ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Chatham-Kent (Municipality) v. Canadian Pacific Railway Company, 2025 ONDR 3

DATE OF DECISION: 2025-05-15

Court File No.: CV-23-00001165-0000 (Chatham)

B E T W E E N:

THE CORPORATION OF THE MUNICIPALITY OF CHATHAM-KENT

Applicant

• and -

CANADIAN PACIFIC RAILWAY COMPANY

Respondent

• and -

CANADIAN NATIONAL RAILWAY COMPANY, ONTARIO FEDERATION OF AGRICULTURE, and RURAL ONTARIO MUNICIPAL ASSOCIATION

Intervenor Respondents

ACTING DRAINAGE REFEREE ANDREW C. WRIGHT

HEARD ON TUESDAY and WEDNESDAY, THE 13th and 14th DAYS OF MAY, 2025

ORDER

The Court of the Drainage Referee has fixed these days for cross-examinations on affidavits filed by the parties and to establish a schedule for the hearing of the preliminary constitutional question and supplementary questions set out in the Procedural Orders issued September 19, 2024 and the November 15, 2024 Procedural Order; and after hearing the submissions of counsel, for the reasons that follow:

THIS COURT ORDERS that

1. The presiding Referee may vary or add to these rules at any time, either on request or as he 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 November 22, 2023 Procedural Order and the September 19, 2024 Procedural Order, and the November 15, 2024 Procedural Order all of which remain in effect, as augmented by this Order, except as specifically amended by this Order, and the reasons for that previous decision remain extant. In the event of a conflict between Orders, the more recent Order shall prevail.

3. 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.

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

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

(b) the “Authorizing By-law” means the Municipality’s By-law Number 93-2021 given first and second reading and provisionally passed on March 22, 2021 and finally passed on May 31, 2021, adopting the Engineer’s Report and authorizing the completion of the Shaw Branch Drain in accordance with the Act.

(c) the “Constitution Act” means the Canada Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, as amended,

(d) “CNR” means the Canadian National Railway Company, a “class I rail carrier” for the purposes of the Transportation Act.

(e) “CPR” means the Canadian Pacific Railway Company, a “class I rail carrier” for the purposes of the Transportation Act.

(f) the “Drain” or “Shaw Branch Drain” means the Drainage Act project administered by the Municipality beginning with the Drainage Act process leading up to the completion and adoption of the Engineer’s Report, including rights of appeal to the Tribunal, then the construction of the Drainage Works and thereafter the maintenance and repair of the Drainage Works all of the cost of which to be assessed to and paid for by the owners of lands that use the Drainage Works in accordance with the assessment schedules in the Engineer’s Report.

(g) the “Drainage Works” means the physical infrastructure components of the drainage works to be constructed under the authority of the Drainage Act in accordance with the Engineer’s Report, including a 250mm (10 inch) diameter smooth wall steel pipe across the CPR railway right of way.

(h) the “Engineer’s Report” means the Engineer’s Report on the Shaw Branch of the Facey East Drain issued by Spriet Associates, dated February 19, 2021, and signed by John M. Spriet, P.Eng., including plan and profile.

(i) “Lakeshore” means the Municipality of Lakeshore.

(j) the “Municipal Act” means the Municipal Act, 2001, S.O. 2001, Chapter 25, as amended.

(k) the “Municipality” means The Corporation of the Municipality of Chatham-Kent, the applicant, for itself and as the administrator of the Drainage Act within its territorial limits.

(l) “OFA” means the Ontario Federation of Agriculture.

(m) “OMAFA” means the Ontario Ministry of Agriculture, Food and Agri-Business.

(n) the “Railway Safety Act” means the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.), as amended.

(o) “ROMA” means the Rural Ontario Municipal Association.

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

(q) the “Transportation Act” means the Canada Transportation Act, S.C. 1996, c.10, as amended.

(r) the “Transportation Agency” means the Canadian Transportation Agency as continued by subsection 7(1) of the Transportation Act.

(s) the “Transportation Agency Rules” means Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) (SOR/2014-104).

(t) the “Tribunal” means the Agriculture, Food and Rural Affairs Appeal Tribunal.

Parties and Representation

5. The applicant Municipality is represented by Emily Crawford, a Solicitor in the applicant’s Municipal Solicitor’s office and David Taylor, the Municipality’s Director of Legal Services.

6. The Canadian Pacific Railway Comp was initially represented by Kimberley Potter, and Lily MacLeod, lawyers with the law firm of Fasken Martineau DuMoulin LLP, Barristers and Solicitors, and since January 10, 2024, is now represented by Christopher DiMatteo, Anne Drost and Andrew Irwin, lawyers with the law firm of Blake, Cassels & Graydon LLP, Barristers & Solicitors.

7. The Attorney General of Ontario as intervenor respondent, is represented by Ravi Amarnath and Maia Stevenson, Counsel in the Constitutional Law Branch of the Ministry of the Attorney General of Ontario

8. The Canadian National Railway Company is represented by Nadia Effendi and Laura M. Wagner, lawyers in the Toronto office of Borden Ladner Gervais LLP.

9. The Ontario Federation of Agriculture is represented by Brendan van Niejenhuis and Myles Goodman-Vincent, lawyers with Stockwoods LLP.

10. The Rural Ontario Municipal Association is represented by Stéphane Emard-Chabot and Asangwa Asongwed, lawyers with Sicotte Guilbault LLP.

11. Lakeshore is represented by Sheila Handler and Jonathan de Vries, lawyers in the offices of Shillington McCall LLP. On January 22, 2025, Lakeshore sought to withdraw as an Intervenor Party. No party has objected, so Lakeshore is allowed to withdraw as an Intervenor Party without costs, and it is so ordered; and the style of the cause is amended accordingly.

Preliminary Issues

12. As set out in both the September 19, 2024 Procedural Order and the November 15, 2024 Procedural Order, the following preliminary constitutional question and preliminary supplementary questions are to be argued:

(a) Is CPR constitutionally exempt from paying assessments of railway right-of-way land it owns when such assessments have been determined in accordance with and are authorized under the Drainage Act?

(b) If the answer to question (a) is no, then (i) are the Municipality’s expenses of an application to the Transportation Agency to authorize the construction of the Drainage Works across the CPR right-of-way to be charged to the Shaw Branch Drain and assessed to and paid for in accordance with the assessment schedules in the Engineer’s Report, and (ii) do those expenses represent an increase in the cost of the Drainage Works caused by the existence of the works of the CPR railway right-of-way, to paraphrase section 26 of Act, and as such are they to be added to the Special Assessment against the CPR owned railway right-of-way lands?

(c) If the answer to question (a) is no, then (i) are the costs of any works in addition to the Drainage Works required by the Transportation Agency as a condition of an Order authorizing the construction of the Drainage Works across the CPR right-of-way to be charged to the Shaw Branch Drain and assessed to and paid for in accordance with the assessment schedules in the Engineer’s Report and, (ii) do those expenses represent an increase in the cost of the Drainage Works caused by the existence of the works of the CPR railway right-of-way, to paraphrase section 26 of Act, and as such are they to be added to the Special Assessment against the CPR owned railway right-of-way lands?

(d) If the answer to question (a) is no, and the Municipality enters into an agreement with CPR, either of its own volition or as a requirement or condition of an Order authorizing the construction of the Drainage Works across the CPR right-of-way, which agreement requires works in addition to the Drainage Works, (i) are the Municipality’s costs of such additional works to be charged to the Shaw Branch Drain and assessed to and paid for in accordance with the assessment schedules in the Engineer’s Report and, (ii) do those expenses represent an increase in the cost of the Drainage Works caused by the existence of the works of the CPR railway right-of-way, to paraphrase section 26 of Act, and as such are they to be added to the Special Assessment against the CPR owned railway right-of-way lands?

(e) If the answer to question (a) is no, then (i) is any payment required to be made by the Municipality as ordered by the Transportation Agency in connection with an application to the Transportation Agency to authorize the construction of the Drainage Works across the CPR right-of-way or imposed by the Transportation Agency as a condition of the Transportation Agency’s Order authorizing the construction of the Drainage Works across the CPR right-of-way to be charged to the Shaw Branch Drain to be assessed to and paid for in accordance with the assessment schedules in the Engineer’s Report and, (ii) do any such payments represent an increase in the cost of the Drainage Works caused by the existence of the works of the CPR railway right-of-way, to paraphrase section 26 of Act, and as such are they to be added to the Special Assessment against the CPR owned railway right-of-way lands?

(f) If the answer to question (a) is no, and the Municipality enters into an agreement with CPR, either of its own volition or as a requirement or condition of an Order authorizing the construction of the Drainage Works across the CPR right-of-way, which agreement requires any payment to be made by the Municipality, (i) is the amount of such payment to be charged to the Shaw Branch Drain and assessed to and paid for in accordance with the assessment schedules in the Engineer’s Report and, (ii) does such payment represent an increase in the cost of the Drainage Works caused by the existence of the works of the CPR railway right-of-way, to paraphrase section 26 of Act, and as such are they to be added to the Special Assessment against the CPR owned railway right-of-way lands?

(g) If the answer to question (a) is no, then (i) are the Municipality’s expenses of this application to be charged to the Shaw Branch Drain and assessed to and paid for in accordance with the assessment schedules in the Engineer’s Report and, (ii) do those expenses represent an increase in the cost of the Drainage Works caused by the existence of the CPR railway right-of-way, to paraphrase section 26 of Act, and as such are they to be added to the Special Assessment against the CPR owned railway right-of-way lands?

(h) If the answer to question (a) is no, then is the Municipality prohibited by sections 106 and 107 of the Municipal Act, 2001 from paying or reimbursing, directly or indirectly, CPR for the amount of any Drainage Act assessments that CPR is required to pay or from exempting CPR from paying such Drainage Act assessments?

13. The hearing for the preliminary constitutional question and supplementary preliminary questions set out in paragraph 12 above will commence at 10:00 am on Thursday, October 16, 2025 and continue on Friday, October 17, 2025. Monday, October 20, 2025, will be held in reserve for a continuation of the hearing if necessary.

Exchange of Facta

14. CPR and CNR will deliver their facta and authorities to the other parties on or before Tuesday, July 15, 2025.

15. The Municipality, the Attorney General of Ontario, ROMA and OFA will deliver their facta and authorities to the other parties on or before Tuesday, September 9, 2025.

16. CPR and CNR may deliver reply facta to the other parties on or before Friday, October 3, 2025.

Order of Proceeding

17. At the time of the hearing of the preliminary constitutional question and supplementary preliminary questions set out in paragraph 12 above, the parties’ submission will be made in the following order:

(a) CPR;

(b) CNR;

(c) The Municipality;

(d) ROMA;

(e) OFA;

(f) the Attorney General of Ontario; and

(g) CPR will have the right of reply submissions.

Future Case Management Conferences

18. After the Court of the Drainage Referee has decided the preliminary constitutional question and supplemental questions arising and has ordered the Municipality to make an application to the Transportation Agency for authorization for the Shaw Branch Drain to cross the CPR railway right-of-way as contemplated by the Engineer’s Report, the hearing of this application in the Court of the Drainage Referee will then be adjourned sine die, but the presiding Referee will remain seized and, if necessary, future case management video conferences may be scheduled to address:

(a) Scheduling pre-hearing production and exchange of documents, including affidavits or witness statements for expert witnesses and affidavits or evidence summaries for other witnesses.

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

(c) Estimating the amount of time required for the hearing of the merits.

(d) Setting the commencement date for the hearing of the merits.

(e) Making provisions about access to and login credentials for participants in the hearing.

(f) Providing for service by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service).

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

Video Conference Protocols

19. 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 simply observe without participation, their microphone will be muted and webcams turned off during the hearing conference.

(h) Those joining the hearing will need a device equipped with a webcam and a microphone and access to a reliable internet connection with adequate bandwidth; the device should always be plugged in to ensure that the battery does not run low.

(i) A smartphone may only be used at the discretion of the presiding Referee; the use of a smartphone is discouraged due to potential disruptions, such as incoming calls and messages, and the risk of running out of battery.

(j) Those joining the hearing will normally be alone in their location; if they are not, the presiding Referee may require such other persons to leave the room during the proceeding. There is an ongoing obligation to inform the presiding Referee if they are joined by someone else during the proceeding.

Documents and Exhibits

20. Because case management video conferences and the hearing on the merits are to be conducted by video conference, protocols concerning the entering of exhibits are warranted and the following apply in that connection:

(a) A document, including a plan or photograph, to be relied upon at a hearing must be identified as an exhibit.

(b) To be identified as an exhibit, the document must be provided to the presiding Referee and to all other parties at least 2 days in advance of the video conference hearing at which it is to be presented as an exhibit; the presiding Referee may abridge this time.

(c) The presiding Referee will decide whether to enter the document as an exhibit and, if it is allowed, the presiding Referee will assign an exhibit an alpha/numeric identifier.

(d) Once the document has been entered as an exhibit, the party that introduced the exhibit shall, within 3 business days following the conclusion of the video conference hearing, file an electronic copy of the exhibit with the court via the One-Key portal and, when doing so, shall identify Court File No.: CV-23-00001165-0000 (Chatham) and the exhibit identifier assigned by the presiding Referee; a copy of the e-mail of transmittal shall be provided to the presiding Referee.

(e) Court Orders, the application, notices of motion, facta, case law, legislation and compendiums of authorities will not be marked as exhibits though Court Orders, the application, notices of motion and facta should be filed with the court and item 21(d) above applies mutatis mutandis.

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

Notice of Application issued July 6, 2023

No.: 1

The Engineer’s Report on the Shaw Branch of the Facey East Drain issued by Spriet Associates, dated February 19, 2021, and signed by John M. Spriet, P.Eng., including plan and profile (the “Engineer’s Report”).

No.: 2

Municipality of Chatham-Kent By-law No.: 93-2021 provisionally adopted on March 22, 2021, and finally passed on May 31, 2021, adopting the Engineer’s Report

Order issued by Acting Referee Andrew Wright on November 22, 2023 providing for the production of documents by the Municipality and the exchange of affidavits by the parties; now reported as Chatham-Kent (Municipality) v Canadian Pacific Railway Company, 2023 ONDR 10 .

No. 3

Notice of Constitutional Question issued by CPR on January 31, 2024

No. 4

Affidavit of Alex Miller sworn March 20, 2024, together with two Exhibits A and B

No. 5

Affidavit of John M. Spriet, P.Eng., sworn March 27, 2024, together with 14 Exhibits A through M

No. 6

Affidavit of Blaise Chevalier sworn April 2, 2024, together with 36 Exhibits A through JJ

No. 7

Affidavit of Sid Vander Veen, P.Eng. sworn April 2, 2024, together with five Exhibits A through E

No. 8

Affidavit of Rheal Lemelin sworn June 27, 2024

No. 9

Affidavit of Jack Carello sworn July 4, 2024, together with 26 Exhibits A through Z

No. 10

Affidavit of Blaise Chevalier sworn September 6, 2024, together with 7 Exhibits A through G

Order issued by Acting Referee Andrew Wright on September 19, 2024 providing for the giving of notice to potential intervenor parties; now reported as Chatham-Kent (Municipality) v Canadian Pacific Railway Company, 2024 ONDR 6

Order issued by Acting Referee Andrew Wright on November 15, 2024 adding Intervenor Parties; now reported as Chatham-Kent (Municipality) v Canadian Pacific Railway Company, 2024 ONDR 9

No. 11

Affidavit of Trevor Evans sworn February 21, 2025, together with 5 Exhibits A through E

No. 12

Application Record of ROMA dated February 21, 2025, including the Affidavit of Lindsay Jones affirmed February 21, 2025 with no Exhibits

No. 13

Affidavit of Jason Bent sworn February 19, 2025, together with 14 Exhibits A through N

No. 14

Affidavit of Blaise Chevalier sworn March 28, 2025 with no Exhibits

No. 15

Affidavit of Jack Carello affirmed March 28, 2025 with no Exhibits

No. 16

News Release issued April 30, 2025 by Canadian Pacific Kansas City Limited with Interim Consolidated Financial Statements to March 31, 2025.

No. 17

Decision 10-R-2025 of the Canadian Transportation Agency issued March 12, 2025 (Case: 23-24968) in the matter of an Application by the Canadian National Railway Company (CN) against the City of Sarnia (Sarnia) regarding cost apportionment of a utility crossing.

No. 18

Section 2 (Definitions) and sections 211 to 214.1 of the Railway Act [Repealed in 1996],R.S.C. 1985, c. R-3, s. 2.

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

23. The documents listed are intended to reflect those things which would normally be filed in court or which would be used in the course of the hearing; it does not include but does not intend to dispense with routine items such as appearances, affidavits of service required by the court staff for filings such as the application, appearances, any motions and routine affidavits of service for supporting affidavits.

24. If counsel or a witness intends to rely upon case law, 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

25. 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.

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

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

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

Dated at London this May 15, 2025.

Andrew C. Wright Acting Drainage Referee

REASONS

1. The Order to which these reasons are attached is part of an evolving case management and procedural Order. It consolidates previously issued Orders, includes currently operable provisions, and eliminates matters that have been completed or are no longer necessary.

2. Words and phrases defined in the Order have the same meaning when used in these reasons. When in these reasons reference is made to the “Order”, it is a reference to the Order to which these reasons are attached.

Lakeshore

3. At the time of the November 15, 2024 Procedural Order, Lakeshore sought and was granted Intervenor Party status. Subsequently, in January 2025, Lakeshore sought to withdraw as an Intervenor Party. No party objected, so Lakeshore is allowed to withdraw as an Intervenor Party without costs, and the style of cause is amended accordingly as set out in paragraph 11 of the Order.

Background

4. From the evidence provided, it appears that the Engineer’s Report contemplates relatively minor, petition-based Drainage Works that involve lowering and increasing the capacity of the existing drain crossing of railway right-of-way lands owned by CPR. CPR was made aware of the proposed drainage works but elected not to participate in any of the proceedings under the Drainage Act; in particular, CPR exercised none of its appeal rights under the Drainage Act, and the time for doing so has long since passed.

5. CPR relies upon the Constitution Act as the basis of its position that only the Transportation Agency has authority to authorize the crossing of the railway right of way without CPR’s agreement. CPR has served a Notice of Constitutional Question, which has been entered as Exhibit No.: 3. The Notice of Constitutional Question calls into question the constitutional applicability and operability of numerous sections of the Act and the Authorizing By-law.

Intervenors

6. As a result of the Notice of Constitutional Question, the Attorney General for the Province of Ontario has sought and been granted intervenor party status. Resulting from the giving of notice of this application and of the preliminary constitutional question and supplementary preliminary questions in accordance with the procedural Order issued on September 19, 2024, pursuant to the November 15, 2024 Procedural Order, the following have been added as intervenor parties:

Canadian National Railway Company,

Ontario Federation of Agriculture, and

Rural Ontario Municipal Association.

7. It should be mentioned that the notice given pursuant to the procedural Order issued on September 19, 2024 gave the opportunity to observe the proceedings to those who requested observer status. More than a dozen asked for and have been accorded observer status. They have been provided with login credentials and admitted to the Zoom video conference hearings with muted microphones and webcams turned off.

Hearing of Preliminary Constitutional and Supplementary Questions

8. The dates for the hearing of the preliminary constitutional question and supplementary preliminary questions and for the exchange of facta are set out in the Order. They have been established based on consensus amongst counsel.

9. At this stage, the parties have exchanged documents and provided affidavits supporting and responding to the application and cross-examinations on the affidavits have been completed. A few extensions were granted on consent, but at this time, everything required of the parties by previous Orders has been done.

Cross-Examination Issues

10. With respect to cross-examinations, they were conducted on Tuesday, May 13, 2025 and on Wednesday, May 14, 2025. At the opening of the first day, counsel for CPR sought an order excluding witnesses from observing the hearing until after they had testified. It is not usual in the Court of the Drainage Referee to issue such an order excluding witnesses. The rationale for excluding witnesses while other witnesses testify typically includes such things as attempting have witnesses provide their testimony based on their independent recollection of events rather than being influenced by what others say, avoiding the risk of collusion or the alteration of recollection to align with others' accounts and, overall, promoting an accurate presentation of evidence in legal proceedings.

11. Counsel for CNR was indifferent about the CPR request, as long as the decision had application to all. All other counsel opposed the exclusion order.

12. In this case, as with most cases before the Court of the Drainage Referee, most, if not all, witnesses have provided affidavits, witness statements, or expert reports, which have been made available for review by all parties and their witnesses well in advance of the hearing. There is no real dispute about the credibility of any of the witnesses; rather, it is a matter of interpreting the evidence and of assessing the weight to be given to the information conveyed. The advantage of allowing witnesses to hear the evidence of others is that, when it comes their turn to testify, they will have a context in which to provide their evidence. No exclusion order was made in this case.

13, Counsel for CPR and CNR had not familiarized themselves with clause 24(f) of the November 15, 2024 Procedural Order. It provides as follows:

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.

The principle is to attempt to replicate, as closely as possible, the experience of a witness being in a witness box, remote from counsel and any other person who might coach or influence their responses during cross-examination.

13. Counsel for the railways participated in the video conference cross-examination hearing from conference rooms or boardrooms, with their respective principal witnesses seated beside them. This setting is more suitable for an examination for discovery than for a cross-examination on affidavits. To avoid disruption and delays, this was allowed after counsel was cautioned to exercise judicious discretion with any interventions during cross-examinations. This case is to be regarded as an exception to the usual rule as enunciated in the Procedural Order and should not be considered the norm.

14. An exception to the usual approach might be made to accommodate a situation where a witness requires the technical assistance of someone to operate the audio-video equipment necessary for participation in the virtual hearing to testify. There may be other circumstances that warrant deviation from the general rule, but they will be rare.

15. Some counsel have also overlooked subparagraphs 25(a) and (b) of the November 15, 2024, Procedural Order. They provide as follows:

(a) A document, including a plan or photograph, to be relied upon at a hearing must be identified as an exhibit.

(b) To be identified as an exhibit, the document must be provided to the presiding Referee and to all other parties at least 2 days in advance of the video conference hearing at which it is to be presented as an exhibit; the presiding Referee may abridge this time.

16. Counsel for the Attorney General of Ontario put to Mr. Carello, a witness for CPR, a News Release issued April 30, 2025 by Canadian Pacific Kansas City Limited with Interim Consolidated Financial Statements to March 31, 2025. It had not previously been provided to the Court or other parties. With the consent of counsel for CPR, it was entered as Exhibit 16. It is essentially a completion or updating of the financial annual report provided by Mr. Carello in his affidavit sworn on July 14, 2024. The witness was not taken by surprise, and no questions arose from the exhibit.

17. Counsel for CPR then proposed over the noon hour on May 13th, introducing three new exhibit documents during his cross-examination of witnesses. He had given no prior notice or provided copies until just before embarking on cross-examination in the afternoon. This sort of “trial by surprise” tactic is not appreciated and is precisely the reason for sub-paragraph 25(b) of the November 15, 2024 Procedural Order.

18. The first of the surprise documents was Decision 10-R-2025 of the Canadian Transportation Agency, issued on March 12, 2025 (Case: 23-24968), in the matter of an Application by the Canadian National Railway Company (CN) against the City of Sarnia (Sarnia) regarding the cost apportionment of a utility crossing. It is a document of which judicial notice would be taken and, on the consent of all counsel, it was entered as Exhibit 17. There was no explanation of why this decision, issued in March 2025, was not communicated to the parties well in advance. The Municipality’s witness, Blaise Chevalier, had not previously seen the Transportation Agency decision. Putting to a layperson witness selected parts of the decision in cross-examination was not fair to the witness and did not advance the submissions to be made by counsel during the argument of the preliminary questions in October. The same can be said of the cross-examination of the witness for ROMA by counsel for CNR the following day. The root of the problem is the failure to provide the document in advance as required by the Procedural Order.

19. The next new document introduced by the counsel for CPR on May 13th was an extract of provisions of the Railway Act [Repealed in 1996], R.S.C. 1985, c. R-3, s. 2. Again, this is something of which judicial notice can be taken, so it was entered as Exhibit 18. This exhibit was produced around noon on Tuesday, May 13th, allowing the expert witnesses to be called on May 14th to review it overnight. It is also worth noting that the expert witness referred to the legislation in his affidavit, so he was not taken by surprise.

20. The final document proposed by counsel for CPR on May 13th was a transcript of recent proceedings before the House of Commons Standing Committee on Agriculture and Agri-food. An objection was taken to the entry of this transcript as an exhibit on the grounds that such a transcript was protected by parliamentary privilege. Overnight, counsel for the Attorney General of Ontario referred to two cases to that effect. Those cases are

(a) Duffy v. Senate of Canada, 2018 ONSC 7523 at para. 12 (aff’d in Duffy v. Canada (Senate), 2020 ONCA 536, leave to appeal ref’d Senator Michael Dennis Duffy v. Senate of Canada, et al., 2021 CanLII 8832) and

(b) Guergis v. Novak et al, 2022 ONSC 3829 at paras. 74-75:

To those cases, counsel for OFA referred to the case of

(c) Gagliano v. Canada (Attorney General) (F.C.), 2005 FC 576 at paragraph 72

21. Presented with this jurisprudence, counsel for CPR withdrew his request that the transcript of the proceedings before the House of Commons Standing Committee be entered as an exhibit, and it was not.

Proceedings After Decision on Preliminary Questions

22. Once the preliminary constitutional question and the supplementary preliminary questions arising have been decided by the Court of the Drainage Referee, as mentioned previously, notwithstanding its reservations about the Transportation Agency’s jurisdiction, the Municipality will be ordered to make an application to the Transportation Agency for authorization for the Shaw Branch Drain to cross the CPR railway right-of-way as contemplated by the Engineer’s Report. The hearing of this application in the Court of the Drainage Referee will then be adjourned sine die, but I will remain seized.

23. The hearing may resume at the request of any party

(a) If it is determined by the Transportation Agency or a court of competent jurisdiction that the Transportation Agency lacks jurisdiction and authority to sanction the crossing by a municipal drain of a railway right-of-way or

(b) if the Transportation Agency refuses to consider the Municipality’s application or fails within a reasonable time to exercise its authority to decide on the Municipality’s application or

(c) if there is some aspect of the Engineer’s Report or the Drainage Act as it applies to the Shaw Branch Drain, which requires interpretation or clarification.

24. If it is necessary for the hearing to resume, the presiding Referee will pick up where it was left with a pre-hearing case management conference to address the following:

(a) Scheduling production of documentation by the parties and examinations for discovery.

(b) Scheduling pre-hearing production and exchange of documents, including affidavits or witness statements for expert witnesses and affidavits or evidence summaries for other witnesses.

(c) Establishing an issues list.

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

(e) Estimating the amount of time required for the hearing.

(f) Setting the commencement date for the hearing.

(g) Making provisions about access to and login credentials for participants in the hearing.

(h) Providing for service by personal service, registered mail or electronically (unless a statute or the Referee requires another method of service).

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

25. If no request is made for the resumption of the hearing and the Municipality’s application to the Transportation Agency is finally disposed of, this application may be settled as the parties agree. If I have not heard from the parties about how this application is to be dealt with by the end of 2026, I will convene a video conference after that date to receive a status report from the parties.

at London this May 15, 2025.

Andrew C. Wright Acting Drainage Referee