Chrustie v Ottawa (City), 2025 ONDR 10

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Chrustie v Ottawa (City), 2025 ONDR 10

DATE OF DECISION: 2025-08-28

Court File No.: CV-20-83031

B E T W E E N:

BRUCE DAVID CHRUSTIE

Plaintiff/Appellant

• and –

CITY OF OTTAWA

Defendant/Respondent

• and –

RIDEAU VALLEY CONSERVATION AUTHORITY, MICHAEL WESTLEY, BARBARA WESTLEY, TOMLINSON DEVELOPMENT CORPORATION, WILLIAM TOMLINSON IN TRUST, 5010697 ONTARIO INC. o/a R.W. TOMLINSON LTD., LLOYD MARC CHARTRAND, CHARLENE ANN CHARTRAND, WILLIAM KINKADE, JULIE KINKADE, JOHN CHARLES COMPTON, MARY LUCY ELIZABETH COMPTON, GOPAL MOUDGIL, SUDERSHAN MOUDGIL, STEVEN SELTENREICH, ANITA BOLGER, VAN GALDER CONSTRUCTION CO., RIDEAU VALLEY CONSERVATION FOUNDATION

Added Parties

DRAINAGE REFEREE ) HEARING HELD TUESDAY ROBERT G. WATERS ) THE 19^th DAY OF AUGUST, 2025 )

REASONS FOR DECISION AND ORDER

1. This Hearing is in compliance with an Appointment for Procedural Hearing dated the 30^th day of July, 2025, which Appointment for Procedural Hearing required the addressing of the Motion of June 20^th, 2025 of Bruce Chrustie, who is self-represented. The Hearing, among other matters, was to decide the propriety of proceeding by way Factum and related documentation for such Motion.

2. It was also to review issues raised by counsel of Tomlinson Group regarding the irregularities in Mr. Chrustie’s Affidavit accompanying the Motion of June 20^th, 2025.

3. There was a prior Motion brought by Mr. Chrustie which was dismissed by an Order of the Referee dated May 26^th, 2025.

4. The original Motion was after several delays by Mr. Chrustie and the Referee’s request to Mr. Chrustie that a Motion for Disclosure be brought by a letter dated April 27^th, 2024. (Exhibit No. 72 Documents of Record). Documents of Record, by way of explanation, is a method of filing with the Referee exhibits which might normally be presented for filing at the Superior Court of Justice Court of the Drainage Referee. Court File No. CV-20-83031 was opened after an Appeal was filed on March 3, 2020, just immediately prior to the “Covid Epidemic”. As a result, the Referee proceeded through video conferencing with exhibits for the most part filed electronically with the Referee as Documents of Record. In addition, lists have been provided to the Superior Court of Justice in Ottawa describing the documents filed with the Referee and his Orders.

CURRENT ISSUES

5. At the Procedural Hearing on the 23^rd of May, 2025, and as a result of that Hearing the Order described above dismissed the Motion for Production by Mr. Chrustie and gave him 30 days to provide a replacement Motion. That occurred on June 20^th, 2025. It should be noted that, in the interim, after the Referee’s request for a Motion for Production of Documents be brought eventually by Mr. Chrustie, Mr. Chrustie moved for Production of Documents from the City of Ottawa and the Rideau Valley Conservation Authority. In his correspondence (Exhibit No. 74 Documents of Record) he also requested there should be a cleanout of the drain in the vicinity of Conley Road and also that the Tomlinson Group as described in the Style of Cause cease pumping water into the Hobbs drain.

6. In follow-up correspondence from the Tomlinson Group through their then counsel, they raised the issue of denial of the Referee’s jurisdiction with regard to the permit obtained by the Tomlinson Group, given that the Tomlinson Group of Companies had a permit through an Environmental Compliance Approval issued by the Ministry of Environment, Conservation and Parks (Exhibit No. 77 Documents of Record).

7. Mr. Chrustie made further allegations regarding the improper permitting obtained by the Tomlinson Group (Exhibit No. 78 Documents of Record) which led to disputes in his most recent Motion delivered on June 20^th, 2025, regarding Production of Documents. At the August 19^th, 2025 hearing, a request of the Referee for clarity with regard to the nature of the above motion was put forward to Mr. Chrustie in relation all three parties being Ottawa, Rideau Valley Conservation Authority and the Tomlinson Group. Their complaints related to the wide ranging requests of Mr. Chrustie and its relevance. As a result, the above matters were addressed on the Hearing before the Referee on August 19^th, 2025.

8. At that hearing, as a result of submissions of the Tomlinson Group with regard to irregularities in Mr. Chrustie’s Affidavit accompanying his Motion, on Consent, the Affidavit will be reconstituted and re-sworn with those documents which are relevant to Mr. Chrustie’s Section 79 of the Drainage Act claim and related claims.

9. At the same time as Michael Polowin of Gowling WLG on behalf of Tomlinson Group made the above comments. Mr. Courey on behalf of the City of Ottawa, indicated that the documents requested by Mr. Chrustie were too wide for the scope of the hearing as it related to the original claim of Mr. Chrustie filed with the Court on March 3^rd, 2020. This claim is to be narrowed to a Claim for Damages under Section 79 of the Drainage Act and claims of negligence as to the nature of the Hobbs Drain Watershed.

10. The reason the claim is narrowed to these particular issues is that, by his own admission, Mr. Chrustie did not make an Appeal of the Report of Robinson Consulting Inc. dated June 24^th, 2021 under Section 47 of the Drainage Act.

11. To ensure that there were no other appeals by the parties to this matter, especially those who are unrepresented, the Referee reviewed his Order of June 28^th, 2021, (Exhibit No. 26 Documents of Record) requiring Notices of Appearance from parties interested in the appeal of Mr. Chrustie, but more particularly, showing an interest in the Report of Robinson Consulting Inc. dated June 24, 2021.

12. These Notices of Appearance, mandated by the June 28^th, 2021 Order, were to be filed by September 16th, 2021. In accordance with a Procedural Hearing April 5^th, 2022, as amended by an Order May 4^th, 2022, Affidavits and Witness Statements were supplied to the Referee. Such Witness Statements and Affidavits set out the concerns of the unrepresented parties, and other parties, although represented, having filed Notices of Appearance in this matter.

FINDINGS OF FACT AND DETERMINATION OF LAW

13. The following is a review of the concerns set out in these Affidavits and Witness Statements by parties who filed a Notice of Appearance.

(a) Firstly, the Rideau Valley Conservation Foundation filed a Notice of Appeal which was dealt with and described later in this proceeding setting out grounds for Appeal but not Section 47 of the Drainage Act. The Rideau Valley Conservation Foundation applied for an extension of time to file its Appeal. Subsequently, it filed an appeal which was dismissed.

(b) John Compton, one of the parties to this matter, on behalf of himself and his wife, Mary Elizabeth Compton, provided a statement in which he confirmed that they needed an extension of the Hobbs Drain to sufficient outlet, and were concerned that the lack of sufficient outlet would affect the value of their property: (Exhibit No. 30, Document of Records). In Exhibit No. 50 – Although Mr. Compton made a claim to the Referee “under Section 47 of the Drainage Act” but only requested that Ottawa provide sufficient outlet, he, at this hearing, confirmed during the hearing that his claim was a damage claim in essence, not dissatisfaction with the Robinson 2021 Report.

(c) William (Bill) and Julie Kinkade provided a Witness Statement concerning water back-up on their property, blaming it on lack of maintenance and discharge from the Tomlinson Quarry. Follow-up comments were made in Exhibits 57 and 60 by the Kinkades, but no complaint was made with regard to the Robinson Report of June 24^th, 2021. By an Affidavit which was dated the 6^th day of November, 2023, the Kinkades raised issues with regard to damages and increased water flow “from RW Tomlinson pumping off its Stittsville quarry”. The Affidavit goes on to describe flooding which has occurred. (Exhibit 60, paragraph 9) “It is our contention as landowners that the City of Ottawa’s inadequate management of the drain including the excessive pumping of water by a commercial gravel pit without proving a proper outlet to accommodate this increased flow has created a situation where our property has been unfairly classified was Wetlands.” Therefore, “we, as property managers of 71 acres of land in the growing neighbourhood of Stittsville area are seeking not only that the flooding issue be resolved and the proper outlet accommodate the volume of water and quarry, but also a reclassification of our property which is designated as Wetlands, and monetary compensation of $361,900.00 as appraised in 2014.”

(d) Exhibit No. 32 provided by Mike Westley on behalf of himself and his spouse, Barbara Westley, provided a history of the diversions and Flowing Creek Drain into the Hobbs Drain Watershed, complaining with regard to an unnatural amount of water in the drain. During the Procedural Hearing, Mr. Westley confirmed that his concerns in this matter related to damages and not the Report of Robinson Consultants Inc. (Exhibit No. 32 Documents of Record). According to Exhibit No. 48 Documents of Record, Mr. Westley made the following statement, “I am not making a claim for damage to my property at this time for lack of repair under Section 79 of the Drainage Act.”

(e) The Tomlinson Group consisting of Tomlinson Development Corporation, William Tomlinson in Trust, 5010697 Ontario Inc. oa RW Tomlinson Ltd., in its statements supplied by its then counsel advised that they had no position on the Appeal of the Robinson Report which is set out in paragraph 5 of its Witness Statement. Such Statement goes on to blame Ottawa for lack of necessary drainage regime to take water to sufficient outlet which is found in Witness Statement Paragraph 11 (a) (b) and (c). (Exhibit No. 33 Documents of Record).

(f) Gopal Moudgil and Sudershan Moudgil raised the issue in their Witness Statement Paragraph 8, that there was insufficient outlet causing water accumulation on their property. (Exhibit No. 34 Documents of Record).

(g) Anita Bolger and Steven Seltenreich in the Affidavit of Anita Bolger dated June 29^th, 2022, raised concerns in their Affidavit, and I quote paragraphs 15 and 16 “15. We were completely unaware of the Hobbs Drain and its issues until we were informed by Bruce Chrustie in the May/June timeframe of 2021. 16. The current engineer’s report from Robinson Consultants does not adequately address the upstream flows and my property will continue to flood.” The concerns set out in these two paragraphs lead the Referee to suggest that Bolger and Seltenreich may have had an issue with the Report of Robinson Consultants Inc. but they failed to proceed any further with that concern. (Exhibit No. 35 Documents of Record)

(h) Witness Statement was provided on behalf of Van Galder Construction Co. as follows:

“This is an Appeal to the Drainage Referee under Section 47 of The Drainage Act:

The Plaintiff’s Claim is for: 1. An Order that the City of Ottawa provide sufficient outlet for the Hobbs Municipal Drain with the goal of restoring our land to its natural state prior to the construction of the Hobbs Municipal Drain and prior to the pumping of water from local gravel pits into an already overburden ecosystem. 2. We seek the same damages as detailed in Bruce David Chrustie claim Court File No.: CV-20-83031.”

It should be noted that the Appeal is not specific to the Report of Robinson Consulting Inc., although Section 47 is mentioned, no grounds were given why the Report would not give sufficient outlet. (Exhibit 49 Documents of Record)

14. As a result of the claims made in the appeal of March 3^rd, 2020, the following can be confirmed. Mr. Chrustie’s claim for damages against Ottawa for lack of repair and lack of sufficient outlet, requiring, pursuant to Paragraph 4 of his Appeal, compensation pursuant to Section 32 of the Drainage Act, or, as set out in the Claim of Mr. Chrustie as Plaintiff in Paragraphs 8, 9, 10, 11 and 12, damages for nuisance flooding, trespass, punitive damages, aggravated damages and general damages for lack of sufficient outlet. The Plaintiff’s further claim is described in Paragraph 33 of the “Background” heading in the Appeal, his claim for damages was confirmed by his service of Notice under Section 79 requesting repairs and modifications of the Hobbs Drain in order to provide sufficient outlet and alleviate flooding.

15. Although the grounds of March 3^rd, 2020, Chrustie Appeal argues that the Report of the Robinson Consulting Inc., failed in that “the current report of the engineer fails to provide answers to either of these issues” (flooding due to insufficient outlet or other conditions of the Hobbs Drain and determination of whether one or more of the projects instituted under Section 78(1.1) is required). The Appeal goes on to describe routes proposed in the report of Robinson Consulting Inc., Hobbs Municipal Drain Project No. 17042 August 2019, recommending Section 40 position be taken. The Section 40 Drainage Act position of Mr. Robinson was that proceeding was impractical given the position of the Rideau Valley Conservation Authority had taken.

16. Unfortunately for Mr. Chrustie, he did not follow up on the second Report ordered by the Drainage Referee being the Referee’s Order of January 18^th, 2021, ordering a reconsideration of the Robinson Consulting Section 40 Report by setting it aside, (Exhibit No. 23 Documents of Record) and the Referee’s Order of March 1^st, 2021, arising from the hearing on February 16^th, 2021, requiring delivery of a revised report (Exhibit No. 25 Documents of Record). That Report was completed and is found in Exhibit No. 26 Documents of Record, such Report being dated June 24^th, 2021. Again, the Referee notes that no Appeal was filed by Mr. Chrustie under Section 47 or otherwise with regard to this report, and, furthermore, in his Factum in relation to an Appeal by the Rideau Valley Conservation Foundation, he supported the Robinson June 24^th, 2021 Report.

17. As such, it becomes imperative to the Referee that the Claims in this matter be bifurcated in the form of matters of expediency as the lack of appeal of the June 24^th, 2021 Report of Robinson Consulting Inc. is a threshold issue requiring the matter to proceed with bifurcation.

18. After the Referee, having reviewed the outstanding statements, affidavits and witness statements of the remaining self-represented parties in this matter, Mr. Chrustie and the remaining self-represented parties with the possible exception of Anita Bolger and Steven Seltenreich should concentrate production of their documentation in relation to damages under Section 79 and issues raised by Mr. Chrustie in his Appeal, which damages are described in Paragraphs 8, 9, 10, 11 and 12, of the Appeal of Bruce Chrustie. The position of the unrepresented parties, according to the Referee’s analysis of this matter, also relates to such damages for delay and/or as an alternative may require compensation under Section 32 of the Drainage Act.

19. As such, my Order, attached hereto with regard to Bruce Chrustie’s request for disclosure of documents must relate specifically to the issue of damages and the provisions of Section 79 of the Drainage Act. It should not relate to the continuation of the Appeal of the Robinson 2021 Report which was dismissed some time ago during the Appeal by the Rideau Valley Conservation Foundation by the Referee’s Order found in Exhibit No. 51 Documents of Record on June 26^th, 2023, being the Reasons for Decision on the Motion of the Rideau Valley Conservation Foundation.

20. Further the Referee, as the outcome of the Procedural Hearing of August 19^th, 2025, will require, subject to any requests by Anita Bolger and Steven Seltenreich to provide a more full Appeal, a direction to the City of Ottawa that the Report of Robinson Consulting Inc. dated June 24^th, 2021, be submitted to the Rideau Valley Conservation Authority for the issuance of a Permit for an outlet extension to the Hobbs Drain.

21. The Referee requests that there be consultation between the Rideau Valley Conservation Authority and the Referee with regard to a possible settlement of the outstanding issues raised in the Report of Robinson Consulting Inc. which were highlighted during the previous dealings with the Rideau Valley Conservation Authority leading to Mr. Robinson’s Section 40 Report, prior to the reconsideration ordered by the Referee pursuant to his Order of January 18^th, 2021. (Exhibit No. 23 Documents of Record).

I THEREFORE ORDER:

(a) That Anita Bolger & Steven Seltenreich shall be given 30 days from the date of this Decision to bring an Appeal of the June 24, 2021 Report of Robinson Consulting Inc. if they so wish.

(b) Failing which, the City of Ottawa shall submit to Rideau Valley Conservation Authority the Report of Robinson Consulting Inc. dated June 24, 2021 for the issuance of a Permit for an outlet extension of the Hobbs Drain.

(c) The Plaintiff, Mr. Chrustie, shall supply a reconstituted and re-sworn Affidavit in his Motion relevant only to his claims under Section 79 and related claims for damages as set out in paragraphs 8 – 12 of his Appeal of March 3, 2020.

DATED at Strathroy this 28^th day of August, 2025

Robert G. Waters Drainage Referee