ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Spence v South Bruce (Municipality), 2024 ONDR 8

DATE OF DECISION: 2024-10-20

Court File No. CV-24-00000018-0000 (Walkerton)

BETWEEN:

BARBARA SPENCE Applicant

-and-

THE CORPORATION OF THE MUNICIPALITY OF SOUTH BRUCE Respondent

• and -

OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION Respondents

Court File No. CV-24-00000019-0000 (Walkerton)

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

BETWEEN:

FOREMAN INVESTMENTS INC. Applicant

-and-

THE CORPORATION OF THE MUNICIPALITY OF SOUTH BRUCE Respondent

• and -

OTHERS WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION Respondents

ACTING DRAINAGE REFEREE ANDREW C. WRIGHT

HEARD ON WEDNESDAY, THE 16th DAY OF OCTOBER, 2024

ORDER

The Court of the Drainage Referee fixed this date for a pre-hearing conference to begin case management of these applications to address the following:

(a) Providing for the delivery directly to the presiding Referee, of anything a party is required to provide to the other party(ies) or is filed with the Court concurrently with its delivery or filing with the Court.

(b) Ordering the management and hearing of these two applications together.

(c) Identifying parties, including those who may be affected by the result of this application and, establishing a means of putting those potentially affected persons on notice of this application and giving them an opportunity to participate as a party.

(d) Fixing a time for the delivery by the Municipality of documentation, having regard for subsection 11(1) of Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee, including ordering a more limited production of documents than is strictly required by subsection 11(1).

(e) Fixing a time for the applicants to deliver supporting evidence.

(f) Fixing a time for the respondent, Municipality, to deliver responding materials.

(g) Identifying any preliminary issues.

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

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

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

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

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

(m) Setting the commencement date for the hearing.

(n) 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. A copy of 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. Delivery shall be in machine-readable electronic format; a hard copy may also be delivered in addition to the electronic version.

Definitions

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

(a) the “1970 Engineer’s Report” means the Engineer’s Report on the Filsinger Municipal Drain issued January 7, 1970, by Gamby and Mannerow Limited and signed by Wm J. Mannerow, P.Eng., including plans and profile, entered as Exhibit No.: 1.

(b) the “2018 Engineer’s Report” means the Engineer’s Report on the Filsinger Municipal Drain issued September 12, 2018, by Dietrich Engineering Limited and signed by William J. Dietrich, P.Eng. and Stephen Brickman, P.Eng., including plan and profile, entered as Exhibit No.: 2.

(c) the “1970 Filsinger Drain” means the drainage works described in the 1970 Engineer’s Report and includes, as the context may require, the construction and, thereafter, the maintenance and repair of those drainage works, the cost of which to be assessed to and paid for by the owners of lands that use the drainage works in accordance with the assessment schedules in the 1970 Engineer’s Report.

(d) the “2018 Proposed Filsinger Drain” means the proposed drainage works contemplated by the 2018 Engineer’s Report and includes, as the context may require, the Drainage Act process administered by the Municipality leading up to the completion and adoption of the 2018 Engineer’s Report, including rights of appeal to the Tribunal and to the Court of the Drainage Referee.

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

(f) the “Engineer” means William J. Dietrich, P.Eng. and Dietrich Engineering Limited, as well as Stephen Brickman, P.Eng., and Headway Engineering Professional Corporation, carrying on business as “Headway Engineering”.

(g) the “Filsinger Drain” means the 1970 Filsinger Drain and/or the 2018 Proposed Filsinger Drain, as the context requires.

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

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

(j) the “Municipality” means The Corporation of the Municipality of South Bruce, the respondent.

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

(l) 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.

(m) the “Tribunal” means the Agriculture, Food and Rural Affairs Appeal Tribunal.

Parties and Representation

4. The applicants are represented by G. Edward Oldfield and Mackenzie L. Mohr, lawyers with Madorin, Snyder LLP.

5. The Municipality is represented by Steven O’Melia, a lawyer in the Waterloo office of Miller Thomson LLP.

6. 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.

Hearing of Both Applications Together

7. Both the Barbara Spence application, being Court of the Drainage Referee File No.: CV-24-00000018-0000 (Walkerton) and the Foreman Investments Inc. application, being Court of the Drainage Referee File No.: CV-24-00000019-0000 (Walkerton) are to be managed and heard together.

Exchange of Documentation

8. The applicants shall deliver all relevant documents in their possession and control to the Municipality on or before Friday, January 3, 2025.

9. On or before Friday, January 3, 2025, the Municipality shall deliver to the applicants all documentation related to the Filsinger Drain, which is in the possession or control of or accessible by the Municipality, having regard for subsection 11(1) of the Rules; provided that the Municipality is not required to produce any documentation which predates the decision of the Divisional Court issued July 28, 2022 and reported as Goetz et al. v. The Corp. of the Municipality of South Bruce, 2022 ONSC 4388.

10. For the purposes of paragraph 9 of this Order, all documentation related to the Filsinger Drain, which is in the possession or control of or accessible by the Engineer, shall be deemed to be in the possession or control of or accessible by the Municipality.

11. The applicants shall deliver the applicants’ supporting affidavits to the Municipality on or before Monday, March 31, 2025.

12. The Municipality shall deliver to the applicants the Municipality’s responding affidavit or affidavits on or before Wednesday, April 30, 2025.

13. The applicants may deliver to the Municipality any reply affidavit or affidavits on or before Friday, May 16, 2025.

Future Case Management Conferences

14. There will be a further case management video conference, the purpose of which will be

(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; and

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

15. Subsequently, there will be a further case management video conference, 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 the hearing of the merits; and

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

16. The presiding referee will establish the dates and times of the case management video conferences referred to in paragraphs 14 and 15 above in consultation with counsel for the parties.

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

Video Conference Protocols

18. 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

19. 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-24-00000018-0000 (Walkerton) 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 19(d) above applies mutatis mutandis.

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

Exhibit No.

Notice of Application in the Barbara Spence application, being Court of the Drainage Referee File No.: CV-24-00000018-0000 (Walkerton) issued March 1, 2024

Notice of Application in the Foreman Investments Inc. application, being Court of the Drainage Referee File No.: CV-24-00000019-0000 (Walkerton) issued March 1, 2024

No.: 1

Engineer’s Report on the Filsinger Municipal Drain issued January 7, 1970 by Gamby and Mannerow Limited and signed by Wm J. Mannerow, P.Eng., including plans and profile (the “1970 Engineer’s Report”). - to be filed by the respondent Municipality.

No.: 2

Engineer’s Report on the Filsinger Municipal Drain issued September 12, 2018 by Dietrich Engineering Limited and signed by William J. Dietrich, P.Eng. and by Stephen Brickman, P.Eng., including plan and profile (the “2018 Engineer’s Report”). - to be filed by respondent Municipality.

Decision of the Tribunal related to the Filsinger Municipal Drain and appeals under sections 48 and 54 of the Drainage Act which decision was issued January 13, 2020 and is reported as Filsinger Municipal Drain – Amended (Re), 2020 ONAFRAAT 1.

Decision of Acting Referee Wright related to the Filsinger Drain issued February 12, 2021 and reported as Goetz v South Bruce (Municipality), 2021 ONDR 2

Decision of the Divisional Court issued July 28, 2022 and reported as Goetz et al. v. The Corp. of the Municipality of South Bruce, 2022 ONSC 4388 dismissing an appeal and cross-appeal from Referee Wright’s February 12, 2021 decision

21. This list will expand as production occurs and affidavits exchanged, as contemplated by paragraphs 8, 9, 11, 12 and 13 of this Order.

22. 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.

23. 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.

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

25. 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.

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

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

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

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

Dated at London this 20th day of October 2024.

Andrew C. Wright Acting Drainage Referee

REASONS

1. The Order to which these reasons are attached (the “Order”) is part of an evolving case management and procedural process intended to prepare for a hearing of the merits.

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

Exchange of Documents and Affidavits

3. The timetable for the exchange of documents set out in the Order was settled by consensus during the October 16, 2024 case management video conference hearing.

Consolidation of Applications

4. The parties also agreed to the consolidation of the two applications described in paragraph 7 of the Order.

The Engineer

5. I do not anticipate that document production from engineers will be a significant factor in these applications. The relevant engineers’ files will mainly relate to receiving instructions from the Municipality to proceed with the calling for tenders after the Divisional Court decision, the actual calling for tenders and reporting to the Municipality the results, as well as any related matters leading to the decision of the Municipality not to proceed with the 2018 Proposed Filsinger Drain.

6. The Municipality has agreed to produce from the engineers’ files documentation related to the Filsinger Drain from the period after the Divisional Court decision issued July 28, 2022 in the case of Goetz et al. v. The Corp. of the Municipality of South Bruce, 2022 ONSC 4388. At the time of the October 16, 2024 case management video conference hearing in these applications, it was unclear who the Municipality’s engineer was for this purpose.

7. The 2018 Engineer’s Report was issued by Dietrich Engineering Limited and signed by William J. Dietrich, P.Eng., and Stephen Brickman, P.Eng. At the hearing by the Court of the Drainage Referee leading to my decision, issued February 12, 2021, and reported as Goetz v South Bruce (Municipality), 2021 ONDR 2, Mr. Brickman gave all the engineering evidence. Mr. Brickman is no longer with Dietrich Engineering Limited and has established his separate engineering practice carrying on business as “Headway Engineering.”

8. It is possible that either or both Mr. Brickman and Mr. Dietrich and their respective engineering firms were involved, in whole or in part, from time to time, in the tendering process, which led to the Municipality’s decision not to proceed with the 2018 Proposed Filsinger Drain. I have, therefore, identified both in the definition of Engineer in the Order. If one or the other of the engineers were not involved, then there would be nothing to be produced from that engineer’s files. When it becomes clearer which of the two engineers had carriage at the relevant time after the Divisional Court decision, the definition of “Engineer” will be modified in future iterations of the procedural Order.

Case Management Video Conference to Give Directions for Notice

9. As indicated in paragraph 14 of the Order, there will be a further case management video conference, the purpose of which will be

(a) to give directions for the giving of notice to those who may be affected by the result of these applications and to establish a process for giving them an opportunity to participate as a party; and

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

10. The intent and purpose of the applications are to seek an Order from the Court of the Drainage Referee to compel the Municipality to proceed with the drainage works contemplated by the 2018 Engineer’s Report. If such an Order were to be made, then such drainage works would proceed, and the legal rights and obligations of those property owners in the watershed identified in the 2018 Engineer’s Report would be affected by the 2018 Proposed Filsinger Drain and/or by assessments for the cost of the resulting drainage works and its subsequent maintenance and repair in accordance with the 2018 Engineer’s Report. The principal purpose of that video conference hearing will be to give directions for the giving of notice to those property owners who may be affected by the decision about whether 2018 Proposed Filsinger Drain is to proceed and to give those potentially affected persons an opportunity to be parties to that validity decision.

11. The present intention is that the applicants will be directed to give notice of the applications to those whose names and addresses, according to the last revised assessment roll, appear as the owners of land identified in the 2018 Engineer’s Report as being assessed or awarded allowances for the Proposed Filsinger Drain. The Order directing the giving of notice will establish the form of the notice to be given and the date by which the applicants are to give that notice by ordinary mail.

12. The notice will direct those receiving it to the Municipality’s website for copies of all documents exchanged between the parties to the time of the giving of notice so that documentation needs to be in machine-readable form, hence the last sentence of paragraph 2 of the Order.

13. It is anticipated that the case management video conference hearing to give directions for the giving of notice will occur in late May or early June 2025 and that the notice will be sent on some date in June 2025.

Going Forward from the Case Management Hearing to Give Directions for Notice

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

15. Going forward from the case management video conference to give directions for notice, the notice to be given will advise of a further case management video conference 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. It is anticipated that the date of this further case management video conference will be in early September 2025. The date and time will be formally entrenched in the Order giving directions for notice.

16. The applicants and the Municipality will be afforded the opportunity to reply to any evidence from added parties. The date for reply will be established in the Order issued following the case management hearing adding parties. If there are parties added, the Order will also amend the Style of Cause to reflect the parties that will continue to the hearing on the merits.

17. 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.

18. Further case management video conferences will be scheduled from time to time until all of the items referred to in paragraph 17 of the Order have been addressed and the case is ready to proceed to a hearing of the merits.

19. 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 with an MP4 audio-video file of the hearing and a machine-generated transcript. The hearing on the merits may be held in a courtroom in the Walkerton 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 Walkerton courthouse is available within a reasonable time after the case is ready for hearing.

20. Notwithstanding that there may have been examinations before a court reporter outside of the hearing on the merits as contemplated by paragraph 17 above, at the time of the hearing of the merits, parties who have delivered affidavits or Witness Statements, as contemplated by paragraph 21 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.

21. 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.

22. 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 applicants would call their evidence. Any added party aligned with the applicants’ position would then call their evidence.

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

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

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

23. As indicated in paragraph 14 of these reasons, this summary is not intended to be immutable and is open to adjustments to accommodate unanticipated circumstances as they may arise and to expedite the hearing process.

24. If there are difficulties with document and affidavit 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 20th day of October 2024.

Andrew C. Wright Acting Drainage Referee