ONTARIO SUPERIOR COURT OF JUSTICE IN THE COURT OF THE DRAINAGE REFEREE
BETWEEN:
DAVID WHITE
Appellant
- and-
THE CORPORATION OF THE TOWN OF FORT ERIE; and THE CORPORATION OF THE CITY OF NIAGARA FALLS
Respondent
DRAINAGE REFEREE: ROBERT G. WATERS
HEARING HELD THE 30TH DAY OF APRIL, 2025
PROCEDURAL ORDER
1Motions for Summary Judgement were brought by The Corporation of the City of Niagara Falls and The Corporation of the Town of Fort Erie. Those Motions were heard on the 5th day of December 2023, followed by Reasons issued on February 2nd, 2024 and Supplemental Reasons dated February 21st, 2024.
2On February 29th, 2024, an Appeal by The Corporation of Niagara Falls to the Divisional Court was launched. On the same day, there was an Appeal to the Divisional Court on behalf of The Corporation of the Town of Fort Erie.
3At the request of the parties to those Appeals, a Hearing was held on April 16, 2024, to settle a formal Order from the Reasons for Decision of the Referee dated February 2, 2024, as supplemented on February 21st. Such Order was issued and filed with the Superior Court of Justice in Welland on the 6th day of May, 2024.
4In accordance with section 25 of the Statutory Powers Procedure Act, this proceeding in the Court of the Drainage Referee was stayed pending the outcome of the appeals before the Divisional Court.
5On March 21st, 2025, the Panel Coordinator for the Superior Court of Justice - Divisional Court confirmed to the parties that the Divisional Court had stayed the Appeals of the City of Niagara Falls and the Town of Fort Erie, and the matter was returned to the presiding Referee to continue with the Motions for Summary Judgement on the merits and to complete decisions envisioned by the February 2nd, 2024 Reasons. A more formal endorsement was to follow.
6This stay by the Divisional Court was confirmed by an email dated March 19, 2025, provided by the Panel Coordinator for the Superior Court of Justice - Divisional Court.
7A Procedural Hearing was held on the 30th day of April 2025, to establish timelines for the delivery of documents mandated by the previously mentioned Order of the Referee dated the 6th day of May 2024.
8Paragraph 6 of that Order provides as follows:
"6. 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.
(c) Further accounting of incidental damages claimed.
(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."
9Additional documentation of David White, Appellant/Defendant, shall be supplied in accordance with the preceding paragraph on or before July 31st, 2025. Such documentation shall include any expert reports and documentation regarding damages described in the preceding paragraph.
10Additional documentation of the Appellants, the City of Niagara Falls and the Town of Fort Erie, shall be delivered, and any cross-examination of the Appellant/Defendant's experts and the Appellant/Defendant himself shall be completed on or before September 30th, 2025.
11After that time, a Procedural Hearing will be set for the continuation of the Summary Judgment Motions, as well as responses of the Parties.
12After September 30th, 2025, the Referee, in his discretion, may proceed on a view, pursuant to Section 114 of the Drainage Act, R.S.O. 1990, c. D. 17, after which the presiding Referee shall put in writing a Statement as contemplated by Section 114, which provides for the following:
a statement thereof sufficiently full to allow the Divisional Court to form a judgment of the weight that should be given thereto, and he or she shall state as part of his or her reasons the effect given by him or her to such statement.
DATED this 16th day of May 2025.
ROBERT G. WATERS Ontario Drainage Referee