ONTARIO SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Schall v Fort Erie (Town), 2025 ONDR 9

DATE OF DECISION: 2025-09-05

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

BETWEEN:

JEFFREY SCHALL and MARTINA CATHERINE SCHALL

Applicants

• and -

THE CORPORATION OF THE TOWN OF FORT ERIE

Respondent

ACTING DRAINAGE REFEREE ANDREW C. WRIGHT

ISSUED ON FRIDAY, THE 5th DAY OF SEPTEMBER, 2025

ORDER

By Procedural Order issued on December 16, 2024, the Court established a schedule for the exchange of productions, as well as supporting and responding to affidavits and expert reports. This schedule was based on the parties' agreement. That Procedural Order is now published as Schall v Fort Erie (Town), 2024 ONDR 10. The Procedural Order called for a Case Management hearing on September 17, 2025, to address the following:

(a) to give directions for the giving of notice to those who may be affected by the result of this application and establishing a process for giving them an opportunity to participate as a party;

(b) to clarify and correct, if necessary, the name of Fort Erie in the style of cause as set out in the Notice of Application;

(c) to hear motions concerning undertakings given or not given in the course of discoveries;

(d) to hear preliminary motions; and

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

Counsel for the applicants has since requested, with the consent of counsel for the Town, an adjournment of the September 17, 2025, case management hearing. Because the Town has not provided the information contemplated by paragraph 23 of the Procedural Order or provided the same to the presiding Referee as required by paragraph 2 of the Procedural Order, the above-mentioned agenda for the September 17, 2025, hearing is moot because the Town’s failure to provide such information makes it not possible to give notice of the application to those who may be adversely affected by the result of the application. As a result, the agenda for the next hearing needs to be amended. Counsels’ consent to an adjournment does not address the agenda for the adjourned hearing.

In addition, counsel for the applicants has advised by e-mail that her clients will not be engaging an expert engineer witness, so they have not provided an expert’s report as contemplated by paragraph 12 of the Procedural Order and will be relying upon the applicants’ evidence provided by in the affidavit of Jeffrey Schall sworn on January 7, 2025.

Therefore, for the reasons that follow:

THIS COURT ORDERS that

1. The presiding Referee may vary or add to this Order at any time, either on request or as it sees fit. The presiding Referee may alter this Order by an oral ruling or by another written Order.

2. This Order is supplementary to the December 16, 2024, Procedural Order, which remains in effect, as augmented by this Order, except as specifically amended by this Order. The reasons for that previous decision remain extant. In the event of a conflict between Orders, the more recent Order shall prevail.

3. 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(o) the “December 16, 2024 Procedural Order” means the procedural Order issued by the presiding Referee in this case on December 16, 2024 and now published as Schall v Fort Erie (Town), 2024 ONDR 10.

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

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

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

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

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

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

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

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

Proper Name of Town

5. The respondent municipality was identified in the Notice of Application as The Corporation of the Municipality of Fort Erie, whereas its proper name is The Corporation of the Town of Fort Erie; the name of the municipal respondent is corrected, and the style of cause is amended accordingly.

Parties and Representation

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

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

Subsection 118(2) Order

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

Disqualification of Town to Lead Evidence

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

Time of Hearing of the Merits

10. The hearing of the merits will begin on Wednesday, November 5, 2025, at 10:00 a.m. and will be conducted via video conference using the Zoom platform.

11. The length of the hearing will be one day.

Issues

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

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

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

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

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

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

Exchange of Facta

14. If the applicants decide to deliver a factum, they may do so by delivering it to the other party on or before Friday, October 10, 2025.

15. If the Town decides to deliver a factum, it may do so by delivering it to the other party on or before Friday, October 17, 2025.

16. The applicants may deliver a reply factum on or before Friday, October 24, 2025.

Order of Proceeding

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

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

(b) The respondent Town will call no evidence.

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

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

20. The applicants who provided the affidavit referred to in paragraph 17 above must have the person who signed the affidavit attend the hearing to give oral evidence unless the applicants notify the presiding Referee at least seven (7) days before the hearing that the document or written evidence is not part of their record.

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

Video Conference Protocols

22. 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.

23. Video conference hearings will be conducted by video conference using the Zoom platform. After each video conference hearing, the presiding Referee shall provide the parties with an MP4 audio-video file of the hearing and a machine-generated transcript. The hearing may be held in a courtroom in the Welland courthouse (1) if the parties ask that an in-person hearing be held and (2) if the parties or one of them commits to funding the presence of a court reporter during the hearing and the production of a transcript of the courtroom proceedings and the delivery of the transcript to the presiding Referee promptly after the conclusion of the hearing on the merits (because the Attorney General does not provide transcription services for Referee in-court hearings) and (3) so long as a courtroom in the Welland courthouse is available.

Documents and Exhibits

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

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

(b) To be identified as an exhibit, the document must have been provided to the presiding Referee and to all other parties before the date of this Procedural Order or as the presiding Referee may permit.

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

(d) Once the document has been entered as an exhibit, the party that introduced the exhibit shall, within 3 business days following the conclusion of the video conference hearing, file an electronic copy of the exhibit with the court registrar and, when doing so, shall identify Court File CV-21-00013656-0000 (Welland) and the exhibit identifier assigned by the presiding Referee; a copy of the letter or e-mail of transmittal shall be provided to the presiding Referee.

(e) Court Orders, the pleadings, notices of motion, facta, case law, legislation and compendia of authorities will not be marked as exhibits, though Court Orders, pleadings, notices of motion and facta should be filed with the court and item 24(d) above applies mutatis mutandis.

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

Exhibit No.

Notice of Application issued August 19, 2021

Order issued by Acting Referee Andrew Wright on December 16, 2025 establishing schedules for delivery of affidavits, experts’ reports and production of documents now published as Schall v Fort Erie (Town), 2024 ONDR 10.

No. 1

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

No. 2

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

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

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

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

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

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

This second Procedural Order for the hearing of the merits issued by Acting Referee Andrew Wright on September 5, 2025.

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

27. 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.

28. If counsel or a witness intends to rely upon case law, other than the cases listed in paragraph 25, 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

29. 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.

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

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

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

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

Dated at London the 5th day of September 2025.

Andrew C. Wright Acting Drainage Referee

REASONS

1. The Order to which these reasons are attached (the “Order”) is part of an evolving case management and procedural process intended to prepare for a hearing of the merits.

2. Words and phrases defined in the Order have the same meaning when used in these reasons.

Name of Respondent Town

3. The respondent’s name in the Notice of Application is said to be The Corporation of the Municipality of Fort Erie, whereas its correct name is The Corporation of the Town of Fort Erie. Paragraph 5 of the Order corrects the name and amends the style of cause accordingly.

The Application

4. This application is for damages for the non-repair of the Point Abino Drain and for an Order requiring the Town to rectify deficiencies to be specified. The applicants assert that the Point Abino Drain is a municipal drain established under the authority of the Drainage Act.

5. An OMAFA Fact Sheet (Order No. 01-059) issued in August 2001 provides a fair synopsis of what a “municipal drain” is as follows:

THE PURPOSE OF MUNICIPAL DRAINS

Municipal drains have been a fixture of rural Ontario’s infrastructure since the 1800’s. Most municipal drains were constructed to improve the drainage of agricultural land by serving as the discharge point for private agricultural tile drainage systems. However, they also remove excess water collected by roadside ditches, residential lots, churches, schools, industrial lands, commercial lands and other properties in rural areas. They are a vital component of the local infrastructure. Without them, many areas of the province would be subjected to regular flooding, reduced production from agricultural land and increased public health risks.

WHY IS IT CALLED A “MUNICIPAL DRAIN”

There are many, many drainage ditches and buried pipes in the province, but not all of them are “municipal drains”. So, what distinguishes a municipal drain?

Municipal drains are created under the authority of the Drainage Act. There are three key elements of the municipal drain:

1Community project - Landowners who need to solve a drainage problem may submit a prescribed petition under the Drainage Act to their local municipality, requesting the establishment of a municipal drain. If certain criteria are met, the municipality appoints an engineer who prepares a report, identifying the proposed solution to the problem and how the costs will be shared. There are various meetings where the landowners in the watershed of the municipal drain can voice their desires and concerns. There are also several appeal stages where they can voice their objections. So, the end result of the process is a “community-accepted” project.

2Legal Existence – After all appeals have been heard and dealt with, the municipality passes a by-law adopting the engineer’s report. The municipality then has the authority and the responsibility to construct the project. So, for a ditch or a pipe to be a municipal drain, there must be a by-law adopting an engineer’s report.

3Municipal Infrastructure – Once a municipal drain has been constructed under the authority of a by-law, it becomes part of that municipality’s infrastructure. The local municipality, through its drainage superintendent, is responsible for repairing and maintaining the municipal drain. In certain circumstances, the municipality can be held liable for damages for not maintaining these drains.

6. The problem in this case is that the Town has refused to produce engineer’s reports and municipal Drainage Act by-laws to authenticate the Point Abino Drain as a municipal drain and to determine what drainage works infrastructure form part of the Point Abino Drain for the purposes of the Drainage Act.

7. The information that is reflected in paragraphs 11 through 21 below has been gleaned from documentation made available to the Court by the applicants in their supporting affidavit and exhibits thereto, as well as from the published decisions of the Tribunal. The applicants do not have in their possession some of the engineer’s reports, nor do the applicants have copies of the adopting by-laws under the Drainage Act. References to By-laws in paragraphs 11 through 21 below have been extracted from Tribunal decisions and from commentary in engineers’ reports that are available; those sources do not indicate whether the By-laws were passed by the Council of Port Colborne or its predecessor, the Township of Humberstone, and/or by the Council of the Town of Fort Erie or its predecessor, the Township of Bertie.

8. Based on the documentation they have been able to obtain, the applicants assert that the Point Abino Drain is a municipal drain, and they rely upon section 79 of the Drainage Act. While the westerly part of the Point Abino Drain is within Port Colborne, the pertinent easterly portion of the Point Abino Drain is within the Town. Section 74 of the Act imposes on the Town the obligation to maintain and keep in good repair municipal drains within its territorial jurisdiction. If it fails to do so, an application may be made to the Court of the Drainage Referee for damages and for an Order directing that the municipal drain be restored to the condition specified in the most recent engineer’s report on the drain.

9. The first thing is to identify the most recent engineer’s report governing the drain. Without overgeneralizing, as indicated in paragraph 5 above, the most recent engineer’s report is a report prepared by an engineer which describes the drainage works. It is assumed that the engineer’s report has been adopted by a by-law of either or both of Port Colborne and the Town or their Township predecessors. The most recently adopted engineer’s report sets the standards by which to determine whether the drain is in repair.

10. Usually, identifying the most recent engineer’s report is straightforward. Leaving aside the Town’s suppression of important documents, in this case, sorting out what constitutes the most recent engineer’s report is a little complicated, so some background is necessary.

Background

11. The Point Abino Drain is an open drain with a few road crossings. It outlets into Lake Erie in Lot 32, Broken Front Concession, geographic Township of Bertie, (Station 00+00) at the Buffalo Yacht Club in the Town of Fort Erie. Its head is in Lot 3, Concession 1, geographic Township of Humberstone, in the City of Port Colborne at the west end (Station 155+66). West of the Holloway Bay Road, the Point Abino Drain is in Port Colborne, and the part east of the Holloway Bay Road is in Fort Erie. The centre line of Holloway Bay Road is Station 114+35. The Holloway Bay Road is sometimes referred to as the Townline Road.

12. The applicants’ property is in the Town of Fort Erie, and the parts of the Point Abino Drain claimed to be out of repair are within the Town.

13. The origins of the Point Abino Drain date back to the late Nineteenth Century.

14. The 1938 Engineer’s Report is the foundation of the current state of the Point Abino Drain. The genesis of the 1980 Engineer’s Report, the 1982 Engineer’s Report and the 1983 Amended Report is found in the 1938 Engineer’s Report.

15. The history of the Point Abino Drain then becomes a bit complicated with respect to the matter of a pumping station. The 1980 Engineer’s Report did not include a pumping station. On appeal to the Tribunal, the effect of the 1981 Tribunal Decision was to refer the 1980 Engineer’s Report back to the engineer to add a pumping station at the outlet to the Point Abino Drain. The 1982 Engineer’s Report implemented that 1981 Tribunal Decision by adding the pumping station as directed. The 1982 Engineer’s Report was appealed to the Tribunal, which, in the 1983 Tribunal Decision, deleted the pumping station and otherwise approved the report. The 1983 Amended Engineer’s Report implemented the 1983 Tribunal Decision.

16. The drainage works contemplated by the 1983 Amended Engineer’s Report were carried out.

17. Some time passed until 1987, when the Town and some of the assessed owners asked the Tribunal to reopen the 1983 Amended Engineer’s Report to reinstate the pumping station deleted by the 1983 Tribunal Decision. 1987 Tribunal Decision ordered the installation of the low lift pumps, which had previously been designed but which had been deleted from the drainage works by the 1983 Tribunal Decision. The evidence is unclear whether these reinstated pumps were ever installed.

18. There followed the 1995 Preliminary Report, the 1995 Engineer’s Report and the 1996 Engineer’s Report, which proposed pumping station options at the foot of either Pleasant Beach Road or Holloway Bay Road and at the outlet of the Point Abino Drain⁶. There was also an option for TideFlex Check Valves at the outlet. The installation of a 600-litre-per-second pumping station at the outlet of the Point Abino Drain was the option recommended by the 1996 Engineer’s Report.

19. This report was adopted provisionally by By-law 3369/99/96 and circulated. There were numerous appeals opposing the pumping station proposal. However, from the municipalities’ perspective, not proceeding with a pumping station at the outlet of the Point Abino Drain required reversing the 1987 Tribunal Decision that ordered the installation of low-lift pumps.⁷ When all of this came before the Tribunal, it issued the 1998 April Tribunal Decision, deferring the making of a decision and ordering that notice be circulated to give those affected the opportunity to make written submissions.

20. After receiving and reviewing written submissions, the 1998 July Tribunal Decision was issued. By that decision, the 1987 Tribunal Decision was set aside, thus removing a pumping station requirement at the outlet of the Point Abino Drain, effectively reverting to the 1983 Amended Engineer’s Report before the 1987 Tribunal Decision. No part of the 1996 Engineer’s Report was implemented.

21. The result of all this is that the most recent report on the Point Abino Drain is the 1983 Amended Engineer’s Report, read together with the 1938 Engineer’s Report.

22. The plans and profiles from that report establish the standard against which to evaluate whether the Point Abino Drain is in good repair. Those plans and profiles are found on pages 51 to 53 of the applicants’ Record⁸.

Town’s Production of Documents

23. As previously mentioned, for drainage works to qualify as municipal drains governed by the Drainage Act, an engineer or surveyor must prepare a report describing the works. Then, after due process, the report must be finally adopted by the municipality's by-law in accordance with the Drainage Act.

24. Section 11 of the Referee Rules requires a municipality to produce documents relating to drainage works. Subsections 11(1) and 11(2) are 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.

25. Subsection 11(2) includes Port Colborne. In that connection, a word or two is warranted about Port Colborne and the Engineer. Prior to issuing the December 16, 2024 Procedural Order, the Court communicated with counsel on November 5, 2024 about an agenda for a case management procedural conference and, when doing so, raised the following subject.

26. Mr. Courey, on other occasions, your municipal clients have asserted that they are not in possession or control of the engineer’s files, so they are unable to and cannot be compelled to produce the engineer’s file contents or persuade the engineer to do so. And, because on those occasions, you were not retained by the engineer, you had no authority to speak for the engineer. If those are your instructions in this case, please advise. In that event, I will deal with Mr. Marsh, P.Eng., directly and address the relevant parts of the production Order directly to him and his firm. Before doing so, I would give the parties and the engineer the opportunity to be heard. So he is aware, I am copying this correspondence to Mr. Marsh.

27. The Engineer responded directly to the Court with copies to counsel. His reply was to the effect that his appointment was by Port Colborne and that he had made available to both Port Colborne and the Town all his files except his final Point Abino Drain Report, which had not yet been completed. The Engineer is familiar with the obligations a drainage engineer has to the Court of the Drainage Referee because he monitored proceedings in the case of Kittel v Wilmot (Township) referred to below, and his response in this case is appropriate. The point is that the Town has possession and control of all that the Engineer has, which includes all Engineer’s reports and Drainage Act By-laws from both the Town and Port Colborne, all as reflected in the chart prepared by the Engineer, which appears on page 26 of these reasons. Any assertion that Port Colborne has not provided anything the Town has asked for would be disingenuous.

28. With all of that said, the Town has produced none of the engineer’s reports described in paragraph 4 of the Order, nor any plans, specifications, assessments, by-laws, provisional by-laws, resolutions, correspondence or copies of notices sent to ratepayers entitled to notice as required by subsection 11(1) of the Referee Rules.

29. The Town has provided, with its Affidavit of Documents, a handwritten and printed copy of Township of Humberstone By-law No. 596, provisionally enacted on August 6, 1928 and finally passed on September 5, 1928. As mentioned, the Township of Humberstone is now part of the City of Port Colborne.

30. Humberstone By-law No. 596 adopts an engineer’s report for the repair and improvement of the then-existing Point Abino Marsh Drain. The engineer’s report was issued by Ross and Scott, Engineers, on August 1, 1928. The Ross and Scott engineer’s report is incorporated into and is part of By-law No. 596. While the engineer’s report and By-law refer to an attached plan and profile, no plan has been provided by the Town. The profile provided by the Town shows only work in the City of Port Colborne, then the Township of Humberstone, and none in the Town of Fort Erie, then the Township of Bertie. The applicants’ property is in Fort Erie, and the parts of the Point Abino Drain of concern to the applicants are in Fort Erie. This 1928 material is relevant to the Point Abino Drain, so it is properly producible under section 11 of the Referee Rules, but it is only marginally pertinent to the issues at hand.

31. The Town’s Affidavit of Documents provides the following decisions for the Tribunal

(a) the 1981 Tribunal Decision issued June 10, 1981 and now reported as Point Abino Municipal Drain (RE) 1981 ONAFRAAT 01.

(b) the “1983 Tribunal Decision” issued July 13, 1983 and now reported as Point Abino Municipal Drain (RE) 1983 ONAFRAAT 01, but the Town did not include the reasons for the decision.

(c) The “1987 Tribunal Decision” issued September 15, 1987 now reported as Point Abino Municipal Drain (RE) 1987 ONAFRAAT 01.

(d) the “1998 April Tribunal Decision” issued April 16, 1998 and now reported as Point Albino Drain (RE) 1998 ONAFRAAT 16.

(e) the “1998 July Tribunal Decision” issued July 28, 1998 and now reported as Point Albino Drain (RE) 1998 ONAFRAAT 28.

31. The Town’s Affidavit of Documents also produced a table of water level elevations in metres IGLD 1985 at selective locations on selective dates between July 3, 2019 and July 22, 2020, As previously mentioned the Court of the Drainage Referee will take judicial notice of Lake Erie Monthly Mean Water Levels from 1918 to 2024 (IGLD 1985) published by the Government of Canada, Fisheries and Oceans Canada. This data is available online from the Fisheries and Oceans Canada website.

32. The Town’s Affidavit of Documents also provides two invoices, one for storm surge gates between May and December 2020 and the other for clearing a beaver dam from an unidentified location and debris from unidentified culverts in December 2020.

33. Finally, the Town’s Affidavit of Documents includes the 2021 Baseline Report. It is a 92-page document that is not and is not intended to be a Drainage Act-authorized engineer’s report, and it does not constitute the contents of the Engineer’s file.

34. Beyond the documents mentioned in paragraphs 28 to 33 above, the Town should have and has failed to produce:

(a) the engineer’s reports identified in paragraph 4 of the Order;

(b) municipal by-laws adopting those engineers’ reports, provisionally and finally;

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

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

35. None of these things are mentioned in or produced as part of the Town’s Affidavit of Documents. The intent and purpose of Referee Rule 11 is that the Town is to provide a comprehensive, official municipal record of the Point Abino Drain. The Town has flouted its obligation to do so.

36. On February 17, 2025, after receiving and reviewing the Town’s Affidavit of Documents, the Court sent a letter to counsel, a copy of which is attached to these reasons on pages 21 through 26. In paragraphs 12 and 13 of that letter, the following was said:

37. The Town’s obstructive non-disclosure or suppression of documentary evidence is an unacceptable subversion of the Court’s pre-hearing disclosure process. It is an abuse of that process, the purpose of which is to ensure that the Court and the other parties have full and fair pre-hearing disclosure of pertinent documents. Last-minute walk-on witnesses and documents are unacceptable for and incompatible with a fair trial and are an abuse of the pre-hearing disclosure process in the Court of the Drainage Referee. If the Town does not produce all documentary evidence in its possession or control or to which it has access, either directly or via Port Colborne and the Engineer, it cannot reasonably expect to lead any other evidence, and it would be unfair to the other party or parties to allow the Town to do so. It is reminiscent of the municipality’s conduct in the case of Kittel v Wilmot (Township), reported as 2024 ONDR 3. From that decision, the Town will be aware of the consequences of its abuse of process conduct, which is that pursuant to subsection 23(1) of the Statutory Powers Procedure Act, the Town will be disqualified from leading evidence in response to the application.

38. The Town is at liberty to bring a motion to show cause why it should not be disqualified from leading evidence in response to the application. Such a motion might also seek leave to file belatedly responding affidavit(s) otherwise due on February 7, 2025. Such a motion should be accompanied by the production of the documentation required by Rule 11 of the Referee Rules and paragraphs 9 and 10 of the December 16, 2024 Procedural Order and referred to in paragraph 7 above.

39. The Town has since been informed that, pending the outcome of the Town’s motion, no further evidence will be received from the Town other than evidence for the Town’s motion and an Affidavit of Documents that satisfies Rule 11 of the Referee Rules and paragraphs 9 and 10 of the December 16, 2024 Procedural Order and referred to in paragraph 7 of the February 17, 2025 letter to counsel.

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

Subsection 118(2) Order

39. Paragraphs 5., 6. and 7. of the Reasons attached to the December 16, 2024 Procedural Order provided as follows:

40. This application is for damages alleged to be attributable to the non-repair of the Point Abino Drain and for an Order compelling the maintenance and repair of the Drain. In accordance with subsection 118(1) of the Drainage Act, damages and costs payable by a municipality for failing to maintain and repair a municipal drain are levied upon the lands and roads assessed for the drainage works. In the usual course, costs of maintenance and repair of a municipal drain are levied upon the lands and roads assessed for the drainage works. The owners of lands assessed for the Point Abino Drain may, therefore, be affected by the outcome of this application, so they should be given notice of this application and an opportunity to participate as a party.

41. Subsection 118(2) of the Drainage Act goes on to provide that the Referee may direct that the whole or part of such damages and costs are to be paid out of the municipality’s general funds if there has been some improper action, neglect, default or omission by the municipality. The owners of lands assessed for the Point Abino Drain thus have an interest not only in whether any damages and costs are to be paid but also whether any such damages and costs are to be charged to the Point Abino Drain or are to be paid out of the Town’s general funds.

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

43. To that end, paragraph 23 of the December 16, 2024 Procedural Order provides the following:

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

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

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

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

41. Because the Town has not filed with the Court the information required by paragraph 23 of the December 16, 2024 Procedural Order, it is not possible to give notice of the application to those who may be adversely affected by the result of the application; and, as a result, paragraph 8 of the Order stipulates that, pursuant to subsection 118(2) of the Drainage Act, any costs and damages ordered against the Town and all expenses of this application are to be borne by the Town and are to be paid out of the Town’s general funds.

Preliminary Motions

42. Paragraph 18 of the December 16, 202,4, Procedural Order required that any preliminary motions be filed by July 15, 2025, and be returnable on September 17, 2025. No preliminary motions have been filed with the Court or provided to the presiding Referee.

Pre-Hearing Examinations

43. Paragraphs 15. 16. and 17 of the December 16, 2024 Procedural Order provide as follows:

44. After all the affidavit evidence has been exchanged, as contemplated by paragraphs 6 to 11 above, if the parties agree to cross-examinations before a court reporter outside of the hearing on the merits, such examinations will occur on Monday, March 31, 2025. Transcripts of such cross-examinations will be provided to the presiding Referee promptly after the completion of such cross-examinations.

45. If there are any disputes about any undertakings given or not given during examinations, motions may be brought on or before Wednesday, April 30, 2025 returnable at the time of the September 17, 2025 case management video conference hearing referred to in paragraph 19 below.

46. Notwithstanding that there may have been examinations before a court reporter outside of the hearing on the merits, parties who have delivered affidavits or an expert’s report will, at the time of the hearing of the merits, call as witnesses each person who has sworn an affidavit or authored the expert’s report. Witnesses to be called during the hearing of the merits will be limited to those who have previously filed affidavits or expert’s reports. Witnesses will be asked to reaffirm or correct their affidavits or expert’s report and then be subject to cross-examination by the other party or parties and questions from the presiding Referee.

47. No transcript of a cross-examination of Jeffrey Schall has been filed with the Court or provided to the presiding Referee.

48. If there are difficulties with anything else arising from the Order and these reasons, at the request of either party, a video conference will be convened to deal with it.

Dated at London this 5th day of September 2025.

Andrew C. Wright Acting Drainage Referee

THE OFFICE OF THE ONTARIO DRAINAGE REFEREE

JOHN L. O’KANE REFEREE 64 Hurontario Street, Suite # 158, COLLINGWOOD, Ontario, L9Y 2L6 Telephone: (905) 216-4661 E-mail: jokane@civiladmincounsel.com

ROBERT G. WATERS Retiring REFEREE 7 Kittridge Avenue, East, STRATHROY, Ontario, N7G 2A9 Telephone: (519) 245-2958 E-mail: rob@robwaters.ca

VALERIE M’GARRY ACTING REFEREE Valerie M'Garry Law Office 37 Millmanor Place, P.O. Box 263, DELAWARE, Ontario. N0L 1E0 Telephone: (519) 652-5329 E-mail: valerie@citylaw.ca

ANDREW C. WRIGHT ACTING REFEREE 12 The Ridgeway, LONDON, Ontario, N6C 1A1 Telephone: (519) 671-5786 E-mail: andrewcwrightis@outlook.com

February 17, 2025

Paula Lombardi, via e-mail to paula.lombardi@siskinds.com Siskinds LLP Unit 1, 275 Dundas Street, London, Ontario, N6V 2G8 Lawyers for Applicants

Paul Courey, via e-mail to pc@coureylaw.com Legal Focus LLP via e-mail to paul@legalfocus.ca and to sheri@legafocus.ca Courey Law Professional Corporation via e-mail to mail@coureylaw.com 18 Queen Street, South, PO Box 178, Tilbury, Ontario, N0P 2L0 Lawyer for Respondent

Dear counsel,

Re: Schall v Fort Erie (Town) - Court of the Drainage Referee Court File CV-21-00013656-0000 (Welland)

1. The Procedural Order issued on December 16, 2024, established a schedule for the exchange of productions, supporting and responding to affidavits and expert reports. This schedule was based on the parties' agreement. Communication to the Court about the agreement was by e-mail from counsel for the applicants, with copies to counsel for the Town. The issued Procedural Order was sent to counsel for the parties by e-mail on December 16, 2024. Counsel for the Town has not communicated with the Court any disagreement with the schedule. The Court is unaware of any extension requests.

2. The Procedural Order is now published as Schall v Fort Erie (Town), 2024 ONDR 10.

3. The applicants have complied with the Procedural Order. The Town has not.

4. The Town’s agreement in December 2024 and the stipulations in paragraphs 8, 9, and 10 of the Procedural Order required the Town to provide, by February 7, 2025, its responding affidavits and the documentary productions required by Rule 11(1) of Regulation 232/15, being the Rules of Practice and Procedure in Proceedings before the Referee, (the “Referee Rules”). Referee Rule 11 covers the records of the Town and of the City of Port Colborne even though it is not a party to the application.

5. There have been no responding affidavits from the Town. An entirely inadequate Affidavit of Documents was received from the Town on February 14, 2025, a week after it was due. It is now understood that the Town’s counsel has been unavailable since before February 7th and will continue to be with only very limited access to e-mail until early March 2025.

6. I am particularly troubled that the Town has ignored its obligations to produce “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.”, to quote from Rule 11(1) the Referee Rules. Those obligations have been outstanding since the Notice of Application was served. The Notice of Application was issued on August 19, 2021.

7. Attached on page 5 of this letter (now page 26 of these reasons) is a chart prepared in 2022 by the Engineer (as described in the Procedural Order) showing an historical timeline for the Point Abino Drain. It appears on page 322 of the applicants’ record. It also appears on pages 51 and 114 of the Town’s Affidavit of Documents. This chart shows documentation related to the Point Abino Drain going back to the late Eighteenth Century with much activity in the last decades of the Twentieth Century. The applicants have produced some of this in their supporting affidavit. The Town’s Affidavit of Documents produces eleven documents which do not include the following:

(a) The 1938 Engineer’s Report signed by J.R. Scott, P.Eng. adopted by By-law No. 733 authorizing the repair and improvement of the full length of the Point Abino Drain and the incorporation of Branch No. 1. This is referred to on page 119 of the Town’s Affidavit of Documents as being available to the Town from the Engineer’s files but is not produced.

(b) The 1958 Engineer’s Report signed by J.R. Scott, P.Eng. and adopted by By-law No. 1109 authorized the repair of the Point Abino Drain from Station 67+00 to the west end of the Drain. Again, this is referred to on page 119 of the Town’s Affidavit of Documents as being available to the Town from the Engineer’s files but is not produced.

(c) The 1975 Preliminary Report on the Point Abino Drain issued by D.C Semkiw on February 5, 1975. This is referred to on page 119 of the Town’s Affidavit of Document, where it is said to have been revised in 1982.

(d) The Engineer’s Report issued by C.J. Clarke, Niagara, Limited, dated March 27, 1980 and signed by A. Pluhar, P.Eng. This 1980 Engineer’s Report is the precursor to the 1983 Engineer’s Report on the Repair and Improvement of the Point Abino Drainage System issued by C.J. Clarke, Niagara, Limited on May 6, 1982 and revised September 24, 1982 and signed by A. Pluhar, P.Eng.

(e) If adopted, provisionally or finally, the municipal By-laws adopting these Engineers’ Reports and the four Engineer’s Reports included with the applicants’ record, none of which are mentioned in the Town’s Affidavit of Documents.

(f) Minutes of municipal Council Meetings, including Committees of Council, to consider each of the several Engineers’ Reports and resolutions pertaining to the Point Abino Drain reflected in such Minutes.

(g) Tribunal and Drainage Court decisions related to the Point Abino Drain that are not available from the Canadian Legal Information Institute, particularly the 1926 Drainage Court decision referred to on page 117 of the Town’s Affidavit of Documents as being in the possession of the Engineer.

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

8. The above reference to municipal Council, Committees, and staff includes both the Town and Port Colborne. The Town has not produced any documents from Port Colborne records and files.

9. The Town must produce these things to provide a comprehensive, official municipal record of the Point Abino Drain, which is the purpose and intent of Referee Rule 11.

10. There is also no documentation regarding the Town’s inspection of the Point Abino Drain following the applicants’ formal notice of non-repair served in accordance with section 79 of the Drainage Act. The Town has produced copies of two invoices from contractors dated December 2020, which provide negligible details about what was done.

11. It should be added that, as mentioned in paragraph 4 of the reasons attached to the Procedural Order, the Engineer has advised the Court that he has turned over to the Town all documentation in his possession and control regarding the Point Abino Drain. The contents of the Engineer’s files related to the Point Abino Drain are described on pages 114 to 120 of the Affidavit of Documents, none of which has been produced by the Town. The Engineer’s files are in the possession and control of the Town and need to be produced by the Town. The only document the Town has produced from the Engineer’s files is a report entitled “Point Abino Drain Baseline Report, City of Port Colborne, Town of Fort Erie” dated December 16, 2021 and issued by the Engineer. It is a 92-page document, but it is not a Drainage Act-authorized engineer’s report, and it does not constitute the contents of the Engineer’s file.

12. The Town’s obstructive non-disclosure or suppression of documentary evidence is an unacceptable subversion of the Court’s pre-hearing disclosure process. It is an abuse of that process, the purpose of which is to ensure that the Court and the other parties have full and fair pre-hearing disclosure of pertinent documents. Last-minute walk-on witnesses and documents are unacceptable for and incompatible with a fair trial and are an abuse of the pre-hearing disclosure process in the Court of the Drainage Referee. If the Town does not produce all documentary evidence in its possession or control or to which it has access, either directly or via Port Colborne and the Engineer, it cannot reasonably expect to lead any other evidence, and it would be unfair to the other party or parties to allow the Town to do so. It is reminiscent of the municipality’s conduct in the case of Kittel v Wilmot (Township), reported as 2024 ONDR 3. From that decision, the Town will be aware of the consequences of its abuse of process conduct, which is that pursuant to subsection 23(1) of the Statutory Powers Procedure Act, the Town will be disqualified from leading evidence in response to the application.

13. The Town is at liberty to bring a motion to show cause why it should not be disqualified from leading evidence in response to the application. Such a motion might also seek leave to file belatedly responding affidavit(s) otherwise due on February 7, 2025. Such a motion should be accompanied by production of the documentation required by Rule 11 of the Referee Rules and paragraphs 9 and 10 of the Procedural Order and referred to in paragraph 7 above.

14. In the meantime, the applicants should provide their expert’s report per paragraph 12 of the Procedural Order and be prepared to proceed with their evidence at the hearing on September 17, 2025 with particulars of deficiencies, the rectification of which are to be ordered and an assessment of damages. The identification of deficiencies should reference their Station location(s) on the Drain,

15. I should add that, from the Town’s website, the proper legal name of the respondent Town appears as “The Corporation of the Town of Fort Erie”. In my next formal Order, I will amend the style of cause accordingly.

16. I may be spoken to by the parties for clarification or elaboration.

Respectfully

Andrew Wright, Acting Drainage Referee

Engineer’s Figure

Footnotes

1. 1Page 43 to page 53 of the applicants’ Record.
2. 2Page 55 to page 79 of the applicants’ Record.
3. 3Page 81 to page 118 of the applicants’ Record.
4. 4Page 120 to page 160 of the applicants’ Record.
5. 5Page 47 to page 139 of the Town’s Affidavit of Documents.
6. 6Again, it is unclear whether the pumps reinstated by the 1987 Tribunal Decision were ever installed.
7. 7Again, it is unclear whether the pumps reinstated by the 1987 Tribunal Decision were ever installed.
8. 8Exhibit No. 1