Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West
Guelph ON N1G 4Y2 Tel: 519 826-3433, Fax: 519 826-4232 Email: appeals.tribunal.omafra@ontario.ca
Guelph ON N1G 4Y2 Tél. : 519 826-3433, Téléc. : 519 826-4232 Courriel : appeals.tribunal.omafra@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Hambly Sabourin Beaulac-Beach Municipal Drain – Gosselin Decision Township of Brethour
HSBB Drain (RE) 2010 ONAFRAAT 26
STATUTE:
Drainage Act
HEARING:
July 22, 2010
DATE OF DECISION:
August 20, 2010
2010-26
NEUTRAL CITATION:
2010 ONAFRAAT 26
HAMBLY SABOURIN BEAULAC-BEACH MUNICIPAL DRAIN
July 21-22, 2010 Hearing Decision
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Sylvain Gauthier, in Thornloe, Ontario; Garry Beach, in Belle Vallée, Ontario; and Richard Gosselin, in Brethour, Ontario, under Section 64 of the Drainage Act from quality of construction of the Hambly Sabourin & Beaulac-Beach Municipal Drains in the Township of Brethour.
Before:
John O’Kane, Vice-Chair; Jack Young, Vice-Chair; Claire Belluz, Member
Appearances:
Sylvain and Misty Gauthier- Appellant and landowner
Garry and Marjorie Beach- Appellant and landowner
Al Frasier- Representative for Garry Beach
Paul Courey- Counsel for the Township
Ken Smart- Engineer, K. Smart Associates Limited
Garth Noecker- Drainage Superintendent
Claude Bordeleau- French Interpreter
Pam Bennewies- Clerk/Treasurer for Township, and clerk of the Tribunal for the hearing
Interested Landowners- Ed Dane, Ken and Evelyn Hambly, Jacqueline and Steven Connelly, Allan Scott and Mrs. Scott
DECISION OF THE TRIBUNAL
On June 24th, 2010, the Tribunal issued an Order setting July 21st and 22nd as the dates for hearing the appeals of Garry Beach, Sylvain Gauthier and Richard Gosselin about the quality of construction of a municipal drain under s. 64 of the Drainage Act (the Act). The appeals of Gauthier and Beach proceeded as ordered and the Tribunal issued separate reasons for decision related to the Gauthier and Beach appeals.
The Tribunal dismisses Richard Gosselin’s appeal and will assess costs.
Neither Richard Gosselin nor his lawyer, Ms. Lisa Neil, appeared for the scheduled appeal hearing. It will be apparent in the reasons that follow why the Tribunal elected to issue separate reasons for decision in respect of the Gosselin appeal, why the Tribunal dismisses the Gosselin appeal, and why the Tribunal orders Richard Gosselin to pay costs.
OVERVIEW
Richard Gosselin is very unhappy with several interim decisions made by the Tribunal between May 26th, 2010 and July 20th, 2010.
Presumably, because of Richard Gosselin’s displeasure over those interim decisions he boycotted his July 21st and 22nd appeal hearing.
The Tribunal learned of Richard Gosselin’s decision to boycott his appeal hearing by means of letter transmitted by facsimile from Ms. Neil at 8:15 a.m. on July 21st, 2010. At that time, the Tribunal panel and a Tribunal assistant were approximately 3 kilometres from arriving at the hearing venue in Bethour Township (the Township).
Ms. Neil’s letter advised the Tribunal that:
“in light of the actions and behaviour of the Tribunal and, in particular Vice-Chair O’Kane, and the recent actions by the Township and its counsel which we feel are highly prejudicial to the Appellants and have resulted in a complete lack of procedural fairness in these proceedings Mr. Gosselin will not be in attendance at this morning’s hearing.”
The other appellants referred to by Ms. Neil are Sylvain Gauthier and Garry Beach, who attended the appeal hearings, conducted their appeals, did not mention any prejudice or lack of procedural fairness, and have received separate reasons for decision.
Based on several communications from Ms. Neil to the Tribunal it is likely this decision will be one of several that Richard Gosselin may seek to review under the Tribunal’s Rules of Procedure (the Rules) or by way of judicial review under the Judicial Review Procedure Act (JRPA).
The hearing notice, dated June 25, 2010, for the July 21 hearing sent to all parties including Richard Gosselin and Ms. Neil contained, among other information, the following warning.
AND FURTHER TAKE NOTICE THAT if you do not attend at this Hearing, the Tribunal may proceed in your absence and you will not be entitled to any further notice in the proceedings.
The Tribunal heard the Gauthier and Beach appeals together on July 21st and 22nd and deferred dealing with the Gosselin appeal until mid-morning on July 22nd. By that time, neither Mr. Gosselin nor Ms. Neil had reconsidered their boycott. Therefore, at that time, the Tribunal invited submissions from the Township about the Gosselin appeal.
One telling feature of the Township’s submissions was the reference to Exhibit # 8: an extract from a February 9th, 2006 communication signed by Richard Gosselin that Al Frasier presented to the Council of the Township. It was on that occasion that the Township Council, in accordance with s. 59 of the Act, held a meeting and considered several options arising from the construction tenders exceeding 133% of the drainage engineer’s estimates. Richard Gosselin expressed in plain language his intended approach if the drainage works proceeded:
“Garry Beach and Richard Gosselin, with interested associates are of a single mind and determination on this issue. Consequently, it is their intention to pursue either a workable engineered solution or an acceptable negotiated solution through due process, public protest, obstruction, or disobedience should any or all of these methods become necessary to protect their own interests and the interests of the public at large.” (Emphasis added)
Protest, obstruction and disobedience are certainly thematic in the conduct of Richard Gosselin and Ms. Neil between May 26th and July 21st.
BACKGROUND CONTEXT
Context is all-important to understanding any reason for decision.
The Tribunal will set out that context in three sections: General, Past History, and Recent Events.
- General
The Hambly Sabourin Drain and the Beaulac-Beach Drain (collectively HSBB) together drain a watershed area of primarily agricultural lands in Belle Vallée straddling the Ontario-Quebec border north of New Liskeard.
Both drains were established almost thirty years ago (1980 and 1981, respectively) under the Act. The drains are a series of open ditches that begin on Garry Beach’s property in Lot 11, Con 1 of Brethour Township and run westerly to where they empty into Wright Creek on Richard Gosselin’s property in Lot 7.
In 2000, in response to complaints from some landowners about the drains, the Township appointed drainage engineer K. Smart Associates Limited under the Act to report on repairs and improvements. Ken Smart (the Engineer), a professional engineer with that firm, was designated under s. 8(2) of the Act for overall responsibility for the report and the drainage works since that time. The Engineer delivered a preliminary report in June 2001 and a final report dated July 12th, 2002. The July 12th, 2002 report resulted in a number of appeal proceedings eventually leading to an addendum #1 report dated November 22nd, 2004. The final report and addendum #1 constitute the “Report” for the purposes of this decision.
The construction tenders received for the drainage work proposed in the Report exceeded 133% of the Engineer’s estimates as set out in the Report. As a result, the Township held a further public meeting in February 2006 under s. 59 of the Act to consider the increased costs of the drainage works. Despite the increased cost of construction, the Township, with input from the landowners, decided to proceed with the drainage works. It was in the context of that Township decision to proceed with the drainage works that Richard Gosselin expressed his intended response as noted in the Overview section on page three of this decision.
The construction work was to begin and finish during the summer season of 2006. However, while construction began then, it was not substantially completed until 2009.
The contractor that was awarded the construction contract began to work but did not finish and then subsequently abandoned the project part way through. The Township hired a second contractor to complete the project.
The construction work called for in the Report for the Gauthier and the Beach properties has been completed by the second contractor, subject to the quality of construction issues raised in their appeals.
Some construction work called for in the Report for the Gosselin property in Lot 7 remains to be completed. That work is about $6,500 worth of bar removal and minor bank stabilization in the deep gully at the bottom reach of the drain near Wright Creek.
- Past History
Richard Gosselin and others appealed the July 12th, 2002 report under s. 48 and s. 54 of the Act. The Tribunal held that first appeal hearing November 8th, 2002 and released interim decisions on February 20th, 2003 and May 12th, 2003, and a final decision on September 29th, 2003.
The Engineer sought a review of that September 29th, 2003 decision under s. 29 of the Tribunal’s Rules. The request for review resulted in a second hearing on June 25th, 2004 and a further Tribunal decision dated October 8th, 2004.
In January 2005, Richard Gosselin and others appealed the assessments in the Report under s. 54 of the Act to the Court of Revision.
In February 2005, Richard Gosselin and others started a proceeding before the Drainage Referee under s. 79 of the Act to compel drain repairs associated with the original 1980 report that created the drains.
On May 25th, 2005, the Tribunal heard the assessment appeals of Richard Gosselin and others from the decision of the Court of Revision. The Tribunal released a decision on June 10th, 2005.
On July 4th, 2005, Richard Gosselin and others attempted an appeal of the Tribunal’s June 10th, 2005 decision to the Drainage Referee, even though under s. 101 of the Act that Tribunal decision was a final decision.
During the summer of 2005, Richard Gosselin and others requested the Tribunal review its June 10th, 2005 decision. On August 17th, 2005, the Tribunal declined to grant Richard Gosselin’s requested review.
In 2007, Richard Gosselin started a Superior Court of Justice lawsuit against the Township. The lawsuit was over the Township’s alleged failure to do necessary repairs and improvements to the drain and it alleged that because of the Township’s negligence and breach of statutory duty, Mr. Gosselin had suffered damages. The Court dismissed that 2007 lawsuit (SCJ File No. 55048/07) without costs, on a consent basis by an Order of the Honourable Justice McGarry on March 25th, 2009.
Also in 2007, Richard Gosselin started expropriation proceedings before the Ontario Municipal Board under the Expropriations Act. The essence of Mr. Gosselin’s claim for compensation was his assertion that the municipal drainage works resulted in an expropriation of his lands. The Tribunal understands that Richard Gosselin subsequently withdrew that expropriation proceeding.
- Recent Events
The following chronology recites the steps taken by Richard Gosselin since the Tribunal convened the appeal hearing in Brethour on May 26th, 2010. While the reference throughout is to Richard Gosselin, his lawyer Ms. Neil advanced each step. Where a step or event listed below relates to an adjournment request, it is sequentially numbered with a sub-heading.
Adjournment Request No.1: On May 26th, 2010 the Tribunal convened in Brethour for the start of a scheduled two-day appeal hearing. The appeal panel and staff had travelled from Thunder Bay, Guelph, Brampton and Gravenhurst. The French language interpreter arranged at Richard Gosselin’s request had travelled from Kingston. The Engineer and Drainage Superintendent had travelled from Kitchener. About a dozen local landowners plus the appellants and Ms. Neil attended. At the start of the hearing, Ms. Neil made a motion to adjourn her client’s appeal hearing. The other two appellants supported the adjournment. The appellants wanted the adjournment to obtain documentary disclosure from the Township of materials they asserted would support their quality of construction appeals. Their documentary discovery arguments in support of the adjournment focused on cost overruns, duplicated construction work, unfinished construction work, misuse, mismanagement and neglect of the Township, the Engineer and the contractors. However, the appellants had failed to use any of the pre-hearing processes available to them to access such documents under either the Tribunal’s Rules or the Municipal Freedom of Information and Protection of Privacy Act. Since the Report contained design and construction specifications for the drainage works, the Tribunal panel expressed to the appellants its reservations that any of the documents they sought could be supportive in appeals about quality of construction. Despite those reservations, the Tribunal granted the appellants’ adjournment motion on terms after canvassing all present about available dates. However, the appellants’ last minute adjournment request at the start of the scheduled appeal hearing caused a great waste of resources. The Tribunal does not accept that Ms. Neil suddenly realized at the hearing on May 26th that she wanted additional documentary disclosure. However, Ms. Neil did not give anyone involved the courtesy of any notice of the intended adjournment request. That advance notice could have saved considerable wasted resources. The Tribunal adjourned the appeal hearing to June 24th-25th, 2010 with written reasons to follow. While the Rules permit oral motions during a hearing, in these circumstances, it was inappropriate to seek an adjournment without advance written notice to all parties.
On May 28th, 2010, the Tribunal issued a Preliminary Motion Order with its reasons and directions in response to the appellants’ adjournment motion. In addition to formalizing the June 24th-25th appeal hearing dates the Preliminary Motion Order directed a specific protocol for the parties to ensure limited but timely documentary disclosure. The relevant portions of that Preliminary Motion Order are:
- In respect of the documents the appellants seek from the Municipality:
a. The Township of Brethour is directed to make available for inspection by the appellants the municipality’s complete file related to the Hambly-Sabourin and Beaulac-Beach Municipal Drain, subject only to an exception for documents protected by solicitor client privilege; litigation privilege; and “in camera” minutes of Township Council meetings.
b. The appellants are directed to attend to review the municipality’s file and list and mark for copying any documents the appellants believe are relevant to their Drainage Act appeals.
c. At the expense of the appellants, the municipality is directed to make one set of photocopies of the marked documents for each of the appellants.
- The drainage engineer, K. Smart Associates Limited is directed to make a copy of the field notes of the construction supervisor for the appellants, at the appellants’ expense.
Adjournment Request No. 2: On June 10th, 2010 Ms. Neil wrote to the Tribunal asking the appeal panel to amend its May 28th Preliminary Motion Order to give Richard Gosselin additional time to respond to the evidence from the Township and the Engineer. The specific relief requested was to adjourn the June 24th-25th hearing to September 2010. While the letter referred to the Tribunal’s power to review its own decisions, the letter was not in the proper format for a review under the Tribunal’s Rules. While the letter referred to the Tribunal’s process for adjournment motions, Ms. Neil did not follow the Tribunal’s motion Rules. There was no request for a motion date, there was no Notice of Motion, and there was no supporting affidavit evidence. In essence, the letter sought to re-argue the adjournment motion of May 26th. The Tribunal appeal panel directed Tribunal staff to communicate to Ms. Neil that she should follow the Tribunal’s motion Rules if she wanted to seek an adjournment of the June 24th-25th hearing.
On June 11th, 2010, in response to Ms. Neil’s request for a motion hearing date in accordance with the Tribunal’s Rules, the Tribunal Coordinator set June 24th as the motion date for Ms. Neil’s adjournment request. Due to the timing of Ms. Neil’s request for a motion hearing, she obtained a de facto adjournment of the June 24th-25th appeal hearing.
Adjournment Request No. 3: On June 16th, 2010, Ms. Neil filed Richard Gosselin’s June 15th, 2010 Notice of Motion and June 15th affidavit in support of the adjournment motion.
On June 24th, 2010, the Tribunal heard Richard Gosselin’s second adjournment motion by telephone conference call. The Tribunal learned during the motion hearing that despite the Tribunal’s May 28th Order and directions reproduced above, none of the appellants nor Ms. Neil had attended at the Township to review the Township’s file, despite the Township making the file available for review as directed. Much like the adjournment motion of May 26th, a large part of Ms. Neil’s argument focused on documents Richard Gosselin needed to get from either the Township or the Engineer. The Tribunal received no satisfactory answer from Richard Gosselin about why he failed to follow the limited documentary discovery process established in the Tribunal’s May 28th Order. The appeal panel again expressed its doubts that the type of documents Ms. Neil wanted related to a quality of construction appeal. The appeal panel canvassed dates with all parties about availability to resume the appeal in July, August and September. The appeal panel raised a concern over the costs wasted because of Richard Gosselin’s two adjournment requests. The Tribunal directed the Township to file a summary of its wasted costs. The Tribunal heard submissions from the parties about costs and reserved its decision on the second adjournment motion.
On June 24th, 2010, the Tribunal issued a brief written decision granting Richard Gosselin’s adjournment motion to July 21st and 22nd, 2010 and advising that full reasons for that decision would follow.
Adjournment Request No. 4: On June 29th, 2010, Ms. Neil wrote to the Tribunal to provide a response to the Township’s summary of wasted costs and to comment on the Tribunal’s June 24th decision. The letter ignored the amounts in the Township’s summary of wasted costs. The letter sought to re-argue the adjournment motion and admonished the Tribunal that it had acted beyond its jurisdiction to raise costs on its own motion. Ms. Neil’s letter overlooked the Tribunal’s authority set out in s. 98(10) of the Act and the authority in Rule 1.03 and Rule 28.03. Ms. Neil’s letter also suggested that because of the June 24th decision her client might withdraw his appeal; seek to review the Tribunal’s decision; or seek to have the matter continued directly to the Drainage Referee. Parties to proceedings before the Tribunal have recourse from Tribunal decisions. While the Act does not provide an appeal from the Tribunal to the Referee for quality of construction appeals, there are review procedures under the Rules and there is judicial review under the JRPA. Those procedures exist as safety nets in the event of an incorrect Tribunal decision. However, Ms. Neil chose not to pursue those rights of recourse but instead she chose to write the Tribunal advising that her client might do some or all of those things. The Tribunal views the purposes of such a letter are to attempt to re-argue a point already determined or attempt to intimidate the Tribunal.
On June 29th, 2010, the Tribunal issued its detailed reasons for decision arising from the June 24th motion hearing. The Tribunal did not award any costs at that time. The reasons confirmed why the Tribunal adjourned the appeal hearing to July 21st -22nd. However, because the Tribunal was concerned that Richard Gosselin misunderstood the nature of a quality of construction appeal it included the following comments in its reasons to provide the appellants some guidance:
Based on our review of all the materials filed in respect of these appeals and listening to the submissions of the parties, we make the following observations:
Some landowners do not trust the Township and believe it and its agents are responsible for mismanagement and neglect.
Some landowners question the transparency of the Township’s actions.
Some landowners question the drain design, cost overruns, delays and improper maintenance.
Some landowners question the quality of construction.
We list these observations as a starting point for our discussion about the Tribunal’s authority in this appeal. The nature of this appeal is clear. It is an appeal under section 64 of the Act, which provides as follows:
Appeal by owner of land
- Any owner of land dissatisfied with the quality of the construction of a drainage works constructed under this Act may, at any time during construction or up to one year from the date of completion of the drainage works as certified by the engineer or a drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated.
The appeal section does not encompass management of the process, or transparency of the process, or cost overruns, or interest charges, or delays, or design issues, or maintenance failures. That is not to suggest that those concerns of the landowners are unfounded or unworthy of consideration. However, the Tribunal has no authority to address those issues in a section 64 appeal under the Act unless they relate directly to the quality of construction. Therefore, the scope of the appeal issues, which defines the parameters for relevant evidence, should also be clear.
Adjournment Request No. 5: On July 13th, 2010, shortly before 4:00 p.m., Ms. Neil wrote the Tribunal seeking a pre-hearing conference under Rule 24. The stated purpose of the pre-hearing conference was to adjourn the July 21st-22nd appeal hearing to allow Richard Gosselin to take all his issues, including his quality of construction issues, to the Referee. Ms. Neil’s request also suggested that since the Tribunal’s jurisdiction under s. 64 was limited, it would result in a multiplicity of proceedings. Ms. Neil also suggested the Tribunal failed to provide direction and assistance to ensure an expeditious, fair and cost effective resolution of her client’s issues. The letter represented Ms. Neil’s fifth adjournment request. The letter was the second attempt to re-argue the July 21st -22nd hearing dates, albeit based on entirely new arguments. The submissions in Ms. Neil’s letter are completely without merit. The submissions acknowledge, for the first time, that some of Richard Gosselin’s issues, framed as s. 64 issues, are really s. 79 issues relating to drain maintenance under the original 1980 report, which maintenance issues are outside the Tribunal’s jurisdiction. It is not the Tribunal’s responsibility to frame the appeal for the appellant. It is not the Tribunal’s responsibility to provide the appellant with a “one stop shop” for all issues when the Legislature has drafted the Act with discrete jurisdiction to the Tribunal and the Referee.
Adjournment Request No. 6: On July 13th, 2010, shortly after 4:00 p.m., Ms. Neil wrote the Tribunal enclosing a 33-page “Request for Review” document that sought a review of the Tribunal’s June 29th, 2010 decision. Ms. Neil ostensibly made the “Request” under the Tribunal’s Rule 29. Rule 29.03 applies to interim orders or procedural rulings such as the June 29th Order. A request for review of an interim or procedural order must be made to the appeal panel by way of a motion. Under the Tribunal’s Rules, a party first must get a motion date from the Tribunal Coordinator, and then prepare a Notice of Motion and supply supporting affidavit evidence. A Notice of Motion has to set out “the precise relief sought”. Ms. Neil’s “Request” did not follow any of those procedures and there was no relief requested. Furthermore, the only substantive component to the June 29th Order is the setting of the July 21st-22nd appeal hearing dates. Therefore, the “Request” was a delaying tactic to secure an adjournment of those appeal-hearing dates.
On July 16th, 2010 the Tribunal issued a decision denying Ms. Neil’s request for a pre-hearing conference because the purpose of the pre-hearing conference was essentially a last minute attempt to re-argue the June 24th adjournment motion based on some new, but meritless, grounds.
Adjournment Request No. 7: On July 16th, 2010, Ms. Neil wrote to the Tribunal advising that Richard Gosselin intended to seek a review of the Tribunal’s decision of earlier that day. Ms. Neil went on to advise the Tribunal that Richard’s Gosselin’s position was that the Tribunal must deal with his earlier Request for Review of the Tribunal’s June 29th decision and that Request “operates to stay the decision to adjourn the Appeal hearing to July 21st, 2010.” Ms. Neil’s letter closed with her comment “we fail to see how the hearing can proceed next week.” Ms. Neil’s letter, like Richard Gosselin’s position, failed to appreciate that review proceedings under the Tribunal’s Rules do not operate as a stay of orders or proceedings. Further, a party’s “intention” to pursue a review, a judicial review or an appeal if the statute provides for appeals is distinct from actually pursuing a review, judicial review or appeal. In these circumstances, contrary to Ms. Neil’s advice, the intimated “intention” to seek a review of the Tribunal’s July 16th decision never materialized. However, the letter, and specifically the closing comment mentioned above reveals that Ms. Neil’s July 16th letter to the Tribunal was part of a strategy to adjourn the July 21st-22nd appeal hearing dates.
On July 16th, 2010, Tribunal staff, acting on the direction of the appeal panel wrote to Ms. Neil confirming that the panel would comment on the “Request for Review” at the start of the July 21st appeal hearing. That letter to Ms. Neil also confirmed that requests for review do not operate as a stay of a Tribunal decision.
Adjournment Request No. 8: On July 19th, 2010, Ms. Neil wrote to the Tribunal indicating that Richard Gosselin intended to seek judicial review of the “decisions and actions of the Tribunal. As a result, it is imperative that the Tribunal provide its response to Mr. Gosselin’s Request for Review dated July 13th, 2010, as soon as possible.” The letter also sought to adjourn the July 21st-22nd appeal hearing because the Table of Contents from the Township’s document book contained “several new documents and much new evidence”. The letter went on to suggest that the introduction of the allegedly new documents and evidence would “result in serious prejudice to the Appellants which will cause them irreparable harm. The Appellants should be granted an adjournment.” The letter further advised the Tribunal that “in light of the Tribunal’s recent decisions and the Township’s late filing of new evidence and the threat of costs ...., Mr. Gosselin will not be in attendance at Wednesday’s hearing. It is our position that Mr. Gosselin cannot obtain a fair hearing on the merits of his Appeal before the panel....It is our further position that the serious issues of ultra vires actions, prejudicial treatment of the appellants and the threat of costs raised in Mr. Gosselin’s Request for Review should operate to stay the current proceedings to ensure the fairness of the hearing. We wish to confirm to the Tribunal that Mr. Gosselin is neither withdrawing nor abandoning his appeal.” The letter contained the fifth attempt by Ms. Neil to adjourn the July 21st-22nd appeal hearing since the Tribunal set those dates in its June 24th decision. Curiously, Ms. Neil framed the letter as if she was speaking on behalf of the “appellants”. However, Ms. Neil only represented Richard Gosselin. Ms. Neil failed to identify in the letter what Township documents and evidence in the Township’s Table of Contents were “new”. However, the allegation of new documents and evidence was misplaced since, according to the Tribunal’s previous procedural Orders, rulings about relevance and admissibility of any document or evidence was to be determined at the appeal hearing. The Tribunal was under no “imperative” to deal with “Request for Review”, despite Ms. Neil’s insistence of that. The “Request” did not conform to the Tribunal’s Rules. The “Request” was not supported by any sworn evidence. The “Request” did not contain any specific request for relief. The “Request” did not operate as a stay of Tribunal Orders or hearings. Furthermore, an “intention’ to seek judicial review does not operate as a stay of Tribunal Orders or hearings. Finally, Richard Gosselin’s stated intention to boycott the appeal hearing did not operate as a stay of Tribunal orders or hearings.
On July 19th, 2001, Tribunal staff, acting on the direction of the appeal panel, wrote to Ms. Neil responding to her July 19th letter. Staff advised Ms. Neil that there “is no stay of the Tribunal’s processes under the Judicial Review Procedure Act. Please note the advisory warning contained in the Tribunal’s hearing notice that if a party fails to attend at a scheduled hearing, the Tribunal may proceed in that party’s absence. The appeal panel has directed me to advise you that the hearing will proceed as ordered on July 21st, 2010.”
Adjournment Request No. 9: On July 20th, 2010, Ms. Neil wrote to the Tribunal enclosing a Notice of Motion to be heard orally at the start of the July 21st appeal hearing. The relief sought in the motion was the adjournment of the July 21st-22nd appeal hearing. The grounds in support of the adjournment included the allegedly new documents and evidence listed in the Table of Contents of the Township’s document book. Additionally, the notice suggested that a hearing in Richard Gosselin’s appeal was “premature” because construction of the drainage works was not complete. There was no affidavit evidence supporting the motion but the notice confirmed that Ms. Neil would rely on the oral evidence of Richard Gosselin at the hearing of the motion the next day. The Notice of Motion contained Ms. Neil’s sixth request to adjourn the appeal hearing dates since the Tribunal set the hearing date on June 24th.
Adjournment Request No. 10: On July 21st, 2010, about 45 minutes before the scheduled start of the appeal hearing in Brethour, Ms. Neil wrote to the Tribunal enclosing an “Amended Notice of Motion”. The letter advised that Ms. Neil wished the adjournment motion to be heard “in writing as opposed to orally” but that Richard Gosselin would not attend. The reason cited for Richard Gosselin’s non-attendance at the appeal was the previously cited “actions and behaviour of the Tribunal and recent actions by the Township and its counsel”. The letter confirmed again that despite Richard Gosselin’s planned non-attendance, he was “not withdrawing or abandoning his appeal.” The enclosed “Amended Notice of Motion” was identical to the July 20th “Notice of Motion” except for the proposed “in writing” method of hearing. The adjournment request remained the same, as did the grounds and the evidence relied on. In contradiction to Ms. Neil’s letter and the proposal to hear the motion “in writing”, Richard Gosselin’s “oral” evidence remained as the first item in the list of evidence relied on. There was no supporting affidavit evidence filed with the July 21st Amended Notice of Motion.
DISPOSITION OF RICHARD GOSSELIN’S REQUEST FOR REVIEW
On July 13th, 2010, Richard Gosselin filed a “Request for Review” of the Tribunal’s June 29th decision granting Richard Gosselin’s June 24th adjournment motion, on terms.
The Tribunal is unable to deal with the “Request for Review” for the following reasons:
Rule 29.03 applies to this “Request for Review”
The “Request for Review” is not in the proper motion format required by the Rules
The “Request for Review” has no supporting affidavit evidence as required by the Rules
The “Request for Review” relates primarily to costs when the Tribunal made no cost award in its’ June 29th Order
There is no remedy sought in the “Request for Review”
The “Request for Review” is an attempt to delay the appeal hearing
The focus of the “Request for Review” was the July 21st-22nd appeal hearing dates that had been set following argument of the June 24th adjournment motion. Ms. Neil had previously tried unsuccessfully to re-argue those dates in her June 29th letter. The July 13th “Request for Review” was the third attempt to argue about the adjournment dates.
In addition to the procedural defects in the “Request for Review”, the Tribunal finds Richard Gosselin’s “Request” is without any merit. The “Request” failed to contain any evidence or argument supporting why a review of the decision was warranted. Furthermore, the “Request” was silent about what relief was sought by a review of the decision.
DISPOSITION OF RICHARD GOSSELIN’S MOTION TO ADJOURN
On July 20th and 21st, 2010, Richard Gosselin filed two Notices of Motion for an adjournment to be argued, initially orally and then in writing at the beginning of the appeal hearing. The motion was Richard Gosselin’s sixth and seventh attempt to adjourn the appeal hearing since June 24th and the ninth and tenth adjournment request since May 26th. Richard Gosselin did not file a supporting affidavit and he did not lead any supporting oral evidence despite the motion confirming that he would lead oral evidence.
Neither Mr. Gosselin nor Ms. Neil appeared at the hearing.
The Tribunal had no sworn evidence before it on the adjournment motion on which it could make a decision.
In the circumstances, the Tribunal dismisses the adjournment motion.
DISPOSITION OF THE GOSSELIN SECTION 64 APPEAL
At the Tribunal hearing on July 22nd, 2010, counsel for the Township argued that the appellant Richard Gosselin has the burden of proving his appeal. The Tribunal finds that this submission is correct.
Counsel for the Township argued that Richard Gosselin, by his boycott of the hearing, failed to adduce any evidence and therefore the Tribunal had no evidence on which it could make any finding in favour of Richard Gosselin. The Tribunal finds that this submission is also correct.
Counsel for the Township argued the Tribunal had to dismiss the Gosselin appeal. In the circumstances, the Tribunal finds that this submission is also correct. Therefore, the Tribunal dismisses the Gosselin appeal.
However, work remains to be completed under the Report on Richard Gosselin’s property on Lot 7, Con 1. Therefore, as requested by counsel for the Township, the Tribunal will order that the Township, the Engineer and contractor are at liberty to complete the Report work on the Gosselin property without interference. The Township, the Engineer and the contractor are free to refer to the Tribunal’s decision in any application to the Superior Court of Justice for an injunction to restrain any landowner interference.
TOWNSHIP SUBMISSIONS ON COSTS
Counsel for the Township submitted that in his many years as a lawyer he had never encountered anything like this case. He described the drainage work as reasonably straightforward. However, he pointed out that since 2003, various issues with the drain project had been before the Tribunal or the Drainage Referee twelve times.
Counsel for the Township submitted that Richard Gosselin’s conduct, particularly since 2006, was irrational and vindictive. He pointed out that it was uncommon for municipalities to seek costs from landowners in drainage appeals. However, in these circumstances he argued that it was important to send a message to Richard Gosselin and others. He argued that doing nothing to censure Richard Gosselin’s conduct was equivalent to encouraging such conduct.
Counsel for the Township asked for costs of $6,295.00. The Township based that amount on its wasted costs associated with the two adjourned appeal hearings of May 26th and June 24th, 2010. The Township counsel filed a Summary of Costs Thrown Away totalling $6,295.00. The genesis of that Summary was the Tribunal’s request, during the June 24th motion hearing, that Township counsel provide the Summary after that hearing. Township counsel submitted that he had provided the Summary to Ms. Neil on June 25th and she had never challenged the amount sought by the Township.
Township counsel argued that because the Tribunal’s decision about the May 26th adjournment was silent on costs, there was no barrier to the Tribunal making a subsequent cost award for that adjourned hearing. Since the Tribunal’s May 28th Order is silent on costs the Tribunal has authority to deal with any costs wasted because of that adjourned hearing. It would be different had the Tribunal included a term that there be “no costs” of the earlier adjournment.
Township counsel argued that the Tribunal’s June 29th Order arising from the adjournment made it clear that costs was a live issue and the Tribunal elected simply not to make any cost award “at this time”.
Township counsel submitted that he was reluctant to seek costs of July 21st and 22nd since counsel and his witnesses attended for the Beach and Gauthier appeals.
Township counsel asked that any costs awarded apply to the credit of the drain and be collectible from Richard Gosselin as taxes on any land that he owns on the drain. He also asked for the Tribunal’s direction that the Township be permitted to enter the cost award on the tax roll immediately to ensure the Gosselin lands were bound by any costs awarded.
Township counsel also asked that the Tribunal order that Lisa Neil reimburse her client Richard Gosselin for 50% of any cost award since he attributed the recent bad conduct to Ms. Neil.
Township counsel referred the Tribunal to Rule 57.07 of the Rules of Civil Procedure. He explained that in all his practice he never had occasion to refer to Rule 57.07 that authorizes a court to order a lawyer to pay costs personally when the lawyer has, through undue delay, negligence or other default caused unreasonable costs. Township counsel argued that no lawyer ought to have done what Ms. Neil did in this case. He argued the lawyer always has an alternative to tell a client they are wrong and that the lawyer will not act.
Township counsel also advised the Tribunal that he had tried several times to engage Ms. Neil about narrowing the appeal issues, however, despite his efforts, Ms. Neil refused to respond to him.
In response to a question from the Tribunal Chair, Township counsel submitted that the Tribunal was not limited to making a cost award of $6,295. He submitted that the Tribunal’s authority was to do what was just in the circumstances.
REASONS FOR THE TRIBUNAL’S COST AWARD
The Tribunal concludes in these circumstances that Richard Gosselin should pay costs to the Township totalling $10,000.
The Township incurred the legal, engineering and staff costs associated with responding to Richard Gosselin’s appeal. The Township incurred wasted costs associated with the adjourned appeal hearings of May 26th-27th and June 24th-25th. The Township incurred costs associated with being ready to respond to Richard Gosselin’s appeal on July 21st-22nd even though Richard Gosselin did not appear.
The costs incurred by the Township are ultimately borne by the landowners on the drain as part of the assessment of the costs of the drain project or borne by the taxpayers in the municipality. In either event, it would be unfair to burden landowners on the drain or taxpayers in the municipality with costs incurred because of the tactics of Richard Gosselin that caused needless waste and expense. Therefore, the $10,000 costs assessed against Richard Gosselin will be credited against the costs of the drain before calculating the final assessments of the landowners on the drain.
The Tribunal will also grant the Township’s requested relief to add the costs assessed against Richard Gosselin as a special lien against Richard Gosselin’s land on the drain.
The Tribunal’s jurisdiction in the Gosselin appeal begins, for purposes of this costs discussion, with the start of the May 26th hearing. However, there is a long and clearly adversarial history to the HSBB drain that the Tribunal considers important context.
- Jurisdiction to Award Costs
The Tribunal’s jurisdiction over drainage appeals flows from the Act. Sections 98(10) and (11) give the Tribunal wide discretion to determine the costs of “any proceedings” under the Act, regardless if a party requests it or not, “as the Tribunal considers proper”. That wide discretion could include “bad conduct” cost awards in appropriate circumstances.
However, additional Tribunal jurisdiction in respect of costs flows from the Statutory Powers Procedure Act (SPPA). Section 17.1 of the SPPA gives the Tribunal jurisdiction to order costs of a proceeding where a party’s conduct has been unreasonable, frivolous or vexatious or a party has acted in bad faith and where the Tribunal has created its own rules of procedure governing cost awards. The Tribunal concludes that in addition to its wide jurisdiction to award costs under the Act, the SPPA provides narrower jurisdiction to award costs that focuses on controlling “bad conduct” of a party.
In the circumstances of this case, the Tribunal concludes that Rule 28 provides a useful guideline to exercise the Tribunal’s costs authority under s. 98(10) of the Act.
Rule 28.02 provides “that the Tribunal can make a bad conduct costs award at any time during a proceeding.”
Rule 28.04 defines bad conduct as “clearly unreasonable, frivolous or bad faith conduct” and then provides a non-exhaustive list of bad conduct examples that includes:
Failing to attend a hearing
Lack of co-operation during pre-hearing proceedings
Changing a position without notice
Failing to comply with a procedural order
Conduct necessitating unnecessary adjournments
Failing to present evidence
Acting disrespectfully
In an appropriate case, the Tribunal can order costs payable even where no party asks for costs, under the Act, or the SPPA and the Rules. While the Township in this case has asked the Tribunal to make a cost award against Richard Gosselin, the circumstances are such that even in the absence of the Township’s request, the Tribunal would have made a cost award against Richard Gosselin.
- The Request to Require Ms. Neil to Reimburse Part of the Costs
While Rule 1.09 permits the Tribunal to use the Rules of Civil Procedure by analogy, that use relates to procedural matters not found in the Tribunal’s Rules. The Rules of Civil Procedure cannot give the Tribunal jurisdiction that it does not already have from some statutory source. Section 98(10) of the Act gives the Tribunal authority to make a cost award against a “party” to a drainage appeal. The SPPA gives the Tribunal authority to make a cost award against a “party”. Neither the Act, nor the SPPA define the word “party”. In the context of this legislation and the circumstances of this appeal, the Tribunal cannot interpret the word “party” to include a party’s lawyer. The Tribunal has no authority in these circumstances to make a cost award against Ms. Neil.
Therefore, the Tribunal cannot make an order using Rule 57.07 of the Rules of Civil Procedure that requires Ms. Neil to reimburse her client for any part of the cost award.
However, in these circumstances, had such jurisdiction existed, the Tribunal would have made such an order based on Ms. Neil’s conduct in these proceedings. The unreasonable, frivolous or vexatious conduct of Ms. Neil includes the following:
On June 10th, apparently in response to the Tribunal’s May 28th Order, Ms. Neil wrote directly to the panel members seeking an amendment of the Order in the nature of an adjournment of the scheduled June 24th appeal date. The Tribunal had established that date at the May 26th hearing with input from all parties, including Ms. Neil. The Tribunal Rules set out the procedures to follow to review a decision and for motions. Those procedures protect the integrity of the process to ensure a level playing field for all parties and an “open advocacy” process. Rather than follow those Rules, Ms. Neil sought to re-argue the adjournment motion she had made on May 26th but outside an “open advocacy” process. Apart from a formal review motion or an adjournment motion, Ms. Neil could have first obtained the consent of the other appellants and the respondent Township to the adjournment and then approached the Tribunal with a joint communication and a consent adjournment. However, Ms. Neil opted to communicate directly with the decision-makers. While the Tribunal might excuse an unrepresented party from such correspondence, there is no excuse when a lawyer sends such correspondence.
During the June 24th adjournment motion made by Ms. Neil, the Tribunal learned that neither Ms. Neil nor her client had followed the documentary disclosure process the Tribunal established in its May 28th Order. The Tribunal established that process because of Ms. Neil’s first adjournment motion on May 26th and her arguments that the Township had delayed providing certain documents she felt necessary for her client’s appeal. That process, had it been followed by Ms. Neil, would have ensured no further delays in getting documents. First, that process would have given Ms. Neil access to review the entire Township file. Second, that process would have allowed Ms. Neil to create a list of every document she deemed relevant to her client’s s. 64 appeal. Third, that process would have required the Township to make Ms. Neil copies of those documents. Fourth, that process would have provided Ms. Neil a foundation for any future arguments about documentary production, relevance and admissibility. As proceedings unfolded, Ms. Neil repeatedly claimed that the Township or the Engineer were withholding “documents” without any particular specificity. Rather than follow the Tribunal Order, Ms. Neil opted to write to the Township to get additional documents. Even when a lawyer thinks they know better than the Tribunal, it is disrespectful and perilous for their client when the lawyer disregards a Tribunal Order. Ms. Neil did not have any satisfactory explanation to give the Tribunal about why she opted to disregard the documentary disclosure process set out in the May 28th Order. However, Ms. Neil’s decision to follow her own process resulted in her having to seek the second adjournment, in the motion she brought on June 24th to adjourn the appeal hearing scheduled for June 24th-25th.
On June 29th, partly in response to the Tribunal’s June 24th Interim Order, Ms. Neil again wrote to the Tribunal. That letter sought to re-argue the adjournment motion and obtain a different hearing date. Once again ignoring Tribunal Rules for review motions or adjournment motions, Ms. Neil sought in letter format to advise the Tribunal about its’ authority. That letter ignored the Tribunal’s costs authority from s. 98(10) of the Act and the Tribunal’s authority from Rule 1.03 to raise the issue of costs on its own initiative. Ms. Neil’s letter launched into a lecture about how extremely disillusioned her client was and how she could not understand how the Tribunal had the ability to award costs. Ms. Neil’s letter completely ignored that the Tribunal had made no costs order in either the May 26th or the June 24th adjournments. Ms. Neil thought it appropriate, in letter format, to set the Tribunal straight on the type of documents that a municipality and a drainage engineer are obliged to maintain in respect of a drainage project. Unfortunately, Ms. Neil again missed the point of the documents completely. Her client’s appeal was not about what documents are required for a drainage project. Her client’s appeal was under s. 64 where the Tribunal’s jurisdiction is about the quality of construction of the drainage works. The Report contained an engineered design and construction specifications for the drain. Quality of construction appeals relate to what was constructed and how it was constructed compared against the design and specifications from the Report. The misguided focus on every document created as part of the drainage project was Ms. Neil’s attempt to expand the appeal beyond the Tribunal’s jurisdiction under s. 64. However, the worst part of Ms. Neil’s letter is the last paragraph. That last paragraph attempted to influence the Tribunal’s decision-making by means other than open persuasion as an advocate. The essence of that last paragraph was that unless the Tribunal granted Richard Gosselin’s request to change the dates for the appeal, a review or judicial review would follow. That kind of veiled intimidation does not work. However, for a lawyer to attempt to influence a Tribunal that way displays disrespect for the Tribunal and contempt for the integrity of the Tribunal processes.
On July 13th, after her previous letter was unsuccessful securing an adjournment of the July 21st-22nd appeal hearing, Ms. Neil wrote the Tribunal asking to convene a pre-hearing conference under Rule 24. Ms. Neil indicated the purpose of the pre-hearing conference was to adjourn the July 21st-22nd hearing. Up until July 13th, Ms. Neil had successfully obtained two adjournments of the appeal hearing (May 26th and June 24th hearing dates) and had been unsuccessful in her June 29th adjournment request. Having been unsuccessful with her adjournment arguments in her June 29th letter, Ms. Neil adopted a strategy to seek an adjournment to side-step the Tribunal and take all her client’s issues before the Drainage Referee. The July 13th request for a pre-hearing sought what amounts to an indefinite stay of proceedings to allow Richard Gosselin to bring his appeal before the Referee. The Tribunal had no evidence of any proceeding before the Referee. Ms. Neil offered no authority for the Tribunal to grant an indefinite stay of proceedings. Ms. Neil offered no authority for the proposition that the Referee could hear all Richard Gosselin’s issues. The Tribunal doubts that the Referee has such authority. The Tribunal also lacks jurisdiction to give the Referee that authority by abdicating its’ jurisdiction with an indefinite stay of proceedings. The request for a pre-hearing was a transparent attempt to secure a platform to re-argue the unsuccessful adjournment request.
On July 13th, apparently in response to the Tribunal’s June 29th reasons for decision, Ms. Neil filed a 33-page document she titled a “Request for Review”. The Tribunal’s Rule 29 clearly sets out the procedure on a request for review. Rule 29.03 directs that a review of an interim order or procedural ruling shall be made on motion to the panel hearing the appeal (emphasis added). Ms. Neil ought to have secured a date for a motion before the panel. Ms. Neil ought to have served and filed a Notice of Motion containing the precise relief sought. Ms. Neil ought to have served and filed a sworn affidavit containing the evidence supporting her “Request for Review”. Ms. Neil did none of those things required by the Tribunal’s Rules. The essence of the “Request for Review” focused on the Tribunal’s comments about costs. However, the Tribunal had made no costs order at that point. The “Request for Review” did not identify the precise remedy Ms. Neil sought. There was no merit in the arguments Ms. Neil advanced in the “Request for Review”. The real objective of the “Request for Review” was yet another attempt to delay the July 21st appeal hearing. Ignoring the Rules by attempting to create procedures that better suit your own purposes is inappropriate conduct from a party, and particularly inappropriate from a lawyer who should know better.
On July 16th, Ms. Neil again wrote the Tribunal, this time in response to the Tribunal’s refusal to grant Ms. Neil a pre-hearing conference to argue for an adjournment. Ms. Neil advised the Tribunal her client would file a further review of the Tribunal’s July 16th decision denying the pre-hearing conference (emphasis added). Ms. Neil’s letter lectured the Tribunal that it must deal with the July 13th “Request for Review” and that it operated to stay the Tribunal’s decision setting the appeal hearing dates for July 21st-22nd (emphasis added). The July 16th letter was the fourth attempt by Ms. Neil to re-argue the appeal hearing dates. Ms. Neil did not follow the Tribunal Rules for reviewing the impugned decision but rather she opted for a process of attempting to intimidate the Tribunal around to the rightness of her position by lecturing the Tribunal.
On July 19th, Ms. Neil again wrote to the Tribunal, twice. The letters advised the Tribunal of an intended review under the Tribunal Rules and an intended proceeding under the JRPA (emphasis added). The letters continued Ms. Neil’s arguments for an adjournment of the July 21st hearing. The letters advised that Mr. Gosselin was not attending the July 21st hearing but neither withdrawing nor abandoning his appeal. The letters asserted Mr. Gosselin would not receive a fair hearing before this panel of the Tribunal. Finally, the letters asserted that the “Request for Review” should “operate as a stay of the current proceedings to ensure the fairness of the hearing” (emphasis added). Once again ignoring Tribunal Rules, Ms. Neil did not seek a date for a motion for the intended “review”; she did not serve and file a Notice of Motion and supporting affidavit. Those letters were yet another attempt to re-argue the appeal hearing dates. Those letters were yet another attempt to influence the Tribunal’s decision-making by means other than open persuasion as an advocate. As of the release of these reasons, no request for review under the Tribunal’s Rules has been filed despite Ms. Neil’s advice about Richard Gosselin’s intentions.
On July 20th, Ms. Neil filed a Notice of Motion for an adjournment by facsimile transmission. The Notice indicated Ms. Neil would argue the motion orally at the start of the July 21st appeal hearing. There was no affidavit filed in support but the Notice confirmed the Tribunal would have oral evidence from Mr. Gosselin. The Tribunal panel and staff were en route to their hotel in New Liskeard when the Notice of Motion arrived by fax transmission at the Tribunal office in Guelph. That adjournment motion was Ms. Neil’s sixth attempt to change the July 21st-22nd appeal hearing date.
On July 21st, at about 8:15 a.m., Ms. Neil sent a letter to the Tribunal office delivering an Amended Notice of Motion. However, the letter went on to advise that Richard Gosselin would not attend the hearing but neither withdrew nor abandoned his appeal. That was the second time Ms. Neil opted to play the “I am not attending” card. Starting an appeal process and then using your participation or non-participation as a tool to shape the decision outcome is completely unreasonable. Typical of Ms. Neil’s disregard for Tribunal Rules, the adjournment motion was not supported by any sworn affidavit evidence. While the Amended Notice of Motion asked the Tribunal for a written hearing, it went on to contradict the accompanying letter and indicated Richard Gosselin’s oral evidence would be called in support of the motion. In the ultimate demonstration of disrespect and contempt for the Tribunal and the Tribunal’s processes, neither Ms. Neil nor Richard Gosselin attended the hearing on July 21st and 22nd.
Ignoring Tribunal Orders, disregarding Rules, ignoring the Act, seeking to circumvent the Tribunal’s jurisdiction under the Act, writing to the Tribunal in the way Ms. Neil did multiple times, serially trying to re-argue already decided issues in correspondence outside a hearing, attempting to intimidate the Tribunal with threats of reviews and judicial review are conduct that individually might be worthy of a “bad conduct” cost award. However, when viewed collectively in the context of this case there is no question that a “bad conduct” cost award is necessary. Ms. Neil failed to attend a scheduled appeal hearing. Ms. Neil filed to cooperate with the Tribunal and opposing counsel at almost every opportunity. Ms. Neil changed her client’s position about the grounds for adjourning the appeal hearing on several occasions. Ms. Neil changed her client’s position about attending the appeal hearing twice. Ms. Neil tried to circumvent the Tribunal with her strategy to take all her client’s issues before the Referee when the Act does not permit that. Ms. Neil sought to adjourn the appeal hearings on multiple occasions, ostensibly in pursuit of irrelevant documentary disclosure. Throughout all of these actions, Ms. Neil failed to provide any evidence that supported her client’s position on a balance of probabilities.
This conduct encompasses every one of the Rule 28 examples listed that support an award of costs.
The Tribunal is unaware if Ms. Neil was the architect of this conduct or merely allowed herself to become the puppet in her client’s strategy. In either case, Ms. Neil’s conduct was unreasonable, frivolous or vexatious.
- Costs Thrown Away Due to Richard Gosselin’s Unreasonable Conduct
Richard Gosselin is ultimately responsible for the unreasonable, frivolous or vexatious conduct detailed above.
No party should use such tactics.
For the Tribunal to do nothing would only perpetuate the use of such tactics. In the Tribunal’s view, that would endanger the efficacy and integrity of the administration of justice.
The Act, the SPPA and Rule 28 authorize the Tribunal to design a cost award to discourage Richard Gosselin specifically from such conduct and to discourage other parties from such conduct generally.
“How much?” is the challenge in the circumstances. To award too little would simply create a license fee for parties to use such conduct. To award too much could be financially crippling to a man who makes his living as a farmer.
In the circumstances, the Tribunal awards $10,000 to the Township, payable by Richard Gosselin under s. 98(10) and (11) of the Act, s.17.1 of the SPPA and Rule 28.02. The Tribunal bases that cost award on costs actually incurred by the Township and other landowners. The other landowners assessed under the Report had been made parties to the appeals by a previous Tribunal Order.
Ms. Neil practices in Haileybury, a Town about thirty minutes from the hearing venue, while Richard Gosselin lives in Brethour Township.
The three Tribunal panel members and staff travelled from Thunder Bay, Brampton, Gravenhurst and Guelph for the May 26th, and July 21st hearings.
Counsel for the Township travelled from Tilbury for the July 21st hearing, while the drainage engineer and superintendent travelled from Kitchener for the May 26th and the July 21st hearings.
The Township prepared for and attended at the May 26th hearing. There had been no notice of any impending adjournment request before the start of that hearing. Therefore, the adjournment sought by Richard Gosselin resulted in wasted costs. The Township seeks $5,005.00 for that May 26th hearing.
The Township’s cost Summary includes travel and attendance for the Engineer and Drainage Superintendent of 18 hours. That time is reasonable considering that Kitchener is almost 600 kilometres from Belle Vallée, which means driving time alone of almost 15 hours. The hourly rates of $150 and $70 for the Engineer and Superintendent are reasonable given their experience. Accommodations for one-night and meal costs for the two travel days are reasonable. The other incidental costs for copying and the Clerk’s attendance are also reasonable.
The Township retained counsel for the June 24th hearing, which the Tribunal converted, at Ms. Neil’s request, from the substantive appeal hearing in Brethour, to a telephone pre-hearing conference to adjourn the appeal hearing. The Township seeks $1,290.00 for that June 24th hearing. Both counsel and the Engineer prepared for and participated in that motion for a total of three hours. That time is reasonable. Counsel’s hourly rate of $280 is modest given his experience, as is the Engineer’s rate of $150.
While the Township did not seek any costs of the July 21st-22nd hearing, it is reasonable to conclude that some part of the preparations of the Engineer and counsel related solely to the Gosselin appeal.
The Tribunal concludes that the Township incurred travel, accommodation and meal costs for the July 21st-22nd greater than the adjourned hearing of May 26th. Those disbursement costs would have been greater since the hearing extended over two days necessitating accommodations and meals over two days. The disbursements costs would also have been greater as they involved legal counsel’s travel and accommodations.
In addition to the Township’s disbursement costs, there was additional expense associated with the Engineer and counsel preparing for the Gosselin specific appeal issues at the July 21st-22nd hearing. Because of Richard’s Gosselin’s boycott of the appeal hearing, those costs have been wasted.
However, there were others involved at the hearings that experienced wasted costs because of Richard Gosselin’s adjournments. Several landowners who made submissions during the appeal hearing attended both the May 26th and the July 21st hearings. Those people needlessly prepared for and attended the adjourned May 21st hearing.
The Tribunal considers that the $10,000 amount is appropriate in the circumstances because it represents the wasted costs associated with the adjourned May 26th hearing, plus the costs associated with the June 24th adjournment motion and a portion of the Township’s and the other landowners’ costs of the July 21st-22nd hearing.
Finally, the Tribunal views a global cost consequence of $10,000 to Richard Gosselin will serve as both a specific and general deterrence against such conduct.
Taken together these reasons support the “bad conduct” cost award of $10,000. These reasons also support applying the cost award component as a credit to the drain project to provide some financial relief to the landowners on this drain.
ORDER OF THE TRIBUNAL
Therefore, the Tribunal Orders as follows:
Richard Gosselin’s appeal under s. 64 of the Act is dismissed.
Richard Gosselin will pay to the Township costs of $10,000.00 as follows:
a. The costs are to be credited to the drain;
b. The cost award is to be deducted from the final project costs before calculation of the final assessments to the landowners;
c. The costs award against Richard Gosselin shall have priority lien status under the Act and in accordance with s. 1 of the Municipal Act on any land Richard Gosselin owns that is assessed under the drain;
d. The Township is at liberty to enter the costs on the tax roll immediately.
The Township, the Engineer and the contractor shall be at liberty to complete the Report work without interference from any assessed landowner.
The Township, the Engineer and the contractor shall be at liberty to refer to the Tribunal’s decisions in any application to the Superior Court of Justice for an injunction to restrain landowner interference with the work.
Dated at Brampton, Ontario this 20th day of August, 2010