ONTARIO SUPERIOR COURT OF JUSTICE
IN THE COURT OF THE DRAINAGE REFEREE
CITATION: Colins v Middlesex Centre (Municipality), 2024 ONDR 7
DATE OF DECISION: 2024-09-20
Court File No.: CV-23-00001995-0000 (London)
B E T W E E N:
KATRINA COLLINS
Plaintiff
- and –
MUNICIPALITY OF MIDDLESEX CENTRE
Defendant
- and -
OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION
Respondents
ACTING DRAINAGE REFEREE: ANDREW C. WRIGHT
HEARD ON FRIDAY, THE 20^th^ DAY OF SEPTEMBER, 2024
ORDER
The Court of the Drainage Referee fixed May 7, 2024 as the date for a pre-hearing case management conference, to address the following:
(a) Whether to give notice of this action to those potentially affected parties and the opportunity to participate and, in that case, to give directions for the giving of such notice; or
(b) Whether to defer the giving of such notice pending the hearing of preliminary issues motions and, in that case, to establish a schedule for delivering the Notices of Motion and for the exchange of evidence and facta in advance of the argument of the preliminary issues motions, and the date for the hearing of the preliminary motions;
and after hearing the submissions of counsel at that time, the case management conference was adjourned to this date to allow for the exchange of amended pleadings. After hearing from counsel on this date, for the reasons that follow:
THIS COURT ORDERS that
The presiding Referee may vary or add to these rules at any time, either on request or as he sees fit. The presiding Referee may alter this Order by an oral ruling, or by another written Order.
This Order is supplementary to the Order issued on December 12, 2023, which remains in effect, as augmented by this Order, except as specifically amended by this Order, and the reasons for that previous decision remain extant. In the event of a conflict between Orders, the more recent Order shall prevail.
Anything that is required by this Order to be delivered by a party to another or to be filed with the Court shall be delivered directly to the presiding Referee concurrently with delivery to the other party or its filing with the Court.
For the purposes of this Order and the reasons therefor, unless the context requires a different meaning:
(a) the “1965 Engineer’s Report” means the Engineer’s Report on the Forsyth Drain dated August 19, 1965 issued by A.M. Spriet & Associates Ltd., and signed by A.J. DeVos, P.Eng. including plan and profile. (Exhibit No.: 1)
(b) the “2006 Engineer’s Report” means the Engineer’s Report on the Forsyth Drain Garden Avenue Branches 2006 dated October 19, 2006 issued by Spriet Associates London Limited and signed by M.P. DeVos, P.Eng. including plan and profile. (Exhibit No.: 2)
(c) the “Act” or the “Drainage Act” means the Drainage Act, R.S.O. 1990 Chapter D.17, as amended.
(d) the “Conservation Authority” means the Lower Thames Valley Conservation Authority having jurisdiction in the area of the Forsyth Drain
(e) the “Drain” or “Forsyth Drain” means the drainage works known as the Forsyth Drain, constructed under the authority of the Act in accordance with the 1965 Engineer’s Report and the 2006 Engineer’s Report.
(f) the “Municipality” sometimes referred to as “Middlesex Centre”, means the defendant, the Municipality of Middlesex Centre, for itself and as the administrator of the Drainage Act within its territorial limits.
(g) the “Municipal Act” means the Municipal Act, 2001, S.O. 2001, Chapter 25, as amended.
(h) the “Rules” means Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee.
(i) the “Drainage Tribunal” means the Agriculture, Food and Rural Affairs Appeal Tribunal.
Parties and Representation
The plaintiff was represented by Samuel Kirwin, a lawyer in the Law Office of Samuel Kirwin Professional Corporation, until June 21, 2024 when the plaintiff was represented briefly by Brian Duxbury, a lawyer in the office of Duxbury Law and after July 2, 2024 the plaintiff was self-represented until September 12, 2024, when the plaintiff was again and is now represented by M. Kirwin.
Middlesex Centre is represented by Jonathan de Vries and Leslie Jack, lawyers with the law firm of Shillington McCall ^LLP^, Lawyers.
Others may be added as parties following the circulation of notice of this action in accordance with directions to be given in the future, and if they are added as parties, they and their representative will be added.
Preliminary Issues Motions
The court will defer giving notice of this action to landowners assessed for the Forsyth Drain until after the preliminary issues questions have been heard and decided.
Middlesex Centre will bring its preliminary issues questions forward by way of a Notice of Motion, and the following provisions shall apply:
(a) Middlesex Centre shall deliver to the plaintiff Middlesex Centre’s motion record by Monday, December 2, 2024.
(b) The plaintiff will deliver her responding affidavits and record by Wednesday, January 15, 2025.
(c) Middlesex Centre may deliver reply evidence by Wednesday, February 12, 2025.
(d) Middlesex Centre will deliver its factum by Wednesday, March 12, 2025.
(e) The plaintiff will deliver her factum by Wednesday, April 2, 2025.
(f) The hearing of the Middlesex Centre preliminary issues motion will be conducted by video conference commencing at 10:00 am on Wednesday, April 23, 2025; the hearing will continue, if necessary, on Thursday, April 24, 2025.
- At the time of the hearing of the preliminary issues motions, the following provisions shall apply:
(a) Parties who have delivered affidavits in support of or in response to the motion(s) will call as witnesses each person who has sworn an affidavit. Witnesses to be called during the hearing of the motion(s) will be limited to those who have previously filed affidavits. Witnesses will be asked to reaffirm or correct their affidavits and then be subject to cross-examination by the other parties and questions from the presiding Referee.
(b) The order in which witnesses will be called will be as follows:
(i) Middlesex Centre will call its witnesses who provided affidavits in support of the Middlesex Centre preliminary issues motion.
(ii) The plaintiff will call any witnesses who provided affidavits in response to Middlesex Centre’s preliminary issues motion.
(iii) Middlesex Centre will have the opportunity to call reply evidence.
(c) Final submissions will be heard in the same order as the giving of evidence.
Future Case Management Conferences
- If the action is not disposed of as a result of decisions on the preliminary issues motion, then future case management video conferences will be scheduled to address:
(a) Identifying parties, including those who may be affected by the result of this action and establishing a means of putting those potentially affected persons on notice of this action and giving them an opportunity to participate as a party.
(b) Scheduling production of documentation by the parties and examinations for discovery.
(c) Scheduling pre-hearing production and exchange of documents, including affidavits or witness statements for expert witnesses and affidavits or evidence summaries for other witnesses.
(d) Identifying the number and nature of witnesses to be called by each party.
(e) Estimating the amount of time required for the hearing.
(f) Setting the commencement date for the hearing.
(g) Making provisions about access to and login credentials for participants in the hearing.
(h) Providing for service by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service).
(i) Dealing with such other matters or things as may arise and which the presiding Referee may determine is expedient to permit.
Video Conference Protocols
- For case management video conferences, the hearing of motions 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
- Because case management video conferences, the hearing of motions 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-23-00001995-0000 (London) and the exhibit identifier assigned by the presiding Referee; a copy of the e-mail of transmittal shall be provided to the presiding Referee.
(e) Court Orders, the application, pleadings, notices of motion, facta, case law, legislation and compendiums of authorities will not be marked as exhibits though Court Orders, the application, notices of motion and facta should be filed with the court and item 13(d) above applies mutatis mutandis.
- At the time of this Order, the following documents are part of the record:
Statement of Claim issued September 20, 2023
No.:1
Engineer’s Report on the Forsyth Drain dated August 19, 1965 issued by A.M. Spriet & Associates Ltd., and signed by A.J. DeVos, P.Eng. including plan and profile.
No.: 2
Engineer’s Report on the Forsyth Drain Garden Avenue Branches 2006 dated October 19, 2006 issued by Spriet Associates London Limited and signed by M.P. DeVos, P.Eng. including plan and profile.
Procedural Order issued December 12, 2023 by Acting Drainage Referee, Andrew Wright
Statement of Defence dated February 28, 2024
No.: 3
Affidavit of Documents sworn by Katrina Collins on January 30, 2024
No.: 4
Compilation of the 222 documents referred to the Affidavit of Documents sworn January 30, 2024 by Katrina Collins
No.: 5
Middlesex Centre’s Affidavit of Documents sworn by Dan Anderson, Drainage Superintendent, in March 28, 2024
No.: 6
Compilation of 49 documents referred to in the Middlesex Centre Affidavit of Documents sworn March 28, 2024
Amended Statement of Claim filed and issued April 30, 2024
Reply issued April 30, 2024
Amended Statement of Defence issued June 28, 2024
Amended Reply issued August 2, 2024
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.
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.
If counsel or a witness intends to rely upon case law, other than the any listed in paragraph 14 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
- 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.
For the purposes of this Order, unless otherwise ordered, Andrew C. Wright, Acting Drainage Referee, shall be regarded as the presiding Referee.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness.
Costs of the day are reserved to the final disposition of this matter.
Andrew C. Wright, Acting Drainage Referee, is not seized of the hearing of the merits of this action.
Dated at London this September 20, 2024.
Andrew C. Wright
Acting Drainage Referee
REASONS
The Order to which these reasons are attached (the “Order”) 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.
Words and phrases defined in the Order have the same meaning when used in these reasons.
Much that is required by the December 12, 2024 procedural Order has been accomplished. That includes the exchange of pleadings and document production.
During the exchange of pleadings, counsel for Middlesex Centre advised that there were preliminary issues to be addressed sooner rather than later. In broad terms, the following preliminary issues were identified by Middlesex Centre:
(a) The existence or sufficiency of any notice served by the plaintiff on Middlesex Centre pursuant to section 79 of the Drainage Act with respect to the maintenance and repair of the Forsyth Drain.
(b) Whether the Referee has jurisdiction over several issues raised in the Statement of Claim, as amended, including:
(i) The claim for injurious affection,
(ii) Claim for damages under the Municipal Act
(iii) The claims in negligence.
Typically, at this stage in the process, the court would be directing the plaintiff to give notice principally to those who are assessed for the Forsyth Drain because, perforce of subsection 118(1) of the Drainage Act, damages and costs payable by a municipality for failing to maintain and repair a municipal drain are levied upon the lands and roads assessed for the drainage works.
Subsection 118(2) of the Drainage Act goes on to provide that the Referee may direct that the whole or part of such damages and costs are to be paid out of the municipality’s general funds if there has been some improper action, neglect, default or omission by the municipality.
In the normal course, preliminary issues should only be addressed after all the potentially affected parties are on notice and are given the opportunity to participate so that all who choose to be parties can participate in the preliminary issues debate.
This case, however, departs from the normal course in that the Statement of Claim, as amended, weaves in claims for compensation for injurious affection, damages under the Municipal Act, 2001, and negligence.
If successful, the claims for compensation and damages referred to in paragraph 8 above would be paid out of the municipality’s general funds, and none would be allocated to the lands and roads assessed for the Forsyth Drain. As a result, the assessed landowners would have no interest in the preliminary issues debate about the jurisdiction of the Court of the Drainage Referee to deal with claims for injurious affection or claims for damages for non-repair of roads or negligence.
With respect to the question of the sufficiency of notice served pursuant to section 79 of the Act, the pertinent evidence will come from the plaintiff and Middlesex Centre. Other parties would have little, if any, knowledge or evidence to contribute to that debate.
I have heard submissions from counsel and from the plaintiff and have decided to defer giving notice to assessed landowners until after the preliminary issues questions have been debated and decided. Middlesex Centre will bring its preliminary issues questions forward by way of a Notice of Motion.
The purpose of the Order is to establish a schedule for the parties to exchange motion records and responding evidence and to fix a date for the hearing of the preliminary motions, including viva voce cross-examination of witnesses whose affidavits have been filed in support of or in response to the motion, hence paragraphs 9 of the Order.
If there are difficulties with document exchange or 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 September 20, 2024.
Andrew C. Wright
Acting Drainage Referee