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 and JANANNA CORP.
Respondents
ACTING DRAINAGE REFEREE
ANDREW C. WRIGHT
HEARD ON WEDNESDAY,
THE 19^th^ DAY OF FEBRUARY, 2025
ORDER
The Court of the Drainage Referee has fixed this day for a case management video conference for the purpose of organizing for the hearing of the merits of the application, including:
(a) Identification of issues for the hearing of the merits.
(b) Dealing with 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 and witness statements for expert witnesses and affidavits and evidence summaries for 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.
and having heard from counsel for the applicant and counsel for the Township respondent and a representative of Jananna Corp. via video conference this day, 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 it sees fit. He may alter this Order by an oral ruling, or by another written Order.
This Order is supplementary to the January 15, 2024, Order, the February 22, 2024 Order, the April 16, 2024 Order and the September 11, 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.
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
- 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
The applicant is represented by Samuel Kirwin, a lawyer in the Law Office of Samuel Kirwin Professional Corporation.
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.
Jananna Corp. is self-represented by its president, Walter Krupnik.
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 be involved in connection with issues related to document productions from the Engineer’s files.
Time of Hearing of the Merits
The hearing of the merits will begin on Tuesday, May 20, 2025, at 10:00 a.m. and will be conducted via video conference using the Zoom platform.
The length of the hearing will be about five (5) days; after commencing on Tuesday, May 20^th^, the hearing will continue on Wednesday, May 21^st^, Thursday, May 22^nd^, Friday, May 23^rd^ and will resume on Monday, May 26, 2025.
Issues
- The issues to be resolved at the hearing are as follows:
(a) 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? Is the Engineer’s definition/rationale/methodology for it permissible under the Drainage Act?
(b) 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 Koch-Leis Drain?
(c) Does the Engineer’s Report satisfy the requirement, at subsection 8(1)(a) of the Drainage Act, to include a description of the area requiring drainage in the report?
- There will be no changes to this issues list unless the presiding Referee permits, and a party who asks for changes may have costs awarded against it.
Exchange of Facta
The applicant will deliver his factum to the other parties on or before Friday, April 25, 2025.
The Township and Jananna Corp. will deliver their respective facta to the other parties on or before Friday, May 2, 2025.
The applicant may deliver a reply factum on or before Friday, May 9 2025.
Order of Proceeding
- The order in which evidence will be given at the hearing of the merits will be as follows:
(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 will call his evidence. In the order to be decided by counsel for the applicant, the applicant’s witnesses will be
(i) the applicant, Cory Kittel, who will give factual evidence based
(A) on his affidavit sworn January 29, 2024 in response to the Township’s January 10, 2024 Motion for Procedural Direction (Exhibit 4), and
(B) on his affidavit of Documents sworn April 2, 2024 (Exhibit No.: 7) and
(C) on his affidavit sworn on April 2, 2024 in support of this application (Exhibit No.: 8), and
(D) on his supplementary Affidavit sworn on January 10, 2025 (Exhibit 13).
(ii) Brian Verspagen, P.Eng., who will give factual and opinion evidence based on his affidavit sworn January 10, 2025 (Exhibit 12), including his expert’s report attached as Exhibit A to that affidavit.
(iii) Kenneth Heintz, who will give factual evidence based on his affidavit sworn January 10, 2025 (Exhibit 14).
(iv) Ladislaus Bauer, who will give factual evidence based on his affidavit sworn January 10, 2025 (Exhibit 15), including his letter dated January 7, 2025 addressed “To Whom It May Concern” attached as Exhibit A to that affidavit.
(c) The respondent Township will then call its evidence. In the order to be decided by counsel for the Township, the Township’s witnesses will be
(i) Stephen Brickman, P.Eng., who will give factual and opinion evidence based on his affidavit sworn June 20, 2024 (Exhibit No.: 10)., on his Affidavit of Documents sworn March 14, 2024 (Exhibit No.: 5), on his Supplementary Affidavit of Stephen Brickman, P.Eng. sworn February 5, 2025 (Exhibit 16) and on the Township’s Document Brief issued April 2, 2024 (Exhibit No.: 9), and
(ii) Kaitlin Bos, Clerk of the Township, who will give factual evidence based on her affidavit sworn February 6, 2025 (Exhibit 17).
(d) The Jananna Corp. witness will be its president, Walter Krupnik, who will give factual evidence based on his affidavit sworn on November 20, 2024 (Exhibit 11).
(e) The applicant will then have the opportunity to call reply evidence.
Final submissions by the parties will proceed in the same order as specified in paragraph 16 above.
A party who has provided an affidavit as contemplated by paragraph 16 above must have the person who signed the affidavit attend the hearing of the merits to give oral evidence unless the party notifies the presiding Referee at least seven (7) days before the hearing that the document or written evidence is not part of their record.
Video Conference Protocols
- 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 and camera turned off 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 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 Justice Services Online 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 20(d) above applies mutatis mutandis.
- At the time of this February 19, 2025 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.
Order issued by Acting Referee Andrew Wright on September 11, 2024 adding Jananna Corp as a party and setting dates for their delivery of documents and exchange of affidavits and fixing date case management video conference on Wednesday, February 19, 2025
No. 11
Affidavit of Walter Krupnik sworn November 20, 2024
No. 12
Affidavit of Brian Verspagen, P.Eng., sworn January 10, 2025 together with two exhibits:
Exhibit A - expert’s report
Exhibit B - Acknowledgement of Expert’s Duty
Exhibit C - Curriculum Vitae.
No. 13
Affidavit of Cory Kittel sworn January 10, 2025 together with one exhibit:
Exhibit A – Mr. Kittel’s Commentary and his Evidence
No. 14
Affidavit of Kenneth Heintz sworn January 10, 2025
No. 15
Affidavit of Ladislaus Bauer sworn January 10, 2025 together with one exhibit:
Exhibit A – His letter dated January 7, 2025 addressed To Whom It May Concern
No. 16
Supplementary Affidavit of Stephen Brickman, P.Eng. sworn February 5, 2025 together with
Exhibit A – Supplementary Experts Report dated February 5, 2025
No. 17
Affidavit of Kaitlin Bos, Clerk of the Township, sworn February 6, 2025, together with
Exhibit A – the Petition
Exhibit B – Property Index Map
Exhibit C – Parcel Register for PIN 22176-007
Exhibit D – Parcel Register for PIN 22176-0015
Exhibit E – Information and Legislative Services Staff Report ILS 2021-27 dated July 12, 2021
Exhibit F – Minutes of Township Council Meeting dated July 12, 2021
Exhibit G – Letter dated July 22, 2021 from the Engineer, Stephen Brickman, P.Eng. to Tracy Murray the Township’s Manager of Information and Legislative Services and Deputy Clerk
Exhibit H - Letter dated September 8, from the Engineer, Stephen Brickman, P.Eng. to Tracy Murray the Township’s Manager of Information and Legislative Services and Deputy Clerk
Exhibit I – Public Information Meeting Presentation dated September 29, 2022
Exhibit J - Public Information Meeting Presentation dated November 22, 2022
Exhibit K - Engineer’s Report dated April 28, 2023
Exhibit L – Minutes of the Township Council Meeting on June 26, 2023, with Confirmatory By-law
Exhibit M – Minutes of Court of Revision Meeting dated August 16, 2023
Exhibit N - Notice of Appeal letter from Cory Kittel dated September 6, 2023
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: The appeal of this decision to the Divisional Court was abandoned.
Decision of Cumming, J. in the case of CPC International Inc. v Seaforth Creamery Inc., 1996 CanLII 8195 (ON SC)
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 cases listed in paragraph 21 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
- 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.
For the purposes of this Order, unless otherwise ordered, Andrew C. Wright, Acting Drainage Referee, shall be regarded as the presiding Referee.
The presiding Acting Referee may be spoken to should clarification or further directions are required or desired in connection with this Order.
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.
Dated at London this February 19, 2025.
Andrew C. Wright Acting Drainage Referee
REASONS
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.
It is to be noted that a number of those who received notice of this application and who sought to observe from the virtual gallery were provided with login credentials to monitor the video conference proceeding on September 11^,^ 2024 and on February 19, 2025.
The principal purpose of the case management video conference hearing on Wednesday, February 19, 2025, was to organize the hearing of the application's merits.
This Order, including the commencement date of the hearing of the merits and the reserved dates for that hearing, reflects a consensus reached during the February 19^th^ video conference case management hearing.
If there are difficulties with anything arising from the Order and these reasons, at the request of any party, I will convene a video conference to deal with it.
Dated at London this February 19, 2025.
Andrew C. Wright Acting Drainage Referee