ODR 2025

The Acting Drainage Referee held a case management hearing to schedule and identify issues for an upcoming damages hearing regarding the St. John's Marsh Drain.

The Referee issued a procedural order lifting the automatic stay under the Statutory Powers Procedure Act, dismissing several outstanding historical motions and appeals, lifting a stay on the abandonment of a portion of the drain, and establishing a timetable for the exchange of witness affidavits, facta, and the conduct of the video conference hearing.

The Municipality of Chatham-Kent brought an application under the Drainage Act for an order authorizing the construction of a municipal drain across a Canadian Pacific Railway (CPR) right-of-way.

CPR raised a constitutional question, arguing that as a federally regulated railway, it is constitutionally exempt from paying Drainage Act assessments under the doctrines of interjurisdictional immunity and federal paramountcy.

The Acting Drainage Referee held that the Drainage Act assessments do not trench on or impair the core of federal railway jurisdiction, as they are a cost allocation mechanism rather than a regulatory interference with the physical structure or operation of the railway.

The Referee also found no operational conflict or frustration of purpose between the Drainage Act and the federal Railway Safety Act, applying the principle of cooperative federalism.

The Referee ordered the Municipality to apply to the Canadian Transportation Agency for authorization to cross the railway right-of-way, while confirming that CPR remains liable for its assessed share of the drainage works costs under the Drainage Act.

The respondent Town brought a motion seeking the recusal of the presiding Acting Drainage Referee based on a reasonable apprehension of bias.

The Town argued that the Referee engaged in evidentiary discovery outside the hearing process, improperly ordered the Town to pay costs out of general funds under s. 118(2) of the Drainage Act, and was disqualified under Referee Rule 8(3) for conducting pre-hearing case management.

The Referee dismissed the motion, finding that his actions were consistent with the statutory scheme, the duty to ensure full pre-hearing disclosure, and the proper exercise of case management powers.

The Referee held that a sensible and informed person would not conclude that he could not decide the case fairly.

The self-represented plaintiff brought a motion for the production of documents from the City of Ottawa and the Rideau Valley Conservation Authority regarding the Hobbs Drain.

The defendants argued the requests were too broad and irrelevant to the narrowed scope of the proceeding, as the plaintiff had not appealed the 2021 engineer's report under Section 47 of the Drainage Act.

The Drainage Referee ordered that the plaintiff's motion and reconstituted affidavit must be restricted to his claims for damages under Section 79 of the Drainage Act.

The Referee also directed that unless specific unrepresented parties file an appeal within 30 days, the City of Ottawa must submit the engineer's report to the conservation authority for a permit to extend the drain outlet.

The applicants sought damages for the non-repair of a municipal drain.

The respondent Town failed to produce required engineer's reports and municipal by-laws, despite a prior procedural order.

The Acting Drainage Referee found the Town's non-disclosure to be an abuse of process.

Consequently, the Town was disqualified from leading evidence in response to the application, and any costs or damages ordered against the Town were directed to be paid out of its general funds.

Following a successful application before the Court of the Drainage Referee, the applicant sought costs on a substantial indemnity basis, relying on a pre-hearing settlement offer to install a private drain.

The Referee declined to apply Rule 49 of the Rules of Civil Procedure, finding the private drain would not have provided a legal outlet and thus the hearing result was not more favourable than the offer.

The Referee also reduced the recoverable disbursements for the applicant's expert engineer, as the expert's report did not address the central issues of the hearing.

Costs were awarded to the applicant on a partial indemnity basis in the fixed amount of $12,500, payable jointly by the Township and the co-respondent petitioner.

The applicants brought applications before the Court of the Drainage Referee against the respondent municipality.

At a case management conference, counsel advised that the applications were to be dismissed on consent.

The Spence application was dismissed without costs.

The Foreman Investments Inc. application was dismissed with costs fixed at $2,500 payable to the respondent municipality.

Following the dismissal of the plaintiff's action, the parties reached an agreement on costs.

The Court of the Drainage Referee issued a consent order fixing costs at $18,000, payable by the plaintiff to the defendant municipality.

The applicant challenged the validity of a petition for a municipal drain and the resulting Engineer's Report.

The Engineer had defined the 'area requiring drainage' based on property boundaries and the presence of systematic tile drainage, excluding the applicant's farm because it theoretically had riparian access to a creek.

The Acting Drainage Referee held that the Engineer erred in law.

Property boundaries are not relevant to determining an area requiring drainage under section 4 of the Drainage Act, and the applicant's theoretical riparian access was not reasonably feasible.

The petition was declared invalid, the Engineer's Report was set aside, and the provisional by-law was quashed.

The Drainage Referee issued a procedural order to establish timelines for the delivery of documents and the continuation of summary judgment motions.

The motions, originally brought by the City of Niagara Falls and the Town of Fort Erie, had been stayed pending appeals to the Divisional Court.

Following the Divisional Court's stay of those appeals, the matter was returned to the Referee.

The order sets deadlines for the appellant to provide additional documentation regarding damages and for the respondents to deliver their documentation and complete cross-examinations, after which a procedural hearing will be set for the continuation of the motions.

The Acting Drainage Referee issued a procedural order following cross-examinations on affidavits to establish a schedule for the hearing of a preliminary constitutional question and supplementary questions.

The underlying dispute involves the Municipality of Chatham-Kent's application regarding the Shaw Branch Drain crossing a Canadian Pacific Railway right-of-way, and whether the railway is constitutionally exempt from paying assessments under the Drainage Act.

The order sets dates for the exchange of facta, the order of proceedings, and establishes video conference protocols and rules for the introduction of exhibits.

The plaintiff brought an action against the Municipality for damages arising from the flooding of her property, alleging that the Municipality failed to maintain and repair a municipal drain.

The Municipality brought a motion to dismiss the claims.

The Acting Drainage Referee held that the plaintiff failed to serve sufficient notice of non-repair as required by section 79 of the Drainage Act, finding that undocumented verbal communications and informal emails to the Drainage Superintendent and Director of Public Works did not constitute valid service on the head or clerk of the Municipality.

The Referee also held that the Court of the Drainage Referee lacks jurisdiction to adjudicate claims for common law injurious affection and negligence that are not rooted in the Drainage Act.

The action was dismissed.

The Acting Drainage Referee conducted a case management video conference to organize the hearing on the merits of an application under the Drainage Act.

The Referee issued a procedural order setting the hearing dates, identifying the issues to be resolved, establishing the schedule for the exchange of facta, and detailing the order of proceeding and video conference protocols.

The order also consolidated previous procedural directions and listed the documents forming the record.