Kittel v Wilmot (Township), 2024 ONDR 5

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Kittel v Wilmot (Township), 2024 ONDR 5

DATE OF DECISION: 2024-09-11

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 and JANANNA CORP.

Respondents

ACTING DRAINAGE REFEREE

ANDREW C. WRIGHT

HEARD ON WEDNESDAY,

THE 11th DAY OF SEPTEMBER, 2024

ORDER

The Court of the Drainage Referee has fixed this day for a case management video conference for the purpose of identifying parties to this application, determining when any added parties are to provide a supporting affidavit or witness statement material, and such other matters or things as may arise and which the presiding Referee may determine it is expedient to permit. This purpose was based on the circulation of notice to those who may be affected by the outcome of this application. The details for the circulation of notice are to be found in the Order issued on April 16, 2024. Jananna Corp was the only person that entered an appearance in accordance with that Order. Jananna Corp. is the petitioner so has an interest in whether it is valid and supports the Engineer’s Report; Jananna Corp. was therefore added as a party. The purpose of the hearing on September 11, 2024 then moved to begin to organize for the hearing of the merits of the application, including:

(a) Identification of issues for the hearing of the merits.

(b) Fixing a time for the delivery of other documentation, having regard for section 11 of Rules.

(c) Determining when Jananna Corp. is to provide its document disclosure and supporting affidavit.

(d) Dealing with issues of disclosure.

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

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

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

(h) Setting the commencement date for the hearing.

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

And, having heard from counsel for the applicant and counsel for the Township respondent via video conference this day, 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. He may alter this Order by an oral ruling, or by another written Order.

2. This Order is supplementary to the January 15, 2024, Order, the February 22, 2024 Order and the April 16, 2024 Order, all 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. Jananna Corp. is self-represented by its president, Walter Krupnik.

8. 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 is only involved in connection with issues related to document productions from the Engineer’s files.

9. Aside from Jananna Corp., no person sought to be added as a party after the notice of this application was circulated, as required by the April 16, 2024 Order. Therefore, it is ordered that the only parties to this application are the applicant, the Township, and Jananna Corp and the style of cause is amended accordingly.

Jananna Corp. Delivery of Documents and Supporting Affidavit.

10. On or before Monday, December 2, 2024, Jananna Corp shall deliver to the applicant and to the Township Jananna Corp.’s supporting affidavit or affidavits together with all relevant documents in the possession and control of Jananna Corp. which are not attached as exhibits to its supporting affidavit or affidavits or which have not been produced

(a) in the Engineer’s Affidavit of Documents sworn on March 14, 2024 and marked as Exhibit No.: 5,

(b) in the Applicant’s Affidavit of Documents sworn on April 2, 2024 and marked as Exhibit No.: 7, and

(c) in Township’s Document Brief issued April 2, 2024 and marked as Exhibit No.: 9.

11. On or before Friday, September 20, 2024, the applicant shall identify to Jananna Corp. the nature of documents likely within Jananna Corp.’s possession and control, which the applicant requires Jananna Corp. to produce as contemplated by paragraph 10 above.

12. On or before Friday, September 20, 2024, the Township may identify to Jananna Corp. the nature of documents likely within Jananna Corp.’s possession and control, which the Township requires Jananna Corp. to produce as contemplated by paragraph 10 above.

13. In the event of a dispute regarding the documents to be produced by Jananna Corp., any party may refer the dispute to the presiding Referee, who will schedule a hearing to resolve it.

Applicant’s Evidence

14. On or before Friday, January 10, 2025, the applicant will deliver to the other parties affidavits of all witnesses it intends to call as witnesses in support of the application at the hearing of the merits; such affidavit(s) are in addition to the Affidavit of the applicant in support of the application sworn on April 2, 2024 by Cory Kittel, together with 29 Exhibits A through CC. (Exhibit No.: 8).

Township’s Evidence

15. On or before Friday, February 7, 2025, the Township will deliver to the other parties

(a) an affidavit of a Township administrator about the procedural aspects of the Drainage Act process from the Township’s receipt of the Petition to the time of the initiation of this application. and

(b) an affidavit or affidavits in response to the applicant’s material delivered on January 10, 2025 as contemplated by 14 above.

Case Management Hearing to Organize Hearing of the Merits

16. Commencing at 10:00 am on Wednesday, February 19, 2025 there will be a further case management video conference hearing to organize for the hearing of the merits of the application, including:

(a) Identification of issues for the hearing of the merits.

(b) Dealing with any issues of disclosure.

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

(d) Scheduling any additional pre-hearing production and exchange of documents, including affidavits of expert witnesses and other witnesses.

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

(f) Setting the commencement date for the hearing.

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

Video Conference Protocols

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

(a) The Parties shall provide to 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) Prior to 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

18. 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 via the One-Key portal 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 application, notices of motion, factums, case law, legislation and compendiums of authorities will not be marked as exhibits though Court Orders, the application, notices of motion and factums should be filed with the court and item 19(d) above applies mutatis mutandis.

19. At the time of this September 11, 2024 Order, the following documents are 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

Order issued by Acting Referee Andrew Wright on February 22, 2024 establishing schedules for delivery of applicant’s supporting affidavits and production of documents and for the Township and the Engineer to produce documents

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.

Order issued by Acting Referee Andrew Wright on April 16, 2024 providing for the giving of Notice to those who may be affected by the result of the application.

No.: 10

Affidavit of Stephen Brickman, P.Eng. sworn June 20, 2024 together with 21 exhibits A through W one of which, Exhibit A, is an Expert’s Report.

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)

20. 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.

21. 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 application, appearances, any motions and routine affidavits of service for supporting affidavits.

22. If counsel or a witness intends to rely upon case law, other than the cases listed in paragraph 20 above 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

23. 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; and

(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.

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

25. The presiding Acting Referee may be spoken to should clarification or further directions be required or desired in connection with this Order.

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

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

Dated at London this September 11, 2024.

Andrew C. Wright Acting Drainage Referee

REASONS

1. The Order to which these reasons are attached is an evolving case management and procedural Order, which is a consolidation of previously issued Orders and includes currently operable provisions and eliminates those matters which have been completed or are no longer necessary. The Order to which these reasons are attached is referred to in these reasons as this Order.

2. The principal purpose of the case management video conference hearing on Wednesday, September 11, 2024 was to identify parties to this application, to determine when any added parties would provide relevant documentation and supporting affidavit(s) and such other matters or things as may arise. This purpose was based on the circulation of notice to those who may be affected by the outcome of this application. The details for the circulation of the notice are to be found in the Order issued on April 16, 2024. Jananna Corp was the only person who entered an appearance in accordance with that Order. Jananna Corp. is the petitioner, so has an interest in the validity of the petition and whether the petition supports the Engineer’s Report. Jananna Corp. was, therefore, added as a party, and a date was set for Jananna Corp. to provide its document disclosure and supporting affidavit(s) as appears in paragraph 10 of this Order.

3. It is to be noted that a number of those who received the notice sought to observe from the virtual gallery. Those seven persons requesting observer status were provided with login credentials to monitor the video conference proceeding on September 11th.

4. Jananna Corp. did not appear at the time appointed for the commencement of the September 11, 2024 case management video conference hearing. About 10 minutes after the appointed time, Jananna Corp. entered the video conference and spent another 15 minutes trying unsuccessfully to get the Jananna Corp. microphone to work. It was apparent that they could hear and see the proceedings but were unable to participate. Jananna Corp. was invited to telephone into the conference so audio communication could be established but Jananna Corp. was unwilling or unable to call in. After this considerable delay, the case management hearing proceeded without any Jananna Corp. audio input.

5. When considering its disclosure obligations as a party, Jananna Corp. should have regard for the disclosure obligations of the Township as set out in paragraph 10 of the Order issued in this matter on February 22, 2024. The consequences for Jananna Corp. of failing to satisfy its obligations as a party are reflected in paragraphs 21 and 52 of the reasons attached that February 22, 2024 Order.

6. The case management hearing on September 11, 2024, then moved to trying to organize the hearing of the application's merits. While the applicant has filed an affidavit sworn by the applicant himself (Exhibit No.: 8) and will call him to give evidence in support of the application, it became apparent that the applicant intended to call additional witnesses in support of the application. A date was set for the applicant to provide affidavits from all witnesses to be called in support of the application, hence paragraph 14 of this Order.

7. The Township indicated that it should have the opportunity to respond to the new evidence to be provided by the applicant, especially if it concludes an expert opinion report. A date was set for the Township to provide responding affidavit material, hence paragraph 15 of this Order.

8. By early February 2025, all of the affidavit evidence will have been filed, and it will be possible to organize a hearing on the merits of this application, including estimating the amount of time required for the hearing and setting the commencement date for the hearing. In paragraph 16 of this Order, Wednesday, February 19, 2025, was set as the date for a case management video conference for that purpose.

Dated at London this September 11, 2024.

Andrew C. Wright Acting Drainage Referee