Kittel v Wilmot (Township), 2024 ONDR 4

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Kittel v Wilmot (Township), 2024 ONDR 4

DATE OF DECISION: 2024-04-16

Court File No.: CV-23-00001662-0000 (Kitchener)

B E T W E E N:

CORY KITTEL

Applicant

• and -

THE CORPORATION OF THE TOWNSHIP OF WILMOT

Respondent

• and -

OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION

Respondents

ACTING DRAINAGE REFEREE ANDREW C. WRIGHT

HEARD ON MONDAY, THE 15^th DAY OF APRIL, 2024

ORDER

The Court of the Drainage Referee fixed this date for a pre-hearing conference to case manage this application, to address the following:

(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 determine whether the Township has sufficiently satisfied the requirements of paragraphs 10 and 12 of the February 22, 2024 Procedural Order to qualify to provide evidence in this process either before or at the time of the hearing of the merits of this application;

(c) to determine whether the Engineer has sufficiently satisfied the requirements of paragraph 13 of the February 22, 2024 Procedural Order to qualify to provide evidence in this process either before or at the time of the hearing of the merits of this application;

(d) to fix a time for the Township to deliver its responding affidavits if it is determined that the Township is then qualified to provide evidence in this application process; and

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

and after hearing the submissions of counsel, for the reasons that follow:

THIS COURT ORDERS that

1. The presiding Referee may vary or add to these rules at any time, either on request or as it sees fit. The presiding Referee may alter this Order by an oral ruling, or by another written Order.

2. This Order is supplementary to the January 15, 2024, Order and the February 22, 2024 Order, both of which remain in effect, as augmented by this Order, except as specifically amended by this Order. The reasons for those previous decisions remain extant. In the event of a conflict between Orders, the more recent Order shall prevail.

3. A copy of anything required by this Order to be delivered by one 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

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

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

(b) The “Conservation Authority” means the Grand River Conservation Authority

(c) The “Drainage Superintendent” means K. Smart Associates Limited and John Kuntze P.Eng. President, in their capacity as Drainage Superintendent, appointed in accordance with the Act by by-law of the Township.

(d) The “Drainage Tribunal” means the Agriculture, Food and Rural Affairs Appeal Tribunal.

(e) the “Engineer” means both Stephen Brickman, P.Eng., and Headway Engineering Professional Corporation, carrying on business as “Headway Engineering”, together.

(f) the “Engineer’s Report” means the Engineer’s Report on the “Bamberg Creek, Jananna, and Koch-Lies Municipal Drains 2023” dated April 28, 2023 issued by the Engineer and signed by Stephen Brickman, P.Eng., including plan and profile.

(g) the “February 22, 2024 Procedural Order” means the procedural Order issued by the presiding Referee in this case on February 22, 2024.

(h) the “Municipal Act” means the Municipal Act, 2001, S.O. 2001, Chapter 25, as amended.

(i) the “Petition” means the petition signed by Walter Krupnik as President of Jananna Corp. on April 26, 2021 that initiated the process under the Act which has resulted in the Engineer’s Report.

(j) the “Proposed Jananna Drain” means the Drainage Act project administered by the Township beginning with the Drainage Act process leading up to the completion and adoption of the Engineer’s Report, including rights of appeal to the Drainage Tribunal, then the construction of the Proposed Jananna Drainage Works and thereafter the maintenance and repair of the Proposed Jananna Drainage Works all of the cost of which to be assessed to and paid for by the owners of lands that use the Proposed Jananna Drainage Works in accordance with the assessment schedules in the Engineer’s Report.

(k) the “Proposed Jananna Drainage Works” means the physical infrastructure components of the drainage works, including both the proposed East Branch and the proposed West Branch of the Jananna Municipal Drain, to be constructed, maintained and repaired under the authority of the Drainage Act in accordance with the Engineer’s Report.

(l) the “Statutory Powers Procedure Act” means the Statutory Powers Procedure Act, R.S.O. 1990, Chapter S.22, as amended.

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

(n) the “Rules of Civil Procedure” means R.R.O. 1990, Reg. 194, being the Rules of Civil Procedure under the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.

(o) the “Township” means The Corporation of the Township of Wilmot, the respondent.

Parties and Representation

5. The applicant is represented by Samuel Kirwin, a lawyer in the Law Office of Samuel Kirwin Professional Corporation.

6. The Township was represented by Paul Courey, a lawyer in the office of Courey Law Professional Corporation until March 12, 2024 when he was replaced by Thomas Sanderson, a lawyer in the Waterloo office of Miller Thomson ^LLP.

7. The Engineer is represented by David Potts, a Barrister providing counsel to Lawyers in the fields of Defamation, Cyberlibel, Privacy and Cybersecurity, as well as by Christopher Macleod, a lawyer in the office of Cambridge ^LLP. Counsel for the Engineer will only be involved hereafter in connection with issues related to document productions from the Engineer’s files.

8. Others may be added as parties following the circulation of notice of this application in accordance with directions to be given in the future, and if they are added as parties, they and their representative will be added.

Exchange of Documentation

9. I find and determine that

(a) the Township has sufficiently satisfied the requirements of paragraphs 10 and 12 of the February 22, 2024 Procedural Order to qualify to provide evidence; and

(b) the Engineer has sufficiently satisfied the requirements of paragraph 13 of the February 22, 2024 Procedural Order to qualify to provide evidence.

10. The applicant is at liberty to bring a motion for further production of documents from the Township and/or the Engineer. When doing so, the return date in the Notice of Motion should indicate that the date for the argument of the motion will be established by the presiding Drainage Referee; and the presiding Drainage Referee will then fix a date for the argument of the motion and will establish a schedule for the exchange of evidence on the motion and the exchange of facta in advance of the argument of that motion. If the applicant’s motion seeks production of documents in the possession or control of the Engineer, in addition to service on the Township, counsel for the Engineer will be serviced with the motion record and will be entitled to full participation in the motion process.

11. On or before Wednesday, July 3, 2024, the Township shall deliver to the applicant the Township’s responding affidavit or affidavits, including an affidavit of the Engineer with his expert’s report.

12. As indicated in paragraph 9 of the February 22, 2024 Procedural Order, if, after review of the productions from the Township and the Engineer, the applicant wishes to deliver one or more supplementary supporting affidavits, the applicant may do so.

September 11, 2024 Case Management Conference

13. There will be a further case management video conference on Wednesday, September 11, 2024 commencing at 10:00 am, 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 to the hearing of the merits;

(c) to establish a date for the applicant to deliver evidence in reply to the Township’s responding material as well as to evidence from any added parties; and

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

14. The applicant shall give notice of such case management conference, and the following provisions shall apply to the giving of notice:

(a) The notice shall be given by the applicant in the form attached to this Order.

(b) The notice shall be given by ordinary mail to the current owners of lands identified in the Engineer’s Report, and, for this purpose, the lands identified in the Engineer’s Report are those lands assessed or awarded allowances at their respective addresses as shown on the last revised assessment roll;

(c) The notice will also be given to the Conservation Authority.

(d) Notice shall be mailed on or before the Friday, July 12, 2024;

(e) The Township shall make available for review at its offices at the Township’s Administrative Complex, 60 Snyder's Road, West, Baden, (N3A 1A1) during normal business hours a copy of all of the documentation listed in paragraph 18 below of this Order together with a copy of this Order and copies of the Township’s responding affidavits to be delivered as contemplated by paragraph 11 of this Order

(f) The Municipality shall make available on its website,

htps://www.wilmot.ca/en/township-office/Municipal-Drains.aspx

all that is mentioned in clause (e) above.

(g) The applicant shall prepare an affidavit proving service in compliance with this Order, and the applicant shall deliver the affidavit of service to the Township by electronic e-mail transmission before the close of business on Friday, August 9, 2024.

(h) The Township shall prepare an affidavit confirming compliance with clauses 14(e)and 14(f) above, and the Township shall deliver the affidavit to the applicant before the close of business on Friday, August 9, 2024.

Future Case Management Conferences

15. Future case management video conferences will be scheduled to address:

(a) Hearing of preliminary motions.

(b) Establishing an issues list 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.

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

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

(e) Setting the commencement date for the hearing.

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

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

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

Video Conference Protocols

16. For case management video conferences and the hearing on the merits to be conducted by video conference, the following provisions shall apply:

(a) The parties shall provide the presiding Referee the names and e-mail addresses of those who will be on hand at the video conference hearing; that includes counsel, any witnesses, and those giving instructions to counsel.

(b) Parties and those with a recognized interest in the proceeding, including news media, will be provided by the presiding Referee with access credentials, including a password, to log into the video conference at the appointed time.

(c) Parties are responsible for arranging to have their witnesses join the Zoom meeting to give their evidence at the time directed by the presiding Referee.

(d) Once logged on, the person will be held in a waiting area pending authorization by the presiding Referee to join the hearing.

(e) Parties intending to call a witness will ensure that the witness has a holy book (Bible or Koran) or an oath-taking article (such as an eagle feather) at hand if they are to be sworn to give evidence; a holy book is not required for a witness who affirms.

(f) Before giving testimony, each witness shall affirm to the presiding Referee orally that they are alone in the room and that they are not relying on any undisclosed document, such as speaking notes. Witnesses are not permitted to testify with others present in the room or to use undisclosed documents without the approval of the presiding Referee.

(g) For those joining the hearing to simply observe without participation, their microphone will be muted during the hearing conference.

(h) Those joining the hearing will need a device equipped with a webcam and a microphone and access to a reliable internet connection with adequate bandwidth; the device should always be plugged in to ensure that the battery does not run low.

(i) A smartphone may only be used at the discretion of the presiding Referee; the use of a smartphone is discouraged due to potential disruptions, such as incoming calls and messages, and the risk of running out of battery.

(j) Those joining the hearing will normally be alone in their location; if they are not, the presiding Referee may require such other persons to leave the room during the proceeding. There is an ongoing obligation to inform the presiding Referee if they are joined by someone else during the proceeding.

Documents and Exhibits

17. Because case management video conferences and the hearing on the merits are to be conducted by video conference, protocols concerning the entering of exhibits are warranted and the following apply in that connection:

(a) A document, including a plan or photograph, to be relied upon at a hearing must be identified as an exhibit.

(b) To be identified as an exhibit, the document must be provided to the presiding Referee and to all other parties at least 2 days in advance of the video conference hearing at which it is to be presented as an exhibit; the presiding Referee may abridge this time.

(c) The presiding Referee will decide whether to enter the document as an exhibit and, if it is allowed, the presiding Referee will assign an exhibit an alpha/numeric identifier.

(d) Once the document has been entered as an exhibit, the party that introduced the exhibit shall, within 3 business days following the conclusion of the video conference hearing, file an electronic copy of the exhibit with the court registrar and, when doing so, shall identify Court File No.: CV-23-00001662-0000 (Kitchener) 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 17(d) above applies mutatis mutandis.

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

Exhibit No. Notice of Application issued December 20, 2023

No.: 1 the Petition

No.: 2 the Engineer’s Report

No.: 3 Township’s January 10, 2024 Motion Record for Procedural Directions Tab 1 – Notice of Motion Tab 2 – Affidavit of Jeffery Bunn sworn January 10, 2024 with three Exhibits; Exhibit A - copy of the applicant’s Notice of Intention to bring this application. Exhibit B - chronology of documents and events with copies of correspondence, including the December 19, 2023 agenda letter and the December 28, 2023 notice letter from the presiding Referee, the Notice of Application and e-mail traffic. Exhibit C - Township’s proposed procedural order.

Order issued by Acting Referee Andrew Wright on January 15, 2024 fixing the return date for the Township’s Motion for Directions

No. 4 Affidavit of Cory Kittel sworn January 29, 2024 in response to the Township’s January 10, 2024 Motion for Procedural Direction including four Exhibits: Exhibit A – the Petition Exhibit B – the Engineer’s Report Exhibit C – Township of Wilmot By-law No. 2023-32 provisionally adopting the Engineer’s Report with first and second reading on June 26, 2023 and not yet finally passed. Exhibit D – Examples of Styles of Cause in three cases: Herron v St. Charles (Municipality), 2019 ONDR 1; Geotz v South Bruce (Municipality), 2020 ONRD 1; Chrustie v Ottawa (City), 2021 ONDR 1

No. 5 Engineer’s Affidavit of Documents sworn on March 14, 2024 by Stephen Brickman, P.Eng., together with the 144 documents listed therein.

No. 6 The Engineer’s Curriculum Vitae.

No. 7 Applicant’s Affidavit of Documents sworn on April 2, 2024 by Cory Kittel, together with the 110 documents listed therein.

No. 8 Affidavit of the applicant in support of the application sworn on April 2, 2024 by Cory Kittel, together with 29 Exhibits A through CC.

No. 9 Productions Brief of the Township issued April 2, 2024, together with the 267 documents identified therein.

Decision of Referee R.G. Waters in the case of Brzeczka v Niagara on the Lake (Town) issued October 19, 2022 and reported at 2022 ONDR 1

Decision of Referee Wm.D. Turville in the case of Jones v Derby (Town) issued December 8, 1986 and reported at 1986 ONDR 3

Decision of Referee D.A. O’Brien in the case of M&M Farms v Kingsville (Town) issued September 29, 2004 and reported a 2004 ONDR 1

Decision of Referee S.L. Clunis in the case of McKeen v East Williams (Township) issued May 31, 1966 and reported at 1966 ONDR 1

Decision of referee D.A. O’Brien in the case of Pannabecker v West Wawanosh (Township) issued June 12, 2000 and reported at 2000 ONDR 2

Decision of Referee Wm.D. Turville in the case of Westendorp v Elizabethtown (Township) issued June 10, 1986 and reported at 1986 ONDR 1

Decision of Acting Referee A.C. Wright in the case of Melidy v Holland Marsh Drainage System Joint Municipal Service Board, issued February 25, 2023 and reported at 2023 ONDR 6 – Note: this decision is under appeal to the Divisional Court

Decision of Cumming, J. in the case of CPC International Inc. v. Seaforth Creamery Inc., 1996 CanLII 8195 (ON SC)

This list will expand as further production of affidavits and documents occurs.

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

20. 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.

21. If counsel or a witness intends to rely upon case law, other than the cases listed in paragraph 18 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

22. 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.

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

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

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

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

Dated at London this 16^th day of April 2024.

Andrew C. Wright
Acting Drainage Referee

REASONS

1. The Order to which these reasons are attached (the “Order”) is an evolving case management and procedural Order intended to prepare for a hearing of the merits. It consolidates previously issued Orders, includes currently operable provisions, and eliminates completed matters.

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

3. This application challenges the validity of the Petition and the validity of the Engineer’s Report on the grounds that it does not comply with the requirements of the Act and seeks to set aside the Engineer’s Report and to quash the Township’s provisional By-law No.: 2023-32 adopting the Engineer’s Report.

Production of Documents by Parties

4. The February 22, 2024, Procedural Order directed the parties and the Engineer to produce documents in their possession or control or that were available to them. That has been done with the exception of documents protected by solicitor-client privilege and documents that disclose off-the-record, without prejudice settlement discussions. There is no dispute about these exceptions.

5. The Engineer has claimed litigation privilege with respect to some documents and also has not produced raw data, which is not in a usable format for the paper, processed data for the paper format, which is included in the Engineer’s Report drawings and documents with respect to which the Engineer asserts intellectual property rights such as CAD files, Hydrologic Modelling files and unspecified confidential trade secrets.

6. The applicant is dissatisfied with the documents excluded by the Engineer and has identified a number of documents which the Township has not produced, and which may be relevant.

7. I am not going to make a ruling at this time about further document production. During the case management hearing on April 15, 2024, counsel for the Township and for the Engineer indicated that they were open to considering the applicant’s requests of which they had not been made aware previously. If the parties cannot resolve these document production issues and the applicant feels the need to access some of what has been withheld by the Engineer or the Township, I will entertain a motion by the applicant in which the applicant can provide an explanation of relevance and a rationale for requesting production. It would be on such a motion that the Township and the Engineer would have a forum in which to explain how what is sought can or should be protected as confidential intellectual property or given protection as litigation privileged. If the court is persuaded litigation privilege or intellectual property rights exist, and the applicant has demonstrated relevance and necessity, the court will balance the need against the injury that would ensue if disclosure were ordered.

8. If the applicant brings such a motion with respect to the production of documents in the possession or control of the Engineer, counsel for the Engineer will be serviced with the motion record and will be entitled to full participation in the motion process.

9. In the event that the applicant brings such a motion for further production of documents, the return date in the Notice of Motion should indicate that the date for the argument of the motion will be established by the presiding Drainage Referee. The presiding Drainage Referee will then fix a date for the argument of the motion and will establish a schedule for the exchange of evidence on the motion and the exchange of facta in advance of the argument of that motion.

10. With all of that said, I am satisfied the Township has sufficiently complied with the requirements of paragraphs 10 and 12 of the February 22, 2024 Procedural Order, and the Engineer has sufficiently complied with the requirements of paragraph 13 of the February 22, 2024 Procedural Order that I have made the finding and determination found in paragraph 9 of the Order.

Township’s Responding Material

11. It is now time for the Township to deliver to the applicant the Township’s responding affidavit or affidavits, including an affidavit of the Engineer with his expert’s report, hence paragraph 11 of the Order.

September 11, 2024 Case Management Video Conference

12. The validity of the Petition and the validity of the Engineer’s Report is going to be decided in this case by the Court of the Drainage Referee. If the Petition and the Engineer’s Report are found to be valid, then the Proposed Jananna Drain and the legal rights and obligations of those property owners in the watershed identified in the Engineer’s Report will be affected by the Proposed Jananna Drainage Works and/or in the form of assessments for the cost of the resulting drainage works and its subsequent maintenance and repair in accordance with the Engineer’s Report.

13. 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, the applicant shall give notice as required by paragraph 14 of the Order. The notice will be sent to the names and addresses, according to the last revised assessment roll, of the owners of land identified in the Engineer’s Report as being assessed or awarded allowances for the Proposed Jananna Drain. That mailing list has already been provided by the Township to the applicant in accordance with clause 12(a) of the February 22, 2024 Procedural Order.

14. The form of the notice to be given is attached. The notice directs those receiving it to the Township’s website for copies of all documents exchanged between the parties to the time of the giving of notice.

Issues Before the Court of the Drainage Referee

15. It is not usual to settle upon an “issues list” this early in the proceeding. It is normal to settle upon an “issues list” after all the affidavit evidence has been filed, and the “issues list” is then usually entrenched in the final procedural order before proceeding to a hearing on the merits.

16. However, from Mr. Kittel’s supporting affidavit (sworn April 2, 2024), he may have occasionally strayed across the line between providing background and context and raising issues that are not germane to what is before me. For those receiving notice of this application who may be considering whether to participate as a party, it is important to appreciate the jurisdiction and authority of the Court of the Drainage Referee.

17. What I believe is before me is some variation on the following questions:

(a) Is the Engineer’s decision as to the validity of a Petition (dated April 26, 2021) open to review by the Court of the Drainage Referee?

(b) If yes, what is the area requiring drainage for the purposes of applying section 4, in particular clauses 4(1)(a), (b), (c) and (d) of the Drainage Act to the Petition and the Engineer’s rationale for it?

(c) Does the Engineer’s Report satisfy subsection 8(1) of the Drainage Act?

(d) The Petition identifies a five-acre area in the southeast corner of the Jananna property (Lot 10, Concession 3, Block B) as requiring improved drainage. If valid, how does the Petition support the proposed West Branch Drain on the west side of the Jananna property in the Koch-Leis Drain watershed, and the proposed “improvements” to the Koch-Leis downstream from the proposed outlet of the West Branch Drain into the Kock-Leis Drain?

18. I do not think I should establish a final “issues list” at this stage of the proceeding, so what has been set out in paragraph 17 above is to be regarded as being amenable to change before the hearing on the merits is scheduled. But it is important for those who may be considering seeking to participate as a party to understand that it is not within my jurisdiction or authority to deal with questions or concerns about assessments or allowances as found in the Engineer’s Report or matters that are properly within the exclusive jurisdiction of the Drainage Tribunal under section 48 of the Act, such as whether the benefits of the drain are commensurate with the cost.

19. The Township’s responding affidavit material may deal summarily or not at all with assessments or allowances as found in the Engineer’s Report or whether the benefits of the Proposed Jananna Drain are commensurate with the cost. That does not imply that such matters are not important, but rather, it reflects a desire not to deploy municipal resources in connection with issues about which the Court of the Drainage Referee has no jurisdiction. If the Petition and the Engineer’s Report are determined to be valid, then questions or concerns about assessments or allowances as found in the Engineer’s Report and matters identified in section 48 of the Act, including whether the benefits of the drain are commensurate with the cost, can be addressed on appeal to the Drainage Tribunal.

Going Forward

20. I will now summarize how I propose to continue to conduct this case procedurally. This summary is to be regarded as open to adjustments to accommodate unforeseen circumstances as they may arise and to expedite the hearing process generally.

21. Going forward from the April 15, 2024 case management video conference, the Township’s evidence will be delivered to the applicant on or before Wednesday, July 3, 2024 as specified in paragraph 11 of the Order. The Township’s evidence will include the evidence of the Engineer. The Township’s evidence will then become part of the record to be referred to in the notice. That notice will then be given in accordance with paragraph 14 of the Order on or before Friday, July 12, 2024.

22. The applicants will be afforded the opportunity to reply to the Township’s responding material as well as to any evidence from added parties. The date for the applicant’s reply will be established in the Order issued following the September 11, 2024 case management hearing. If there are no parties to be added, the applicant’s reply evidence will be due sometime in October 2024; if there are parties added at the time of the September 11, 2024 case management hearing, then the applicant’s reply evidence will be delayed until a month after the added parties’ documentation has been provided; again, these details will be reflected in the Order issued following the September 11, 2024 case management hearing. That Order will also amend the Style of Cause to reflect the parties that will continue to the hearing on the merits.

23. After all the affidavit evidence has been filed by the parties, including any added parties, if all parties agree to cross-examinations before a court reporter outside of the hearing on the merits, a couple of months will be scheduled to allow that to occur. Transcripts of such cross-examinations will be provided to the presiding Referee promptly after the completion of such cross-examinations.

24. Further case management video conferences will be scheduled from time to time until all of the items referred to in paragraph 15 of the Order have been addressed and the case is ready to proceed to a hearing of the merits.

25. Case management 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 an MP3 audio-video file of the hearing and a machine-generated transcript. The hearing on the merits may be held in a courtroom in the Kitchener 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 Kitchener courthouse is available within a reasonable time after the case is ready for hearing.

26. Notwithstanding that there may have been examinations before a court reporter outside of the hearing on the merits as contemplated by paragraph 23 above, at the time of the hearing of the merits, parties who have delivered affidavits or Witness Statements, as contemplated by paragraph 27 below, will call as witnesses each person who has sworn an affidavit or authored the Witness Statement. Witnesses to be called during the hearing on the merits will be limited to those who have previously filed affidavits or Witness Statements. Witnesses will be asked to reaffirm or correct their affidavits or Witness Statements and then be subject to cross-examination by the other parties and questions from the presiding Referee.

27. When a party is represented by legal counsel, it is expected that that party’s evidence will be filed with the court in the form of an affidavit in accordance with case management procedural orders in advance of the hearing of the merits. If an added party is a self-represented layperson, that self-represented party may provide evidence in the form of an unsworn Witness Statement. Such a Witness Statement will be provisionally received, subject to the self-represented party appearing at the hearing of the merits and, after being sworn, confirming on oath that the Witness Statement represents their evidence, subject to any corrections which the witness may bring to the court’s attention at the time of the hearing on the merits.

28. When the case is ready for the hearing of the merits, there will be a procedural Order fixing the date of the hearing, its anticipated duration, establishing an issues list, the order in which the parties are to proceed and the witnesses they each will call to give evidence. The procedural Order would include the following:

(a) In accordance with Rule 13(2), the presiding Referee may call the Engineer to give background factual evidence. The Engineer’s evidence at this stage would not include any opinion evidence. While the Engineer would not be open to cross-examination, questions of clarification of the facts from the parties would be allowed.

(b) Following the Engineer’s background factual evidence, the applicant would call his evidence. Any added party aligned with the applicant’s position would then call their evidence.

(c) The Township would then call its evidence. Any added party aligned with the Township’s position would then call their evidence.

(d) The applicant would then have the opportunity to call reply evidence.

(e) Final submissions would be in the same order as the evidence.

29. As indicated in paragraph 20 of these reasons, this summary is not intended to be immutable; it is open to adjustments to accommodate unanticipated circumstances as they may arise and to expedite the hearing process.

30. If there are difficulties with anything else arising from the Order and these reasons, at the request of either party, I will convene a video conference to deal with it.

Dated at London this 16^th day of April 2024.

Andrew C. Wright
Acting Drainage Referee

TO WHOM IT MAY CONCERN

NOTICE OF CASE MANAGEMENT VIDEO CONFERENCE HEARING

DATE: WEDNESDAY, SEPTEMBER 11, 2024 AT 10:00 AM

Re: Kittel v Wilmot Township
Court File No.: CV-23-00001662-0000 (Kitchener)

1. This Notice of a Case Management Video Conference hearing is being sent to you as directed by Acting Drainage Referee Andrew C. Wright. The video conference hearing will be convened on Wednesday, September 11, 2024, at 10:00 AM using the Zoom platform. The purpose of the hearing and how it may affect you are described below.

2. If you wish to seek party status in this proceeding, please follow the instructions set out in paragraph 13 below. These require you to complete and return a Memorandum of Appearance in substantially the form found at the end of this Notice.

3. If you wish to observe the proceeding without being a party, you are required to provide the Drainage Referee with your contact information, as set out in paragraph 11 below.

Background and Purpose of This Notice

4. On April 26, 2021 a Drainage Act petition was signed by Walter Krupnik, as President of Jananna Corp. That initiated the process under the Drainage Act which has resulted in an Engineer’s Report on the “Bamberg Creek, Jananna, and Koch-Lies Municipal Drains 2023” dated April 28, 2023 issued by Headway Engineering and signed by Stephen Brickman, P.Eng. In this application, the applicant, Cory Kittel, is challenging the validity of the petition and the Engineer’s Report and seeks to set aside the Engineer’s Report and to quash the Township’s provisional By-law No.: 2023-32 adopting the Engineer’s Report. The criteria for a valid petition are described in the Drainage Act. Mr. Kittel is also challenging the validity of the Engineer’s Report on the grounds that it does not comply with the requirements of the Drainage Act.

5. The Engineer’s Report recommends the construction of a new closed municipal drain from two locations on the North Part of Lot 10, Concession 3, Block B in the Township of Wilmot and extending downstream. The proposed West Branch of the Jananna Municipal Drain would outlet into the Koch-Leis Drain, and the proposed East Branch would outlet into the Bamberg Creek. There would also be improvements to 1,200 metres of the open channel portions of the Koch-Leis Drain and the Bamberg Creek. The estimated cost of the proposed drainage works is $463,000. That cost and the future cost of maintaining the proposed drainage works would be assessed to the owners of lands according to the assessment schedules in the Engineer’s Report.

6. The validity of the petition and the Engineer’s Report is going to be decided in this case by the Court of the Drainage Referee. If the petition and the Engineer’s Report are found to be valid or not, either way, the legal rights and obligations of those property owners in the watershed will be affected by the proposed drainage works and/or in the form of assessments for the cost of the resulting drainage works and its subsequent maintenance and repair. Those property owners would have rights of appeal in the future about any proposed drainage works and about allowances and assessments, but now is the time to intervene if you intend to challenge the validity of the petition and/or the Engineer’s Report.

7. This notice is being sent to you because your property, or parts of it, would be affected if the petition and/or the Engineer’s Report are determined to be invalid. This notice is being given in accordance with the April 16, 2024 Order of the presiding Drainage Referee.

8. At this stage in the process, the applicant has submitted his supporting affidavit(s), and the Township has provided its responding affidavits. Both parties have also produced the documents in their possession and control. All of this material is available on the Township website at:

htps://www.wilmot.ca/en/township-office/Municipal-Drains.aspx

9. This documentation is also available for inspection during normal business hours at:

The Corporation of the Township of Wilmot Administrative Complex, 60 Snyder's Road, West Baden, Ontario, N3A 1A1

Purpose of Case Management Video Conference

10. A case management video conference hearing will be held at 10:00 a.m. on Wednesday, September 11, 2024. The purpose of the video conference hearing is to consider adding as parties those who wish to participate in determining the validity of the petition and the Engineer’s Report. A party is entitled to call witnesses, cross-examine parties and witnesses opposite in interest, file material, make submissions, and may be subject to a decision with respect to costs.

11. For those wishing to simply observe the proceedings without any participation, before Friday, August 23, 2024, they must provide to the presiding Referee and to counsel for the applicant and to counsel for the Township their name, mailing address, e-mail address and telephone number together with an indication of their interest in the case; an owner or a family member or other representative of such owner would have a sufficient interest for this purpose, as would being a representative of the news media. That information can be given by mail or by e-mail to the addresses provided in paragraph 13 below.

12. To participate as a party or to observe the proceedings, a computer and internet access will be required; audio access will also be available by telephone.

13. For those seeking party status, if you, or an Ontario lawyer acting on your behalf, wish to be involved as a party, you or your lawyer should complete a Memorandum of Appearance and send it by mail or e-mail to:

Counsel for the applicant

The Law Office of Samuel Kirwin Professional Corporation, 472 Ridout Street, North, London, Ontario. N6A 2P7 Attention: Samuel Kirwin, via e-mail to samuel@kirwinlaw.ca Lawyer for the applicant

Counsel for the Township:

Thomas Sanderson via e-mail to tsanderson@millerthomson.com Miller Thomson ^LLP Suite 300, 115 King Street, South, Waterloo, Ontario. N2J 5A3 Lawyer for the respondent Township of Wilmot

Presiding Referee

Andrew C. Wright,
12 The Ridgeway
London, Ontario. N6C 1A1
E: andrewcwrightis@outlook.com

14. Parties who are added will have an opportunity to provide evidence in the form of affidavit(s) or witness statements before the hearing of the merits of the case and to participate as a party during the hearing of the merits. Subsequent case management pre-hearing conferences will deal with items referred to in paragraph 15 of the April 16, 2024 Order.

15. If you do not attend or are not represented at the September 11, 2024, case management video conference hearing, the presiding Referee may proceed in your absence, and you will not be entitled to any further notice of the proceedings.

Dated at London this April 16, 2024.

Andrew C. Wright
Acting Drainage Referee

ATTACHMENT to NOTICE

Court File No.: CV-23-00001662-0000 (Kitchener)

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

B E T W E E N:

CORY KITTEL

Applicant

• and -

THE CORPORATION OF THE TOWNSHIP OF WILMOT

Respondent

• and -

OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION

Respondents

MEMORANDUM OF APPEARANCE

The undersigned intends to respond to this application as a party.

Signature of Party or of Solicitor for Party
Print Name:
Address for service:
Telephone number:
E-mail address:

Date:

TO:

Andrew C. Wright, Acting Drainage Referee
12 The Ridgeway
London, Ontario. N6C 1A1 E: andrewcwrightis@outlook.com Presiding Drainage Referee

AND TO

The Law Office of Samuel Kirwin Professional Corporation, 472 Ridout Street, North, London, Ontario. N6A 2P7 Attention: Samuel Kirwin, via e-mail to samuel@kirwinlaw.ca Lawyer for the applicant

AND TO:

Thomas Sanderson via e-mail to tsanderson@millerthomson.com Miller Thomson ^LLP Suite 300, 115 King Street, South, Waterloo, Ontario. N2J 5A3 Lawyer for the respondent Township of Wilmot