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O. Reg. 232/15: RULES OF PRACTICE AND PROCEDURE IN PROCEEDINGS BEFORE THE REFEREE

under Drainage Act, R.S.O. 1990, c. D.17

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Drainage Act

ONTARIO REGULATION 232/15

RULES OF PRACTICE AND PROCEDURE IN PROCEEDINGS BEFORE THE REFEREE

Consolidation Period: From September 1, 2015 to the e-Laws currency date.

No amendments.

This is the English version of a bilingual regulation.

CONTENTS

1.

Application

2.

Interpretation

3.

Commencing proceedings

4.

Service of documents

5.

Notice of appearance

6.

Order fixing procedure

7.

Motions

8.

Pre-hearing conference

9.

Setting date for hearing

10.

Hearing record

11.

Production of documents

12.

Examination of engineer for discovery

13.

Attendance of engineer at hearing

14.

Non-compliance with rules

15.

Time

16.

When proceedings may be heard

17.

Matters not provided for

Application

1. These rules apply to proceedings commenced on or after September 1, 2015.

Interpretation

2. In these rules,

“clerk” means the registrar of the Superior Court of Justice for the area in which the initiating municipality is located.

Commencing proceedings

3. (1) A person may commence a proceeding before the referee by filing one of the following documents in the office of the clerk:

1. Notice of appeal to the referee.

2. Notice of application to the referee.

3. Statement of claim for damages under the Act.

(2) A document commencing a proceeding must contain a statement in the following form:

Take Notice that you are required, within 20 days after the day this notice is served on you, to deliver a notice of appearance to the office of the clerk of the area of ....................... and if you do not deliver a notice of appearance you are not entitled to receive notice of any further steps in this proceeding.

(3) In all proceedings before the referee, the following title of proceeding must be used:

In the Court of the Drainage Referee

Between A.B. [Appellant] or [Applicant] or [Plaintiff]

and

C.D. [Respondent] or [Defendant]

(4) An appellant, applicant or plaintiff who commences a proceeding in person shall indicate on the document commencing the proceeding his or her address for service.

Service of documents

4. (1) A document that is required to be personally served on a party may be served on the party’s nominee and service of the documents on the nominee shall be considered as effective service on the party.

(2) If the Act or these rules require a document to be served on a municipality, the document is effectively served if a copy of the document is left with the chair, mayor, warden, reeve, clerk or deputy clerk of the municipality or with a lawyer for the municipality.

(3) A document commencing a proceeding is effectively served on a party if the party accepts service of it.

(4) If a party is required under the Act or these rules to file an affidavit of service of a document with the clerk, the requirement can be met by filing a copy of the document endorsed with an acceptance of service by a person authorized to practise law along with the date of the acceptance instead of the affidavit of service.

(5) If it appears to the referee that it is impractical for any reason to effect prompt service of a document required to be served personally or by an alternative to personal service, the referee may make an order for substituted service or, where necessary in the interest of justice, may dispense with service.

Notice of appearance

5. (1) A respondent or defendant served with a document commencing a proceeding shall, within 20 days after the day of service, deliver a notice of appearance to the clerk in whose office the proceeding was commenced.

(2) The notice shall contain,

(a) an undertaking to appear;

(b) if the respondent or defendant is represented by a person authorized to practise law, the person’s name, business address and business telephone number; and

(c) if the respondent or defendant intends to appear in person, his or her address, telephone number and address for service.

(3) If the respondent or defendant delivers a notice of appearance after the time permitted for doing so, the respondent or defendant shall promptly provide a copy of the notice to the appellant, applicant or plaintiff by personal service or, if the referee directs, by an alternative to personal service.

(4) Subject to subsection (5), if the respondent or defendant delivers a notice of appearance after the time permitted for doing so and does not provide a copy of the notice as required under subsection (3), the appellant, applicant or plaintiff may proceed as if no notice of appearance had been delivered.

(5) If a respondent or defendant delivers a notice of appearance after the time permitted for doing so, the referee may direct terms under which the respondent or defendant may appear.

(6) If a respondent or defendant fails to deliver a notice of appearance, the respondent or defendant is not entitled to notice of any further steps in the proceeding but may view any documents that are available to the public in the office of the clerk.

Order fixing procedure

6. (1) Within 20 days after the respondent or defendant has delivered a notice of appearance or, if the respondent or defendant has not delivered a notice of appearance, within 20 days after the time permitted under subsection 5 (1) for doing so, the appellant, applicant or plaintiff may move on seven days notice to the other parties for an order fixing the procedure to be followed.

(2) If the appellant, applicant or plaintiff does not move for an order under subsection (1), any party to the proceeding may move on seven days notice to the other parties for an order fixing the procedure to be followed.

(3) On a motion under subsection (1) or (2), the referee shall make an order directing the subsequent steps to be taken by all parties and setting out the timeline for the steps, but the referee may defer making an order if he or she has reason to do so.

(4) A copy of the order shall be served on the parties and filed with the clerk in whose office the proceeding is pending.

(5) If the referee has not made an order setting out the timeline for the procedure and an affidavit is filed with a notice, affidavits in answer shall be filed and served within 20 days after service of the notice and affidavits in reply shall be filed and served within 20 days after service of the affidavits in answer.

Motions

7. (1) A person may initiate a motion before the referee by filing a notice of motion in the office of the clerk.

(2) Every notice of motion shall,

(a) state the date, time and place for the hearing of the motion;

(b) state the precise relief sought;

(c) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on; and

(d) list the documentary evidence to be used at the hearing of the motion.

(3) The moving party shall obtain a hearing date from the clerk before serving the notice of motion.

(4) The notice of motion shall be served on any party or other person who will be affected by the order sought, unless the referee orders otherwise.

(5) The notice of motion shall be served at least 10 days before the date on which the motion is to be heard.

(6) The moving party shall, no later than five days before the hearing date, file a motion record with the clerk containing the following documents:

1. A table of contents describing each document in the record and identifying it by date.

2. A copy of the notice of motion.

3. A copy of all affidavits and other material served by any party for use on the motion.

4. Anything else that the moving party believes the referee may require in order to determine the matters in issue.

(7) If an affidavit is filed with a notice of motion, affidavits in answer shall be filed and served within 20 days after service of the notice and affidavits in reply shall be filed and served within 20 days after service of the affidavits in answer.

Pre-hearing conference

8. (1) The referee may order that a pre-hearing conference be held if the referee determines one is desirable in order to consider any of the following matters:

1. The possibility of settlement of any or all of the issues in the proceeding.

2. Simplification of the issues.

3.   The possibility of obtaining admissions that may facilitate the hearing.

4. The question of liability.

5. The amount of damages, if damages are claimed.

6. The estimated duration of the hearing.

7. The advisability of having the referee appoint an expert.

8. In the case of an action, the number of expert witnesses and other witnesses that may be called by each party, and dates for the service of any outstanding or supplementary expert reports.

9. The advisability of fixing a date for the hearing.

10. Any other matter that may assist in the just, most expeditious and least expensive disposition of the proceeding.

(2) The parties shall participate in the pre-hearing conference in accordance with the referee’s order.

(3) The referee or acting referee who conducts a pre-hearing conference in a proceeding shall not preside at the hearing.

Setting date for hearing

9. After the time for delivering a notice of appearance under subsection 5 (1) has expired, any party to the proceeding may move on 20 days notice for an order setting the date for the hearing.

Hearing record

10. Unless the referee orders otherwise, the plaintiff, appellant or applicant shall, at least seven days before the hearing date, file with the clerk a hearing record containing the following documents:

1. A table of contents describing each document in the record and identifying each document by date.

2. A copy of the document commencing the proceeding under section 3 and the respondent’s notice of appearance, if any, under section 5.

3. A copy of any order made in connection with the hearing.

4. Anything else the referee may require in order to determine the matters in issue.

Production of documents

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. 

(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. 

(3) A party that requires a copy of the transcript of a proceeding under the Act shall order the transcript at its own cost and shall provide a copy to the referee.

Examination of engineer for discovery

12. (1) Except as provided in subsection (2), a party is not entitled to examine for discovery the engineer who prepared a report in respect of the drainage works in question.

(2) The referee may permit that the engineer be examined for discovery in the following circumstances:

1. In the case of a proceeding to quash a by-law passed under the Act, the referee may permit the applicant to examine the engineer on the applicant’s motion.

2. In the case of a proceeding that is an appeal from the report of an engineer, the referee may permit the appellant to examine the engineer on the appellant’s motion.

3. In any other case, the referee may permit a party to examine the engineer on the party’s motion if, in the referee’s opinion, examination of the engineer is required in order to determine the matters in issue.

Attendance of engineer at hearing

13. (1) In a hearing in which oral evidence is to be given and in which a municipality that is a party has procured a report for repair or improvement of a drainage works, the municipality to which the latest engineer’s report in respect of the drainage works was made shall ensure the engineer who made the report attends the hearing. 

(2) At the start of the hearing and before any evidence is given, the referee may call the engineer to give evidence in respect of any matters within the engineer’s knowledge the referee considers likely to help describe the issues in dispute, and the engineer is to be regarded as an expert witness called by the referee and is not eligible, while giving the evidence, to be examined or cross-examined by any of the parties. 

(3) An engineer who is called to give evidence under subsection (2) is eligible to be called later in the hearing as a witness for any party.

Non-compliance with rules

14. (1) Non-compliance with these rules does not nullify a notice or proceeding, but the referee may set aside a notice or proceeding in whole or in part for the non-compliance. 

(2) A motion to set aside a proceeding because of non-compliance with these rules shall be made within 30 days after the moving party discovers the non-compliance.

Time

15. The referee may increase or decrease the time set out in these rules or fixed by order for doing any act on such terms as the referee considers just, and any increase or decrease of time may be ordered even if the time allowed has expired. 

When proceedings may be heard

16. No hearing shall take place and no motion shall be heard during the period starting on December 24 and ending on the following January 6 unless the parties consent or the referee orders otherwise.

Matters not provided for

17. The referee may consider the Rules of Civil Procedure when determining a procedural matter not expressly provided for in these rules.

18. Omitted (revokes other Regulations).

19. Omitted (provides for coming into force of provisions of this Regulation).

 

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