Jones v Windsor (City), 2026 ONDR 3

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

CITATION: Jones v Windsor (City), 2026 ONDR 3

DATE OF DECISION: 2026-04-25

Court File No.: CV-26-00036296-0000 (Windsor)

IN THE MATTER OF the Drainage Act, R.S.O. 1990, Chapter D. 17

AND IN THE MATTER OF an application by Roy Philip Jones, Caleb Mellanby, Hailey Davidson Sharpe, Mark Van Watteghem, Susan Martin, Yonas Ghebreyeus, Stacey Damphouse for the opinion, direction and advice of the Referee with respect to maintenance and repairs on the Little River Drain

B E T W E E N:

ROY PHILIP JONES, CALEB MELLANBY, HAILEY DAVIDSON SHARPE, MARK VAN WATTEGHEM, SUSAN MARTIN, YONAS GHEBREYEUS, STACEY DAMPHOUSE

Applicants

• and -

THE CORPORATION OF THE CITY OF WINDSOR

Respondent

• and -

WHO MAY BE GRANTED PARTY STATUS UPON APPLICATION

Respondents

ACTING DRAINAGE REFEREE ANDREW C. WRIGHT

SATURDAY, THE 25^TH^ DAY OF APRIL, 2026

ORDER

The Court of the Drainage Referee proposed to convene a case management video conference hearing to begin case management of this application to address the following:

(a) Providing for the delivery directly to me, as presiding Referee, of anything a party is required to provide to the other party(ies) or is filed with the Court concurrently with its delivery or filing with the Court.

(b) Identifying parties, including those who may be affected by the result of this application, establishing a means of putting those potentially affected persons on notice of this application and giving them an opportunity to participate as a party.

(c) Fixing a time for the delivery by the City of documentation, having regard for subsection 11(1) of Regulation 232/15, being the Rules of Practice and Procedure in Proceedings Before The Referee.

(d) Fixing a time for and scheduling the exchange of documents in advance of the argument of motions for interim and interlocutory injunctions and/or mandatory orders.

(e) Fixing a time for the applicants to deliver an affidavit of documents and supporting evidence.

(f) Fixing a time for the respondent to deliver responding materials.

(g) Identifying preliminary issues.

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

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

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

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

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

(m) Setting the commencement date for the hearing.

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

but before such a case management video conference could be arranged, the applicants brought a motion seeking

(i) an interim and interlocutory injunctions and a temporary court order, restraining the City of Windsor, its agents, and contractors from performing and work including but not limited to maintenance, repairs, demolition, removal of any structures, until the Moving Parties’ Application is heard and disposed thereof

(ii) an order making all assessed landowners a party to this proceeding; and

(iii) such further orders as may be necessary or appropriate in order to give effect to the relief claimed;

The motion was to be argued on April 24, 2026, but after the exchange of motion records, it was withdrawn on April 23, 2026, though the supporting affidavit and responding affidavits remain part of the evidentiary record. It is now appropriate to set out a schedule for the production of documents and the exchange of affidavits and experts’ reports, to establish a schedule for any preliminary motions and to give directions for the giving of notice to those who may be affected by the result of this application. 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. 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

3. 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 “Conservation Authority” means the Erie Region Conservation Authority.

(c) the “Conservation Authorities Act” means the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended.

(d) the “Conservation Authority Regulation” means Regulation 41/24, Prohibited Activities, Exemptions and Permits promulgated under the Conservation Authorities Act, as amended.

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

(f) the “LaFontaine Engineer’s Report” means the Engineer’s Report on the Little River Drain, issued June 24, 1983, by LaFontaine, Cowie, Buratto and Associates Limited and signed by E.O. LaFontaine, P.Eng., including plan and profile.¹

(a) the “Little River Drain” or “Drain” means the drainage works known as the Little River Drain, constructed, repaired, and maintained under the authority of the Act in accordance with the LaFontaine Engineer’s Report.

(g) the “Little River Tender Document” means the City’s unsigned, undated Little River Drain Flood Protection System Reinstatement tender No 99-25, calling for tenders to close on October 28, 2025.²

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

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

(j) “Windsor” or the “City” means The Corporation of the City of Windsor, the respondent.

Parties and Representation

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

5. The City is represented by Sharon Strosberg, Senior Legal Counsel in the office of the Windsor City Solicitor.

Exchange of Documentation

6. The applicants shall deliver the applicants’ supporting affidavit or affidavits to the City on or before Friday, May 29, 2026, including any expert’s report evidence.

7. On or before Friday, June 12, 2026, the City shall deliver to the applicants all documentation related to the Little River Drain that is in the possession or control of or accessible by the City, in accordance with subsection 11(1) of the Referee Rules.

8. The applicants shall deliver all relevant documents in their possession and control to the City on or before Friday, June 12, 2026, to the extent that they have not already been provided with the applicants’ supporting affidavit or affidavits.

9. The City shall deliver its responding affidavit or affidavits to the applicants on or before Friday, June 26, 2026, including any expert’s report evidence.

10. For the purposes of paragraphs 9 and 7 of this Order, all documentation related to the Little River Drain, which is in the possession or control of or accessible by the Conservation Authority, shall be deemed to be in the possession or control of or accessible by the City.

11. The applicants may deliver any reply affidavit or affidavits to the City or before Friday, July 17, 2026.

Preliminary Motions

12. If either the applicants or the City intend to bring preliminary motions, such preliminary motion or motions shall proceed as follows:

(a) The moving party’s preliminary motion record or records will be delivered by Friday, July 17, 2026.

(b) Responding affidavit or affidavits are to be delivered by Friday, July 31, 2026,

(c) Any reply affidavits are to be delivered by Friday, August 14, 2026.

(d) Preliminary motion facta are to be delivered by Friday, August 28, 2026, and

(e) The preliminary motion or motions will be returnable on and argued at the September 23, 2026, case management video conference hearing referred to in paragraph 13 below. A party who has provided an affidavit in support of or in response to a preliminary motion must have the person who signed the affidavit attend the September 23, 2026 case management video conference hearing for cross-examination unless the party notifies the presiding Referee at least seven (7) days before the hearing that the affidavit evidence is not part of their record. Witnesses will be asked to reaffirm or correct their affidavits and then be subject to cross-examination by the other party and questions from the presiding Referee.

September 17, 2024 Case Management Conference

13. There will be a case management video conference hearing on Wednesday, September 23, 2026, commencing at 10:00 am, the purpose of which will be

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

(c) to hear preliminary motions; and

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

14. The case management conference will be conducted via video conference using the Zoom platform. A day or two before the case management video conference hearing, counsel will receive login credentials via e-mail.

15. If the parties do not attend or are not represented at this hearing, the presiding Referee may proceed in their absence, and they will not be entitled to any further notice of the proceeding. This notice is being given in accordance with the Statutory Powers Procedure Act.

16. No adjournments or delays will be granted before or during the case management video conference hearing except for serious hardship or illness.

17. 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, July 31, 2026, the City 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 identified as being in the watershed of the Little River Drain;

(b) the address of the City 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 City’s website where that material will posted and made available for review by the public.

18. There will be a further case management video conference hearing on a date to be determined during the September 23, 2026 case management video conference hearing, the purpose of which will be

(a) to determine who, amongst those seeking party status, are to be added as parties and to establish a schedule for any added party to provide a position or witness statement and to produce any documentation upon which they intend to rely, including any supporting affidavits;

(b) to amend the Style of Cause of the application to reflect the parties proceeding with the hearing of the merits; and

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

19. Future case management video conference hearings will be scheduled to address:

(a) Establishing an issues list for the hearing of the merits and 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, the order in which the parties are to proceed and the witnesses they each will call to give evidence.

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

City’s Recovery Claims from Individual Private Property Owners

20. On or before Friday, May 29, 2026, the City will advise the Court and the applicants, one way or the other, whether the City has made or intends to make a claim against any property owner or occupier for recovery of any costs associated with the Little River Tender Document and works contemplated thereby. This includes any claim made under any provision of the Drainage Act, the Municipal Act, the Conservation Authorities Act, or any by-law enacted under, or regulation made pursuant to, any of those Acts.

21. If the City has made or intends to make any claims against individual property owners or occupants in connection with any costs associated with the Little River Tender Document and the works contemplated thereby, the City must also identify the property and provide the name and address of the property owner or occupant according to the most recent assessment roll for the property.

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 simply observe without participation, their microphone will be muted and their web cams will be 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.

23. Case management video conference hearings and the hearing on the merits 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.

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 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 registrar and, when doing so, shall identify Court File CV-26-00036296-0000 (Windsor) 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 compendiums 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 document is part of the record:

Exhibit No.

Notice of Application issued March 17, 2026

No. 1

Motion Record of Applicants dated April 8, 2026 seeking (i) an interim and interlocutory injunctions and a temporary court order, restraining the City of Windsor, its agents, and contractors from performing and work including but not limited to maintenance, repairs, demolition, removal of any structures, until the Moving Parties’ Application is heard and disposed thereof (ii) An order making all assessed landowners a party to this proceeding; (iii) Such further orders as may be necessary or appropriate in order to give effect to the relief claimed above. The Record includes the supporting affidavit of Roy P. Jones sworn April 7, 2026, with seventeen Exhibits “A” through “Q”

No. 2

The City’s Responding Record dated April 14, 2026. The City’s Responding Record includes the affidavit of J. Timorthy Byrne, sworn April 14, 2026, with four Exhibits “A” through “D” and the affidavit of Thomas Graziano, sworn April 14, 2026, with thirteen Exhibits “A” through “M”

26. This list will expand as production occurs and affidavits and experts’ reports are exchanged, as contemplated by paragraphs 6 to 11 of this Order, and any transcripts of examinations are delivered.

27. 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.

28. 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.

29. 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

30. 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.

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

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

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

34. Andrew C. Wright, Acting Drainage Referee, is not seized of the hearing of the merits of this application.

Dated at London, the 25^th^ day of April 2026.

____________________________________ Andrew C. Wright Acting Drainage Referee

REASONS

1. The Order to which these reasons are attached (the “Order”) deal primarily with the applicants’ motion for interim interlocutory relief.

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

City’s Proposal

3. What the City is proposing to do is trespass on numerous parcels of private property on either side of the Little River in the northeast part of Windsor for the purpose of causing property damage to most of them. The applicants own private property that will be adversely affected by the City’s proposed action.

4. The City says it is protected from any liability for its proposed actions because what is proposed is maintenance and repair of the Little River Drain to restore it to the condition specified in the most recent engineer’s report on the Drain. That report is the Lafontaine Engineer’s Report.

5. The City’s position is that the Little River Tender document represents a project of maintenance and repair of the Little River Drain to restore it to the condition specified in the LaFontaine Engineer’s Report, which the City submits it is entitled to do with impunity under the statutory authority of the Drainage Act.

6. The LaFontaine Engineer’s Report includes a statement on page 9 ³ that all elevations relate to the Canadian Geodetic Datum and are given in metres. Judicial notice is taken that this is a reference to CGVD1928 because the current CGVD2013 survey protocol was not available in 1983. Judicial notice is also taken that the difference between the two regimes is 0.469 metres (1.538 feet), and that CGVD1928 is the higher number. This information is taken from the Station Report for the nearest Canadian Geodetic Survey station in Windsor, called WISR WINDSOR (#963017). The physical elevation does not change, but the assigned elevation number differs because the “sea-level” benchmark has been adjusted.

7. The principal purpose of the application is to seek an Order from the Court of the Drainage Referee to compel the City to proceed with the appointment of a drainage engineer to revisit the LaFontaine Engineer’s Report under section 78 of the Act, having regard to changes in engineering standards, changes in the Little River Drain watershed over the intervening decades since 1983 and more recent flood mapping. The application also seeks damages for any property damage or injuries caused by the City proceeding with any work contemplated by the Little River Tender Document.

Statutory Authority

8. An authoritative description of the statutory authority principles can be found on page 1214 (pdf page 34) in the reasons of Justice Wilson in Tock v. St. John's Metropolitan Area Board, 1989 CanLII 15 (SCC), [1989] 2 SCR 1181. The concept of statutory authority protects municipalities and their officials from liability for nuisance and trespass when operating within the powers and procedures under the Drainage Act, such as constructing, maintaining, or repairing a municipal drain in accordance with an engineer’s report. That statutory authority does not protect against

(a) the consequences of doing that which is not authorized by the Act; or

(b) the consequences of doing that which is not reasonably necessary to accomplish what is authorized by the Act; or

(c) the consequences of negligence when doing that which is authorized by the Act.

9. The burden of establishing statutory authority immunity is on the City.

Case Management Video Conference to Give Directions for Notice

10. In paragraph 13 of the Order, I have set a date for a case management video conference on Wednesday, September 23, 2026, to give directions for the giving of notice to those who may be affected by the result of this application. In paragraphs 6 to 11 of the Order, I have set out a schedule for the production of documents and the exchange of affidavits and experts’ reports. In paragraph 12 of the Order, there is a schedule for any preliminary motions.

11. In the normal course, these dates would be established in consultation with the parties. The matter of scheduling has been raised with the parties, but they have been distracted by the motion for an interlocutory restraining order. In those circumstances, the Court has taken the liberty of proposing dates. The intention is that if, on or before May 29, 2026, the parties can agree on different dates, the Order will be amended to reflect that consensus. I am anxious to keep the September 23, 2026 date for the case management video conference to give directions for notice. It can be changed if needs be, but if the date is pushed back very much, the hearing on the merits will be pushed well into 2027. My aspiration is to have a decision in early 2027 so any restoration work on the Little River Drain can occur in the 2027 construction season.

12. As indicated in paragraph 13 of the Order, there will be a case management video conference on Wednesday, September 23, 2026, the purpose of which will be

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

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

13. The principal intent and purpose of the application are to seek an Order from the Court of the Drainage Referee to compel the City to proceed with the appointment of a drainage engineer to revisit the LaFontaine Engineer’s Report under section 78 of the Act, having regard to changes in engineering standards, changes in the Little River Drain watershed over the intervening decades since 1983 and more recent flood mapping. If such an Order were to be made, the resulting engineer’s report may affect the legal rights and obligations of those property owners in the watershed of the Little River Drain and/or by assessments for the cost of the resulting drainage works and its subsequent maintenance and repair. The principal purpose of that video conference hearing will be to give directions for the giving of notice to those property owners who may be affected by the decision about whether to appoint an engineer under section 78 of the Act to revisit the LaFontaine Engineer’s Report and to give those potentially affected persons an opportunity to be parties to that decision.

City’s Recovery Claims from Individual Private Property Owners

14. All maintenance and repair costs of the Little River Drain are to be funded out of the City’s general funds and not charged or assessed to any property in the Little River Drain watershed. ⁴ Thus, all of the costs associated with the Little River Tender Document and works contemplated thereby are to be paid by the City out of its general funds.

15. At page 541 of the City’s Responding Record ⁵, there is a reference to recovery of costs from property owners under section 80 and section 82 of the Act.

16. Section 80 of the Act deals with the removal of obstructions of drainage works that impede the free flow of water in the drain. The section requires that reasonable notice be given by the City to the occupant of the land adjoining the drainage works and authorizes the drainage superintendent to remove the obstructions at the expense of the owner or occupant of the adjoining land. If the amount is not paid, it can be added to the tax roll of the adjoining property.

17. Section 82 of the Act authorizes the City to bring an action for damages against any person who injures drainage works and requires that any damages ordered by the Referee are to be paid are to be used to effect the repair. Subsection 82(2) speaks of fines, but that is a Provincial Offences matter outside of the jurisdiction of the Referee.

18. Section 106(1)(c) of the Act gives the Referee original jurisdiction and authority to determine claims and disputes arising under the Act, including claims for damages with respect to anything done or purported to have been done under the Act.

19. Any claims by the City against individual property owners or occupants in connection with any costs associated with the Little River Tender Document and the works contemplated thereby need to be identified at this time so that those affected can be put on notice; the City needs to identify the property and the name and address of the property owner or occupant according with the most recent assessment roll for the property. If there is a dispute, it should be resolved as part of this application because the disposition of the City’s claims will depend upon the same question of statutory authority and whether what is proposed by the City is authorized by the Act and reasonably necessary to accomplish what is authorized by the Act.

20. Paragraphs 20 and 21 of the Order require the City to notify the Court and the applicants if the City has made or intends to make a claim against any property owners for recovery of any costs associated with the Little River Tender Document and works contemplated thereby. That notification is required by Friday, May 29, 2026.

21. If the City advises that such claims have been or are to be made, it will provide the names and addresses of the persons against whom the claims are or will be made. It will then be necessary to convene a separate case management video conference in June 2026 to determine how to give notice of the City’s claims to those affected and to provide them with an opportunity to dispute the claims in the context of this application. The purpose of the case management video conference scheduled for Wednesday, September 23, 2026, would then need to be expanded to include the giving of such notice to those affected by the City’s claims.

The Giving of Notice

22. The present intention is that the applicants will be directed to give notice of the application to those whose names and addresses, according to the last revised assessment roll, appear as the owners of land identified in the LaFontaine Engineer’s Report as being within the watershed for the Little River Drain. The Order directing the giving of notice will establish the form of the notice to be given and the date by which the applicants are to give that notice by ordinary mail. The presiding Referee will provide the parties with a draft form of notice one or two weeks before the September 23, 2026 case management video conference hearing. This draft will serve as the basis for discussion regarding the form of notice during that case management hearing.

23. The notice will direct those receiving it to the City’s website for copies of all documents exchanged between the parties to the time of the giving of notice, so that documentation needs to be in machine-readable form, hence the last sentence of paragraph 2 of the Order.

24. It is anticipated that the case management video conference hearing to give directions for the giving of notice will occur on Wednesday, September 23, 2026 and that the notice will be sent on some date in October 2026.

Going Forward from the Case Management Hearing to Give Directions for Notice

25. I will now summarize how I propose conducting this case procedurally. This summary is to be regarded as malleable and open to adjustments to accommodate unforeseen circumstances as they may arise and to expedite the hearing process generally.

26. Going forward from the case management video conference to give directions for notice, the notice to be given will advise of a further case management video conference to determine who, amongst those seeking party status, are to be added as parties and to establish a schedule for any added party to provide a position or witness statement and to produce any documentation upon which they intend to rely, including any supporting affidavits. It is anticipated that the date of this further case management video conference will be in early December 2026. The date and time will be formally entrenched in the Order, giving directions for notice.

27. When a party is represented by legal counsel, it is expected that that party’s evidence will be filed with the court in the form of an affidavit in accordance with case management procedural orders in advance of the hearing of the merits. If an added party is a self-represented layperson, that self-represented party may provide evidence in the form of an unsworn Witness Statement. Such a Witness Statement will be provisionally received, subject to the self-represented party appearing at the hearing of the merits and, after being sworn, confirming on oath that the Witness Statement represents their evidence, subject to any corrections which the witness may bring to the court’s attention at the time of the hearing on the merits.

28. The applicants and the City will be afforded the opportunity to reply to any evidence from added parties. The date for reply will be established in the Order issued following the case management hearing adding parties. If there are parties added, the Order will also amend the Style of Cause to reflect the parties that will continue to the hearing on the merits.

29. After all the affidavit evidence has been filed by the parties, including any added parties, if all parties agree to cross-examinations before a court reporter outside of the hearing on the merits, a couple of months will be scheduled to allow that to occur. Transcripts of such cross-examinations will be provided to the presiding Referee promptly after the completion of such cross-examinations.

30. If there are any disputes about any undertakings given or not given during examinations, at the request of either party, a video conference hearing will be convened to resolve them.

31. 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.

32. Further case management video conferences will be scheduled from time to time until all of the items referred to in paragraph 19 of the Order have been addressed, and the case is ready to proceed to a hearing of the merits.

33. Case management hearings and the hearing on the merits will be conducted by video conference using the Zoom platform. The hearing on the merits may be held in a courtroom in the Windsor 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 Windsor courthouse is available within a reasonable time after the case is ready for hearing.

34. When the case is ready for the hearing of the merits, there will be a procedural Order fixing the date of the hearing, its anticipated duration, establishing an issues list, the order in which the parties are to proceed and the witnesses they each will call to give evidence. The procedural Order would include the following:

(a) Normally, in accordance with Referee Rule 13(2), the presiding Referee would call the engineer who signed the LaFontaine Engineer’s Report to give background factual evidence. That is not possible in this case. If an independent drainage engineer has prepared a topographic survey map of the Little River Drain corridor, with the elevation and station location details provided in Table 11 ⁶ of the LaFontaine Engineer’s Report overlaid (converted to the same CGVD protocol so they are comparable), such an engineer would be a candidate to be called to provide background at the beginning of the hearing. At this stage, his evidence would not include any opinion evidence. While the witness would not be open to cross-examination, questions from the parties to clarify the facts would be allowed.

(b) The applicants would call their evidence. Any added party aligned with the applicants’ position would then call their evidence.

(c) The City would then call its evidence. Any added party aligned with the City’s position would then call their evidence.

(d) The applicants would then have the opportunity to call reply evidence.

(e) Final submissions would be in the same order as the evidence.

35. As indicated in paragraph 24 of these reasons, this summary is not intended to be immutable and is open to adjustments to accommodate unanticipated circumstances as they may arise and to expedite the hearing process.

36. If there are difficulties with document and affidavit exchange or anything else arising from the Order and these reasons, at the request of either party, I will convene a video conference to deal with it.

Dated at London, the 25^th^ day of April 2026.

____________________________________ Andrew C. Wright Acting Drainage Referee

Footnotes

1. 1Pages 46 to 95 of the applicants’ Motion Record (Exhibit No. 1) being part of Exhibit “F” to the affidavit of Roy P. Jones, sworn April 7, 2026.
2. 2Page 165 to page 498 of the City’s Responding Record (Exhibit No. 2) being Exhibit “D” to the affidavit of Thomas Graziano, sworn April 14, 2026.
3. 3Page 55 of the applicants’ Motion Record (Exhibit No. 1) being part of Exhibit “F” to the affidavit of Roy P. Jones, sworn April 7, 2026.
4. 4Pages 69 and 70 of the applicants’ Motion Record (Exhibit No. 1) being part of Exhibit “F” to the affidavit of Roy P. Jones, sworn April 7, 2026.
5. 5Exhibit No. 2, being part of Exhibit “H” to the affidavit of Thomas Graziano, sworn April 14, 2026.
6. 6Page 82 of the applicants’ Motion Record (Exhibit No.1), being part of Exhibit “F” to the affidavit of Roy P. Jones, sworn April 7, 2026.