Schall v Fort Erie (Town), 2025 ONDR 11

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Schall v Fort Erie (Town), 2025 ONDR 11

DATE OF DECISION: 2025-11-05

Court File No. CV-21-00013656-0000 (Welland)

BETWEEN:

JEFFREY SCHALL and MARTINA CATHERINE SCHALL

Applicants

• and -

THE CORPORATION OF THE TOWN OF FORT ERIE

Respondent

ACTING DRAINAGE REFEREE

ANDREW C. WRIGHT

HEARD ON WEDNESDAY THE 5^th DAY OF NOVEMBER, 2025

ORDER

By Procedural Order issued on September 5, 2025, a schedule for the hearing of the merits was established. The hearing on the merits was to have been on November 5, 2025. That Procedural Order is now published as Schall v Fort Erie (Town), 2025 ONDR 9. Fort Erie launched an appeal to the Divisional Court of the Second Procedural Order (September 5, 2025). The appeal was subsequently withdrawn, and instead, Fort Erie brought a motion seeking to have the presiding Referee recuse himself. With the consent of the applicants, the hearing of the merits was adjourned, pending the outcome of the recusal motion. The hearing on November 5, 2025 was brief and the Referee was asked to decide on the basis of the paper record. The applicants took no position on the recusal motion.

After considering the written documentation from Fort Erie, for the reasons that follow:

THIS COURT ORDERS that

1. The presiding Referee may vary or add to this Order 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. This Order is supplementary to the Procedural Order issued December 16, 2024, and the Procedural Order issued September 5, 2025, both 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.

3. A copy of anything that is required or permitted 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

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

(a) The “1938 Engineer’s Report” means the 1938 Engineer’s Report signed by J.R. Scott, P.Eng., and adopted by By-law No. 733. It authorized the repair and improvement of the full length of the Point Abino Drain from its outlet into Lake Erie in Lot 32, Broken Front Concession (Station 00+00) at the Buffalo Yacht Club in the Town of Fort Erie to its head in Lot 3, Concession 1, in the City of Port Colborne at the west end (Station 155+66).

(b) The “1980 Engineer’s Report” means the Drainage Report issued by C.J. Clarke, Niagara, Limited on March 27, 1980, and signed by Andrew Pluhar, P.Eng., which was before the Tribunal at the time of the 1981 Tribunal Decision and is the precursor to the 1982 Engineer’s Report.

(c) The “1981 Tribunal Decision” means the Ontario Drainage Tribunal Decision and Reasons with respect to the Point Abino Drain issued June 10, 1981 and signed by Delbert O’Brien, Chairman and now reported as Point Abino Municipal Drain (RE) 1981 ONAFRAAT 01. This decision refers back to the engineer the 1980 Engineer’s Report to provide for, amongst other things, a limited lift pumping station at the outlet of the Point Abino Drain.

(d) The “1982 Engineer’s Report” means the Report on the Repair and Improvement of the Point Abino Drainage System issued by C.J. Clarke, Niagara, Limited on May 6, 1982 and revised on September 24, 1982 and signed by Andrew Pluhar, P.Eng. This report describes the Point Abino Drain by reference to the 1938 Engineer’s Report and implements the 1981 Tribunal Decision to include a limited lift pumping station at the outlet of the Point Abino Drain.

(e) The “1983 Tribunal Decision” means the Ontario Drainage Tribunal Decision and reasons with respect to the Point Abino Drain issued July 13, 1983 and signed by Delbert O’Brien, Chairman and now reported as Point Abino Municipal Drain (RE) 1983 ONAFRAAT 01. This decision approves the 1982 Engineer’s Report but orders its amendment to, amongst other things, delete the pumping station at the outlet of the Point Abino Drain. The 1983 Amended Engineer’s Report implements this July 13, 1983 Tribunal Decision.

(f) The “1983 Amended Engineer’s Report” means the 1982 Engineer’s Report as further revised on October 19, 1983.¹ As mentioned, the 1983 Amended Engineer’s Report implements the July 13, 1983, Tribunal Decision to remove that pumping station.

(g) The “1987 Tribunal Decision” means the Ontario Drainage Tribunal Decision and Reasons with respect to the Point Abino Drain issued September 15, 1987 and signed by Delbert O’Brien, Chairman, now reported as Point Abino Municipal Drain (RE) 1987 ONAFRAAT 01. This decision re-opened the 1983 Amended Engineer’s Report and ordered the reinstatement of the pumping station at the outlet of the Point Abino Drain. It also ordered a preliminary report to consider another pumping station at the foot of either Pleasant Beach Road or Holloway Bay Road.

(h) The “1995 Preliminary Report” means the Report on the Point Abino Drainage System Pleasant Beach Road South End Area, addressed to Port Colborne, issued by Planco Engineering Limited on June 19, 1995 and signed by Andrew Pluhar, B.SC., M.ASCE., M.E.I.C., P.Eng.²

(i) The “1995 Engineer’s Report” means the Report on the Point Abino Drainage System, Proposed Pumping Station at Point Abino Road issued by Planco Engineering Limited on December 28, 1995, and signed by A. Pluhar, P.Eng., and provisionally adopted by By-law No. 3369/99/96.³

(j) The “1996 Engineer’s Report” means the Report on the Point Abino Drainage System, Proposed Pumping Station at Point Abino Road issued by Planco Engineering Limited on December 28, 1995, as amended May 8, 1996, and signed by Andrew Pluhar, P.Eng.⁴ This report proposes the installation of a 600-litre-per-second pumping station at the outlet of the Point Abino Drain.

(k) The “1998 April Tribunal Decision” means the decision and reasons of the Agriculture Food and Rural Affairs Appeal Tribunal issued April 16, 1998 and signed by Andrew Osyany, Vice-Chair, now reported as Point Albino Drain (RE) 1998 ONAFRAAT 16. This decision defers the request of the Town and Port Colborne to reverse the 1987 Tribunal Decision to require a pumping station in order that notice might be circulated to those who may potentially be affected.

(l) The “1998 July Tribunal Decision” means the decision and reasons of the Agriculture, Food and Rural Affairs Appeal Tribunal issued July 28, 1998 and signed by Herb Todgham, P.Eng., Vice Chair, now reported as Point Albino Drain (RE) 1998 ONAFRAAT 28. This decision grants the request of the Town and Port Colborne to reverse the 1987 Tribunal Decision that required a pumping station, thus removing a pumping station requirement at the outlet of the Point Abino Drain, effectively reverting to the 1983 Amended Engineer’s Report before the 1987 Tribunal Decision.

(m) The “2021 Baseline Report” means the Point Abino Drain Baseline Report, City of Port Colborne, Town of Fort Erie, dated December 16, 2021 and issued by the Engineer.⁵

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

(o) the “Drainage Tribunal” means the Ontario Drainage Tribunal before 1990, when the Ministry of Agriculture, Food and Rural Affairs (now the Ministry of Agriculture, Food and Agri-business) took over the administration of the Drainage Act and “Tribunal” means the Agriculture, Food and Rural Affairs Appeal Tribunal thereafter.

(p) the “Engineer” means Paul C. Marsh, P.Eng. and EWA Engineering Inc.

(q) the “First Procedural Order” means the Order issued by Acting Referee Andrew Wright on December 16, 2024 establishing schedules for delivery of affidavits, experts’ reports and production of documents now published as Schall v Fort Erie (Town), 2024 ONDR 10.

(r) “Port Colborne” means The Corporation of the City of Port Colborne.

(s) 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.

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

(u) the “Second Procedural Order” means the Order issued by Acting Referee Andrew Wright on September 5, 2025 establishing schedules for hearing of the merits on November 5, 2025 now published as Schall v Fort Erie (Town), 2025 ONDR 9.

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

(w) the “Town” means The Corporation of the Town of Fort Erie, the respondent.

(x) The “Township of Bertie” means the former Corporation of the Township of Bertie, which is the predecessor of the Town with respect to the Point Abino Drain.

(y) the “Township of Humberstone” means the former Corporation of the Township of Humberstone, which is the predecessor of Port Colborne with respect to the Point Abino Drain.

Parties and Representation

5. The applicants are represented by Paula Lombardi, a lawyer with the London office of Siskinds ^LLP.

6. The Town is represented by Paul Courey, a lawyer in the Tilbury office of Legal Focus ^LLP.

Dismissal of Fort Erie’s Recusal Motion

7. The Town’s recusal motion is dismissed.

Subsection 118(2) Order

8. Pursuant to subsection 118(2) of the Drainage Act, it is ordered that any costs and damages ordered against the Town and all expenses of this application are to be borne by the Town and are to be paid out of the Town’s general funds.

Disqualification of Town to Lead Evidence

9. Beyond the Affidavit of Documents sworn by Troy Davidson on February 12, 2025, pursuant to subsection 23(1) of the Statutory Powers Procedure Act, the Town is disqualified from leading evidence in response to the application. Counsel for the Town will be permitted to cross-examine the applicants’ witness and make submissions.

Hearing of the Merits

10. The hearing on the merits will proceed in accordance with the Second Procedural Order (September 5, 2025), mutatis mutandis. It is estimated that it will take three hearing days for evidence and final submissions. Counsel will shortly be canvassed about their availability to schedule that hearing.

Issues

11. The issues to be resolved at the hearing are as follows:

(a) What are the particulars of deficiencies in the state of repair and maintenance of the Point Abino Drain that need to be rectified?

(b) What specific rectification should be ordered by the Court of the Drainage Referee?

(c) What physical harm or injury has been caused by or contributed to by any past or existing state of disrepair or lack of maintenance of the Point Abino Drain? In this context, “past” means anything following the 45-day grace period after the giving by the applicants to the Town of notice under section 79 of the Drainage Act, whether the non-repair or lack of maintenance has since been rectified.

(d) What is the measure or amount of the damages for such physical harm or injury?

12. 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

13. If the applicants decide to deliver a factum, they may do so by delivering it to the Town on or before the date that is six weeks before the day the hearing of the merits is scheduled to commence.

14. If the Town decides to deliver a factum, it may do so by delivering it to the applicants on or before the date that is four weeks before the day the hearing of the merits is scheduled to commence.

15. The applicants may deliver a reply factum on or before the date that is two weeks before the day the hearing of the merits is scheduled to commence.

Order of Proceeding

16. The order in which evidence will be given at the hearing will be as follows:

(a) The applicants will call the applicants’ witness, Jeffrey Schall, who will give factual evidence based on his affidavit sworn on January 7, 2025.

(b) The respondent Town will call no evidence.

17. Consistent with paragraph 17 of the First Procedural Order (December 16, 2024), the witness will be asked to reaffirm or correct his affidavit and then be subject to cross-examination by the other party and questions from the presiding Referee.

18. Final submissions by the parties will proceed with the applicants, followed by the Town. The applicants will have the opportunity for reply submissions.

19. The applicants who provided the affidavit referred to in paragraph 16 above must have the person who signed the affidavit attend the hearing to give oral evidence unless the applicants notify the presiding Referee at least seven (7) days before the hearing that the document or written evidence is not part of their record.

20. As part of the evidence, the Court of the Drainage Referee will take judicial notice of Lake Erie Monthly Mean Water Levels from 1918 to 2024 (IGLD 1985) published by the Government of Canada, Fisheries and Oceans Canada. This data is available online from the Fisheries and Oceans Canada website.

Video Conference Protocols

21. In order 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 observe without participating, their microphone will be muted and their webcam will be turned off during the hearing.

(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.

22. Video conference hearings 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 may be held in a courtroom in the Welland 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 Welland courthouse is available.

Documents and Exhibits

23. 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 have been provided to the presiding Referee and to all other parties before the date of this Procedural Order or as the presiding Referee may permit.

(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 CV-21-00013656-0000 (Welland) 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 compendia 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 23(d) above applies mutatis mutandis.

24. At the time of this Order, the following documents are part of the record:

Exhibit No.

Notice of Application issued August 19, 2021

No. 1

Letter dated November 28, 2024 from the presiding Referee to counsel with draft procedural Order which was never issued

Order issued by Acting Referee Andrew Wright on December 16, 2024 establishing schedules for delivery of affidavits, experts’ reports and production of documents now published as Schall v Fort Erie (Town), 2024 ONDR 10. (the “First Procedural Order”)

No. 2

Application Record, including the affidavit of Jeffrey Schall sworn January 7, 2025, with 29 Exhibits

No. 3

Fort Erie’s Affidavit of Documents sworn February 12, 2025 with 11 documents.

Decision and Reasons of the Ontario Drainage Tribunal Decision with respect to the Point Abino Drain issued June 10, 1981 and signed by Delbert O’Brien, Chairman and now reported as Point Abino Municipal Drain (RE) 1981 ONAFRAAT 01.

Decision and Reasons of the Ontario Drainage Tribunal Decision with respect to the Point Abino Drain issued July 13, 1983 and signed by Delbert O’Brien, Chairman and now reported as Point Abino Municipal Drain (RE) 1983 ONAFRAAT 01.

Decision and Reasons of the Ontario Drainage Tribunal Decision with respect to the Point Abino Drain issued September 15, 1987 and signed by Delbert O’Brien, Chairman now reported as Point Abino Municipal Drain (RE) 1987 ONAFRAAT 01.

Decision and Reasons of the Agriculture Food and Rural Affairs Appeal Tribunal issued April 16, 1998 and signed by Andrew Osyany, Vice-Chair, now reported as Point Albino Drain (RE) 1998 ONAFRAAT 16.

Decision and Reasons of the Agriculture Food and Rural Affairs Appeal Tribunal issued July 28, 1998 and signed by Herb Todgham, P.Eng. Vice Chair, now reported as Point Albino Drain (RE) 1998 ONAFRAAT 28.

Order issued by Acting Referee Andrew Wright on September 5, 2025 establishing schedules for hearing of the merits on November 5, 2025 now published as Schall v Fort Erie (Town), 2025 ONDR 9 (the “Second Procedural Order”)

No. 4

Letter dated February 17, 2025 from presiding Referee to counsel.

No. 5

Letter date February 20, 2025 from presiding Referee to counsel for Fort Erie.

No. 6

Notice of Appeal dated October 1, 2025 by Fort Erie from the Second Procedural Order (issued September 5, 2025), which appeal has since been abandoned.

No.7

Letter dated October 3, 2025 from presiding Referee to counsel.

No. 8

Letter dated October 27, 2025 from counsel for Fort Erie to presiding Referee advising of abandonment of appeal and pending recusal motion.

No. 9

Letter dated October 29, 2025 from presiding Referee to counsel.

No. 10

Fort Erie Recusal Motion Record with Notice of Motion dated October 29, 2025 and the supporting affidavit of Jonathan Wiesenthal sworn October 29, 2025 with Exhibits

A – Notice of Application issued August 19, 2021 (pages 23 to 32 of the Recusal Motion Record)

B – Notice of Appearance dated November 23, 2021 (pages 33 to 35 of the Recusal Motion Record)

C - Draft (never issued) Procedural Order dated November 28, 2024 without the covering letter dated November 28, 2024 (pages 36 to 45 of the Recusal Motion Record); the covering letter is Exhibit No. 1.

D – E-mails between counsel on November 25, 2024 and November 26, 2024 (pages 46 to 51 of the Recusal Motion Record)

E – The First Procedural Order issued by Acting Referee Andrew Wright on December 16, 2024 establishing schedules for delivery of affidavits, experts’ reports and production of documents now published as Schall v Fort Erie (Town), 2024 ONDR 10. (pages 52 to 62 of the Recusal Motion Record)

F – E-mails on January 7, 2025 e-mail from presiding Referee to counsel for applicants (pages 63 and 64 of the Recusal Motion Record)

G – Letter dated February 17, 2025 from presiding Referee to counsel (pages 65 to 70 of the Recusal Motion Record); this letter is Exhibit No. 4.

H – E-mail dated February 18, 2025 from counsel for applicants to the presiding Referee (page 71 of the Recusal Motion Record)

I – Affidavit of Troy Davidson sworn February 19, 2025 (pages 72 to 79 of Recusal Motion Record)

J – E-mail dated February 14, 2025 covering Fort Erie’s Affidavit of Documents without the Affidavit (pages 80 to 82 of the Recusal Motion Record)

K – E-mail dated November 26, 2024 from counsel for the appellants to counsel for Fort Erie and the presiding Referee with respect to proposed timetable

Also letter dated November 28, 2024 from the presiding Referee to counsel with draft procedural Order dated November 28, 2024 which was never issued); this letter is Exhibit No. 1

(pages 83 to 99 of the Recusal Motion Record)

L – E-mail from counsel for Fort Erie on February 28, 2025, to counsel for the appellants and the presiding Referee (pages 100 to 102 of the Recusal Motion Record)

M – the Second Procedural Order issued by Acting Referee Andrew Wright on September 5, 2025 establishing schedules for hearing of the merits on November 5, 2025 now published as Schall v Fort Erie (Town), 2025 ONDR 9 (pages 103 to 128 of the Recusal Motion Record)

Also, Letter dated October 3, 2025 from the presiding Referee to counsel in response to Fort Erie’s Notice of Appeal (page 129 and 130 of the Recusal Motion Record); this letter is Exhibit No. 7.

N – E-mail dated October 20, 2025 from Paul Marsh, P.Eng. to counsel for Fort Erie (pages 131 and 132 of the Recusal Motion Record)

O – Letter dated October 27, 2025 to the presiding Referee from counsel for Fort Erie (pages 133 and 134 of the Recusal Motion Record) ; this letter is Exhibit No. 8

No. 11

Letter dated October 30, 2025, from counsel for Fort Erie to counsel for the applicants and to the presiding Referee

No. 12

Supplementary affidavit of Jonathan Wiesenthal, sworn October 30, 2025, with respect to the recusal motion concerning the consent of the applicants to adjourning a hearing of the merits on November 5, 2025.

25. The documents with exhibit numbers will retain their exhibit numbers through the case management hearings and the hearing(s) on the merits of this case. New exhibits will be identified by the next ensuing exhibit number and added to the list as the hearing(s) progress.

26. 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.

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

28. 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, communicate directly with that party at the address for service and/or email they have provided; if no address or email is provided, then send to the last known address.

(c) where the party is a corporation and is not represented, communicate directly to the attention of an individual with apparent authority to receive the document.

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

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

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

32. Andrew C. Wright, Acting Drainage Referee, is now seized of the hearing of the merits of this application.

Dated at London, the 5^th day of November 2025.

____________________________________ 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.

Fort Erie’s Recusal Motion

3. These reasons focus on Fort Erie’s motion to have the presiding Referee recuse himself based on a reasonable apprehension of bias. The essence of the test is whether a sensible and informed person, viewing the matter realistically, would conclude that the decision‑maker may not decide fairly.

4. The recusal motion arises from the Second Procedural Order issued on September 5, 2025. Amongst other things, that Procedural Order set November 5, 2025, as the date for the hearing of the merits of this application. Fort Erie’s initial response was to file a Notice of Appeal on October 1, 2025 (see Exhibit No. 6). On October 3, 2025, the presiding Referee advised counsel that the Second Procedural Order was interlocutory and not amenable to appeal and that, in any event, the balance of convenience favoured giving the applicants their day in court on November 5, 2025 and that Fort Erie would not be prejudiced as it could still take up its grievances with the Divisional Court once a final decision had been rendered. (See Exhibit 7). Counsel for Fort Erie advised that the Divisional Court had scheduled a hearing of Fort Erie’s motion for a stay of the Second Procedural Order on October 23, 2025, but that, before it could be heard, Fort Erie decided to withdraw the appeal. Instead, Fort Erie advised of its intention to bring its recusal motion (see Exhibit No. 8). The recusal motion was launched on October 29, 2025 (See Exhibit No. 10)

5. In order to consider the test for reasonable apprehension of bias by a sensible and informed person, it is necessary to go back to the Drainage Act basics.

Drainage Act Background

6. The crucial role of adequate drainage of land is generally accepted, as is the need, in many instances, to construct drainage networks under the Drainage Act in order to achieve optimal drainage. For over a century, statutory provisions have existed in some form or another to facilitate the construction and funding of drainage projects through municipal governments. Most municipal drains were constructed to improve the drainage of agricultural land by serving as the discharge point for private agricultural tile drainage systems. However, they also remove excess water collected from roadside ditches, residential lots, churches, schools, industrial and commercial lands, and other properties, most often, but not necessarily, in rural areas. They are a vital component of the local infrastructure. Without them, many areas of the province would be subject to regular flooding, reduced agricultural production, and increased public health risks.

7. The Drainage Act is intended to overcome the common law obstacles to drainage of and thus the productive use of land in the Province. The effect of the common law is to encourage a broken-up, hedgerow-like landscape of border berms, dykes, retaining walls and other barriers to surface water flows designed to protect each individual land holding from surface water coming down from higher land holding(s). The result is no effective drainage of any of the lands in the watershed. The Drainage Act is designed to cut through those barriers and to provide comprehensive, community-initiated and financed drainage systems which serve the needs of all in a watershed and to provide drainage works to facilitate the productive use of all land holdings.

8. The purpose of the Drainage Act is to provide engineered drainage works where needed and when asked for. It is akin to many local improvement legislative schemes in which local landowners may petition for the installation of servicing infrastructure, such as roads, sewers, street lighting and sidewalks. If there is a prerequisite number of petitioners, the municipality proceeds with the project and then recovers the cost of doing so through an assessment of those landowners who use the installation. Usually, the legislation authorizes assessments to be recoverable as municipal property taxes. This is the general scheme of the Drainage Act as it applies to drainage works, and it is the local municipality that administers the scheme.

9. The Drainage Act is an extraordinarily powerful instrument. Integral to achieving its purpose, the Drainage Act gives the power to acquire rights over lands for the drainage works and working easements, and to settle the compensation to be paid therefor. It requires the appointment of a drainage engineer to not only devise the drainage works but also to allocate amongst the lands in the watershed, the costs of constructing, maintaining and repairing the drainage works; and it provides the means of collecting the same in like manner as municipal taxes. The Act affords protection from liability for doing all these things under the statutory authority of the Act's provisions. Throughout the Act, there are avenues of appeal afforded to the affected stakeholders.

10. In that context, it is essential to appreciate that the Town responds to this application and brings its recusal motion not for itself per se but in a representative capacity as the statutory administrator of the Point Abino Drain. The municipality is the administrator of the Drainage Act and is not the ultimate payor for the costs of constructing, maintaining, and repairing municipal drainage works; those whose lands use or contribute water to the drainage works pay the costs of constructing, maintaining, and repairing the drains. Fort Erie is simply a conduit. Whatever costs are incurred by a local municipality in the Drainage Act processes, including construction, maintenance and repair of drainage works, are passed on to those assessed for the drainage works in accordance with the assessment schedule found in the most recent engineer’s report on the drain. A municipality will only be assessed to the extent that its road or other municipally owned properties are assessed as users of the drain.

11. The establishment of an assessment schedule is a sophisticated exercise. Drainage engineers have developed a multifaceted approach to the exercise. A part of the cost is assessed to the often-numerous parcels of land in the drainage area that contribute water to the drainage works; this is an assessment for outlet liability. A part of the cost is assessed to those lands where the drainage works are carried out for the benefit assessment. Lands that are occupied by drainage works can be awarded allowances by the engineer for the use of the land. This précis is an egregious oversimplification of the skill and judgment required of drainage engineers when establishing an assessment schedule in accordance with protocols that have developed over decades. Each step in the creation of an assessment schedule requires skill and judgment, such as determining how much of the cost should be assessed for outlet liability and selecting runoff coefficients for various types of land uses.

12. All of this assessment work is subject to appeals to the Drainage Tribunal, as is the proposed drainage works project itself.

13. I digress to elaborate upon the role of drainage engineers. When a municipality receives a petition for a municipal drain or a request for the improvement of a municipal drain, as the statutory administrator of the Drainage Act, the municipality is required to appoint an independent drainage engineer in response to the petition or request. The appointed drainage engineer is not a municipal employee. The appointed engineer may be a surveyor registered under the Surveyors Act, but more often, the drainage engineer is an engineer registered under the Professional Engineers Act. They hold professional credentials and adhere to professional obligations. In addition, section 11 of the Drainage Act imposes upon the appointed engineer the following statutory obligation:

The engineer shall, to the best of the engineer’s skill, knowledge, judgment and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person, perform the duty assigned to the engineer in connection with any drainage works and make a true report thereon.

14. The appointed drainage engineer is a quasi-judicial statutory office holder with specialized knowledge of drainage problems and solutions, as well as the skill and judgement to establish assessment schedules in accordance with protocols that have developed under the aegis of the Drainage Act over decades of practice and experience.

Referee Rule 11

15. An aspect of a municipality’s role as the administrator of the Drainage Act within its territorial jurisdiction is the need to retain documentation relating to municipal drains in that area of jurisdiction. It is the custodian of Drainage Act records for the municipality and is required to maintain and produce them as required.

16. When an application or action is brought before the court of the Drainage Referee, Referee Rule 11 provides as follows:

11(1) Unless the referee orders otherwise, a municipality that is a party to a proceeding under the Act shall produce at the hearing all documents within its possession or control relating to the drainage works, including all reports, plans, specifications, assessments, by-laws, provisional by-laws, resolutions, correspondence and copies of notices sent to ratepayers entitled to notice.

11(2) The referee may order a municipality to produce the documents mentioned in subsection (1) whether or not the municipality is a party in a proceeding before the referee.

17. The intent and purpose of Referee Rule 11 is that the Town is to provide a comprehensive, official municipal record of the Point Abino Drain. Referee Rule 11 redresses the imbalance in control and authority over Drainage Act documentation that members of the public do not possess. When those members of the public become plaintiffs or applicants in the court of the Drainage Referee, it is unfair to expect them to produce documents that are uniquely and solely in the possession and control of the municipality, hence Referee Rule 11.

18. Subsection 11(2) of the Referee Rules is of some consequence in the case. While the applicants’ lands are in Fort Erie and the non-repair issues are located there, the Point Abino Drain extends into Port Colborne. The upper half of the Point Abino Drain is in Port Colborne, and the lower half is in Fort Erie. The result is that both Port Colborne and Fort Erie have “documents within its possession or control relating to the drainage works”. This situation is compounded by the fact that the origins of the Point Abino Drain go back in history to a time when the part in Port Colborne was in the Township of Humberstone and the lands in Fort Erie were in the Township of Bertie. It is not clear when the Townships were subsumed into the Town and the City, but whenever it was, Fort Erie became the responsible custodian of the Township of Bertie Drainage Act documents and Port Colborne the custodian of the Township of Humberstone’s.

Productions from Drainage Engineers

19. Frequently, documentation in a drainage engineer’s records is as essential to a case as are the municipality’s. When counsel for a municipality agrees to produce documentation from the engineer’s files as if they were the municipality’s, there is no problem.

20. Counsel for Fort Erie has, in other cases, taken the position on behalf of other municipal clients that the municipality does not have possession and control of the engineer’s files and cannot therefore be required to provide them under Referee Rule 11.

21. While the Engineer may not be a party, the Engineer is bound to be fair, honest, and independent by section 11 of the Act, which is quoted in paragraph 13 above.

22. The Engineer is not an employee or the agent of the Township but is an independent statutory official with obligations and duties to discharge in accordance with and under the aegis of the Act. In my view, the duties imposed by section 11 of the Act extend to the Engineer’s relationship with the Court of the Drainage Referee. That duty requires the Engineer to bring to the Court of the Drainage Referee his skill, knowledge, judgment, ability, honesty, and good faith. The Engineer’s failure to produce the documentation, whether on the Engineer’s own initiative or on the advice or direction of the Fort Erie, is inconsistent with that duty.

23. With respect to calling upon the engineer to produce his file in advance of the hearing, reference is made to Referee Rule 17, which says that “The referee may consider the Rules of Civil Procedure when determining a procedural matter, not expressly provided for in these rules.” I take that to mean that the Referee need not but has the discretion to look to the Rules of Civil Procedure for guidance with respect to matters not addressed by the Rules. In this case, guidance is found in section 30.10 of the Rules of Civil Procedure with respect to the production of documents in the possession, control or power of a person not a party which are not privileged when the court is satisfied that, (a) the document is relevant to a material issue; and (b) it would be unfair to proceed to trial without having discovery of the documents. The procedural requirement is that the parties and the non-party be put on notice and be given an opportunity to respond.

24. As indicated previously, the procedural requirement inspired by section 30.10 of the Rules of Civil Procedure for the production of documents in the possession, control or power of a person, not a party, is that the parties and the non-party be put on notice and be given an opportunity to respond. The complaint by counsel for Fort Erie is that the parties and non-party are on notice and being allowed to respond. There is no suggestion by counsel that the Engineer’s file is not relevant to material issues in this case, nor could there be.

25. The points made in paragraphs 20 to 24 above were made in paragraphs 31 to 33 in the decision of the court of the Drainage Referee in Kittel v Wilmot (Township), 2024 ONDR 3 (“Kittel”).

26. The Engineer, in this case, had monitored the Kittel case in his capacity as the Chair of the Land Drainage Committee and was familiar. His response to the court’s inquiry in this case was that he had been retained by Port Colborne and had turned over to Fort Erie all documentation in his possession and control. The exception was his final report, which had not been finalized. With that information, the court was aware that Fort Erie had in its possession and control “all documents within its possession or control relating to the drainage works, including all reports, plans, specifications, assessments, by-laws, provisional by-laws, resolutions, correspondence and copies of notices sent to ratepayers”, to quote from Referee Rule11(1), from Port Colborne and its predecessor Humberstone Township and from the Engineer. This is in addition to having possession and control of its own documents and those of the former Township of Bertie.

27. A sensible and informed person, viewing the matter realistically, could not reasonably conclude from the court’s inquiry of the Engineer about documents in the Engineer’s possession and control that the presiding Referee may not decide the case fairly.

Fort Erie’s Obligation under Section 74 read with Section 79

28. Before discussing Fort Erie’s duty to make disclosure, it is helpful to review the principles underlying the applicants’ claims to appreciate the context.

29. The applicants rely on sections 74 and 79 of the Drainage Act. Those sections are as follows:

74 Any drainage works constructed under a by-law passed under this Act or any predecessor of this Act, relating to the construction or improvement of a drainage works by local assessment, shall be maintained and repaired by each local municipality through which it passes, to the extent that such drainage works lies within the limits of such municipality, at the expense of all the upstream lands and roads in any way assessed for the construction or improvement of the drainage works and in the proportion determined by the then current by-law pertaining thereto until, in the case of each municipality, such provision for maintenance or repair is varied or otherwise determined by an engineer in a report or on appeal therefrom.

79(1) Upon forty-five days’ notice served by any person affected by the condition of a drainage works, upon the head or clerk of the local municipality whose duty it is to maintain and repair the drainage works, the municipality is compellable by an order of the referee to exercise the powers and to perform the duties conferred or imposed upon it by this Act as to maintenance and repair or such of the powers and duties as to the referee appears proper, and the municipality is liable in damages to the owner whose property is so injuriously affected.

79(2) Despite subsection (1), the local municipality whose duty it is to maintain and repair drainage works shall not become liable in damages to any person affected by reason of the non-repair of the drainage works until after service by or on behalf of such person of the notice referred to in subsection (1) upon the head or clerk of the municipality, describing with reasonable certainty the alleged lack of maintenance and repair of the drainage works.

30. The following is a review of the scheme of the Drainage Act as it relates to the maintenance and repair of municipal drains, a municipality’s responsibility to maintain and repair drains, and the municipality’s liability for not doing so. In doing so, there is much plagiarism from what was said in the June 26, 2023 decision in Erie Shore Drive Property Owners Association v Chatham-Kent (Municipality), 2023 ONDR 5, starting at paragraph 261 of those reasons.

31. Maintenance and repair entail putting the drain in the condition established by the most recent engineer’s report on the drain. An engineer need not be involved with maintenance and repair. The most recent engineer’s report has established what is required, and it is up to the municipality to keep it that way; and, under the Drainage Act, a municipality has the right and authority to restore the drain if it has become out of repair. Maintenance and repair work is overseen by the municipality’s Drainage Superintendent, who may be, but is most usually not, an engineer.

32. The cost of maintaining and repairing a drain is assessed to the owners of the land using the drain. The engineer’s report includes an assessment schedule according to which the maintenance and repair costs are shared. Older engineer’s reports have only one assessment schedule, which is used for both the cost of the construction of the drain and the expense of its subsequent maintenance and repair; more recent engineer’s reports include two separate schedules, one for the assessment of construction costs and the other for the assessment of future maintenance and repair costs.

33. As previously mentioned, the municipality is the administrator of the Drainage Act. Except to the extent that the municipality is an assessed landowner of roads, the municipality is not the ultimate payor for the costs of maintaining and repairing drains; those who use the drain pay the costs of maintaining and repairing drains.

34. Some municipalities have a drain maintenance programme, the goal of which is to have every drain in the municipality looked at and brought into repair periodically, such as every ten years or so. That said, many municipalities simply leave the frequency of drain maintenance to the owners who use and rely upon the drain. Oftentimes, the owners are content to manage with a less-than-perfect drain in preference to being assessed on a routine basis for the costs of maintenance and repair. The Drainage Act countenances that approach but also provides a mechanism for owners who need the drain to operate properly to have the drain restored to the condition prescribed by the most recent engineer’s report. Those owners have the right to require a drain to be repaired simply by asking. Often, this happens verbally between the owner and the Drainage Superintendent, who rectifies the problem. While such an informal approach is common, when necessary, the owner can serve a formal notice under section 79 of the Drainage Act. Once a municipality receives such a notice/demand, it must respond or face potential liability for damages arising from the non-repair under section 79 of the Drainage Act.

35. The point is that the scheme of the Act does not fault a municipality for doing little or nothing to keep a municipal drain in good repair after it has been constructed, in the absence of a request for maintenance and repair.

36. If the drain is restored to the condition prescribed in the most recent engineer’s report and, despite that, a drainage problem persists, the municipality may, but is under no obligation to, initiate an improvement of the drain by appointing an engineer under section 78 of the Drainage Act. That said, if the municipality receives a request for a second 78 improvement, upon receiving such a section 78 request, the municipality is to appoint an engineer to investigate and prescribe an improvement to the drain, which will address the persisting drainage problem.

37. If an improvement, as authorized by section 78 of the Act, does not rectify the persisting drainage problem, it may be necessary to petition for new drainage works. In the meantime, the municipality is not liable for damages that may arise from the persisting drainage problem so long as the drain is maintained and repaired as specified in the most recent engineer’s report on the drain.

38. The essence of subsections 79(1) and 79(2) of the Act is that a municipality is not liable for damages resulting from the non-repair of drainage works unless and until it has been served with the 45-day notice specified in subsection 79(1) of the Act. Subsection 79(2) of the Act seems clear that a municipality shall not be liable for non-repair until after notice has been given. Giving any retroactive effect defeats the scheme and purpose of the Act.

39. As previously indicated, under the Drainage Act, the municipality responsible for maintaining and repairing a drain is not liable for non-repair unless and until notice is served. The applicants place reliance on the Municipality’s obligations under section 74 of the Act. However, that section cannot be read alone; it must be read with section 79 of the Act, which requires a 45-day notice to be served before the municipality becomes liable for non-repair. Once the notice is served, the Drainage Act gives the municipality a 45-day grace period within which to repair the drain or to otherwise mitigate any damage arising from the non-repair; the municipality is only liable for damages arising after the grace period.

40. The 45 days is an arbitrary period that is applied to all situations regardless of the nature and extent of the maintenance and repair. In many instances, the 45-day grace period is sufficient for the Drainage Superintendent to arrange for the repair of the drain. Often, 45 days is not sufficient to complete the repair work or implement mitigating measures. There may be valid reasons why the 45 days is not sufficient. The question of the reasonableness of time to effect a repair after the service of 45 days’ notice under subsection 79(1) of the Drainage Act and the reasonableness of a municipality’s conduct about implementing mitigating measures until repairs can be effected go to the question of how the costs and any damages are to be paid, that is, whether the municipal drain pays in accordance with subsection 118(1) of the Drainage Act or the municipality pays out of general funds as contemplated by subsection 118(2) of the Drainage Act. The injuriously affected landowner is entitled to damages if the harm is attributable to the non-repair after the 45-day grace period. Whether the municipal drain pays, or it is paid out of general funds, if the drain cannot be repaired in 45 days and if the damage arising cannot be mitigated until the repair is completed, the injuriously affected landowner is entitled to damages occurring from and after the expiration of the 45-day grace period. That strict liability exposure continues until the municipality’s obligations under the Drainage Act are changed by a superseding engineer’s report and/or formal abandonment.

41. The applicants’ damages claims are limited to physical injury or harm to property that has occurred after the expiry of the 45-day grace period (i) which are additional to any injury or harm that may have already occurred before the expiry of the 45-day grace period and (ii) which would not have occurred if Drainage Act authorized infrastructure were present and in good repair as specified in the applicable most recent engineer’s report.

Duty to Make Disclosure

42. From this review, it is clear that it is essential to identify the most recent engineer’s report on the Point Abino Drain to determine not only liability but also the quantum of damages.

43. The point of the court’s pre-hearing disclosure process is to ensure that the court and the other parties have full and fair pre-hearing disclosure of pertinent documents to ensure a fair trial on the merits. That necessarily entails exchanging documents well in advance of the hearing. Referee Rule 11 imposes the duty to disclose. In this case, it has been augmented by paragraph 34 of the reasons for the Second Procedural Order, which has provided specificity regarding what must be produced.

44. Disclosure before the hearing on the merits is crucial for several important reasons, the most obvious of which are:

(a) It ensures that the parties know the evidence and arguments that will be presented, allowing for a fair trial where neither side is taken by surprise.

(b) When all the facts and documents are on the table, parties can better assess the strengths and weaknesses of their cases, making it more likely that disputes may be resolved before trial.

(c) Disclosure helps clarify what is genuinely in dispute, streamlining the trial and focusing on the relevant matters.

(d) Early disclosure stops “trial by ambush,” where one side withholds information to gain an unfair advantage during the trial.

(e) Knowing in advance what evidence will be presented helps the court prepare for and conduct proceedings more efficiently.

(f) Complete and timely disclosure upholds the principle of open, transparent justice, which is a goal of the court of the Drainage Referee.

45. Although it concerns Crown disclosure in a criminal matter, the case of R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, (“Stinchcombe”) provides some insights into disclosure protocols and practices. On page 332, between items d and g, Sopinka, J. says for the court;

Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted weapons in the arsenal of the adversaries. This applied to both criminal and civil proceedings. Significantly, in civil proceedings this aspect of the adversary process has long since disappeared, and full discovery of documents and oral examination of parties and even witnesses are familiar features of the practice. This change resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met.

46. The pre-hearing disclosure process adopted by the court of the Drainage Referee is entirely consistent with the Supreme Court of Canada's statement.

47. An example of allowing the court to prepare for and conduct the hearing more efficiently is paragraph 18 of the second Procedural Order (September 5, 2025) which provides that “Consistent with paragraph 17 of the December 16, 2024 Procedural Order, the witness will be asked to reaffirm or correct his affidavit and then be subject to cross-examination by the other party and questions from the presiding Referee.” This saves hearing time by eliminating the need for a witness to reiterate at length what has been said in his or her affidavit.

48. There are a couple of things to add about the disclosure expectations of the court of the Drainage Referee. The first is that all documents in the possession or control of a party, including engineers, are to be produced, except documents protected by solicitor-client privilege, litigation privilege and documents that disclose off-the-record, without prejudice settlement discussions. As well, if the court is convinced that intellectual property rights exist, and the person seeking production has shown relevance and necessity, the court will weigh the need against the harm that would result if disclosure is ordered.

49. The second thing to mention is that Referee Rule 11 starts with the phrase: “Unless the referee orders otherwise,”. In many cases, under the Drainage Act, the records go back to the 19^th Century. If the court is satisfied that the burden on municipal resources of producing ancient records is greater than the benefit to be derived, the presiding Referee can make an Order limiting the extent of what is required. Usually, the limit relates to a date before which documents need not be produced.

50. Now returning to what needs to be produced by Fort Erie, in this case, for there to be a municipal drain, there must be an engineer’s report and a municipal by-law adopting the engineer’s report. There is much Drainage Act process leading up to an engineer’s report, and much more thereafter before an adopting by-law is enacted, but the fundamentals of a municipal drain are an engineer’s report and an adopting by-law. The applicants have provided several engineers’ reports, but no adopting by-laws.

51. In its function as the custodian of Drainage Act records for the municipality of Fort Erie and the former Township of Bertie, it is not only required to maintain but is now required to produce them. In addition to engineer’s reports and adopting by-laws, paragraph 34 of the reasons for the Second Procedural Order (September 5, 2025) referred

(a) to minutes of municipal Council Meetings, including Committees of Council, to consider each of the several engineer’s reports and resolutions pertaining to the Point Abino Drain reflected in such minutes; and

(b) copies of reports by municipal staff, including Drainage Superintendents or the Engineer, to municipal Councils or Committees of Council related to the Point Abino Drain and the minutes of municipal Council or Committee meetings at which such reports were received and/or discussed.

These are public records and should be available upon request.

52. Fort Erie takes two positions about its disclosure obligations under Referee Rule 11.

53. The first is that Referee Rule 11 only requires production of documents “at the hearing”. It is said that the documents will be produced at that time without any pre-hearing disclosure to the court or to the parties opposite in interest. With respect, “at the hearing” must be interpreted to mean in the course of the hearing process. Fort Erie’s interpretation defeats the purpose of disclosure, which, to paraphrase Justice Sopinka in Stinchcombe, is to eliminate the element of surprise from the trial and allow the parties and the court to be prepared to address issues based on complete information about the case to be met. Fort Erie’s insistence on this stance is entirely prejudicial to, and defeats the purpose of, the pre-hearing disclosure process and procedure, and constitutes an abuse of that process.

54. The second position taken by Fort Erie is that it cannot know what documents are relevant until they have a better understanding of the applicants’ issues. Fort Erie theorizes that it is not required to disclose documents which are not relevant to the case. The idea is that relevance and document production are matters to be negotiated between Fort Erie and the applicants. With respect, relevance is not something to be negotiated; a document is related to the Point Abino Drain, or it is not and if in doubt, it should be produced. Neither the court nor the other parties know what they don’t know, so it is difficult to guess what Fort Erie has in its files. The other element of this is that Fort Erie is misinterpreting Referee Rule 11, believing it requires only the production of documentation relevant to the issues before the Drainage Referee. Referee Rule 11 speaks of “all documents within its possession or control relating to the drainage works”. That is related to the Point Abino Drain, not what Fort Erie decides is relevant to the case.

55. The affidavit of documents provided by Fort Erie has been entered as Exhibit No. 3. It is wholly inadequate, as described in paragraphs 26 to 34 of the reasons for the Second Procedural Order (September 5, 2025,). The remedy for flouting the requirements of Referee Rule 11 and the Orders of the court of the Drainage Referee is and Order under found in subsection 23(1) of the Statutory Powers Procedure Act, which provides as follows:

23(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

56. The applicants wish to proceed with their application, issued August 19, 2021. They have filed their application record, which includes all the documents in their possession and control. They are ready to proceed. The only way for them to proceed without being exposed to a trial by surprise, to use Justice Sopinka’s terminology in Stinchcombe, is to proceed without evidence from Fort Erie, hence the following from paragraph 38 of the reasons given for the September 5, 2025:

57. The Town has filed no further documents with the Court or provided same to the presiding Referee, nor has the Town brought a motion to show cause why it should not be disqualified from leading evidence in response to the application. As a result, pursuant to subsection 23(1) of the Statutory Powers Procedure Act, as provided in paragraph 9 of the Order, the Town is disqualified from leading evidence in response to the application beyond the Affidavit of Documents already filed. This is on account of the Town’s obstructive non-disclosure or suppression of documentary evidence, which is an unacceptable subversion and abuse of the Court’s pre-hearing disclosure process, the purpose of which is to ensure that the Court and the other parties have full and fair pre-hearing disclosure of pertinent documents. Counsel for the Town will be permitted to cross-examine the applicants’ witness and make submissions.

58. This remedy is severe, but Fort Erie’s conduct in its defence in this case has delayed and now halted the process. It is the only way to move forward in a manner that is fair to the applicants.

59. Fort Erie was asked to make disclosure and was cautioned about the consequences of not doing so in the presiding Referee’s letters marked Exhibit No. 4 and Exhibit 5. Those letters also told Fort Erie how to avoid the consequences. Fort Erie is now alarmed by the consequences.

60. A sensible and informed person, viewing the matter realistically, could not reasonably conclude, from the court’s decision to move forward with the appellants’ case in a manner that secures its fairness to them, that the presiding Referee may not decide the case fairly.

Order Pursuant to subsection 118(2) of the Act

60. It is to be recalled from paragraph 10 above that, when the Town responds to this application, it does not do so for itself per se but rather in a representative capacity as the statutory administrator of the Point Abino Drain. The municipality is the administrator of the Drainage Act and is not the ultimate payor for the costs of constructing, maintaining, and repairing municipal drainage works; those whose lands use or contribute water to the drainage works pay the costs of constructing, maintaining, and repairing the drains. Fort Erie Municipality is simply a conduit. Whatever costs are incurred by a local municipality in the Drainage Act processes, including construction, maintenance and repair of drainage works, are passed on to those assessed for the drainage works in accordance with the assessment schedule found in the most recent engineer’s report on the drain. A municipality will only be assessed to the extent that its road or other municipally owned properties are assessed as users of the drain.

61. That includes any damages and costs that may have to be paid on account of the failure to repair a municipal drain within its jurisdiction. Subsection 118(1) of the Act provides as follows:

118(1) Except as provided by subsections (2), (3) and (4), all damages and costs payable by a municipality and arising from proceedings taken under this Act shall be levied upon the lands and roads in any way assessed for the drainage works for construction, improvement, maintenance or repair in such manner as the referee or court may determine, and may be assessed, levied and collected in the same manner as rates assessed, levied and collected for maintenance under this Act.

62. This follows the general rule under the Drainage Act that a municipality, as the administrator of the Drainage Act, is not the ultimate payor for the costs of constructing, maintaining, and repairing municipal drainage works. Those whose lands use or contribute water to the drainage works pay such costs. The municipality, in this case Fort Erie, is simply a conduit. One of the very few exceptions to the general rule is found in section 118(2) of the Act, which provides as follows;

118(2) Where such damages and costs become payable owing to any improper action, neglect, default or omission on the part of the council of any municipality or of any of its officers or employees in the construction, improvement, maintenance or repair of the drainage works or in carrying out the provisions of this Act, the referee or court may direct that the whole or any part of such damages and costs shall be borne by the municipality and be payable out of the general funds thereof.

63. So, Fort Erie is exposed to liability out of its general tax base if the Referee finds fault with Fort Erie as described in subsection 118(2) of the Act. This is alluded to in paragraph 40 above. It is also of interest to those landowners assessed for the Point Abino Drain, as they may have to contribute to any damages award to the applicants and may prefer to have damages and costs paid out of the Town's general funds. It is to be recalled that the applicants, in the affidavit supporting their application, seek at least $275,000.00.

64. With that in mind, paragraphs 5., 6. and 7. of the Reasons attached to the First Procedural Order (December 16, 2024) provided as follows:

65. This application is for damages alleged to be attributable to the non-repair of the Point Abino Drain and for an Order compelling the maintenance and repair of the Drain. In accordance with 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. In the usual course, costs of maintenance and repair of a municipal drain are levied upon the lands and roads assessed for the drainage works. The owners of lands assessed for the Point Abino Drain may, therefore, be affected by the outcome of this application, so they should be given notice of this application and an opportunity to participate as a party.

66. 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. The owners of lands assessed for the Point Abino Drain thus have an interest not only in whether any damages and costs are to be paid but also whether any such damages and costs are to be charged to the Point Abino Drain or are to be paid out of the Town’s general funds.

67. The parties’ jointly proposed procedural schedule does not provide for giving notice to the owners of land assessed for the Point Abino Drain or giving them an opportunity to participate as a party, so the court will give directions to that end at the September 17, 2025, case management video conference hearing.

68. To that end, paragraph 23 of the First Procedural Order (December 16, 2024) provides the following:

69. For the purpose of giving notice of this application to those who may potentially be affected by the result of this application and giving them an opportunity to participate as a party, on or before Friday, August 30, 2025, the Town shall deliver to the applicant

(a) a list of the names and addresses, according to the last revised assessment roll, of the current owners of all lands assessed or awarded allowances for the Point Abino Drain;

(b) the address of the Town office where hearing-related material will be made available for review by members of the public during normal business hours; and

(c) the URL (Uniform Resource Location) for the part of the Town’s website where that material will be posted and made available for review by the public.

66. Because the Town did not provide the Court with the information required by paragraph 23 of the First Procedural Order, it was not possible to prepare and then give notice of the application to those who may be adversely affected by the result of the application; and, as a result, paragraph 8 of the Second Procedural Order (September 5, 2025 ) stipulates that, pursuant to subsection 118(2) of the Drainage Act, any costs and damages ordered against the Town and all expenses of this application are to be borne by the Town and are to be paid out of the Town’s general funds.

67. A sensible and informed person, viewing the matter realistically, could not reasonably conclude, from this decision by the court of the Drainage Referee under subsection 118(2) of the Act, that the presiding Referee may not decide the case fairly.

68. The same thing occurred in the early stages as the parties were settling a schedule for how this application was to proceed. The court had been sent a table of dates and deadlines. In the November 28, 2024, letter (Exhibit No. 1) sent by the presiding Referee to counsel, a draft procedural order was provided. Paragraph 7 of that letter says:

There is no provision in your schedule for giving notice to the owners of lands assessed for the Point Abino Drain. I presume that is because the Town will or has agreed to an Order by the presiding Referee, pursuant to subsection 118(2) of the Drainage Act, that the expenses of the Town arising from this application are to be paid out of the Town’s general funds and will not be levied upon the lands and roads assessed for the Point Abino Drain. For this purpose, the expenses of the Town would include any damages and costs payable by the Town net after deducting any costs payable to the Town. In those circumstances, the owners of lands and roads assessed for the Point Abino Drain are not exposed to an obligation arising from this application, so there is negligible or no reason for them to receive notice of or be given an opportunity to participate in this proceeding. The draft procedural Order proceeds on this assumption, but Mr. Courey may need instructions.

69. That November 28, 2024 draft Procedural Order included the following paragraphs 15., 16., 17. and 18.:

70. In the circumstances that the Town has agreed that the expenses of the Town arising from this application are to be paid out of the Town’s general funds and will not be levied upon the lands and roads assessed for the Point Abino Drain, there is no reason to give notice of this application to the owners of lands and roads assessed for the Point Abino Drain.

71. For the purpose of paragraph 15, the expenses of the Town shall include any damages and costs payable by the Town net after deducting any costs payable to the Town.

72. It is ordered that the customary giving of notice of this application to the owners of lands assessed for the Point Abino Drain and the opportunity to participate is hereby dispensed with.

73. It is also ordered, pursuant to subsection 118(2) of the Drainage Act, that the expenses of the Town arising from this application are to be paid out of the Town’s general funds and will not be levied upon the lands and roads assessed for the Point Abino Drain. For this purpose, the expenses of the Town shall include any damages and costs payable by the Town net after deducting any costs payable to the Town.

74. When counsel for Fort Erie did not receive instructions to agree to an Order by the presiding Referee, pursuant to subsection 118(2) of the Drainage Act, that the expenses of the Town arising from this application are to be paid out of the Town’s general funds and will not be levied upon the lands and roads assessed for the Point Abino Drain, paragraphs 15., 16., 17. and 18. were eliminated from the First Procedural Order (December 16, 2024) and replaced by paragraph 23 of the First Procedural Order, which is quoted in paragraph 65 above.

75. Again, a sensible and informed person, viewing the matter realistically, could not reasonably conclude, from this sequence of events, that the presiding Referee may not decide the case fairly.

Referee Inquiries and Knowledge Outside of the Hearing Process

72. Fort Erie complains that the presiding Referee has engaged in evidentiary discovery and investigative activities not contemplated by the Drainage Act, including the direct solicitation of evidence and information outside the hearing process.

73. Administrative tribunals in Ontario can and are expected to use their specialized knowledge in their decision-making processes, as a primary reason for their existence is to resolve disputes in complex areas by experts in that field. This use of specialized knowledge is a core feature of administrative tribunals.

74. The authority for tribunals to take judicial notice and to use their specialized knowledge is enshrined in section 16 of the Statutory Powers Procedure Act, which provides that a tribunal may take notice of:

• Facts that may be judicially noticed (facts so notorious or generally accepted as not to be debatable) and

• "Any generally recognized scientific or technical facts, information or opinions within [the tribunal's] scientific or specialized knowledge".

75. The specialized knowledge or things of which judicial notice is to be taken must be specific and verifiable.

76. Tribunals must also ensure procedural fairness by notifying the parties before relying on information or opinions within their specialized knowledge or of which judicial notice is to be taken, and by giving the parties a chance to make representations on the reliability and use of that information or opinion, and to give evidence in support of their position.

77. Paragraph 21 of the Second Procedural Order (September 5, 2025), provides as follows:

As part of the evidence, the Court of the Drainage Referee will take judicial notice of Lake Erie Monthly Mean Water Levels from 1918 to 2024 (IGLD 1985) published by the Government of Canada, Fisheries and Oceans Canada. This data is available online from the Fisheries and Oceans Canada website.

78. Lake levels are a factor in this case because Fort Erie intends to argue that flooding in the vicinity of the applicants’ property was caused by high Lake levels rather than by Fort Erie's failure to maintain the Point Abino Drain in good repair.

79. The profile of the Point Abino Drain, included in the 1983 Amended Engineer’s Report on page 52 of the applicants’ record, shows that the “top of Water June 29” was 572 feet. The profile is reproduced from the Point Abino Marsh Drain prepared for the Township of Bertie by Ross & Scott Engineers, dated August 23, 1927. Presumably, the June 29^th date is June 29, 1927. There is no reference to a benchmark for this elevation.

80. The profile from the 1983 Amended Engineer’s Report, found on page 53 of the applicants’ record, does not provide an elevation for Lake Erie at the time the profile was prepared; the profile is dated February 1979. This profile would have been prepared in connection with the 1980 Engineer’s Report. It would have been carried through the 1982 Engineer’s Report and continued as part of the 1983 Amended Engineer’s Report.⁶ That said, it provides elevations in both imperial feet and metric metres. The basis for these elevations is not specified, but they appear to be referenced to International Great Lakes Datum.

81. Let me explain. With the advent of the St. Lawrence Seaway, it became desirable, if not necessary, for there to be uniform protocols for measuring depth in the Great Lakes and connecting rivers and lakes, whether in Canadian or US waters. The International Great Lakes Datum (IGLD) was established to provide a common vertical reference system for measuring water levels in the Great Lakes and the St. Lawrence River. It acts as a base elevation from which all water depths, clearances, and heights are measured, ensuring consistency for marine navigation, water management, and other purposes across the binational system. Nautical charts show water depths by reference to IGLD protocols.

82. On the US side, the International Great Lakes Datum is operated by the Center for Operational Oceanographic Products and Services (CO-OPS) of the National Oceanic and Atmospheric Administration (NOAA). NOAA is a U.S. federal agency within the Department of Commerce headquartered in Washington, DC. The Canadian counterpart of NOAA is the Canadian Hydrographic Service of Fisheries and Oceans Canada (DFO). Both publish water levels for the Great Lakes.

83. The IGLD benchmark “sea level” changes from time to time. The initial version was IGLD (1955). It was followed by IGLD (1985). The system is now moving to IGLD (2020). The actual water levels in the lakes do not change, but the depths assigned to those levels can change to reflect a different “sea level” benchmark. The differences in stated depths between systems are not significant – less than a foot or about 0.2 metres - and are not particularly material for the discussion in this case.

84. Because the profile from the 1983 Amended Engineer’s Report was prepared in 1979, the elevations must have referred to the initial version IGLD (1955).

85. The reason for taking judicial notice of Lake Erie Monthly Mean Water Levels from 1918 to 2024 (IGLD 1985) published by the Government of Canada, Fisheries and Oceans Canada, is that this data is accessible online through the Fisheries and Oceans Canada website. This enables a comparison of Lake Erie water levels in June 1927 and in 1996 with current levels, especially during the summer of 2020, when water levels were notably high.

86. It also allows an extrapolation of the Lake levels at the time of the 1983 Amended Engineer’s Report by determining the Lake Erie Monthly Mean Water Levels in 1996 and identifying the corresponding elevation on the 1997 profile. The Lake Erie Monthly Mean Water Level for June 1996 is 174.58 m IGLD (1985); the average for all months in 1996 is 174.28 m IGLD (1985). The average converts to an elevation of 174.47 m IGLD (1955), which can be superimposed on the profile from the 1983 Amended Engineer’s Report.

87. In the Fort Erie affidavit of documents, there is a table of water levels. From the URLs at the foot of the table, it appears that the source of the water level data is NOAA. The table gives water levels in metres, presumably IGLD (1985), from six station locations for a selection of days between July 3, 2019, and April 1, 2022. It is difficult to identify these six water monitoring stations on the NOAA website to verify the water level data provided in the table. Be that as it may, the Fort Erie data does not allow for a comparison of Lake Erie water levels in 1927 or 1996.

88. Lake Erie Monthly Mean Water Levels from DFO represent stable, ambient water conditions before accounting for daily fluctuations caused by storm surges, changes in atmospheric pressure across Lake Erie, shifts in wind direction, or seiches. However, they provide context for the baseline water level in Lake Erie. In June 1927, it was 174.01 m IGLD (1985); the average for all months in 1927 is 173.82 m IGLD (1985). The water level in Lake Erie in June 1996 was 174.58 m IGLD (1985). These can be compared with 175.1 m IGLD (1985) in June 2020, 175.05 m IGLD (1985) in July 2020, and 174.93 m IGLD (1985) in August 2020.

89. The parties can then draw whatever inference can be extracted from the ostensible NOAA data for the apparently random days proffered by Fort Erie.

90. The foregoing illustrates both the value of knowledge accumulated from working with other drainage issues near Lake Erie and the use of judicial notice. A sensible and informed person, viewing the matter realistically, could not reasonably conclude, from this use of judicial notice, that the presiding Referee may not decide the case fairly.

91. The presiding Referee has also had regard for online resources, such as Google Earth, to orient himself with respect to Point Abino. It is a thumb-shaped protrusion into Lake Erie. It is located on the north shore of the Lake, about midway between the Niagara River to the east and the top of the Welland Canal to the west. The same resource helped identify road patterns and names in the vicinity, as well as the boundary between Fort Erie and Port Colborne.

92. Unlike courts, tribunals, such as the court of the Drainage Referee, are expected to ensure that all relevant facts are established. This may include investigating facts not put forward by the parties. That said, tribunals must balance investigative action with procedural fairness. All parties should be aware of the material being considered and have an opportunity to respond. While not applicable in this case, in other situations, online Conservation Authority mapping and information, as well as online municipal GIS databases and assessment maps, become relevant. In another case, the municipality raised anxiety about the presiding Referee’s inquiries and knowledge. In paragraph 30 of the reasons for decision in Kittel v Wilmot (Township), 2024 ONDR 3, the following was said:

Another example of extraneous distractions is a more recent demand by Mr. Courey for a report from the presiding Referee under section 114 of the Act. Section 114 of the Act provides that “When the referee proceeds partly on view or on any special knowledge or skill possessed by him or her, he or she shall put in writing a statement thereof sufficiently full to allow the Divisional Court to form a judgment of the weight that should be given thereto, … ”. The notion that the presiding Referee would drive from London in the dead of winter to view the applicant’s and the petitioner’s rural properties from the roadside in a remote part of the Region of Waterloo is far-fetched. To be clear, it did not happen. That said, the presiding Referee’s internet browsing has revealed that the petitioner’s and the applicant’s properties are shown on assessment-based mapping, showing lot fabric, roads and watercourses superimposed on aerial photography and on maps or surveys available from the Waterloo Region’s GIS database, which likely include topographical information, and on Conservation Authority maps showing the location and elevation contours of floodplain areas and wetlands regulated by the Conservation Authority. This internet browsing does not constitute the taking of a view, but it does form the basis for the presiding Referee’s expectation and requirement that details of all of that mapping are to be produced by the Township as part of the pre-hearing disclosure process along with all topographical data and plans generated for the Township by the Engineer’s survey work in connection with the Petition, the Engineer’s Report or the Proposed Jananna Drain and any other topographical data and plans otherwise available to the Engineer pertaining to the Petition, the Engineer’s Report or the Proposed Jananna Drain; hence clause 10(q) of the Order.

93. A sensible and informed person, viewing the matter realistically, could not reasonably conclude, from such internet browsing and the active pursuit of pertinent information, that the presiding Referee may not decide the case fairly.

Pre-hearing conference disqualification of the Referee under Rule 8

94. Fort Erie asserts that the presiding Referee is disqualified from hearing the merits of this application on account of Referee Rule 8(3). It provided that:

The referee or acting referee who conducts a pre-hearing conference in a proceeding shall not preside at the hearing.

95. It is submitted by Fort Erie that Andrew Wright, Acting Drainage Referee, must recuse himself from presiding at the hearing on the merits, given that Mr. Wright had presided over pre-hearing procedural matters.

96. To fully appreciate Referee Rule 8(3), it should be considered in the context in which it appears, that is, Referee Rule 8, which is as follows:

8(1) The referee may order that a pre-hearing conference be held if the referee determines one is desirable in order to consider any of the following matters:

1. The possibility of settlement of any or all of the issues in the proceeding.

2. Simplification of the issues.

3. The possibility of obtaining admissions that may facilitate the hearing.

4. The question of liability.

5. The amount of damages, if damages are claimed.

6. The estimated duration of the hearing.

7. The advisability of having the referee appoint an expert.

8. In the case of an action, the number of expert witnesses and other witnesses that may be called by each party, and dates for the service of any outstanding or supplementary expert reports.

9. The advisability of fixing a date for the hearing.

10. Any other matter that may assist in the just, most expeditious and least expensive disposition of the proceeding.

(2) The parties shall participate in the pre-hearing conference in accordance with the referee’s order.

(3) The referee or acting referee who conducts a pre-hearing conference in a proceeding shall not preside at the hearing.

97. A significant element of Referee Rule 8, coupled with Referee Rule 6, is case management. This involves giving notice to those affected and giving them the opportunity to participate; it also involves narrowing and focusing the issues to be addressed at the hearing. Case management also entails estimating the time required to conduct the hearing and to establish a start time and date. Case management can also include requiring a schedule for the pre-hearing exchange of documents and affidavits or witness statements. This sort of case management has been carried out by the presiding Referee in communications with counsel regarding procedural matters, leading to the First Procedural Order (December 16, 2024) and the Second Procedural Order (September 5, 2025).

98. Another aspect of Referee Rule 8 is to encourage settlement by enabling the Referee or Acting Referee presiding at a pre-hearing conference to engage with the parties in settlement negotiations as a mediator. In order for that sort of mediation exercise to be fruitful, it is necessary for the parties to share freely confidential information and negotiating positions with the confidence that the ultimate decision maker will not have access to or be privy to such information. The purpose of Referee Rule 8(3) is to ensure that, if the Referee or an Acting Referee engages in such a mediation exercise in the course of a pre-hearing conference, that mediator will not preside at the hearing in the event that settlement discussions are unsuccessful.

99. In this case, the presiding Referee never engaged in mediation or any other form of settlement or negotiation discussions with the parties in the course of the communication concerning pre-hearing case management or otherwise. Mr. Wright is not privy to any confidential information from any party.

100. Applying a purposive interpretation to Referee Rule 8, Referee Rule 8(3) relates only to a Referee or an Acting Referee who has engaged with the parties in settlement discussions. It does not apply to preclude the Referee or an Acting Referee from presiding at a hearing on the merits when he has ordered prehearing procedural affairs solely to case-manage the matter and get it ready for a hearing on the merits.

101. This purposive interpretation does not derogate from the importance of Referee Rule 8(3) in the case when the Referee or an Acting Referee engages with the parties in settlement negotiations. Settlement of contentious matters locally by the parties is always to be preferred to an imposed result from outside. Settlements are to be encouraged and, if the Referee or an Acting Referee can facilitate a solution, that is an object to be desired. To make that work, it needs to be understood that the discussions are "off the record" and cannot be used if and when the parties get to a hearing on the merits. The point of this is to allow people to propose compromises to their legal position without being stuck with those compromises at the hearing. With an agreement or understanding of confidentiality in place, each party is able to bargain toward settlement without worrying that the other side will use their settlement proposals, or the information disclosed during mediation against them. Without such an understanding, parties would be unable to budge from their starting positions. In the same vein, the parties must know that the Referee presiding at the hearing on the merits will not be privy to confidential details disclosed in the course of a pre-hearing mediation; that is the purpose of Referee Rule 8(3).

102. However, if there has been no negotiation in the course of pre-hearing case management, it is not the purpose of Referee Rule 8(3) to preclude the case-managing Referee from presiding at the hearing of the merits. No purpose would be served by a different interpretation; Referee Rule 8(3) does not and is not intended to prohibit a case-managing Referee from presiding at the hearing.

103. There is a considerable advantage to having the case managing Referee preside at the hearing, if possible, as the presiding Referee is familiar with the background and will have a much less steep learning curve at the hearing than would a Referee who is coming into the hearing cold. This sort of efficiency for the parties and for the presiding Referee is important to the Drainage Act scheme of things, considering that, at present, there is only one Referee and two Acting Referees serving the Province of Ontario; all of whom are appointed by Order-in-Council on a part-time basis. If it were necessary, in each case, for one to case manage and one of the others to take the hearing, the result would be a system that would be inefficient, time-consuming and costly. It would also require the work of the Court of the Drainage Referee to grind to a halt if either one of the three were to be unavailable for a period of time on account of health challenges or personal commitments.

104. Because he was not involved in any settlement negotiations nor is he privy to any confidential information, Andrew Wright, Acting Drainage Referee, will be conducting the hearing on the merits. He will not recuse himself from presiding at the hearing on the merits, notwithstanding that he presided over and issued pre-hearing case-management procedural Orders and dealt with this preliminary motion.

105. This issue has been previously raised in the case of Goetz v South Bruce (Municipality), 2020 ONDR 3 , issued November 19, 2020. Much that is said in paragraphs 94 to 104 above is a paraphrase of what was said in paragraphs 3 to 13 of the reasons given in that case. The Municipality was ultimately successful. Still, it was persuaded that the point was sufficiently important that the Municipality risked upsetting its victory by appealing its successful result to the Divisional Court. The Divisional Court dismissed the Municipality’s appeal. Its decision is reported as Goetz v South Bruce (Municipality), 2022 ONSC 4388 at paragraph 40. One would have thought that was the end of further debate about this issue.

106. A sensible and informed person, viewing the matter realistically, could not reasonably conclude that pre-hearing case management should preclude the case managing Referee from presiding at the hearing of the merits or that it represents any indication that the presiding Referee may not decide the case fairly.

Conclusion

107. Fort Erie’s recusal motion is without merit and is dismissed.

108. The hearing on the merits will now proceed in accordance with the Second Procedural Order (September 5, 2025), mutatis mutandis. It is estimated that it will take three hearing days for evidence and final submissions. Counsel will shortly be canvassed about their availability to schedule that hearing.

Dated at London, the 5^th day of November 2025.

____________________________________ Andrew C. Wright Acting Drainage Referee

Footnotes

1. 1Page 43 to page 53 of the applicants’ Record.
2. 2Page 55 to page 79 of the applicants’ Record.
3. 3Page 81 to page 118 of the applicants’ Record.
4. 4Page 120 to page 160 of the applicants’ Record.
5. 5Page 47 to page 139 of the Town’s Affidavit of Documents.
6. 6For a review of the history and evolution of these engineers’ reports, see paragraphs 15 to 23 of the reasons given for the Second Procedural Order.