for the determination of claims and disputes and for the recovery of damages, or for an order directing or restraining the doing of any act or thing shall be instituted by serving ten clear days notice setting forth the grounds of the claim upon all persons concerned.

Notice filed in Superior Court of Justice

(2) A copy of the notice with an affidavit of service thereof shall be filed with the local registrar of the Superior Court of Justice for the area in which the initiating municipality is situate, and the notice shall be filed and served within two years from the time the cause of complaint arose."

29. The Referee is aware from the record that then counsel for Mr. White, Rideau Legal Services, A. Melissa Brodhurst, by letter November 27^th, 2017, served on the City of Niagara Falls to its counsel, Kenneth Beaman, to the Town of Fort Erie , to its counsel Courey Law Professional Corporation through Paul Courey, and the Referee, a Statement of Claim, which appears to be dated November 27^th, 2017. This Statement of Claim was completed to comply with the Order of the Referee dated 19^th day of October, 2017. In that Order, Statement of Claim for damages was to be served within 30 days of the Order (paragraph 1 of Referee Order, Schedule B, October 19^th, 2017). This Statement of Claim being the work of Melissa Brodhurst, unfortunately was undated except for the covering letter sent to the Respondents.

30. The Case History Report from the Superior Court of Justice, which all parties have received indicates, that on January 2^nd, 2018, a Statement of Claim was filed. It was further required in the Order of the Referee that Statements of Defence were to be served 30 days after the service of the Statement of Claim for damages, and the record of the Referee indicates that both Statements of Defence were received by him.

31. In the Factum of Niagara Falls, paragraph 40, it’s stated, "On cross-examination, Mr. White admitted that he has never satisfied the notice requirement under s. 111 of the Drainage Act."

I quote from the cross-examination of the parties in this motion of Mr. White from a transcript:

Questions 269 to 270:

"Q. Am I correct that you have not given the City of Niagara Falls or the Town of Fort Erie the notice required in Section 111 of the Drainage Act?

A. As far as I know."

It would appear that Mr. White had poor communication with his paralegal at the time.

32. The question then arises whether the notice was filed and served within two years from time the complaint arose. The difficulty with this matter is that it wasn’t made clear to the Respondents, as well as the Referee, who would be the parties to be served until the consented Order of October 19^th, 2017. It is also somewhat disingenuous of the moving parties to ask the Appellant regarding the particulars of such claim when the claim had actually been served and filed. Regarding the issue of two years from the cause of action, the Referee notes the difficulty in proceeding with this matter with the change of solicitors in the year 2016, and the general confusion with regard to the who should be a party to the action and the procedural order that followed.

LIMITATION PERIODS FOR NOTICE UNDER SECTION 79(2) AND SECTION 111 OF THE DRAINAGE ACT

33. I would like to comment on the following cases put forth by Niagara Falls and their applicability to this particular matter. These are; Hud vs. West Nipissing, 2011 ONSC 6294; Lakeshore (Town) (RE), 2015 ONAFRAAT 22. It should be confirmed that the Town of Fort Erie has also adopted the Book of Authorities of Niagara Falls. The cases that are cited by the counsel for White in their Book of Authorities index which were useful to the Referee are the decisions, St. John’s Marsh Drain 2017 (Re), 2019 ONAFRAAT 2, of further of interest is Ward v. Southwest Middlesex (Municipality), 2013 ONSC 4975 and Wilson v Harwich, 1999 ONDR 5. In addition, the Referee is aware of a decision of Referee O’Brien dated 1997 cited as Courtney v Huron (Township) 1997 ONDR 2 which I will discuss in relation to the issue of limitations.

34. On behalf of David White, counsel put forward in its Factum in relation to Niagara Falls, in paragraph 50, "The first notice requirement can be considered to have been met since the Notice of Appeal was addressed to the head of Niagara Falls. It is apparent that the Notice of Appeal was acknowledged by Niagara Falls since a Notice of Appearance was prepared."

35. In paragraph 51 of this Factum, it is acknowledged as follows: "The second requirement, namely that notice be given by ‘a person affected by the condition of the drainage work’ can be considered to have been met since the farm is located within the limits of the Drain’s watershed area." Mr. White may not have had legal title to the farm when the Notice of Appeal was given to Niagara Falls but it is requested that this Court find that he was still a person affected by the condition of the Drain since he was living at the farm at that time." Further, in paragraph 52 of Mr. White’s Factum in this matter:

"It is respectfully submitted that a person who lives at a property can be a “person affected”, such that they ought to be allowed to give Section 79 Notice. This should not be construed as an argument that a non-owner should be entitled to damages for non-repair, as Section 79 specifically states that, “The Municipality is liable in damages to the owner”. As such it is submitted that David ought only to be entitled to recover damages for non-repair of the Drain that were incurred after September 24^th, 2013, which is the date he obtained legal title to the farm."

36. Further, with regard to notice pursuant to Section 111 of the Drainage Act, that David White, through his counsel, Melissa Brodhurst, in 2017, brought a Statement of Claim against the Municipality. If there is some confusion with regard to the date it occurred in this matter, the Referee acknowledges that since one of the Orders on October 17^th, 2017, was based On Consent, the parties involved were required to provide to the Referee, their consent to its form or to suggest any proposed amendments. This led to a delay in delivery of the Order of October 17^th, 2017 to October 26^th, 2017. When this occurred, counsel for Mr. White obtained the consent of the Respondents and granted the extension for their own filing and the filings of Statements of Defence. Such Statement of Claim meets the requirements of Section 111 of the Drainage Act.

37. I have read with approval the Decision of Justice H.A. Rady in Ward v Southwest Middlesex (Municipality) 2013 ONSC 4975. This case distinguished the Hud case after a detailed review of all the provisions in prior Drainage Acts with regard to Section 111 and its predecessors. The argument put by the Plaintiff in that case was that Section 111 was not a limitation period but a directive only and the failure to comply with does not result in a dismissal. They further submitted that the limitation period only applies to actions brought under the Drainage Act and, in particular, proceedings before the Referee. After extensive discussion and the Decision, Justice Rady states as follows (paragraph 83),

"the issue is whether S. 111 applies to claims in the Superior Court? Section 111 is broadly worded providing that no proceedings for the determination of claims and disputes for recovery of damages shall be brought unless certain steps are taken. At first blush the language would seem to encompass any claim brought in whichever form, however, while those terms are not defined in the Act they clearly track the language of S. 106, setting out the powers of the Referee."

After discussion of the law with regard to headings in legislation, Justice Rady found as follows (paragraph 88):

"With those principles in mind, I have concluded that the limitation period contained in s. 111 of the Drainage Act applies to proceedings before the Referee and not before the Superior Court."

(paragraph 89)

"This conclusion is strengthened by the language of ss. 119 and 120 which permit the transfer of proceedings between Tribunals or from the Superior Court to the Referee, but only if the action was commenced in compliance with the limitation in the Drainage Act."

Justice Rady found in paragraph 96 with regard to Section 45 of the Limitations Act,

"Therefore the applicable Limitation Period is s. 111 of the Drainage Act. The specific provision prevails over the general and therefore Section 45 does not apply."

The final comment by Justice Rady was (paragraph 98),

"Finally, the application of s. 113 is not before the Court."

38. Referee O’Brien quoted in Courtney v. Huron cited above with approval, Wigle v. Townships of Gosfield South and Gosfield North (C.A.) Ontario Law Reports 1904 (Vol. VII) page 302. In that case, and I quote,

"But if it should be said that the Limitation Act is confined to actions and is inapplicable to claims such as the present then Sec. 438 of the Municipal Act applies which provides that such claims even a case of continuation of damage shall be made within one year from the time when the cause of action arose or became known to the claimant."

It goes on to state:

"But the new Section 93 is made especially applicable to all claims in or consequent upon construction, as well as claims for maintenance or want of repair, and indeed all sorts of damage claims and the limitation in all damage claims cases is now by that section, two years."

Further in this decision, it states:

"I think, however, it is established by Darley Main Colliery Co. v. Mitchell (1886) 11 App Cas 127 that the damage or injury, whenever it occurs is the cause of complaint, in such cases, and that a new action might have been brought for every new injury."

39. In this case, Mr. Courtney pleaded in his written submissions for special consideration to be given by the Referee to his claim pursuant to Section 113 of the Drainage Act. Section 113 of the Drainage Act reads as follows:

"The Referee may, where he or she considers it proper, extend the time otherwise limited for appeals or other proceedings." R.S.O. 1980, c. 126, s. 113

Referee O’Brien states:

"The Referee is of the opinion that this section grants broad discretionary authority to the Referee to extend time on limitations for appeals when “he or she considers it proper”. This discretion must be exercised with restraint but it is available in circumstances where equity or natural justice concerns clearly demand that the normal rule be set aside."

Referee O’Brien went on to rely on Section 113 to extend the time for claiming damages to a date extending two years prior to the launching of that particular case.

40. In addition to the somewhat misconstrued Statement of Claim of A. Melissa Brodhurst, when Ms. Brodhurst vacated this matter and Ms. M’Garry came on after a number of procedural orders, there was another procedural Order dated the 22^nd day of December, 2022. This was only to allow an amendment of the Brodhurst Statement of Claim which Order, I attach as Schedule “C”, and which Order is further the basis of the claim under Section 111.

41. It is somewhat confusing to this Referee that the claim made through a Statement of Claim and on which both Niagara Falls and Fort Erie filed Statements of Defence was not viewed as a claim under Section 111 of the Act, and the Referee further, in relation to Referee O’Brien’s comments regarding Section 113 of the Drainage Act, allows his own extension time for issuing and serving such claims to that which occurred in this matter.

42. Findings:

43. Lack of Notice under Section 79(2) of the Drainage Act: I find that notice in this

matter, given the lack of forms at the time, and the situation with the Open for Business Act and proceedings which occurred after 2012, that adequate notice was given under Section 79(2) of the Drainage Act.

2. Proceedings instituted by notice under Section 111(1) of the Drainage Act, R.S.O.

1990, c. D17: I find that the Statement of Claim described in paragraph 29 of these reasons meets the requirement of Section 111 of the Drainage Act and is further buttressed by the Consent Order used to allow an amendment of the Brodhurst Statement of Claim attached as Schedule “C” of the Referee dated December 22^nd, 2022.

3. Limitation Periods for Notice under Section 79(2) and Section 111 of the Drainage

Act: For reasons provided herein and in accordance with the Referee’s discretion in Section 113 of the Drainage Act, all claims by David White for damages are allowed for the period after September 24, 2013, including any claims related to Catherine White from September 24, 2013 until the transfer of Catherine White on November 21^st, 2017. All claims prior to September 24, 2013, are dismissed, it being understood that the only notice given in this matter was through David White.

WHAT ARE DAMAGES IN THIS MATTER AND BY WHOM AND TO WHOM ARE SUCH DAMAGES PAYABLE

43. In the Factum of Fort Erie, in relation to its analysis and law, paragraph 21 states, "To succeed in a claim for non-repair, meaning failure to maintain a drain to the specifications in the governing by-law, Mr. White must meet the requirements of Section 79 of the Act as follows:

(a) He must be a person affected by the condition of the drainage works;

(b) He must serve a notice “upon the head or clerk of the local municipality whose duty it is to maintain and repair the drainage works”; and

(c) The notice must “describe with reasonable certainty the alleged lack of maintenance”.

(d) There is no liability before 45 days after the service of the notice.

44. In its Factum, Fort Erie states (paragraph 22), "With respect to (a) above, David White is not a person affected, at least between 1983 and 2013, as he was not an owner of the farm he claims was damaged by flooding."

45. The application of Section 113 relates to a period after which David White gave Notice of Appeal to the Drainage Referee. The Drainage Referee accepts the position of Mr. White that he was a person affected by lack of repair as it was a property owned by his family at that point in time, but it wasn’t until September 24^th, 2013, when Catherine White transferred the property to herself and David John White, presumably as joint tenants. (I do not have a copy of the Transfer). Therefore, for the purposes of this Motion for Summary Judgement, the relevant times extend back to the date at which the appeal was filed by Mr. White, although he was not an owner, but only as an affected person. The damages payable to Mr. White (and possibly to Catherine White) only exist from the date his ownership was acquired. Although the Notice of Appeal to the Referee predates that acquisition of title, and in addition, damages identified in the Section 111 claim brought by Mr. White’s counsel later, A. Melissa Brodhurst, in November of 2017; Section 113 allows me to extend time on limitation for appeals to make it available for circumstances where equity or natural justice concerns clearly demand that the normal rule be set aside.

FORT ERIE AND NIAGARA FALLS REPAIRS

46. In connection with Fort Erie, although issues with regard to the St. John’s Marsh Drain were recognized earlier on, with portions of the St. John’s Marsh Drain located in the Town of Fort Erie, the report of K. Smart & Associates Ltd. dated April 8^th, 2016. The work was not completed until sometime after that with final inspection occurring on January 10, 2020, confirmed by a Certificate of Completion. This results in a partial stoppage of the damage claim provided that the work undertaken in the report of K. Smart & Associates Ltd. dealt with all the maintenance issues required by the drain.

47. At the time, when both matters were proceeding, it was the hope of the Referee that issues regarding the St. John’s Marsh Drain Section 79(2) damages would be resolved with the completion of both reports. The Certificate of Completion for the work undertaken by Spriet & Associates was dated January 25, 2021. The Engineer’s Report itself was dated November 1^st, 2017.

48. Documentation provided in the course of this matter of Summary Judgement Motion was provided by both municipalities at to the effectiveness of the work taken under both Engineer’s Reports on the St. John’s Marsh Drain.

49. Although work on the maintenance of the St. John’s Marsh Drain within the Town of Fort Erie was completed, the issue was raised through the Decision of the Tribunal as to the effectiveness of the repairs or lack of repairs undertaken by the City of Niagara Falls.

50. A further issue arises with regard to the work which could have been undertaken by Niagara Falls in response to the findings of the Tribunal (AFRAAT) Decision dated February 7^th, 2019 relating to Niagara Falls’ Engineer’s Report dated November 1^st, 2017 for the St. John’s Marsh Drain within the lands under the jurisdiction of Niagara Falls. I will address the issue raised by this further but note some of the findings of the Tribunal with regard to the lack of work undertaken by the Niagara Falls are relevant in relating to damages. (St. John’s Marsh Drain 2017 (Re, 2019, ONAFRAAT 2)

ST. JOHN’S MARSH DRAIN 2017 (Re, [2019, ONAFRAAT 2](https://www.minicounsel.ca/oafraat/2019/2))

51. The hearing before the Tribunal was brought about by the Appeal filed by A. Melissa Brodhurst. A full hearing was held on October 29, 2018, pursuant to Section 48 of the Engineer’s Report of Spriet & Associates, John R. Spriet, P.Eng. Spriet & Associates. Mr. Spriet in his testimony accepted the information of the K. Smart report (authored by Neal Morrison dated April, 2016). He gave information with regard to the Niagara Peninsula Conservation Authority (NPCA) and its desire to keep water levels in the Provincially Significant Wetland (abutting the White property) maintained. Mr. Spriet proposed to put an invert of the Newbury Weir 600 millimeters above the invert of the original culvert, which he thinks was the invert of the 1948 drain. Most importantly, "Mr. Spriet indicated that he cannot be certain of the location of the drain on the NPCA lands as the land is flooded and full of vegetation which has grown up over the last 70 years". Mr.Golia, a Drainage Superintendent for Niagara Falls gave evidence that when the work was done, the following needed to occur. The roadside ditch along the Willow Road was to be graded to give Mr. White some relief. "Once the drainage works outlined in both the Spriet report and the K. Smart report were done, he would review the situation along Willow Road."

52. Under its findings the Tribunal stated as follows, "The Spriet report recommended that the drainage ditch wholly within the NPCA lands, known as the 1948 St. John’s Marsh Drain, be abandoned. The evidence of Mr. Spriet was that this drainage ditch cannot be found. It is underwater. He went to state that this drainage ditch is on the NPCA wetlands and to use his words one would have to wear hip waders and feel around for it, if you could find it." This finding of abandonment is allowed under Section 19 of the Drainage Act.

53. Finally, the Tribunal stated, "No explanation was offered as to why both municipalities did not jointly hire an engineer to evaluate and prepare a report for the entire drain. Previous reports were prepared by one firm, analyzing the entire drain to determine a suitable solution given all the facts. One report would eliminate dual procedures for administration, assessments of costs, construction administration, etc."

54. The Tribunal went on to say, "In an ideal situation, the municipalities would have a report prepared for the entire watershed of St. John’s Marsh Drain and that report would analyze gradient capacity and the need for drainage while taking into consideration environmental constraints for a Provincially Significant Wetland. Those things can be accomplished in the future when new reports are required."

55. Finally, the findings of the Tribunal were as follows, "It is beyond dispute that Mr. White suffers extensively from water drainage issues to the point of negating any agricultural potential of his lands. Furthermore, the weir will aggravate these problems by contributing to flooding the lands which abut the conservation lands."

"The municipalities that are responsible for the St. John’s Marsh Drain have ignored their duty to maintain an important part of their infrastructure for far too many years. This has resulted in environmental changes, some of which can be considered positive such as the NPCA wetlands and others which can be considered to have devalued property, such as former farmland becoming marshes. This can be compared to allowing a road to deteriorate to such an extent that not only is it unusable, but in places one cannot even find it."

"No explanation was offered as to why both municipalities did not jointly hire an engineer to evaluate and prepare a report for the entire drain". (St. John’s Marsh Drain 2017 (Re, 2019 ONAFRAAT 2)

56. Under findings the Tribunal stated "The municipality should be aware of Section 74 of the Act which in part states, ‘…drainage works by local assessment, shall be maintained and repaired by each local municipality through which it passes…’ and Subsection 79(1) and 79(2) which deal with powers to compel repairs and liability for damages. Appeals of this matter would be subject to a separate hearing and are not part of this appeal."

57. It is obvious that the City of Niagara Falls in failing to do its maintenance as described in the decision of the Tribunal for far too many years, has, in essence, fundamentally changed the nature of this drain. There were numerous attempts by Mr. White for self-help which only exacerbated this situation. Had timelier work been done by the municipality, the problem may not have reached the severity that brought about this Appeal.

58. Throughout this matter, the municipalities, both Fort Erie and to a greater extent Niagara Falls, have pursued Mr. White to file a petition under the Drainage Act, which he eventually did in May of 2023. However, I note that throughout the documentation received, there was a push to have Mr. White complete a Petition without a comparable push to do maintenance on the drains in both municipalities, but more importantly, in Niagara Falls.

59. Fort Erie, for its part, attempted to deal with the issues around Willow Road, which I will describe in more detail, but it should be noted that Fort Erie was willing to work with Mr. White while acknowledging there is a jurisdictional issue with regard to where Willow Road is located, i.e. in Niagara Falls or in Fort Erie, but in looking at the long saga involved in this matter, both Niagara Falls and Fort Erie could have had their Drainage Superintendents provide for a petition which would have relieved the problems of Mr. White, yet Niagara Falls was unwilling to do this.

60. I refer to the Motion Record of Fort Erie, and more particularly the Affidavit of Troy Davidson, sworn October 16^th, 2023. (Motion Record Fort Erie Tab 2). In that affidavit, after describing various attempts by Niagara Falls to have Mr. White sign a petition, which Mr. White appeared to avoid because of concerns regarding costs, at various times Niagara Falls expected a petition from Mr. White which did not occur. In such situation, in paragraph 15 of Troy Davidson’s affidavit it is stated, "No petition from Mr. White was forthcoming so FE (Fort Erie) petitioned for an outlet for Willow Road by signature of the Road Superintendent. Although this is a townline road, there is an agreement between FE and NF (Niagara Falls) that FE maintains the road. FE was attempting to cut off flow from the north side of Willow Road and direct it to the east. A copy of this correspondence advising NF of the fact is attached as Exhibit “E”." (paragraph 16) "NF declined to participate in that petition. A copy of the correspondence attached."

This, according to Troy Davidson, brought about the Notice of Appeal to the Referee (Affidavit Paragraph 7) "White, apparently in response to that decision, filed, via his counsel a ‘Notice of Appeal to Referee’…."

61. Having found that David White is entitled to damages after September 24, 2013, subject to issues raised by the Respondents as to his lack of mitigation; the Claim raised by his prior counsel for damages from 1983 until 2013 is no longer valid. Therefore the Statement of Claim in November, 2017 which, I assume, includes damages for loss of income of $1,248,420.44 and for costs of restoration to pond on the White land caused by flooding and erosion of $1,777,971.00 together with incidental damages of $40,500.00 are no longer relevant as they relate in a large part to the ownership of George and Catherine White. Similarly, the claim on consent filed with the Referee contains the same claim for damages but with considerable amendments including the removal of Port Colborne and the Niagara Region from the Style of Cause (see Referee’s Order November 3, 2022, Schedule C).

TRIAL OF THE ISSUE OF DAMAGES

62. The purpose of this motion is to narrow issues between the parties, which it has done, however a trial of the issue of damages payable if any, will need to proceed. The following will need to be addressed in such trial:

(a) A calculation of income from cropping of the arable lands in this 24 acre parcel

excluding losses attributable to George and Catherine White.

(b) An accounting regarding restoration (if any) of farm buildings and pond.

(c) A further accounting of incidental damages claimed.

(d) Future assessed costs if the petition of May 2023 proceeds.

63. The Referee gives the following suggestions, while not limiting the nature of the claim for damages. Regard should be had to cropping yields for the Niagara Falls and Fort Erie agriculturally productive areas such as income from wheat, corn and soya beans; as well as pasture rent or haying revenue, all of which should reflect input and custom harvesting expenses. These should be estimates or actual remedial expenses with regard to incidental claims mentioned in the Statement of Claim. While not dissuading parties of an in-person trial, a continuation of the process in this motion might be a cost saving for all concerned.

TRIAL OF THE ISSUE OF LIABILITY

64. There should be a further trial of the issue of the respective liability of Niagara Falls and Fort Erie including, where applicable, the lack of mitigation undertaken by Mr. White (including delays caused by his self-help in altering a watercourse entering NPCA lands). To this end, without the Referee providing an actual apportionment of liability, the Referee finds the following facts relating to this issue, which he hopes will be of aid to the parties in negotiating and addressing the issue, are set out below.

65. Through the Motion for Summary Judgement various positions have been put forth regarding liability. In order for the Referee to apportion liability; the Referee suggests that given his decision from when damages should flow issues regarding sufficiency of notice need not be addressed. What should be addressed are:

(a) Now that maintenance has been done, the volume of reduced flow;

(b) Abandonment of the Drain on the NPCA lands. Could it have been addressed by a

clean out on NPCA lands earlier.

(c) Fort Erie’s attempts to clean out Willow Road Drains and Niagara Fall’s rejection of

Fort Erie’s petition. Does this include drainage works on the White property?

(d) Should Mr. White have agreed to a petition to mitigate his damages before the

decision of AFRAAT to abandon the St. John’s Marsh Drain on NPCA property.

(e) Given that Mr. White has signed a petition what support will be forthcoming from

Fort Erie and Niagara Falls if other parties in the area requiring drainage oppose the petition?

(f) What liability, if any, should flow from NPCA’s unwillingness to agree to a repair /

maintenance within its wetlands, and to whom it should be attributed as NPCA is not a party to this hearing?

66. The Referee suggests that given the extensive information before him, the apportionment of liability could be decided with the provision of argument through a continuation of this motion. However, proceeding with a Trial of the Issue is left to the discretion of the three parties to this motion.

67. Costs to be decided in the event of the cause.

DATED this 2^nd day of February 2024.

Robert G. Waters Ontario Drainage Referee

SCHEDULE 'A'

Court File No. 16-113 2 6

ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE

REFEREE ROBERT G. WATERS

THE 19TH DAY OF OCTOBER, 2017

BETWEEN:

DAVID WHITE APPELLANT

• and -

THE CORPORATION OF THE CITY OF PORT COLBORNE; THE CORPORATION OF THE TOWN OF FORT ERIE; THE REGIONAL MUNICIPALITY OF NIAGARA; and THE CORPORATION OF THE CITY OF NIAGARA FALLS RESPONDENTS

O R D E R

ON Motion from the Corporation of the City of Port Colborne and the Regional Municipality of Niagara and on hearing from Counsel for the Corporation of the City of Port Colborne, the Regional Municipality of Niagara, the Corporation of the Town of Fort Erie, the Corporation of the City of Niagara Falls and the Appellant, David White, respondent to this Motion:

THIS COURT ORDERS THAT

1. The Regional Municipality of Niagara and the Corporation of the City of Port Colborne be removed as parties to this action, subject to their rights of appeal or request for standing on drainage reports on the St. Johns Marsh Drain by the Town of Fort Erie and the City of Niagara Falls.

2. There shall be no costs granted against the Appellant/Respondent to this Motion for the removal of both these parties.

DATED this 19^th day of October 2017.

Robert G. Waters Ontario Drainage Referee

SCHEDULE 'B'

Court File No. 16-113 2 6

ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE

REFEREE ROBERT G. WATERS

THE 19TH DAY OF OCTOBER, 2017

BETWEEN:

DAVID WHITE APPELLANT

• and -

THE CORPORATION OF THE TOWN OF FORT ERIE and THE CORPORATION OF THE CITY OF NIAGARA FALLS RESPONDENTS

O R D E R

AT a Hearing of the Appellant David White through his Counsel Melissa Broadhurst and from Counsel for the Corporation of the Town of Fort Erie and Counsel for the Corporation of the City of Niagara Falls;

THIS COURT ORDERS THAT;

1. A Statement Claim for Damages under the Drainage Act shall be served by the Appellant within thirty (30) days of this Order upon the Respondents.

2. The Statement of Defence of the Respondents shall be served thirty (30) days after service of the Statement of Claim for Damages.

3. The Corporation of the City of Niagara Falls, in addition to the regular procedure on reports, shall serve the Appellant with its report; provide a copy to the Referee, together with and using the normal procedures under s.78 of the Drainage Act of a Report which is commissioned in relation to the St. John's Marsh Drain.

4. The Corporation of the Town of Fort Erie shall keep the Appellant and the remaining parties apprised of any work to be done in the Town of Fort Erie pursuant to its Report dated the 8^th day of April, 2016.

5. The Appellant, David White, shall have forty (40) days from the date of this Order to appeal, if he so desires, the report of K. Smart Associates Limited dated April 8^th, 2016 pursuant to s. 47 and to provide notice to the Court Clerk. This provision of this Order may be held in abeyance at the Referee's discretion upon confirmation of notice having been given to the Appellant.

6. The Appellant shall have the usual period of appeal to appeal the Corporation of the City of Niagara Falls Drainage Report forty, being (40) days after notice is sent, pursuant to s. 40 and s. 41 of the Drainage Act.

7. Any motion to amend the pleadings is to be brought within fifteen (15) days.

8. Service of reports of experts are to be used at trial to be delivered ninety (90) days before trial.

9. Responding reports to be served sixty (60) days before trial.

10. Examinations for Discovery, if any, to be completed at least forty-five (45) days before trial.

11. Undertakings from such Examinations For Discovery, if any, to be answered within thirty (30) days before trial.

12. Liability and damages are to be determined at trial. Costs of this motion are in the event of the cause.

DATED this 19^th day of October 2017

Robert G. Waters Ontario Drainage Referee

SCHEDULE 'C'

Court File No. 16-113 2 6

ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE

REFEREE R. WATERS

THURSDAY the 22^nd of December, 2022

BETWEEN:

DAVID WHITE Plaintiff

• and -

THE CORPORATION OF THE TOWN OF FORT ERIE and THE CORPORATION OF THE CITY OF NIAGARA FALLS RESPONDENTS

ORDER

1. The Statement of Claim of the Plaintiff herein, as originally produced, is hereby amended so as to read as attached hereto as Appendix "A";

2. The Defendants shall have a period of 14 days from the date of this Order in which to amend their Statements of Defence, if they deem it necessary;

3. The style of cause hereafter shall be as set out in this Order, without inclusion of or reference to the parties previously removed by Order of the Referee dated October 19, 2017;

4. Examinations for Discovery shall be undertaken at a central location, being the offices of the official examiner in Welland, Ontario, rather than in several separate municipalities; such examinations for discovery shall be conducted in person and, to the extent possible, sequentially so as to minimize inconvenience to all concerned;

5. The Statement of Claim as amended hereby and attached hereto, shall effectively replace the Notice of Appeal/Application as delivered by the Plaintiff personally, which is now moot.

6. The Affidavits of Production of the Respondents shall each be served on the Plaintiff on or before Tuesday, the 28th of February, 2023.

7. Examinations for discovery shall commence, in accordance with paragraph 5, above, before April 28, 2023.

8. The Order of the Referee of March 12, 2021 is hereby varied accordingly.

9. The trial of this action shall be scheduled as early as practicable in conjunction with the Trial Co-Ordinator at Welland.

Dated at Strathroy, Ontario this 22^nd day of December, 2022

Robert G. Waters Ontario Drainage Referee

Appendix “A”

Court File No. 16 11326

ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE (under the Drainage Act, R.S.O. 1990, c. D.17 s.67)

BETWEEN:

DAVID WHITE Plaintiff

-and-

THE CORPORATION OF Tl IE CITY OF PORT COLBORNE, THE CORPORATION OF THE TOWN OF FORT ERIE~~, THE CORPORATION-0F~~ THE REGION OF NIAGARA AND THE CORPORATION OF THE CITY OF NIAGARA FALLS Defendants

STATEMENT OF CLAIM

TO THE DEFENDANTS

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiff. The claim against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a statement of defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the plaintiff's lawyer or, where the plaintiff does not have a lawyer, serve it on the plaintiff and file it, with proof of service in this court office WITHIN TWENTY DAYS after this statement of claim is served on you, if you are served in Ontario,

If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your statement of defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days.

Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defend in Form 18B, prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your statement of defence.

IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.

IF YOU PAY THE PLAINTIFF'S CLAIM, and $5 and $5,000.00 for costs within the time for serving and filing your statement of defence, you may move to have this proceeding dismissed by the court. If you believe that the amount claimed for costs ls excessive, you may pay the plaintiffs claim and $400.00 for costs and have the costs assessed by the court.

TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it has not been set down for trial or terminated by any means within five years after the action was commenced unless otherwise ordered by the court.

Date: ----------------- Issued by: ----------------- Local Registrar 102 East Main Street, Welland, ON L3B 3W6

TO: The Corporation of the City of Niagara Falls, 4310 Queen Street, Niagara Falls, Ontario L2E 6X5

AND TO: The Corporation of the Town of Fort Erie, Gibson Centre, 1818 Petit Road1 Fort Erie, Ontario L2A5M4

CLAIM

1. The Plaintiff claims:

a) Damages for loss of income in the amount of $1,248,420.44;

b) Costs for Restoration and pond of on Plaintiff's land affected by flooding and erosion in the amount of $1,777,971.00;

c) Cost of replacement of drinking water system In the amount of $7,500.00;

d) Costs of a new well for livestock in the amount of $5,000.00;

e) Costs for repairs of the stress cracks on the Plaintiff’s house foundation in the amount of $28,000.00;

f) Costs of this claim at a substantial indemnity rate; and,

g) Any further relief that this Honourable Court will allow.

THE PARTIES:

2. The Plaintiff, David White, is an individual who resides at 5981 Willow Road, Stevensville, in the Province of Ontario.

3. The Defendant, The Corporation of the Town of Fort Erie (known herein as "the Town" of Fort Erie”) is a Municipal corporation in the Town of Fort Erie in the Province of Ontario and is vicariously liable for the actions and policies of its the corporation.

4. The Defendant, The Corporation of the City of Niagara Falls (known herein as “the City" of Niagara Falls) is a Municipal corporation in the City of Niagara Falls in the Province of Ontario and vicariously liable for the actions and policies of it’s the corporation.

THE FACTS:

5. The Plaintiff is has been the sole owner of 5981 Willow Road Stevensville, Ontario, also described as Part lot 11 Cross Concession WilIoughby The Plaintiff owns this property along with his mother Catherine White since 1980.

6. The Plaintiff’s parents and the plaintiff purchased the property noted above from Mrs. White in 1970.

7. After the Plaintiff’s father death, the property remained in Catherine White and the Plaintiff’s name on title.

8. The Plaintiff has lived on the property since 1979 1980 and the White family ran farm operations which produced squash, beef and sheep. Since the early 1970’s, the White family leased approximately 500 acres of property to sustain agricultural operations.

9. The property located on Willow Road is about a 24 acres farm and located in the Municipality of the City of Niagara Falls.

10. As the Plaintiff understands it, Tthe municipal border between the Town of Fort Erie and the Town City of Niagara Falls municipal border Is located along Willow Road. The northern border limit of the road and the properties within on the north side side of the road are within the jurisdiction of the Town of Fort Erie.

11. There has been disputes with respect to Willow Road unopened road allowances and jurisdiction between the Municipalities with respect to drainage issues and ditches.

12. There is a municipal drain known as St John's Marsh Drain which is located approximately 400 metres to the east of the Plaintiff's farm.

13. The St. John's Drain flows from north to south at the point where it crosses the unopened road allowance segment of Willow Road. and ultimately outlets into Black Creek.

13A Before it gets to that point, in its earlier reaches, it proceeds easterly and through the Willoughby Conservation Area. The Plaintiff's farm lands drain to the north, into the Willoughby Conservation Area, and, through the Conservation Area, to the St. John’s Drain, thence away, ultimately. into Black Creek. At least, that is how the drainage system was supposed to work and does work, when the St. John’s Drain is properly maintained and working the way it ls supposed to.

14. The Plaintiffs property began to flood in the late 1980s - early 1990s, as a result of the Municipal governments failing to maintain the St. John’s Marsh drain.

15. The Plaintiffs has met with the Municipal officials from the Town of Fort Erie and the City of Niagara Falls multiple times to try and resolve flooding on the Plaintiff's property since the early 1990s.

16. On or about 2004, the Plaintiff, in an attempt to alleviate and stop the flooding of his property, petitioned the Municipality. The petition did not go forward due to a closed door meeting and a determination by the Municipal officials that the petition had no merit.

17. The St. John's Drain and Black Creek run through multiple Municipalities, including the Defendants as well as the Corporation of Port Colborne who have all failed to come to agreement or effect a resolution on the drain that needs ed repairs and needs to be cleaned properly.

18. The drain is clogged in multiple locations throughout the different Municipalities including Fort Erie and Niagara Falls and Port Colborne whose jurisdictions are responsible for the St. John’s Drain maintenance. Elevations Depths are inadequate and insufficient and the drain needs re-grading and existing culverts need replacement, specifically especially the Box Culvert located on Netherby Road.

19. As a result of the lack of proper maintenance, the contaminated water from the St. John's drain has continued to back up and flood the Plaintiff’s farm land.

20. It is apparent that no regular maintenance of the St. John's Marsh drain have has been carried out, resulting in large amounts of silt and overgrowth of vegetation.

21. On or about October 201O, Mr. Gary Russell of Russell Technical Services lnc. attended the property and conducted a topographic survey of elevations of the property and the complete St. John's Marsh Drain.

22. Further, in March 2012, an update to the report was conducted undertaken and a final report was prepared by Russell Technical Services Inc.

23. The property located to the North of the Plaintiff's farm is owned and operated by the Niagara Peninsula Conservation Authority (NPCA). The Plaintiff's farm, prior to the issues before the Court, used to drain north of the Conservation lands; however, neither the Municipality nor the Conservation Authority is not cleaning the drains on those lands, causing further flooding on the Plaintiff's lands.

24. The Town of Fort Erie is using the Plaintiff's property as the only outlet for water to flow as the drains are not maintained,

25. The Municipalities has have had knowledge of the drain requiring maintenance as per documents regarding work needed on the drain which the City of Niagara Falls has had since at least 2002.

26. In On or about 2016, the Town of Fort Erie obtained a drainage report produced by K. Smart & Associates which contained set out the need for work to be done on the drain to ensure the drain is flowing properly. The drainage report will be subjected to an appeal as the report does not adequately address all lands covered within the Municipality’s jurisdiction with respect to the drain nor the existing outlets as it stops at Netherby Road at a point over 400 metres south of the plaintiff’s land.

27. The flooding of the Plaintiff's land has destroyed and washed away the topsoil, making it impossible to seed because of the continued water. This erosion effectively ceased further farm operations on the farm In the affected area and has even prevented its use as pasture because the soil is too wet.

28. Since 2014, the Plaintiff has leased his remaining 12 acres of usable farmland to Mr. Steve Griffiths, a farmer from Rock Furrow Farms, who wanted to use the land for a soybean crop. Mr. Griffiths was only able to seed 12 acres on the property as 9 acres ls unusable due to the water flooding on the Plaintiff’s property.

29. The Municipalities' failure to maintain the St. John's drain has resulted in the continual flooding of the Plaintiff’s property. On or about 2005 - 2006, the Region of Niagara widened Netherby Road and, at that time, the Municipalities still did not maintain nor cleaned the drains. This widening caused further flooding on the Plaintiff's property.

30. The depth of the erosion on the Plaintiff's property is approximately 6 feet deep and is 1,200 feet in length being the entire length of the Plaintiff's property.

31. The water levels rose and overflowed flooded the ponds originally intended for the Plaintiff's livestock with road surface contamination.

32. This contaminated water from the drains also had seeped into the well. This resulted with in the water and pond that was had been used for the livestock to no longer be being able to be used and as the animals refused to drink said contaminated water.

33. Over the years, the Plaintiff made several complaints through various avenues agencies, including the Ministry of Environment, the Regional Department of Health, the various Municipalities and the Region in order to address the flooding and contaminated water. At that time The Plaintiff’s complaints were disregarded by the municipalities and all other officials all.

34. The high water levels from the flooding have caused stress and cracks on in the Plaintiff’s foundation and their drinking water system.

35. On or about 2007, the drinking water system cistern had to be replaced due to the stress and cracks from the high water level flooding.

36. On or about 2000, the plaintiff tried to minimize the flooding by putting the remaining topsoil back and forming a berm. The Plaintiff was charged by the Niagara Peninsula Conservation Authority for doing so, which resulted in a suspended sentence because the Plaintiff was trying to protect his farm.

37. The Municipality, the Region and the NPCA used the Plaintiff’s property and the Court system to fraudulently alter maps to show a watercourse running through the Plaintiff’s property which did not exist.

38. Further, the Municipalities, the Region and the NPCA attempted to lay blame on the Plaintiff for causing the flooding on his property when the issue had already existed from the lack of drain maintenance.

39. Plaintiff believes that members of the Municipalities and local Conservation Authority employment were terminated based on testimonies provided at the NPCA trial because of the negligent and fraudulent actions with respect to the Plaintiff’s property.

40. Further There are environmental impact reports and assessments produced for the 400 series highway extensions, which misappropriate apparently confiscate the Plaintiff’s property and showed a watercourse flowing through the Plaintiff's property that does not exist.

41. At no time has their there been a watercourse of any time kind flowing through the Plaintiff's property other than the natural surface water drainage for farming.

42. As a result of the claims brought forward by the Municipalities, the Region and the NPCA, on or about 2012, the Plaintiff had to sell 2 acres of the land to cover legal fees commencing in 2000.

43. Since 2008, as a result of the drain water backing up on to the Plaintiff's property, the Plaintiff is no longer able to farm 9 acres of land to produce crops (squash) or use as pasture land.

44. Since 2008, due to the contaminated water and flooding, the Plaintiff has lost the ability to raise livestock.

45. On or about 2012, the Plaintiff filed with the Office of the Drainage Referee in an attempt to search for relief from the flooding and to enforce maintenance of the drains.

46. The Municipalities have delayed the process, and further damage has been caused on the Plaintiff's property every year due to flooding.

47. The Town of Erie report with respect to the drain was only completed and produced in 2016 when even though they were originally advised that a report was needed since 2002. The report that was to be conducted by K. Smart & Associates was never completed until 2016 and even then was not completed as the engineers were told to stop at Netherby Road. The Plaintiff was not involved nor consulted about his flooding concerns; He further was not advised as to when the engineers would be assessing his property.

48. The City of Niagara Falls has recently conducted commissioned a report in November 1, 2017 by Spriet Associates and Engineers which has yet-to-be since been adopted by council. The Plaintiff was not Involved nor consulted about his flooding concerns. He further was not advised as to when the engineers would be assessing his property.

49. On or about December 13, 2016, the Plaintiff met with municipal officials of the Town of Fort Erie who stated that they had no knowledge of any Drainage Tribunal matters with respect to the St. John’s Drain. The Plaintiff was quite distraught as the drainage matters have been before the Tribunal since 2012 plus the over 20 years of discussions between the Municipalities and the Plaintiff over the drain Issues.

50. In the spring of 2017, the Town of Fort Erle began ditching along the Plaintiff’s property. The said ditch is more of a new outlet/tributary due to the depth and length. It Is essentially simply a roadside ditch.

51. The ditch could be considered similar to that of a water channel to move more water from the south side of Netherby Road, past the Plaintiff's property on Willow Road and create a new inlet into the already clogged St. John’s drain.

52. The ditch also is not within the Town of Fort Erie’s jurisdiction as it was to commence on the southern boarder border of Willow Road and not that of the northern road allowance in front of the Plaintiff’s property where It Is currently located on the City of Niagara Falls jurisdiction.

53. The said ditching has now caused water to be re-routed, however, not alleviating the issue of flooding on the Plaintiff's property but only making matters worse. The drains are still not cleaned and the water flowing through the ditch has no draining outlet.

54. Since Because the ditch has been dug in the spring shallowly, with a 1:1 fall, the water is stagnant and has not moved or flowed from the ditch.

55. Due to the ditching, it affected access to the Plaintiff's leased workable land on his property and affected access of farming equipment for both seeding and harvest.

56. Both Municipalities have had ample time yet did not address the concerns of the Plaintiff for over 20 years and specifically since 2008 when the Plaintiff began suffering major financial losses.

57. Due to the stress of the flooding and erosion of the property, the Plaintiff has lost his farming way of life which was built with his parents.

58. Further, the emotional and financial stress is believed to be the overwhelming final cause of the Plaintiff’s father’s death brought on by the negligent actions of the Municipal government officials.

59. With respect to financial loss of income, the Plaintiff obtained on or about November 10, 2017 a Loss of Income and Projected Investment Growth Report by a financial advisor expert, Mark Price.

60. With respect to the restoration of the clients property and pond, the Plaintiff obtained a quote from DMG contracting on or about November 2017.

RELIEF SOUGHT:

61. In settlement of this action, the Plaintiff seeks the following:

a) Damages for loss of income in the amount of $1,248,420.44;

b) Costs for Restoration and pond of Plaintiff’s land affected by flooding and erosion ln the amount of $1,777,971.00;

c) Cost of replacement of drinking water system in the amount of $7,500.00;

d) Costs of a new well for livestock in the amount of $5,000.00;

e) Costs for repairs of the stress cracks on the Plaintiff’s house foundation In the amount of $28,000.00;

f) Costs of this claim at a substantial indemnity rate; and,

g) Any further and other relief that this Honourable Court will allow.

62. The Plaintiff pleads and relies upon the provisions of the Negligence Act, R.S.O. 1990 o. N-1, as amended;

63. The Plaintiff requests that this action be tried In Welland, Ontario.

VALERIE M’GARRY LAW OFFICE 37 Millmanor Place, P.O. Box 263 Delaware, Ontario NOL 1 EO LSO # 19272N

Date of Issue:

OFFICE OF THE ONTARIO DRAINAGE REFEREE

ROBERT G. WATERS, B.A., LL.B. REFEREE 7 Kittridge Ave E STRATHROY, Ontario, N7G 2A9 Telephone: (519) 245-2958 E-mail: rob@robwaters.ca

ANDREW C. WRIGHT ACTING REFEREE 12 The Ridgeway LONDON, Ontario N6C 1Al Telephone: 519-671-5786 E-mail: andrewcwrightis(a)outlook.com

February 21, 2024

Paul Courey, Courey Law Professional Corporation, 18 Queen Street South, Box 178, Tilbury, On. NOP 2L0 pc@coureylaw.com

Brian Chung, Aird Berlis ^LLP, Brookfield Place, 181 Bay Street, Suite 1800, Toronto, On. M5J 2T9 bchung@airdberlis.com

Law Office of Samuel Kirwin P.C. 472 Ridout Street, North, London, On. N6B 2G7 Samuel Kirwin samuel@kirwinlaw.ca

Dear Counsel:

RE: David White v Niagara Falls (City) and Fort Erie (Town) Submissions regarding lack of notice under Section 79(2) of the Drainage Act Paragraphs 13 through Paragraphs 27 of the Reasons for Decision of the Referee Dated the 2nd day of February, 2024

I am taking this opportunity of thanking the parties for their response to my letter of December 27^th, 2023, all of which responses were received in accordance with my letter on or before January 15^th, 2024. While I more specifically raised the issue with regard to the Central Forms Repository and Section 84 of the Legislation Act, 2006 it was most important to me that I address the issue found in the Central Forms Repository, in which I discovered "notice of a request for maintenance and/or repair". As parties will appreciate from the Reasons for Decision, Paragraphs 13 through 27, that the use of the Municipal World form did not affect the Referee's decision of February 2^nd, 2024.

I have read the submissions of Samuel Kirwin on behalf of Mr. White on January 14^th, 2024, and Brian Chung on behalf of City of Niagara Falls and Paul Courey on behalf of the Town of Fort Erie on January 15^th, 2024, and I will present a separate discussion in relation to these submissions and my comments confirming that Section 84 of the Legislation Act, 2006 was not and is not a primary ground for my Decision of February 2^nd, 2024, as follows:

COMMENTS AS TO APPLICABILITY OF SECTION 84 OF THE LEGISLATION ACT, 2006, S.O. 2006, c.21, SCHED. F

1. Submissions of Aird Berlis ^LLP, Brian Chung, and I quote "Section 84 of the Legislation Act, 2006 is only triggered in circumstances where an Act requires the use of a designated form. That is not the case here. At the material time when Mr. White asserts he gave notice under Section 79 of the Drainage Act there was no legislative requirement to give such notice in any particular form."

2. Additionally, Mr. Courey on behalf of the Town of Fort Erie, in paragraph 6 states, "In the instant case, the Legislation Act is not applicable as there is no required form. However, it does provide some illumination as to the latitude given to a person using their own form as opposed to a required one. There is room for varying from the prescribed format, where such exists." He adds, "It is illustrative of the information that is required to form a notice to comply with Section 79." Mr. Courey goes on to state in paragraph 8 that David White delivered two forms to the Town of Fort Erie, both dated April 27, 2012. An additional form was received according to the submissions of Mr. Kirwin in paragraph 15, dated August 10^th, 2012.

3. All parties acknowledge that O.Reg. 274 was revoked on November 21, 2012, which was then replaced by O.Reg. 381/12. None of the nine forms under O.Reg. 381/12 address the issue of notice under Section 79 of the Drainage Act; nor do any of the forms under the prior regulation.

4. The simple answer to the use of Section 84 of the Legislation Act 2006, O.Reg. 274, is that it is not applicable in the Referee's Decision, as there was no form legally required as a primary matter. I should further add that given the terms of Section 84 of the Legislation Act, 2006, the current form which I discovered during the process of my Decision and my exploration of the regulations under the Drainage Act, is that the current form created in November 2022, reading as "Notice of Request for Drainage Maintenance and Repair'' is deemed not required under Regulation 381/12.

5. As such, however, the Referee being cognizant of the lack of forms prescribed by the Act, still leaves him with the issue whether legislation where a form is not required can be effective where the notice given does not affect the substance or unlikely to mislead and the notice is organized the same or substantially the same manner as the form in a parallel matter whose use is required.

6. Since there is no form whose use is required, other than a notice under Section 79 of the Drainage Act, and no form was set out for such notice, the question then becomes, using the philosophy of Section 84 of the of the Legislation Act, 2006, and not the strict provision, whether the "forms" actually used in this matter affected the substance or were unlikely to mislead. To this end, I have, in my Reasons for Decision gone through the use of the Municipal World form as not misleading the parties as to the concern over the lack of repair of the drain.

7. (a) Is service on council misleading when it should have been the Clerk or head of Council? What if there is a Chief Administrative Officer or "legal clerk" in the relevant municipality?

(b) Was Fort Erie the local Municipality? Does it matter when four municipalities, which were on the drain in one form or another, were served?

(c) Does a misnomer of the Drain initially matter if it was unlikely to mislead as a result of prior discussions with the Appellant?

(d) Can a lack of particulars be cured? Can "minor'' deviations be cured? The Referee in his decision found that they could be cured.

8. As an example of deviations, counsel for Mr. White noted that the four forms for appeal submitted by Mr. Green there was "in small type font at the top right comer of the form" (Municipal World form), a reference to Section 47(1) of the Drainage Act. In his submission, he states, "Respectfully, a reasonable person, such as the head of the municipality, would be unlikely to notice the S. 47(1) reference, let alone conclude that it must not be a request for a municipal drain repair. As such, the deviation as to the subsection reference would not be likely to mislead".

9. While in essence further argument on the motion, Mr. Kirwin in paragraph 54 of his submission acknowledges "it is respectfully submitted that S. 84 of the Legislation Act 2006 does not strictly apply to the Notices of Appeal to the Referee since there was no specific S. 79 notice form whose use was required under an Act in August of 2012 when notice was given."

10. As Mr. Courey stated in paragraph 24 of his submissions, "Submissions were requested on the narrow point of applicability of the Legislation Act. It was not an invitation to re-argue the Motion." To which the Referee agrees.

11. While agreeing to lack of applicability of Section 84 of the Legislation Act, 2006 to this matter, the Referee is concerned as to the limited size of the bar in Ontario practicing in drainage matters. He is also concerned with lack of prescribed forms in current regulations that could address the more common problems for assessed owners in a drainage matter. For example, it is my understand that there are no guidelines adopted by Regulation as of this date under Section 125 (2) and (3) of the Drainage Act, such as the Guides for Drainage Superintendents, Publication 859, and the Guide for Engineers working under the Drainage Act in Ontario, Publication 859.

12. As such the Referee remains mindful of the philosophy behind Section 84 of the Legislation, Act 2006 as successor to the Interpretation Act repealed July 25, 2007, where a form in a general sense, more particularly a notice, does "not affect the substance", and is "unlikely to mislead". To rephrase paragraph 25 of Mr. Kirwin's submission on behalf of Mr. White, I quote Referee O'Brien on the power of the Referee under Section 106 of the Drainage Act, in Rockeynol v. Springwater (Township), 2000 ONDR 10, "The Drainage Act, being remedial legislation does require a broad and liberal interpretation and justice is better served when all the evidence is before the Court". (my emphasis).

13. It is this philosophy that led to the Referee's exploration of the limits of forms provided under the Drainage Act described in Paragraphs 21 and 22 of his decision of February 2^nd, 2024.

Yours very truly

ROBERT G. WATERS DRAINAGE REFEREE

RGW:ah