Civil Litigation - Defendant - ODR

The Acting Drainage Referee issued a consolidated procedural order for an upcoming video conference hearing regarding a drainage dispute between the applicants and the respondent municipality.

The order superseded previous procedural orders due to the COVID-19 pandemic and set out the organization of the hearing, protocols for documents and exhibits, the issues to be resolved, and the order of evidence.

The hearing was scheduled for five days commencing in April 2022.

The respondent Municipality brought a motion requesting the Acting Drainage Referee recuse himself on the basis of a reasonable apprehension of bias.

The motion was based on the Referee's former partnership at the law firm representing the applicants, and his continued access to some of the firm's office facilities in his retirement.

The Referee dismissed the motion, finding that a reasonable and right-minded person would not apprehend bias given that he had been retired for nearly three years, had no access to the firm's files, and the office access was a standard retirement perquisite.

The Referee also issued procedural orders for the case management of the underlying application regarding the Burk Drainage Works.

The applicants and respondent participated in a procedural pre-hearing conference before the Acting Drainage Referee to organize the hearing of a drainage dispute.

The respondent raised the issue of whether the Acting Referee was required to recuse himself from the hearing on the merits under subrule 8(3) of the Rules of Practice and Procedure, having presided over the pre-hearing conferences.

The Acting Referee held that subrule 8(3) only requires recusal if the presiding officer engaged in settlement negotiations or mediation.

Because the pre-hearing conferences were strictly for case management and no confidential settlement information was shared, the Acting Referee declined to recuse himself.

A procedural order was issued setting the hearing dates and protocols.

Due to the COVID-19 pandemic, the scheduled in-person hearing before the Drainage Referee was adjourned.

The Referee issued a supplemental procedural order establishing protocols for rescheduling the hearing, either in-person once safe to do so, or by video conference if the applicants elect to proceed earlier.

The order also extended deadlines for the applicants to provide witness lists and statements, and established procedures for entering exhibits in a video conference format.

The applicants sought damages from the Municipality for its failure to maintain and repair a municipal drain outlet, which caused severe erosion to a bluff on their property.

The uncontrolled water flow prevented the applicants from obtaining conservation authority approval for a shoreline revetment to protect their home before a policy change prohibited such structures.

The Drainage Referee found the Municipality liable under section 79 of the Drainage Act for its unreasonable four-year delay in addressing the failed outlet.

The applicants were awarded $125,945.40 for the lost opportunity to construct the revetment, calculated based on a 65% chance of obtaining the permit.

Claims for the cost of relocating the house were dismissed as economically unreasonable.

The Municipality was ordered to initiate a section 78 process to secure a sufficient outlet and to pay the damages and costs out of its general funds pursuant to section 118(2).

Following the dismissal of the applicants' case, the Municipality sought costs on a substantial indemnity basis in the amount of $40,000.

The applicants' former counsel was no longer retained, and one applicant requested the Acting Drainage Referee to address costs.

The Referee found that while the applicants' case was difficult and unsuccessful, it raised novel questions and was not a waste of time.

Accordingly, costs were awarded to the Municipality on a partial indemnity basis, fixed at $20,000 plus disbursements.

The Referee also ordered that the Municipality's net expenses be levied upon the lands assessed for the maintenance and repair of the Bateman Drain and Branches pursuant to the Drainage Act.

The Ontario Drainage Referee determined the costs to be awarded following the dismissal of the applicants' drainage application.

The respondent sought costs on a substantial indemnity basis, while the applicants argued for fixed costs of $2,000.

The Referee awarded costs to the respondent on a partial indemnity basis, noting that the applicants were reasonably pursuing the matter after it was referred back by the Divisional Court, and that landowners should not be discouraged from exercising their legitimate rights of appeal in drainage matters.

The respondent's bill of costs was approved with an adjustment to the hourly rate for travel, plus an additional $600 for written submissions.

The appellant requested corrections to a previous decision of the Ontario Drainage Referee, arguing that clerical errors were made and that an application by other parties was improperly dismissed without a hearing on the merits.

The respondent agreed to the clerical correction but argued the application was properly before the Referee.

The Referee found that due to confusion surrounding the hearing, including a strike by government employees and the late issuance of files, a procedural error occurred.

To avoid a breach of natural justice, the Referee amended the previous decision to correct the clerical error and to adjourn the application of the other parties so it could be heard on its merits.

Following unauthorized drainage works that caused severe erosion and sedimentation on downstream properties, the affected landowners commenced actions for damages and injunctive relief.

The matters were transferred on consent to the Drainage Referee.

Recognizing the need for immediate remedial action and a comprehensive drainage scheme, the Referee assumed procedural control and ordered the preparation of a Drainage Report.

After extensive consultations, hydrological modelling, and multiple hearings to address the competing interests of agricultural, commercial, industrial, and downstream landowners, as well as environmental concerns regarding fish habitat, the Referee approved the amended Drainage Report and directed the Township to pass a by-law adopting its design provisions.

The applicants claimed $250,000 in damages from the respondent municipality for the alleged non-repair of a municipal drain between 1988 and 1996.

The municipality had completed extensive repairs and installed a pump system in 1988, which restored the drain to its original specifications.

The applicants failed to serve written notice of disrepair on the municipality between 1988 and 1996, as required by section 79 of the Drainage Act.

The Drainage Referee held that the failure to provide the mandatory statutory notice precluded the applicants from claiming damages for the years 1988 through 1995.

The claim for those years was dismissed, while the claim for 1996 and costs were reserved.

The respondent municipality brought a motion to recall the appellant for cross-examination based on newly discovered documents containing statements attributed to the appellant that contradicted his discovery and trial evidence regarding crop damage and flooding.

The Drainage Referee granted the motion in part, allowing the recall and cross-examination on a newspaper article and a reporting letter (subject to waiver of solicitor-client privilege), but excluded two other letters as protected by settlement privilege.

The plaintiff developer sued the defendant municipality for damages, alleging negligent design and installation of a municipal drain across its proposed subdivision.

The plaintiff claimed the drain was not installed on the property lines and that reduced pipe grades compromised its capacity.

The Drainage Referee applied the discoverability rule to find the action was not statute-barred.

On the merits, the Referee dismissed the negligence and damages claims, finding the drain's design was adequate for its intended rural and future urban purposes, and that while the installation deviated from the planned grades, subsequent remedial work and increased downstream grades compensated for any lost capacity.

The Referee ordered that an unauthorized private perimeter drain built by the plaintiff be incorporated into the municipal drainage system, with an allowance paid to the plaintiff.

The applicants brought a motion to amend their statement of claim to expand their claim for damages from 1994-1996 to 1987-1996.

The respondent opposed, arguing the claims were barred by notice requirements under the Drainage Act and limitation periods.

The Drainage Referee granted the motion to amend, finding that any prejudice to the respondent could be compensated in costs, and deferred the determination of the notice and limitation issues to the trial judge.

The appellants claimed damages for trees cut and property damage caused by the respondent Township during municipal drain repair work following an ice storm.

The Drainage Referee found that the Township had a statutory duty to perform the work and was not negligent in its use of heavy equipment or the timing of the work.

However, the Township was negligent in failing to properly notify and consult with the appellants before entering their property.

The appellants were also found contributorily negligent for failing to inform themselves after being approached by the contractor.

Damages of $1,000 were awarded as the appellants failed to prove significant objective losses.

The appellants claimed damages for crop losses from 1984 to 1994 resulting from the respondent municipality's failure to repair a municipal drain.

The respondent brought a motion to bar claims prior to September 1992 based on the two-year limitation period in section 111(2) of the Drainage Act.

The appellants brought a cross-motion to extend the time under section 113.

The Drainage Referee found that the cause of complaint arose in 1987 when the municipality entered a moratorium agreement that halted drainage works.

While claims prior to 1987 were barred, the Referee exercised discretion under section 113 to extend the limitation period, allowing the appellants to claim damages from 1987 onwards, as the moratorium had prejudiced and misled them regarding their rights.

The appellant filed a claim for damages against the respondent municipality for negligence in the maintenance and operation of a municipal drain.

The appellant alleged that during a cleanout, the municipality over-excavated the drain, causing crop losses, machinery damage, and leaving an unsightly spoil bank.

The Drainage Referee found the municipality negligent for failing to follow the original profile, lacking supervision, and poor communication.

The referee awarded damages for crop loss and machinery damage, ordered the municipality to remove the spoil bank, and awarded costs to the self-represented appellant.

Claims for punitive damages and damages unrelated to the negligence were dismissed.

The respondent municipality brought a motion to strike the appellant's statement of claim, for a better affidavit of documents, to amend its statement of defence, and for summary judgment.

The parties consented to the amendment of the statement of defence and the provision of a better affidavit of documents.

On the issue of summary judgment, the respondent argued that the appellant's claim for damages was statute-barred under section 111(2) of the Drainage Act because the statement of claim was not issued until December 11, 1995.

The Referee found that the appeal was properly launched on May 27, 1993, and exercised discretion under section 113 of the Drainage Act to confirm this date.

Consequently, only claims for damages arising prior to May 27, 1991, were statute-barred.

The request for summary judgment was dismissed.

The plaintiff brought an action for damages against the municipality after heavy rainfall caused a municipal drain to overflow and flood his property.

The plaintiff alleged the municipality was negligent in maintaining the drain and in installing an undersized culvert.

The Drainage Referee dismissed the claim, finding the plaintiff failed to provide adequate written notice of disrepair as required by section 79 of the Drainage Act.

Furthermore, the Referee held the municipality was not negligent in construction, as the culvert met the two-year storm standard required for municipal drains, and the plaintiff failed to prove the storm's intensity.

The Referee ordered the municipality to prepare a preliminary drainage report to explore solutions to the flooding.

The appellant landowner sued the township and two engineering firms for negligence in the design and construction of a municipal drain, claiming damages for erosion and crop loss.

The action was referred to the Drainage Referee.

The Referee found no negligence or design deficiencies by the engineers, accepting expert evidence that the tile sizes and swale capacity were adequate.

The Referee concluded that the damage was caused by the appellant's own conduct in interfering with the contractor and preventing the completion of the swale.

The claim for damages was dismissed, but a mandatory injunction was granted ordering the township to complete the drain in accordance with the by-law.

The appellants brought an action for damages against the respondent municipality for the years 1977, 1978, and 1979 under the Drainage Act.

Following a three-day trial, the Drainage Referee dismissed the action without costs.