IN THE COURT OF THE DRAINAGE REFEREE

CITATION: White v Niagara Falls (City), 2025 ONDR 13

DATE OF DECISION: 2025-12-22

Court File No.: CV-16-00011326-0000 (Welland)

BETWEEN:

DAVID WHITE

Plaintiff

and-

THE CORPORATION OF THE TOWN OF FORT ERIE; and

THE CORPORATION OF THE CITY OF NIAGARA FALLS

Defendants

ACTING DRAINAGE REFEREE

ANDREW WRIGHT

HEARING HELD THE 18^th DAY OF DECEMBER 2025

ORDER

The most recent Order of the court of the Drainage Referee is the Procedural Order issued by Referee Waters on May 16, 2025, now reported as White v Niagara Falls (City), 2025 ONDR 4, Referee Waters. It contemplated the continuation of a hearing with respect to damages, in the circumstances that the Divisional Court has stayed the municipal defendants’ appeals pending completion of the hearing. The issues to be addressed by the damages hearing were said to be:

“A trial or continuation of the Summary Judgement Motion shall be held to determine the respective proportionate liability, if any, of the Respondents. The trial or Summary Judgement Motion shall address the following issues, which do not limit the claim for damages:

(a) The calculation of income from cropping of the arable lands in the 24-acre parcel at issue, excluding losses attributable to George and Catherine White.

(b) The accounting regarding restoration (if any) of farm buildings and ponds.

(d) The future assessed costs if the petition of May 2023 proceeds, and

(e) The proportionate liability for damages, if any, of each of the Respondents.

is to occur after completion of the documentation to be supplied by the parties."

Family circumstances have intervened to prevent Referee Waters from continuing, and the damages hearing has been assigned to Acting Referee Andrew Wright, who has assigned this date for a case management hearing to address the following:

(a) Identification of issues for the damages hearing.

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

(d) Estimating the amount of time required for the damages hearing.

(e) Setting the commencement date for the damages hearing.

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

And, having heard from counsel for the plaintiff, and counsel for Fort Erie and for Niagara Falls via video conference, for the reasons that follow:

THIS COURT ORDERS that

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.
This Order is supplementary to the following Orders:

(a) Order issued October 19, 2017, by Referee Waters removing Niagara Region and Port Colborne as party defendants in the action now appearing as Schedule “A” to the Order issued February 2, 2024 by Referee Waters and reported as White v Niagara Falls (City), 2024 ONDR 2;

(b) Procedural Order issued October 19, 2017 by Referee Waters establishing a schedule for the parties, now appearing as Schedule “B” to the Order issued February 2, 2024 by Referee Waters and reported as White v Niagara Falls (City), 2024 ONDR 2;

(d) Procedural Order issued May 29, 2020, by Referee Waters giving further procedural directions;

(e) Order issued July 9, 2020, by Referee Waters reflecting the decision issued by the Tribunal on February 7, 2029, in which he stayed the abandonment and Newbury Weir provisions of the Spriet report, as amended by the Tribunal, and consolidating the action as against Fort Erie and Niagara Falls;

(f) Procedural Order issued March 12, 2021, by Referee Waters dealing with amended pleadings, ordering production of documents within 60 days, an expert's report as to plaintiff’s damages by October 31, 2021, and responding experts' reports 60 days thereafter. Examinations for discovery and of experts and responses to undertakings by the end of March 2023;

(g) Procedural Order issued November 3, 2022, by Referee Waters dealing with an amended statement of claim and an amended appeal to the Referee from the February 7, 2019, Tribunal decision, with written submissions contemplated by the defendant municipalities and adjourned to December 5, 2022;

(h) Procedural Order issued December 22, 2022, by Referee Waters allowing an amended statement of claim and allowing 14 days for defendant municipalities to file statements of defence, requiring affidavits of Production by the municipalities by February 28, 2023 and completion of examinations for discovery by April 28, 2023 now appearing as Schedule “C” to the Order issued February 2, 2024 by Referee Waters, now reported as White v Niagara Falls (City), 2024 ONDR 2;

(i) Procedural Order issued September 21, 2023, by Referee Waters establishing the schedule for the municipalities’ motion to dismiss the action.

(j) Order issued February 2, 2024, by Referee Waters, now reported as White v Niagara Falls (City), 2024 ONDR 2, dismissing the municipalities’ motions to dismiss the action for reasons stated therein, leaving to be decided the issue of damages;

(k) Supplementary Reasons for the February 2, 2024 Order issued February 2, 2024 by Referee Waters, which now appear as an addendum to that Order, starting on page 37 of what is now reported as White v Niagara Falls (City), 2024 ONDR 2;

(l) Order issued May 6, 2024, by Referee Waters, now reported as White v Niagara Falls (City), 2024 ONDR 11, summarizing and restating the essentials from the February 2, 2024, Order. This was done at the request of the municipalities in connection with their appeal to the Divisional Court of the February 2, 2024 Order dismissing their motions for a summary dismissal of the action; and

(m) Procedural Order issued May 16, 2025, by Referee Waters, now reported as White v Niagara Falls (City), 2025 ONDR 4, Waters scheduling the continuation of the hearing with respect to damages, in the circumstances that the Divisional Court had stayed the appeals pending completion of the hearing.

all of which remains in effect, as augmented by this Order, except as specifically amended by this Order. Any reasons given for previous Orders remain extant. In the event of a conflict between Orders, the more recent Order shall prevail.

A copy of anything that is required by this Order to be delivered by a party to another or to be filed with the Court shall be delivered directly to the presiding Referee concurrently with delivery to the other party or its filing with the Court. Delivery shall be in machine-readable electronic format; a hard copy may also be delivered in addition to the electronic version.

Definitions

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

(a) The “2016 K. Smart Engineer’s Report” means the Report on the St. John Marsh Drain 2016 issued to Fort Erie on April 8, 2016 by K. Smart Associates Limited and signed by Neal Morris, P.Eng. with respect to the St. John Marsh Drain 2016, including plan and profile. This report was provisionally adopted by two readings of By-law 115-2016 on October 24, 2016. The Court of Revision met on November 23, 2016 and again on 2017-02-22 and made minor assessment changes.

(b) The “2016 Revised K. Smart Engineer’s Report” means the revised report dated November 23, 2016, issued to Fort Erie by Spriet Associate Engineers & Architects (Neil Morris) with revisions to reflect assessment schedule changes ordered by the Court of Revision, which report was adopted by Fort Erie By-law 115-2016 finally passed on April 24, 2017.

(c) The “2017 Spriet Engineer’s Report” means the Report on the St. John Marsh Drain 2017 issued to Niagara Falls on November 1, 2019, by Spriet Associate Engineers & Architects and signed by J.R. Spriet, P.Eng., with respect to the St. John Marsh Drain 2017, including plan and profile. This Report was provisionally adopted with the first and second readings of Niagara Falls By-law No. 2017-130 on November 28, 2017.

(d) The “2019 Tribunal Decision” means the decision of the Drainage Tribunal issued February 7, 2019, with respect to the 2017 Spriet Engineer’s report on the St. John's Marsh Drain now reported as St. John’s Marsh Drain 2017 (RE), 2019 ONAFRAAT 2.

(e) The “2019 Revised Spriet Engineer’s Report” means the 2017 Spriet Engineer’s Report as revised and issued to Niagara Falls on October 30, 2019 and signed by J.M. Spriet, P.Eng., to reflect the 2019 Tribunal Decision, which report was adopted by Niagara Falls By-law No. 2017-130 as finally passed on December 12, 2019.

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

(g) The “Drainage Tribunal” means the Ontario Drainage Tribunal before 1990, when the Ministry of Agriculture, Food and Rural Affairs (OMAFRA) took over the administration of the Drainage Act and “Drainage Tribunal” means the Agriculture, Food and Rural Affairs Appeal Tribunal thereafter.

(h) The “City” or “Niagara Falls” means The Corporation of the City of Niagara Falls, for itself, and as the administrator of the Drainage Act within its territorial limits.

(i) “Niagara Region” means the Regional Municipality of Niagara.

(j) “Port Colborne” means The Corporation of the City of Port Colborne, for itself and as the administrator of the Drainage Act within its territorial limits.

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

(l) The “Town” or “Fort Erie” means The Corporation of the Town of Fort Erie, for itself and as the administrator of the Drainage Act within its territorial limits.

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

(n) “Referee Waters” means Robert G. Waters, B.A., LL.B., the now retiring Drainage Referee in Ontario.

(o) The “White Property” means that lands described as being part of Lot 11, First Cross Concession in the geographic Township of Willoughby, (PIN 64251 – 0169 Lt). The assessment roll number for the White property in Niagara Falls is 27-25-130-004-219-000000; it is municipally known as 5981 Willow Road, Stevensville; and it comprises about 22 acres (8.9 hectares).

The concession in the geographic Township of Bertie, now in the Town of Fort Erie, between the north boundary of Fort Erie on the north and Netherby Road (Niagara Regional Road No. 25) on the south is referred to in Engineer’s reports issued by Spriet Associate Engineers & Architects as the Second Cross Concession and in Engineer’s reports issued by K. Smart Associates Limited it is referred to as the Broken Front Concession of geographic Township of Bertie. It is not clear from the evidence which is correct, but for the purposes of this Order and reasons, that concession will be referred to as the Broken Front Concession of the geographic Township of Bertie.
Throughout this Order and the reasons therefor, underlined text indicates a hyperlink connection.

Parties and Representation

The plaintiff, David White, is represented by Samuel Kirwin, a lawyer with the Law Office of Samual Kirwin Professional Corporation.
The defendant, Niagara Falls, is represented by Brian Cung, a lawyer in the Toronto offices of Aird & Berlis ^LLP.
The defendant, Fort Erie, is represented by Eric Florjancic, a lawyer in the Windsor office of Legal Focus ^LLP.

Lift in of Stay under Section 25 of the Statutory Powers Procedure Act

Pursuant to subsection 25(1)(b) of the Statutory Powers Protection Act, the court of the Drainage Referee hereby lifts the automatic stay of this action arising by operation of subsection 25(1) of the Statutory Powers Protection Act on account of the defendants’ February 29, 2024 appeals of the decision and Order of the court of the Drainage Referee issued on February 2, 2024. The lifting of the stay will continue until 30 days after a final disposition by the court of the Drainage Referee of this action.

Plaintiff’s March 17, 2016 Motion for Maintenance and Repair

The Motion dated March 17, 2016, brought by Terrance Green on behalf of David White seeking maintenance and repair of the St. John’s Marsh Drain, with supporting affidavit of David White, sworn February 17, 2016, including 8 Exhibits “A” through “H”, is dismissed with costs reserved to the final disposition of this matter.

Plaintiff’s Appeal of the 2019 Tribunal Decision

The appeal launched on May 29, 2020, by the plaintiff in the court of the Drainage Referee of the 2019 Tribunal Decision, now reported as St. John's Marsh Drain 2017 (RE), 2019 ONAFRAAT 2, is dismissed with costs reserved to the final disposition of this matter. This dismissal includes a dismissal of the appeal submitted by the letter dated January 6, 2020, sent by the plaintiff to Niagara Falls, appealing to the Referee under section 106(1)(a) and (b) and 106(2) of the Drainage Act from the 2019 Tribunal Decision.

Lift the Stay on the Abandonment of the Drain

Upstream of Station 0+950 and the construction of a Newbury Weir

In his Order issued on July 9, 2020 Referee Waters ordered that the work set out in the November 1, 2017 Spriet Engineer’s Report proceed “except the Abandonment of the Drain upstream of Station 0+950 and the construction of the Newbury Weir, both of which are stayed until the balance of the works on the St. John’s Marsh Drain 2017 are completed and evaluated.”. That stay is hereby lifted, and the 2019 Revised Spriet Engineer’s Report and the drainage works contemplated thereby are confirmed as final.

Municipal Defendants’ Joint and Several Liability

In accordance with the agreement between the municipal defendants, it is ordered that any damages that are payable by either or both of them in this action will be ordered payable by both municipal defendants, jointly and severally.

Time of Damages Hearing

The damages hearing will begin on Tuesday, April 7, 2026, at 10:00 a.m. and will be conducted via video conference using the Zoom platform.
The length of the hearing will be two days.

Issues

The issues to be resolved at the damages hearing relate to damage claims for physical injury or harm to property sustained after September 24, 2013 and caused by failure to maintain the St. John's Marsh Drain in good repair as follows:

(a) The calculation of income from cropping of the arable lands in the 24-acre parcel at issue, excluding losses attributable to George and Catherine White.

(b) The accounting regarding restoration (if any) of farm buildings and ponds.

(d) The future assessed costs if the petition of June 2023 proceeds, and

(e) The proportionate liability for damages, if any, of each of the defendants.

There will be no changes to this issues list unless the presiding Referee permits, and a party that asks for changes may have costs awarded against it.

Municipalities’ Witnesses

The defendant municipalities have had the plaintiff’s damages brief since July 31, 2025 in the form of Exhibit No. 1, being the Affidavit of Documents (Supplemental) sworn by David White on July 31, 2025 (second and final version) with 30 Tabs, including, at Tab 23, an affidavit of David White sworn February 19, 2025, with 12 Exhibits “A” through “L”. The defendant municipalities have been advised of the witnesses the plaintiff intends to call and the essence of their evidence. The defendant municipalities will now each identify to the plaintiff the witnesses they each intend to call at the damages hearing, and they will do so on or before Friday, January 23, 2026.
The defendant municipalities must provide the plaintiff with affidavits from each of these witnesses, in which the witness sets out the evidence they will each provide at the damages hearing. These affidavits must be delivered on or before Friday, February 27, 2026.
The plaintiff shall have until Monday, March 16, 2026, to provide the defendants with any reply affidavit evidence.

Exchange of Facta

If the plaintiff decides to deliver a factum, he may do so by delivering it to the other parties on or before Friday, March 20, 2026
If the Fort Erie decides to deliver a factum, it may do so by delivering it to the other parties on or before Friday, March 27, 2026.
If the Niagara Falls decides to deliver a factum, it may do so by delivering it to the other parties on or before Friday, March 27, 2026.
The plaintiff may deliver a reply factum on or before Thursday, April 2, 2026.

Order of Proceeding

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

(a) In the order that counsel for the plaintiff may decide, the plaintiff will call the plaintiff’s witnesses as follows:

(i) The plaintiff will provide factual evidence regarding Tab 23 of Exhibit No. 1, being his Affidavit of Documents, sworn on July 31, 2025. Tab 23 is found on page 276 of the Affidavit and consists of the plaintiff's affidavit, sworn on February 19, 2025, relating to his damages claims. The plaintiff will also give factual evidence about the numerous affidavits of record he has sworn during the course of this action as listed in paragraph 33 below.

(ii) Jeffery Martin will give factual evidence with respect to Tab 11 at page 229 of Exhibit No. 1, being the Affidavit of Documents of David White, sworn July 31, 2025. Tab 11 is an unsigned estimate for Internal Water Management System issued February 20, 2024 by RCC Waterproofing Inc., noting Jeffery Martin as the sales representative.

(iii) Blaine Hawkins will provide factual evidence regarding Tabs 12 and 14. Tab 12 appears at page 232 of Exhibit No. 1, being the Affidavit of Documents of David White, sworn July 31, 2025 and is an unsigned estimate for exterior waterproofing of the house’s perimeter and wall repairs, issued by Wise Crack and dated February 23, 2024. Tab 14 appears at page 255 of Exhibit No. 1, being the Affidavit of Documents of David White, sworn July 31, 2025 and is an unsigned estimate for demolishing existing buildings and structures and replacing them, issued by Wise Crack and dated June 4, 2025.

(iv) Neal Morris, P.Eng., will give factual evidence with respect to Tabs 5, 15 and 20 of Exhibit No. 1, being the Affidavit of Documents of David White, sworn July 31, 2025. As no expert report has been provided for Mr. Morris, he will not be qualified to give opinion evidence as an expert witness.

A Tab 5 is the Drainage Act Petition signed by David White on June 6, 2023, and submitted to Niagara Falls for drainage for Part 11, FirstCross Concession, municipally known as 5981 Willow Road, Niagara Falls; it appears on pages 103 and 104 of the Affidavit of Documents of David White, sworn July 31, 2025.

B Tab 15 is an aerial photograph-based plan showing the White property and Willow Road. The title block is dated August 2024 and identifies the plan as a preliminary plan for the White Drain Petition prepared by K. Smart Associates Limited. It appears on page 258 of the Affidavit of Documents of David White, sworn July 31, 2025.

C Tab 20 is a plan based on assessment mapping, showing the White property and areas to the south. The title block is dated September 2024 and identifies the plan as a preliminary Watershed Plan for the White Drain. It appears on page 266 of the Affidavit of Documents of David White, sworn July 31, 2025.

(v) Ted van der Zalm will give factual evidence with respect to Tab 29; Tab 29 is a quote for drilling a water well and pump installation, which appears on page 448 of Exhibit No. 1, being the Affidavit of Documents of David White, sworn July 31, 2025.

(vi) Mark L. Price will give evidence with respect to Tab 28; Tab 28 is the unsigned Report of Loss of Income and Projected Investment Growth for the period from 2008 to June 30, 2025, dated July 9, 2025. This report is said to have been prepared by Mark L. Price of Strategic Investment Concepts. It appears on pages 443 to 446 of Exhibit No. 1, being the Affidavit of Documents of David White, sworn July 31, 2025.

(b) The defendant, Fort Erie, will call any witness or witnesses the Town has identified pursuant to paragraph 19 above of this Order, and who have filed affidavits as contemplated by paragraph 20 above of this Order. The witness or witnesses will give evidence regarding the affidavits they have sworn in connection with the damages hearing.

(c) The defendant, Niagara Falls, will call any witness or witnesses the City has identified pursuant to paragraph 19 above of this Order, and who have filed affidavits as contemplated by paragraph 20 above of this Order. The witness or witnesses will give evidence regarding the affidavits they have sworn in connection with the damages hearing.

(d) The defendant municipalities may elect to reverse the order in which their evidence is presented, as they may agree.

(e) The plaintiff may call reply evidence.

In each case, the witness will be asked to reaffirm or correct their affidavit and then be subject to questions from parties aligned in interest, cross-examination by the parties opposite in interest and questions from the presiding Referee.
Final submissions by the parties will proceed with the same order as the evidence was presented, and the plaintiff will have the opportunity for reply submissions.
The party that provided the affidavit referred to in paragraph 26 above must have the person who signed the affidavit attend the hearing to give oral evidence unless the party notifies the presiding Referee at least seven (7) days before the hearing that the document or written evidence is not part of their record.

Video Conference Protocols

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.

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 of the merits 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

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 No.: CV-16-00011326-0000 (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 32(d) above applies mutatis mutandis.

At the time of this Order, the following documents are part of the record. With the exception of the Affidavit of Documents of David White, sworn July 31, 2025, none of the listed documents of record have been marked as Exhibits. I have entered the Affidavit of Documents of David White, sworn July 31, 2025 as Exhibit No.1.

Exhibit No.

1948-10-11 – Township of Willoughby By-law No. A- 115 adopting the Report for the repair and improvement of the St. John’s Marsh Drain issued and signed by C.A. Grassie, Engineer, with assessment schedule and plan for the St. John’s Marsh Drain in the Townships of Bertie and Willoughby.

1952-07-02 – Report on the Improvement of Part of Black Creek in the Townships of Bertie and Willoughby, signed by R. Blake Erwin, Township Engineer, including specifications and assessment schedule, adopted by Township of Bertie By-law No. 1578. The Black Creek joins the St. John’s Marsh Drain at the easterly limit of Lot 11, Concession 11, N.R., Township of Bertie. The improvements were to provide an improved outlet for the St. John’s Marsh Drain.

1980-11-04 – Deed registered as No. 363015 of White Property to John and Catherine White and David John White as joint tenants. Part of lot 11, First Cross Concession in the geographic Township of Willoughby – describes four boundaries comprising 23.68 acres more less.

1983-07-24 – David White transferred his interest in the 23.68 acres (9.6 hectares) to his parents as joint tenants by land transfer registered as instrument No. RO413145

2012-05-02 – K. Smart & Associated Limited (John Kuntze) memorandum report to Fort Erie about issues with the St. John’s Marsh Drain

2012-08-10 – Notice of Appeal to the Referee addressed to Niagara Falls by lawyer Terrance Green on behalf of David White. A separate “Notice of Appeal to Referee” was faxed to each of Niagara Falls, Port Colborne, Fort Erie and Niagara Region by Terrance James Green, Barrister and Solicitor for David White.

2013-09-24 – Following the death of George White on February 3, 2010, Catherine White, as the surviving joint tenant, transferred the 22-acre (8.9-hectare), net after the transfer of the 2 acre (0.8 hectare) retirement lot, White Property to herself and David White, as joint tenants, by a transfer registered on September 24, 2013, as instrument SN386485.

2014-07-31 –Engineer’s Report to Fort Erie for the Black Creek Drainage Works 2014, prepared under s 76 of the Drainage Act, issued by K. Smart and Associates Limited, dated July 31, 2014 and filed with the Fort Erie Clerk on February 13, 2015 and refiled on March 31, 2015. Provisionally adopted on April 27, 2015, by Fort Erie By-law No. 67-2015

2016-03-17 – Motion Record from Terrance Green on behalf of David White seeking maintenance and repair of the St. John’s Marsh Drain with supporting affidavit of David White sworn February 17, 2016, including 8 Exhibits “A” through “H”

2016-04-08 – Report on the St. John Marsh Drain 2016 issued to Fort Erie on April 8, 2016 by K. Smart Associates Limited and signed by Neal Morris, P.Eng. with respect to the St. John Marsh Drain 2016, including plan and profile (K. Smart File No. 13-249) The report was provisionally adopted by two readings of By-law 115-2016 on 2016-10-24. Court of Revision met on November 23, 2016 and again on 2017-02-22 and made minor assessment changes. A revised report dated 2016-11-23 was issued by K. Smart Associates Limited (Neil Morris) to reflect those changes. The report as revised was finally approved by final reading of By-law 115-2016 on 2017-04-24. Certificate of Completion dated April 27, 2020 issued with respect to the St. John Marsh Drain as outlined in the 2016 Revised K. Smart Engineer’s Report certifying practical completion on January 10, 2020.

2017-03-31 – Motion Record seeking to remove Port Colborne and Niagara Region from the action with supporting affidavit of the Drainage Superintendent of Port Colborne, Henri Bennemeer, sworn 2017-03-30 with 12 Exhibits “A” through “L”, and the affidavit of the Acting Director of Transportation Services for the Regional Municipality of Niagara, Shawn McCauley, sworn 2017-03-30 with 9 Exhibits “A” through “I”

2017-07-21 – Affidavit of Shawn McCauley, the Acting Director of Transportation Services for the Regional Municipality of Niagara, sworn July 21, 2017 in support of the motion to remove Port Colborne and Niagara Region from the action with one Exhibit being the 2016 K. Smart Engineer’s Report

2017-10-17 – Affidavit of David Maiden the Drainage Superintendent of Fort Erie sworn October 10, 2017 in support of the motion to remove Port Colborne and Niagara Region from the action with two Exhibits “A” and “B”

2017-10-19 – Order issued by Referee Waters on October 19, 2017 removing Port Colborne and Niagara Region as Respondents/defendants in this action by White now appearing as Schedule “A” to the Order issued February 2, 2024 by Referee Waters and reported as White v Niagara Falls (City), 2024 ONDR 2.

2017-10-19 – Second Procedural Order of Referee Waters establishing a schedule for the (1) exchange of pleadings and (2) directing Niagara Falls to copy the Referee with the section 78 engineer’s report which had been commissioned in relation to the St. John’s Marsh Drain (3) directing Fort Erie to keep parties apprised of activities in connection with the engineer’s report dated April 8, 2016 (K. Smart and Associates), now appearing as Schedule “B” to the Order issued February 2, 2024 by Referee Waters and reported as White v Niagara Falls (City), 2024 ONDR 2

2017-11-01 – Report on the St. John Marsh Drain 2017 issued to Niagara Falls on November 1, 2019, by Spriet Associate Engineers & Architects and signed by J.R. Spriet, P.Eng., regarding the St. John Marsh Drain 2017, including plan and profile (Spriet Associated Job No. 213172). On November 28, 2017 Niagara Falls provisionally adopted the 2017 Spriet Engineer’s Report by by-law 2017-130.

2017-11-21 – Catherine White and David White transfer the White Property to David White alone by land transfer registered as instrument SN534482 on November 21, 2017.

2017-11-27 – Statement of Claim provided by Melissa Braodhurst, a paralegal carrying on business as Rideau Legal Services (located in Cardinal in eastern Ontario). The statement of claim is undated and unissued, but was received by Referee Waters on November 27, 2017.

2017-12-22 – Statement of Defence from Fort Erie

2017-12-22 – Statement of Defence from Niagara Falls

2019-02-07 –2019 Tribunal Decision issued February 7, 2019, with respect to the 2017 Spriet Engineer’s Report on the St. John Marsh Drain 2017, issued to Niagara Falls on November 1, 2017, by Spriet Associate Engineers & Architects, in which the Drainage Tribunal amended the Report by removing the recommended Newbury Weir from the termination point of the drain at station 0+950. This was an appeal was heard on September 18, 2018 under section 48 of the Act (the assessment appeal under section 54 of the Act was withdrawn) - St. John's Marsh Drain 2017 (RE), 2019 ONAFRAAT 2

2019-10-30 - A Revised Report, the 2019 Revised Spriet Engineer’s Report. It was originally issued November 1, 2017, by Spriet Associates and signed by J.M. Spriet, P.Eng. and revised October 30, 2019 to reflect the 2019 Tribunal Decision of February 7, 2019. The 2019 Revised Spriet Engineer’s Report was presented to Niagara Falls Council on December 10, 2019, at which time final reading was given to By-law No. 2017-130. It contains the same recommendation: That the existing 1948 St. Johns Marsh Drain in the N.P.C.A lands (Roll No. 4-167) upstream of Sta 0+950 be officially abandoned from municipal drain status pursuant to Section 19 of the Drainage Act. It does not include the Newbury Weir at the upper end of the drain (Sta 0+950), in accordance with the 2019 Tribunal Decision. On January 25, 2021 the Certificate of Completion of the St. John Marsh Drain for Niagara Falls Spriet Associates Job No. 213172 was issued by Spriet Associates.

2020-01-06 – Letter from David White to Niagara Falls appealing to the Referee under section 106(1)(a) and (b) and 106(2) of the Drainage Act from the decision of the Tribunal issued February 7, 2019.

2020-04-24 – Order issued by Referee Waters on April 24, 2020 which represents the third Order arising from teleconference hearings on May 20, 2020 which continued on June 17, 2020. Order refers to the resumption of a hearing originally held on March 25, 2020.

2020-05-29 – Notice of Motion by David White’s then counsel appealing the 2019 Tribunal decision.

2020-05-29 – Order issued by Referee Waters on May 29, 2020, directing counsel for White to e-mail to respondents/defendants the Notice of Appeal required by paragraph 6 of the April 24, 2006 Order and adjourned to June 17, 2020.

2020-07-09 – Order issued by Referee Waters on July 9, 2020. It reflects teleconferences on March 25, 2020, April 23, 2020, May 29, 2020 and June 17, 2020. The order is that the damages claim against Fort Erie and Niagara Falls are to continue as one action as set out in the Referee’s Order of October 19, 2017 and that the work set out in the November 1, 2017 Spriet Report is to proceed “except the Abandonment of the Drain upstream of Station 0+950 and the construction of the Newbury Weir, both of which are stayed until the balance of the works on the St. John’s Marsh Drain 2017 are completed and evaluated.” No reasons were given.

2021-03-12 – Order of Referee Waters issued March 12, 2021. Refers to Order of July 9, 2020. Refers to work on St. John’s Marsch Drain in Niagara Falls (Spriet Report) not having been completed and work on the Drain in Fort Erie (K. Smart Report) being certified complete on April 27, 2020 at the time of the July 9, 2020 Order. Refers to work on St. John’s Marsch Drain in Niagara Falls (Spriet Report) certified complete on January 25, 2021. This Order sets out a revised schedule for pleadings, the exchange of affidavits and documents, including expert reports and discovery examinations, and expert examinations. Liability and damages to be determined at trial.

2022-07-21 – Notice of Motion by David White by his then counsel, seeking leave to amend the statement of claim, supported by the affidavit of Ian Nielsen sworn July 21, 2022 attached to which is the draft amended Statement of Claim. This motion was allowed by Order of Referee Waters issued December 22, 2022 which is an attachment to the Order issued February 2, 2024 now appearing as White v Niagara Falls (City), 2024 ONDR 2.

2022-11-03 – Order of Referee Waters issued November 3, 2022. Refers to the 2019-02-07 Tribunal decision (Re 2019 Spriet Report). Refers to Referee Order issued April 24, 2020, paragraph 6, authorizing White – then unrepresented, to file an amended statement of claim by January 6, 2020. Reference to Referee Order October 19, 2017 for amended statement of claim. Reference to Notice of Appeal dated May 29, 2020. Municipalities given until May 29, 2020 to make submissions about matters raised by the restated Notice of Appeal. Adjourned to December 12, 2022 to deal with procedural matters.

2022-12-22- Procedural Order of Referee Waters allowing amended statement of claim and giving defendants time to file amended statements of defence, confirming that the amended statement of claim replaces the originally filed Notice of Appeal/Application delivered by the plaintiff requiring the municipalities’ affidavits of production by February 28, 2023 and ordering that examinations be conducted before April 28, 2023. Attached to this Order is the undated amended statement of claim. This Order appears as Schedule “C” to the Order issued February 2, 2024 now reported as White v Niagara Falls (City), 2024 ONDR 2.

2023-05-25- Supplementary Affidavit of Documents of David White, sworn May 25, 2023 with 63 Tabs in two volumes of documents

2023-06-06 – Petition by David White to Niagara Falls for drainage of the White Property. One handwritten, the second typed. Signed by David White only.

2023-09-21 – Order of Referee Waters issued on September 21, 2023. It refers to the Order of July 9, 2020. It establishes a schedule for the plaintiff to provide an affidavit of documents by September 26, 2023; defendant municipalities to provide summary judgement dismissal motion material by October 16, 2023; plaintiff to provide responding material to the municipalities’ motion by October 23, 2023; cross-examinations to be completed before November 3, 2023; hearing of municipalities’ summary judgement dismissal motion on December 5, 2023; with liability and damages to be determined at trial.

2023-10-16 – Niagara Falls Motion Record for summary judgement dismissing the action with supporting Affidavit of Nick Golia, sworn October 16, 2023 with 7 Exhibits “A” to “G”

2023-10-23 – Supplemental Affidavit of Documents of David White, sworn October 23, 2023 with an additional 63 Tabs

2023-10-23 – Affidavit of David White, sworn October 23, 2023, in response to the municipalities’ motion to dismiss with no Exhibits attached

2023-11-02 – White Supplementary Affidavit of David White, sworn November 2, 2023 with 15 Exhibits “A” to “O”

2023-11-03 – Transcript of cross-examination of Troy Davidson, Fort Erie Drainage Superintendent

2023-11-03 – Transcript of cross-examination of Nick Golia, Niagara Falls Senior Project Manager - Development

2023-11-03 – Transcript of cross-examination of David White, the plaintiff

2023-11-15 – Fort Erie Motion Record including Notice of Motion for summary judgement dismissing the action and supporting Affidavit of Troy Davidson, Fort Erie Drainage Superintendent, sworn October 16, 2023 with 19 Exhibits “A” to “N”.

2023-11-17 – Motion Record of David White with supporting affidavit of David White, sworn November 17, 2023 with 7 Exhibits “A” through “G”. The motion seeks to file a new affidavit in response to the municipalities’ motions to dismiss and set a date for cross-examination, a new date for the exchange of facta, and an adjournment of the hearing date of December 5, 2023.

2024-02-02 –Order issued by Referee Waters on February 2, 2024 dismissing the municipalities’ motions for summary dismissal of the action, now reported as White v Niagara Falls (City), 2024 ONDR 2

2024-02-29 – Notice of Appeal to the Divisional Court by Niagara Falls from the Referee Order issued on February 2, 2024.

2024-02-29 - Notice of Appeal to the Divisional Court by Fort Erie from the Referee Order issued February 2, 2024.

2025-05-06 –Order issued by Referee Waters on May 6, 2024, formalizing the decision issued dismissal order of February 2, 2024 for the appeal to the Divisional Court of that Order. This Order is now reported as: White v Niagara Falls (City), 2024 ONDR 11.

2025-05-16 – Procedural Order issued by Referee Waters on May 16, 2025, now reported as: White v Niagara Falls (City), 2025 ONDR 4 This Order was issued after the Divisional Court stayed the appeals pending completion of the dismissed summary judgment motions as to the quantum of damages and apportionment between Niagara Falls and Fort Erie.

No. 1

2025-07-31 – Affidavit of Documents (Supplemental) sworn by David White on July 31, 2025 (second and final version) with 30 Tabs, including at Tab 23 and affidavit of David White sworn February 19, 2025 with 12 Exhibits “A” through “L”.

2025-09-26 – Expert’s Report issued by Tracey Business Advisor Inc. and signed by Jim Tracey, CPA, CA, CBV, commenting on the July 9, 2025, Strategic Investment Concepts Report submitted with Exhibit No. 1, being the Supplemental Affidavit of Documents sworn by David White on July 31, 2025.

The documents listed in the foregoing table in paragraph 33 above are the documents of record for the damages hearing scheduled to commence on April 7, 2026, augmented by

(a) the affidavits of any witness the Town has identified pursuant to paragraph 19 above of this Order, and who has filed an affidavit as contemplated by paragraph 20 above of this Order;

(b) the affidavits of any witness the City has identified pursuant to paragraph 19 above of this Order and who has filed an affidavit as contemplated by paragraph 20 above of this Order; and

The documents with exhibit numbers will retain their exhibit numbers through the case management hearings and the damages hearing 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.
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.
If counsel or a witness intends to rely upon case law, other than the cases listed in paragraph 33, or legislation other than the Act, copies must be provided to the presiding Referee and to all other parties at least 2 days in advance of the video conference hearing at which it is to be referred to; the presiding Referee may abridge this time.

General Matters

When any document is required or permitted to be served, it shall be served by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service) and shall be sent to:

(a) the party’s representative, if any;

(b) where the party is an individual and is not represented, to that party directly, where that party has provided an address for service and/or an e-mail address;

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

For the purposes of this Order, unless otherwise ordered, Andrew C. Wright, Acting Drainage Referee, shall be regarded as the presiding Referee.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness.
Costs of the day are reserved to the final disposition of this matter.
Andrew C. Wright, Acting Drainage Referee, is now seized of the hearing of the merits of this application.

Dated at London the 22^nd day of December 2025.

____________________________________ Andrew C. Wright Acting Drainage Referee

REASONS

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.
Words and phrases defined in the Order have the same meaning when used in these reasons.
This case has struggled along for more than a decade, and it is time to bring it to an end, at least insofar as the court of the Drainage Referee is concerned. The purpose of the Order is to move the process to a damages hearing.

Applicant equals Plaintiff, and Respondent equals Defendant.

In previous orders, the plaintiff has sometimes been referred to as the applicant or appellant, and the municipalities sometimes as respondents. While there have been motions in the action, appeals to the Drainage Tribunal, and an appeal of the 2019 Tribunal Decision, this proceeding is nonetheless an action rather than an application or an appeal; references to the applicant or appellant should be understood as referring to the plaintiff. Similarly, references to the respondents should be understood as referring to the defendants.

May 2023 Petition Actually Signed in June 2023

In paragraph 58 of the Order issued February 2, 2024, now reported as White v Niagara Falls (City), 2024 ONDR 2, there is a reference to a petition filed by the plaintiff in May 2023 and again in clause (d) of paragraph 62, there is a reference to a petition of May 2023. In clause (d) of paragraph 6 of the Order issued May 6, 2024, now reported as White v Niagara Falls (City), 2024 ONDR 11, there is a repetition of the reference to a petition of May 2023. Again, in clause (d) of the Order issued May 16, 2025, now reported as White v Niagara Falls (City), 2025 ONDR 4, there is a repetition of the reference to a petition of May 2023. The quote on page 1 of the Order is taken from the May 16, 2025, Order and includes the reference to the petition of May 2023.
The petition is produced at Tab 4 of Exhibit No. 1, being the Affidavit of Documents of David White, sworn July 31, 2025, commencing on page 100. At Tab 4 is a Form 1 Petition filled in by hand and signed by the plaintiff on June 6, 2023. It is confusing because the plaintiff signs the acknowledgement of filing for Niagara Falls, and William Matson, the Niagara Falls City Clerk, witnesses that signature; then both sign the petition. These signatures are dated June 6, 2023. At Tab 5 of Exhibit No. 1, being the Affidavit of Documents of David White, sworn July 31, 2025, commencing on page 103, is a Form 1 Petition that has been filled in with a typewriter. The plaintiff signed it on June 6, 2023, and William Matson, the Niagara Falls City Clerk, signed to acknowledge its filing with Niagara Falls on that date.
Despite the confusion around the handwritten petition at Tab 4 of Exhibit No. 1, it is understood that Niagara Falls is not a signatory to the petition and that the plaintiff is the only one who signed the June 2023 petition.
The principal point here is that the petition was filed in June 2023, not in May 2023. That correction is made to the issues identified for the damages hearing set out in clause 17(d) of the Order.

Summary Judgment for Damages and Lifting Automatic Stay under Section 25 of the Statutory Powers Procedure Act

Previous Orders that have referenced the damages hearing as a continuation of the Summary Judgement Motions. The municipalities’ summary judgment motions were dismissed in the Referee’s Order issued, now published as White v Niagara Falls (City), 2024 ONDR 11, so they are no longer extant to be continued. The plaintiff has not brought a motion for summary judgment for damages.
The Court of Appeal’s decision in Graham v. Toronto (City), 2022 ONCA 149, addresses this situation. Toronto moved for summary judgment dismissing the action by reason of the plaintiff’s failure to provide timely notice. During her deliberations, Justice Eugenia Papageorgiou not only decided that timely notice had been given but also that the claim was not statute-barred. Despite the plaintiff having not brought a cross-motion for such a declaration, after giving the City an opportunity to respond, Justice Papageorgiou issued a so-called boomerang or reverse summary judgment and made the declaration sought by the plaintiff in response to the City’s motion for summary judgment dismissing the action. The City unsuccessfully appealed to the Court of Appeal, which endorsed the concept of boomerang or reverse summary judgments without requiring a formal counter-notice of motion. The Court cautioned, however, that the moving party must be put on notice and given an opportunity to respond before a reverse summary judgment is issued that is adverse to its interests.
In this case, Referee Waters not only dismissed the municipal defendants’ motions for summary judgment dismissing the action, but he also decided that the St. John's Marsh Drain had not been maintained in good repair and that the plaintiff was entitled to damages, under section 79 of the Act, attributable to such non-repair and incurred after September 24, 2013. By way of a boomerang or reverse summary judgment, he directed that the matter proceed to an assessment of damages. While the municipalities’ summary judgment motions were dismissed and are no longer extant, the plaintiff’s boomerang or reverse summary judgment was to be continued to the assessment of damages. In this case, both the plaintiff and the defendants were given the opportunity to provide supplementary evidence regarding provable damages, including quantum and allocation between the municipal defendants.
By Notices of Appeal dated February 29, 2024, the municipal defendants launched separate appeals of Referee Waters’ February 2, 2024, decision to the Divisional Court. The effect of those appeals was to stay, automatically, the action, including the operation of the February 2, 2024 Order, by virtue of Section 25 of the Statutory Powers and Procedure Act. That affected not only the dismissal of the defendants’ motions for summary judgment, but also the plaintiff’s reverse summary judgment for an assessment of damages and anything else in connection with the action. The Divisional Court then stayed the defendants’ appeals. That stay probably had the effect of lifting the Section 25 stay, but the Divisional Court did not explicitly say so, and there is no Divisional Court Order under subsection 25(1)(b) of the Statutory Powers and Procedure Act. Out of an abundance of caution, this court of the Drainage Referee has issued an Order under subsection 25(1)(b) of the Statutory Powers and Procedure Act, lifting the automatic stay envisioned by Section 25 of the Statutory Powers and Procedure Act, hence paragraph 10 of the Order. In this way, dismissal of the summary judgment motions is reinstated, and the plaintiff’s reverse summary judgment for an assessment of damages can continue. This is consistent with the intention of the Divisional Court that the defendants’ appeals to that Court are not heard until the Drainage Referee hearing is complete.
Paragraph 10 of the Order lifts the automatic stay provided by Section 25 of the Statutory Powers and Procedure Act and orders that the municipal defendants’ appeals dated February 29, 2024, do not operate as a stay of this action until 30 days after the issuance of a final disposition of this action in the court of the Drainage Referee. The reason for the extra 30 days is to retain jurisdiction to deal with any technicalities, corrections or procedural issues that may arise between the date of final disposition with reasons therefor and the expiry of the appeal period prescribed by section 121 of the Act.

Plaintiff’s March 17, 2016 Motion for Maintenance and Repair

A Motion dated March 17, 2016, was brought by Terrance Green, then counsel for the plaintiff, seeking maintenance and repair of the St. John’s Marsh Drain, with supporting affidavit of David White, sworn February 17, 2016, including 8 Exhibits “A” through “H”. That motion was brought at a time when Port Colborne and the Niagara Region were defendants.
As previously mentioned, by Order issued October 19, 2017, by Referee Waters, Niagara Region and Port Colborne were removed as party defendants in the action. That Order now appears as Schedule “A” to the Order issued February 2, 2024, by Referee Waters and reported as White v Niagara Falls (City), 2024 ONDR 2.
The plaintiff’s March 17, 2016, motion was forgotten amid the commotion, and, as a matter of judicial housekeeping, it should be dealt with. The March 17, 2026 motion is therefore dismissed with costs reserved to the final disposition of this matter, hence paragraph 11 of the Order.

Plaintiff’s Appeal of the 2019 Tribunal Decision

On May 29, 2020, the plaintiff issued a Notice of Appeal in the court of the Drainage Referee, seeking, amongst other things, to set aside the 2019 Tribunal Decision as well as the 2017 Spriet Engineer’s Report. The circumstances leading to that appeal and its disposition are circuitous. It starts with the Procedural Order issued by Referee Waters on October 19, 2017.
That Procedural Order established a schedule for the delivery of a statement of claim and statements of defence and the exchange of expert reports and examinations for discovery. The Order now appears as Schedule “B” to the Order issued February 2, 2024, by Referee Waters and reported as White v Niagara Falls (City), 2024 ONDR 2.
That Order included the following paragraphs 3, 5 and 6:
The Corporation of the City of Niagara Falls, in addition to the regular procedure on reports, shall serve the Appellant with its report; provide a copy to the Referee, together with and using the normal procedures under s.78 of the Drainage Act of a Report which is commissioned in relation to the St. John's Marsh Drain.
The Appellant, David White, shall have forty (40) days from the date of this Order to appeal, if he so desires, the report of K. Smart Associates Limited dated April 8th, 2016 pursuant to s. 47 and to provide notice to the Court Clerk. This provision of this Order may be held in abeyance at the Referee's discretion upon confirmation of notice having been given to the Appellant.
The Appellant shall have the usual period of appeal to appeal the Corporation of the City of Niagara Falls Drainage Report forty, being (40) days after notice is sent, pursuant to s. 40 and s. 41 (sic) of the Drainage Act.
The October 19, 2017 Order only refers to an appeal to the Referee under section 47 of the Act. There is no reference in paragraphs 3, 5 or 6 or anywhere else in the October 19, 2017 Procedural Order to an appeal to the Drainage Tribunal under section 48 of the Act by a person dissatisfied with an engineer’s report, nor any reference to appeals from the Court of Revision with respect to assessment decisions pursuant to section 54 of the Act.
At the time of the October 19, 2017 Procedural Order, the 2017 Spriet Engineer’s Report for Niagara Falls was a work in preparation.
At the time of the October 19, 2017 Procedural Order, the 2016 Revised K. Smart Engineer’s Report had been finally adopted by Fort Erie By-law 115-2016 on April 24, 2017.
With respect to the 2016 Revised K. Smart Engineer’s Report, by necessary implication, paragraph 5 of the October 19, 2017 Order represents an extension of the time for launching an appeal to the Referee under section 47 of the Act. Section 47 specifies a 40-day limitation period commencing when notices are sent under subsection 46(2) of the Act – section 40 of the Act is not applicable in this case. The notice under subsection 46(2) of the Act is the notice of the sitting of the Court of Revision after the provisional adoption of an engineer’s report. In the case of the 2016 K. Smart Engineer’s Report, provisional adoption was on October 24, 2016, and the initial sitting of the Court of Revision was November 23, 2016, so the 40-day limitation period commenced sometime between; for the sake of the discussion, assuming the 40-day limitation period commenced on November 23^rd, the limitation period under section 47 of the Act expired on January 2, 2017. Referee Water’s paragraph 5 extends the appeal period to 40 days after his Order was issued on October 19, 2017, to expire on November 28, 2017. Presumably, Referee Waters was exercising his authority under section 113 of the Act, but he does not say so specifically, and there are no reasons.
At the time of the October 19, 2017 Procedural Order, Referee Waters would have had a copy of the 2016 Revised K. Smart Engineer’s Report and wanted a copy of the 2017 Spriet Engineer’s Report, when issued, for himself, and wanted to be sure the plaintiff was served with a copy. Otherwise, the instruction to Niagara Falls in paragraph 3 of the Order was to follow the regular procedure for reports. By implication, that would have included a meeting of Council to consider the report, the giving of notice of the result and the opportunity of an appeal from the report to the Drainage Tribunal under section 48 of the Act, and, following Court of Revision decisions, the giving of notice of the decisions of the Court of Revision and referring to the opportunity to appeal to the Drainage Tribunal under section 54 of the Act. Given the regular procedure that Referee Waters stated should be followed, it is a reasonable corollary that appeals would be and could be made to the Drainage Tribunal.
Paragraph 6 of the October 19, 2017 Procedural Order also contemplated an appeal to the court of the Drainage Referee under section 47 of the Act. At the time, the 2017 Spriet Engineer’s Report had not been issued, much less provisionally adopted. But when it was adopted by Niagara Falls, section 47 of the Act specifies a 40-day appeal period from the sending of notices under section 40 or subsection 46(2) of the Act. Section 40 is not relevant in this context. Subsection 46(2) of the Act specifies the date, after the provisional adoption of an engineer’s report, when notice of the date of the Court of Revision is circulated.
The 2017 Spriet Engineer’s Report was provisionally adopted with the first and second readings of Niagara Falls By-law No. 2017-130 on November 28, 2017, so the notice contemplated by subsection 46(2) of the Act would have been circulated within a month of that date. The 40-day limitation period for an appeal of the 2017 Spriet Engineer’s Report to the Referee under section 47 of the Act would have expired sometime in February 2018.
The plaintiff did not launch any appeals under section 47 of the Act within the time limited for so doing by the October 19, 2017 Procedural Order with respect to the adopted 2016 Revised K. Smart Engineer’s Report. The plaintiff did not launch any appeals to the Drainage Tribunal under section 48 of the Act or under section 54 of the Act with respect to the adopted 2016 Revised K. Smart Engineer’s Report.
The plaintiff did not launch an appeal of the 2017 Spriet Engineer’s Report under section 47 of the Act within the time limited for so doing by section 47 of the Drainage Act.
The plaintiff could have appealed the 2017 Spriet Engineer’s Report to either or both the Referee under section 47 of the Act and the Drainage Tribunal under section 48 of the Act. Had he done both, while the Referee has no authority over Drainage Tribunal practices and proceedings, and vice versa, the conventional protocol is that the Drainage Tribunal would defer processing the appeal under section 48 of the Act and/or section 54 of the Act, pending the Referee's determination of the appeal under section 47 of the Act. In this case, the plaintiff elected to proceed with only an appeal to the Drainage Tribunal under sections 48 and 54 of the Act. There was no appeal under section 47 of the Act, so the Drainage Tribunal proceeded to hear the plaintiff’s appeal under sections 48 and 54 of the Act, which it did on September 18, 2018, rendering the 2019 Tribunal decision on February 7, 2019.
The jurisdiction and authority of the court of the Drainage Referee and the Drainage Tribunal are independent but coexist. The authority of each is set out with some particularity in the Drainage Act. It is not uncommon for persons to invoke the jurisdiction of both concurrently. A person who may wish to challenge the validity of a petition may also be dissatisfied with the drainage works recommended by an engineer’s report, as well as the assessments. In such a case, the person would make an application to the Referee with respect to the petition and separate appeals to the Drainage Tribunal under sections 48 and 54 of the Act. Similarly, a person seeking to set aside an engineer’s report on the basis that it does not comply with the requirements of the Act may also be dissatisfied with the drainage works recommended by an engineer’s report, as well as the assessments. Again, in such a case, the person would appeal to the Referee under section 47 of the Act and bring separate appeals to the Drainage Tribunal under sections 48 and 54 of the Act.
It would be a waste of Drainage Tribunal resources to proceed with hearings under sections 48 and 54 of the Act if it turns out the petition is invalid, or the engineer’s report is set aside as not complying with the Act. As previously mentioned, the Referee has no authority over Drainage Tribunal practices and proceedings, and vice versa; however, the standard protocol is for the Drainage Tribunal to defer processing the appeal under section 48 of the Act and/or section 54 of the Act pending the Referee's determination. In the few instances when the Act gives the Referee appellate jurisdiction over Drainage Tribunal decisions, the Drainage Tribunal hearing naturally occurs first. These practical protocols for coexistence, however, do not derogate from the independence of either the Referee or the Drainage Tribunal. The fact that this action is outstanding before the Referee does not suspend the Drainage Tribunal’s jurisdiction and authority under the Act in connection with the St. John's Marsh Drain; the Drainage Tribunal is not jurisdictionally precluded from hearing and deciding any application or appeal within its bailiwick under the Act related to the St. John's Marsh Drain.
After the October 19, 2017 Procedural Order, proceedings in this action languished. The next step was the Procedural Order issued by Referee Waters on April 24, 2020. It includes paragraph 4, in which

The Court confirms that Paragraph 6 of the Order of October 19^th, 2017, has been complied with by the Appellant through an Appeal of the Report of Spriet & Associates dated November 1^st, 2017, being an Appeal by the Appellant to the Agriculture, Food & Rural Affairs Appeal Tribunal heard September 18^th, 2018, with a Decision given on February 7^th, 2019.

Referee Waters conflates an appeal to the Referee under section 47 of the Act, as contemplated by paragraph 6 of the Order of October 19, 2017, and the appeal that was taken by the plaintiff to the Drainage Tribunal under sections 48 and 54 of the Act. By this time in April 2020, the 2019 Tribunal Decision had been issued on February 7, 2019. In reliance on the finality of that decision, the 2019 Revised Spriet Engineer’s Report was prepared and issued on October 30, 2019, to reflect the 2019 Tribunal Decision, and it was presented to Niagara Falls Council on December 10, 2019 when it was adopted by the final reading of Niagara Falls By-law No. 2017-130.
Also, by this time, the plaintiff had submitted to Niagara Falls a one-page letter dated January 6, 2020, appealing the 2019 Tribunal Decision. That letter relies on sections 106(1)(a) and 106.2 (sic) of the Drainage Act. There is no mention of section 47 of the Act, nor any allegation that the 2017 Spriet Engineer’s Report, as originally issued in November 2017, does not comply with the requirements of the Act. The 40-day limitation period in section 47 of the Act would have expired some two years before, in February 2018.
That April 24, 2020 Procedural Order goes on to include the following paragraph 6:

While not formally part of this Action, the Court acknowledges that an Appeal to the Referee was made of the Decision of the Agriculture, Food & Rural Affairs Appeal Tribunal regarding the St. John's Marsh Drain dated February 7^th, 2019, on January 6^th, 2020. Such Appeal was made by the Appellant in this Action, acting without Counsel. Counsel has since been retained and has participated in a Procedural Hearing as to the possible Appeal on March 25^th, 2020, and a further extension on April 24^th, 2020. The Appellant, on a peremptory basis, has until May 29th, 2020, to submit to the Referee an Amendment or Re-Statement of the Appellant's Appeal of January 6^th, 2020, subject to the rights of The Corporation of the City of Niagara Falls on its submissions or future submissions which may be forthcoming from the Respondents named in Court File No. 16-11326.

This acknowledges the existence of the January 6, 2020 appeal letter, gives the plaintiff’s new legal counsel a time-limited opportunity to submit a more formal notice of appeal, and acknowledges the defendants’ challenge to the Referee’s jurisdiction and authority to hear an appeal of the 2019 Tribunal Decision. There is no indication in paragraph 6 of the April 24, 2020 Procedural Order that an appeal under section 47 of the Act was being contemplated or that an extension of the time for bringing such an appeal was being sought.
On May 29, 2020, the plaintiff issued a Notice of Appeal in the court of the Drainage Referee, seeking, amongst other things, to set aside the 2019 Tribunal Decision as well as the 2017 Spriet Engineer’s Report. As previously mentioned in paragraph 33 above, this is more than a year after the 2019 Tribunal Decision was issued on February 7, 2019 and after the 2019 Revised Spriet Engineer’s Report had been prepared and issued on October 30, 2019 to reflect the 2019 Tribunal Decision and presented to Niagara Falls Council on December 10, 2019 when it was adopted by the final reading of Niagara Falls By-law No. 2017-130.
In his July 9, 2020 Order, Referee Waters acknowledged the Notice of Appeal filed on May 29, 2020 and provided in paragraphs 2 and 3 as follows:
The work recommended in the Report of John Spriet dated November 1, 2017 proceed with the exception of the Abandonment of the Drain upstream of Station 0+950 in said report and construction of the Newbury Weir, both of which are stayed until the balance of the works in the St. John's Marsh Drain 2017 by Spriet Associates are completed and evaluated.
The Respondents retain their right to raise the issue of the Referee's jurisdiction on further motion.
Insofar as the Notice of Appeal filed on May 29, 2020, was an appeal under section 47 of the Act, the time for such an appeal of the 2017 Spriet Engineer’s Report had long since expired sometime in February 2018. In reliance on the 2019 Tribunal Decision, the series of events enumerated in paragraph 37 above occurred, culminating in the 2019 Revised Spriet Engineer’s Report being adopted by the final reading of Niagara Falls By-law No. 2017-130 on December 10, 2019. The drainage works contemplated by the 2019 Revised Spriet Engineer’s Report commenced in the summer of 2020 and were certified as completed on January 25, 2021.
The main obstacle to the appeal is that the Drainage Tribunal’s decision was made under section 48 of the Drainage Act. An appeal of Court of Revision assessment decisions under section 54 of the Act was withdrawn and thus dismissed. Drainage Tribunal decisions made under either section 48 or section 54 of the Act are final. The Referee’s appellate jurisdiction is explicitly barred by section 106(2) of the Act. As for the notion in the notice of appeal that section 84 of the Act is pertinent, it is not. That issue is addressed in paras. 79 to 86 of the reasons for the decision of the Court of the Drainage Referee in the case of Goetz v South Bruce (Municipality), 2021 ONDR 2. That decision was appealed unsuccessfully to the Divisional Court.
Be all that as it may, following a video conference case management hearing, Referee Waters issued an Order on November 3, 2022. More than two years had passed since the Order was issued on July 9, 2020. The Order issued on November 3, 2022, reflects the concern that the May 29, 2020, Notice of Appeal overreached the claims for damages set out in the Statement of Claim, and at that time, the plaintiff was given the opportunity to abandon parts of the Appeal or continue with the Appeal with a new restated Statement of Claim.
On December 22, 2022, Referee Waters issued a further Order. In it, he authorized an amended Statement of Claim and in paragraph 5 of that Order specified that:

The Statement of Claim, as amended hereby and attached hereto, shall effectively replace the Notice of Appeal/Application as delivered by the Plaintiff personally, which is now moot.

The effect of the December 22, 2022 Order was that the amended statement of claim replaced not only the original statement of claim from November 2017 but also the Notice of Appeal filed on May 29, 2020, which in turn replaced the plaintiff’s one-page letter dated January 6, 2020, sent by the plaintiff to Niagara Falls, appealing to the Referee under section 106(1)(a) and (b) and 106(2) of the Drainage Act from the 2019 Tribunal Decision. Again, as a matter of judicial housekeeping, the plaintiff’s May 29, 2020 Notice of Appeal of the 2019 Tribunal Decision should be dismissed with costs reserved to the final disposition of this matter, hence paragraph 12 of the Order. That paragraph 12 of the Order also includes a dismissal of the appeal intended by the plaintiff’s letter dated January 6, 2020.

Lift the Stay on the Abandonment of the Drain Upstream of Station 0+950 and the construction of a Newbury Weir

As mentioned, in his Order issued on July 9, 2020 Referee Waters ordered that the work set out in the November 1, 2017 Spriet Report proceed “except the Abandonment of the Drain upstream of Station 0+950 and the construction of the Newbury Weir, both of which are stayed until the balance of the works on the St. John’s Marsh Drain 2017 are completed and evaluated.”.
At the time, the municipal defendants questioned the Referee’s jurisdiction to make such an order.
That Order was issued after the plaintiff’s May 29, 2020 Notice of Appeal appealing the 2019 Tribunal decision and after the 2019 Revised Spriet Engineer’s Report had been adopted by the final reading of Niagara Falls By-law No. 2017-130 on December 10, 2019.
While Referee Waters gave no reasons for the stay order, it was presumably intended to preserve the pre-Spriet Report status pending disposition of the plaintiff’s appeal. As that appeal is now dismissed, the stay can be lifted, hence paragraph 13 of the Order. That paragraph 13 also declares that the 2019 Revised Spriet Engineer’s Report and the drainage works contemplated by it are confirmed as final.
Given that, perforce of the 2019 Revised Spriet Engineer’s Report, there has been abandonment of the St. John’s Marsh Drain upstream of station 0+950, Niagara Falls has no liability under section 79 of the Act for damages incurred after the abandonment date, so long as Niagara Falls maintains the part of the St. John’s Marsh Drain downstream from station 0+950 in good repair in accordance with the specifications of the 2019 Revised Spriet Engineer’s Report.
With respect to the Referee’s jurisdiction to stay the operation of a Drainage Tribunal decision, my instinct is that it depends upon whether the Referee has the jurisdiction and authority to hear the appeal of the Drainage Tribunal’s decision. If there is jurisdiction, any decision about a stay should have regard for any irreparable harm, both if the stay is granted and if it is not, as well as the balance of convenience in the circumstances. Additional considerations may apply depending on the specific facts of the particular case. That said, I do not need to decide in the present situation.

Municipal Defendants’ Liability to be Joint and Several

The municipal defendants have advised that they have agreed between themselves on the allocation of any damages that may be payable by either or both of them in this action. Any such damages are to be made payable by both municipal defendants, jointly and severally, hence paragraph 14 of the Order.
I have raised with the municipal defendants the question of section 118 of the Act.
This action is for substantial damages, in excess of $1.0 million, alleged to be attributable to the non-repair of the St. John's Marsh 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 St. John's Marsh Drain would, therefore, be affected by the outcome of this action, so they should be given notice of this action and an opportunity to participate as a party to defend the claim for damages.
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 St. John's Marsh 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 St. John's Marsh Drain or are to be paid out of the municipalities’ general funds.
In the usual course, fair play, not to say natural justice, requires that notice be given to the owners of land assessed for the St. John's Marsh Drain, including an opportunity to participate as a party. No such notice was given in this case to those who may be adversely affected by the result of the action.
I have raised with the municipal defendants the question or whether, in these circumstances, an Order should go, pursuant to subsection 118(2) of the Drainage Act, that any costs and damages ordered against Fort Erie and Niagara Falls, or either one of them, and all expenses of this action to be borne by the Town and the City, or either one of them, are to be paid out of their respective general funds.
The municipal defendants had not considered the question and wished time to do so. That is satisfactory, so the question will be deferred until the quantum of damages, if any, has been determined.

Absence of Documentation

Neither of the municipal defendants has provided to the court an affidavit of documents despite two procedural orders requiring them to do so: the September 21, 2013 Order and the March 12, 2021 Order. The explanation is that the affidavit of documents have been exchanged by the parties, but not provided to the court, because the documents produced in the affidavit of documents do not constitute documentary evidence unless and until proved by the affidavit of a witness.
The court of the Drainage Referee is an administrative tribunal. Section 15 of the Statutory Powers Procedure Act anticipates that, in matters before an administrative tribunal, whether attached as an exhibit to a witness’s affidavit or provided under a tab in an affidavit of documents, it goes to weight rather than admissibility. That said, I will honour the municipal defendant’s request that the contents of the municipalities’ affidavits of documents and the affidavits themselves will not be entered as exhibits unless they are proven by the affidavit of a witness.
With that understanding, I look forward to receiving the municipalities’ affidavits of documents as soon as possible. I should add that, if I see any documents I believe will be a helpful addition to the documentary evidence of record, I will ask that they be put on the record.

Referee Rule 11

I also wish to reflect on the municipal defendants’ respective obligations under Referee Rule 11. Referee Rule 11 imposes a duty to disclose. 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.
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.

The intent and purpose of Referee Rule 11 is that the City and the Town are to provide a comprehensive, official municipal record of the St. John's Marsh 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 in the municipality's possession and control; hence, Referee Rule 11.
Referee Rule 11 requires not only the production of what may be relevant to the issues before the Drainage Referee, but also the production of “all documents within its possession or control relating to the drainage works”. That is, documents related to the St. John's Marsh Drain, not just what Fort Erie and Niagara Falls decide is relevant to this action.
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.
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. In this case, anything before 1948 need not be produced pursuant to Referee Rule 11.
Much documentation has been produced, as evidenced by the extensive list in the table in paragraph 33 of the Order. There are, however, no minutes of Council meetings considering engineer’s reports or minutes of Court of Revision meetings or notices of those meetings, some of which represent the commencement of limitation periods. There is scant production of documentation from engineers’ files. Beyond that, I don’t know what I don’t know. Arriving as I am at the end of a decade of Drainage Act process, I am not going to do more about the matter of document production than express my unease.

Scheduling for the Damages Hearing

The timing of the defendants' delivery of affidavits and the date of the commencement of the damages hearing reflect a consensus reached during the December 18, 2025, video conference case management hearing.
If there are difficulties with anything arising from the Order and these reasons, at the request of any party, I will convene a video conference to deal with it.

Dated at London this December 22, 2025.

____________________________________ Andrew C. Wright Acting Drainage Referee