Agriculture, Food and Rural Affairs
Appeal Tribunal
1Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales
1, chemin Stone Ouest
Guelph, (Ontario) N1G 4Y2
Tel: (519) 826-3433, Fax: (519) 826-4232
Email: appeals.tribunal.omafra@ontario.ca
Guelph (Ontario) N1G 4Y2
Tél.: (519) 826-3433, Téléc.: (519) 826-4232
Email: appeals.tribunal.omafra@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Short and No. 2A Drain - Motion Decision
City of Kawartha Lakes
Short and No. 2A Drain (RE) Motion Decision 2011 ONAFRAAT 28
STATUTE:
Drainage Act
HEARING:
August 23, 2011
DATE OF DECISION:
September 1, 2011
2011-28
NEUTRAL CITATION:
2011 ONAFRAAT 28
SHORT AND NO. 2A DRAIN, 2006 – MOTION 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 Pieter and Wilma Balhuizen, of Woodville; Jim Bedard of Woodville; Daniel B. Ellis of Woodville ; Colin, Julia and Bradley Gibbs of Oakwood; G. & C. Link of Oakwood; Gordon Link of Oakwood; Sandra Lloyd of Oakwood; D. G. MacKenzie of Woodville; Nigel Mole of Manilla; Jason and Nancy Nicholson of Oakwood; James Rummerfield of Sunderland; Darren and Ann Sharpe, Woodville; Alan Webster, Thornhill; and David Wright of Oakwood, under Subsection 48(1) of the Drainage Act from the engineer’s report on the Short and No. 2A Drain, 2006 in the City of Kawartha Lakes.
AND IN THE MATTER OF: A Pre-hearing Conference pursuant to Rule 24 of the Tribunal’s Rules of Procedure;
AND IN THE MATTER OF: the hearing of a motion by the City of Kawartha Lakes pursuant to Rule 25 of the Tribunal’s Rules of Procedure for the dismissal of the Section 48(1) appeals before the Tribunal without a hearing.
Before:
John O’Kane, Vice Chair
Appearances:
Valerie M’Garry, counsel for City of Kawartha Lakes
Glen Campbell, on behalf of Alan Webster, appellant
James Bedard, appellant
Gordon and Carol Link, appellants
Gordon MacKenzie, appellant
Pieter Balhuizen, appellant (appeared prior to start of hearing and left for medical reasons)
OVERVIEW
This is a motion by the City of Kawartha Lakes (the City) to dismiss several appeals to this Tribunal under section 48 of the Drainage Act (the Act). The City asserts that the appeals are frivolous and vexatious and that the appellants failed to participate in an alternate hearing before the Drainage Referee (the Referee), where the same issues were being adjudicated.
By the start of the motion hearing on August 23rd, 2011, all but four of fourteen section 48 appellants had withdrawn their appeals and the City confirmed that it would not seek costs from the withdrawing appellants.
The motion then proceeded, concerned only with the section 48 appeals of Daniel B. Ellis, Nigel Mole, James Rummerfield and Alan Webster. None of those four appellants appeared at the motion hearing, despite being served with the Motion Record on July 29th, 2011 in the case of all appellants except Alan Webster who was served on August 2nd, 2011.
Alan Webster was represented at the hearing by Mr. Glen Campbell. Mr. Webster is opposed to the City’s motion and wants to proceed with his section 48 appeal hearing before the Tribunal.
For the reasons explained more fully below, I grant the City’s motion to dismiss the James Rummerfield appeal and I dismiss the balance of the City’s motion and, on my own motion give the directions set out below concerning the conduct of the section 48 appeals.
BACKGROUND
Much of the City’s evidence and argument on this motion focused on what transpired in proceedings before the Referee. Therefore, in order to provide context for these reasons, I will provide some history about the drainage works in issue as well an overview of the relevant appeal rights contained in the Act and a description of what, for the context of this motion, happened before the Referee.
A Brief History of the Short and 2A Municipal Drain
The Short Municipal Drain has a history that dates back to 1891 but for the purposes relevant to this motion, the modern history began around 2000. At that time in 2000, which was before the date of the amalgamation of several municipalities into the present City of Kawartha Lakes, the then municipality proposed to carry out maintenance on the Short Municipal Drain. A landowner challenged the legality of that proposed work before the Referee. After a trial of that issue, the Referee in an August 31st, 2000 Order, enjoined that proposed work and ordered that the municipality appoint a Drainage Engineer under section 78 of the Act to prepare a report for the maintenance and improvement of the Short Municipal Drain.
Pursuant to the Referee’s August 31st, 2000 Order, on September 18th, 2000, the municipality appointed Tom Pridham, Professional Engineer as Drainage Engineer (the Engineer) to prepare a report for the maintenance and improvement of the Short Municipal Drain, including the 2A Municipal Drain (the Report).
On March 20th, 2006, the Engineer delivered his Report under section 78 of the Act to the City of Kawartha Lakes. That Report related to a watershed area of just under 21,000 acres involving approximately 400 assessed landowners. The Report proposed construction work estimated at $262,750.00 plus allowances to landowners estimated at $19,525.00 plus engineering and hydrologic modelling costs estimated at $520,000.00 plus administration costs estimated at $162,725.00 for a total estimate of the drainage works of $965,000.00.
The Engineer’s Report resulted in several appeals under the Act. Thirty-seven appeals were made to the Referee under section 47 of the Act. The Referee was also asked to rule on two petitions to abandon the drain under section 84 and a claim against the City for damages under section 79 of the Act. In addition to those matters before the Referee, thirty-three appeals were made to this Tribunal under section 48 and two appeals were made to this Tribunal under section 54 from the decision of the Court of Revision.
Appeals Under the Act
The Act creates several rights to challenge the Report of an Engineer that I generically describe as “appeals”. However, the Act is unique because, depending on the issue, there are three possible bodies that hear and determine those appeals: those bodies are the Court of Revision, the Agriculture Food and Rural Affairs Appeal Tribunal (this Tribunal), and the Referee.
The Act creates an appeal right to the Court of Revision about the assessment for the drainage works established by the Engineer in the Report (who pays for what and how much). That appeal right arises under section 52. The Act also creates a further appeal right about assessments from the decision of the Court of Revision to the Tribunal under section 54. Under that structure of appeal rights regarding assessments, the Act gives the Tribunal an appellate-like jurisdiction.
The Act creates several other appeal rights to the Tribunal from the Report. A relevant example, in the context of this motion, is the appeal right under section 48 about an affected landowner’s dissatisfaction with the Report on the following grounds:
- the benefits to be derived from the drainage works are not commensurate with the estimated costs
- the drainage works should be modified on grounds to be stated
- the compensation or allowances provided for in the Report are inadequate or excessive
- the Engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed
That structure of appeal rights regarding those listed issues is an example where the Act gives the Tribunal original jurisdiction.
The Act creates several appeal rights to the Referee, some, such as in section 106(1), are described as within the Referee’s original jurisdiction and include appeals under section 47, and others, such as described in section 106(2) are within the Referee’s appellate jurisdiction. For example, section 106(2) provides:
Subject to section 101, the referee has jurisdiction to hear appeals from any decision or order of the Tribunal and for such purpose may make any order that the Tribunal might have made and may substitute his or her opinion for that of the Tribunal.
The “subject to” qualification contained within that subsection is explained in the following text from Section 101 of the Act.
In any application, appeal or reference under sections 8, 10, 48, 49, 50, 54, 64, 65, 66 and 75 the Decision of the Tribunal is final.
Therefore the Act, in those sections referred to in section 101, creates in the Tribunal jurisdiction that is not subject to further appeal to the Referee and is subject only to the overriding supervision of the law courts via judicial review.
Proceedings Before the Referee
As there were two petitions to abandon the drain before the Referee, the City asked the Tribunal to hold all appeals in abeyance, pending the outcome of the Referee’s ruling on abandonment, since that outcome could render all the remaining appeals moot. The Tribunal acceded to the City’s request.
In the proceedings before the Referee, the City brought a motion asking the Referee for directions about how to proceed with the multiplicity of appeal issues raised about the Report. The City’s conundrum was that on one side it had the August 31st, 2000 Order of the Referee directing a Report, which Report proposed that work be completed on the Short and 2A Municipal Drains, while on another side it had the two petitions seeking abandonment of the drains and, on yet another side, it had a claim seeking damages from the City for its failure to maintain the drain. The affidavit evidence of Andrew Osyany on this motion explained the practical realities facing all parties before the Referee:
Much of the evidence was clearly going to focus on the cost of the Drain, which was a significant ground on which the petitions for abandonment had been brought forward. Counsel and the Referee have been concerned throughout about the real potential for a duplication of much of the evidence and time involved in the main proceeding. Although the City’s application for directions turned on whether the earlier Referee’s Order needed to be completed before considering a petition for abandonment, the inclusion of all the other outstanding issues meant that the Referee was going to hear a great deal of evidence about the design and the cost and how it was proposed to be apportioned. It became necessary for the Referee to hear extensive evidence relating to the design of the Drain, as parties who had petitioned for abandonment of the Drain also wanted to call evidence on an alternate design. In other words, it was not possible for the Referee to conduct the hearing for which application had been made to him without hearing a great deal of the evidence which would customarily be adduced before the Tribunal on appeals pursuant to ss. 48 and 54 of the Drainage Act.(My emphasis added)
In a procedural Order dated June 25th, 2008, directing a trial of several issues, the Referee also directed that upon completion of the matters directed for trial, he would hear representations as to his jurisdiction to hear evidence relating to assessments and modifications pursuant to Section 48 and section 54 of the Drainage Act.
The City drafted notices sent to alert all parties who had appealed to the Tribunal that the Referee would entertain submissions about his jurisdiction to hear section 48 and section 54 appeals. The notices warned all those parties that had appealed to the Tribunal that if the Referee determined that he had jurisdiction to hear the section 48 and section 54 appeals, he could proceed in their absence and without any further notice.
By the time appointed by the Referee to hear those jurisdictional representations, all but fourteen of the section 48 appellants had delivered written consents that the Referee hear and determine the section 48 and section 54 appeal matters. Those fourteen appellants had not appeared before the Referee, nor had they responded in any way to the hearing notices, nor had they responded to a separate written communication to them from one of the counsel before the Referee.
Those fourteen appellants that gave no response to the notice and correspondence in the proceedings before the Referee are the same fourteen appellants served with the City’s motion to dismiss before this Tribunal.
The Referee asserted jurisdiction over all but fourteen of the section 48 appeals. In a December 2nd, 2009 Order and then in two written reasons for decision, the Referee specifically provided that, in relation to those fourteen appellants, their appeals to the Tribunal remained intact:
All rights of appeal of parties not providing consent by the end of this trial to the Referee’s jurisdiction remain unaffected by this order. (December 2nd, 2009 Order, paragraph 3)
... I can find no special circumstances that would allow me to usurp the right of appeal that remains to those parties with the Tribunal. My hearing in this matter as it relates to s. 48 and s. 54, covers only those appeals that have been withdrawn with their resultant attornment to my jurisdiction. Should any appeal remain outstanding, in the absence of special circumstances which I find do not exist in this matter, the right of appeal remains for those parties with the Tribunal. (January 4th, 2010 Reasons for Decision, p. 18)
In such Reasons, I qualified the jurisdiction of the Referee to exclude parties who were unrepresented or who had not provided their consent. I stated “In relation to those parties, I can find no special circumstances that would allow me to usurp the right of appeal that remains to those parties with the Tribunal. My hearing in this matter as it relates to s. 48 and s. 54, covers only those appeals that have been withdrawn with their resultant attornment to my jurisdiction.” (January 14th, 2011 Reasons for Decision, pp. 44-45)
The Referee ultimately conducted a hearing that spanned eighteen days over the course of two years. The Referee heard extensive engineering evidence about the design of the drainage works, the costs versus benefits to be derived from the drainage works, the assessments against landowners for outlet and benefit and the compensation to be paid to some landowners. The Referee has issued substantive reasons for decision about the petitions for abandonment and the section 47, section 48 and section 54 appeals on January 14th, 2011, March 7th, 2011 and May 9th, 2011.
At the motion on August 23rd, 2011, counsel for the City filed a copy of the City’s general ledger report for the Short and 2A Municipal Drain which confirmed that thus far since 2000, the City has spent $1,350,395.50 on this drainage project. Counsel for the City also confirmed that none of the proposed construction work on the Short and 2A Municipal Drain has started.
ANALYSIS AND CONCLUSION
The Tribunal agrees with the submissions made by counsel for the City that the Tribunal has the authority to control its own process and, in appropriate circumstances, summarily dismiss, without a hearing, appeals that are frivolous, vexatious or an abuse of process.
The case of Horne, Dempsey et al. v. North Easthope and the City of Stratford, is an August 15th, 1992 decision of Drainage Referee R. Johnston that provides confirmation that the Tribunal has the authority to control its own process1. That decision relied on the Supreme Court of Canada’s ruling in Oatway v. Canadian Wheat Board 1945 CanLII 43 (SCC), [1945] 2 D.L.R. 145 where at pages 152 and 153, the Court confirmed that every court of justice has an inherent jurisdiction to prevent an abuse of its own process by dismissing appeals manifestly devoid of merit.
Section 23 of the Statutory Powers Procedure Act authorizes the Tribunal to make orders and give directions as it considers proper to prevent abuse of its processes. Rules 1.07 and 1.09 of the Tribunal’s Rules of Procedure provide the procedural framework for the Tribunal to exercise its authority to control its own process.
I will now turn to examine the two grounds for relief relied on by the City in this motion.
1. Failure to Attend the Proceedings Before the Referee
The City relied on the authority of Ford Little v. Municipal Corporation of the Town of Goderich, a July 25th, 1975 decision of Drainage Referee D.J. Murphy, Q.C. for the proposition that the failure to appear at a hearing will support a finding that an appeal is frivolous. That decision, which is just two paragraphs long, does not provide much factual context, however, it is apparent that the complainant before the Referee initiated a claim, proceeded through examinations for discovery and then failed to attend at the substantive appeal hearing. That is not the same as the facts of the present case and, therefore, that authority is of no assistance to the City under this ground for relief.
While none of the appellants who are the subject of this motion participated in the proceedings before the Referee, none of them provided written consent that the Referee hear and determine their section 48 appeals. The Referee’s December 2nd, 2009 Order and Reasons of January 4th, 2010 and January 14th, 2011 confirmed the right of those appellants to maintain their appeals to this Tribunal.
In the context of the facts before me, the failure to attend before the Referee when given notice, could be characterized as incautious, inconsiderate, rude or disrespectful, but in my view does not turn the section 48 appeals to this Tribunal into appeals that are frivolous, vexatious or an abuse of process.
Therefore, in my view, in the context of this motion, the parties with section 48 appeals before this Tribunal, who failed to attend proceedings before the Referee to consider the Referee’s jurisdiction to hear and determine section 48 appeals did not jeopardize their appeals to this Tribunal.
2. Frivolous and Vexatious
The City relied on the authority of the Superior Court of Justice decision in Her Majesty the Queen in Right of Ontario v. Rui Bin Xu, 2011 ONSC 2315 as setting out a list of the following four factors to consider when determining if an action is, at law, frivolous or vexatious.
- whether the action or actions were brought to determine an issue or issues which have already been determined by a court of competent jurisdiction
- whether the grounds and issues raised in the proceedings are rolled forward into subsequent actions and repeated and supplemented
- whether it is obvious that an action is not capable of success or that no reasonable person can reasonably expect to obtain relief
- whether the actions are brought for an improper purpose, including harassment or oppression of other parties by proceedings brought for purposes other than assertion of legitimate rights
In that decision at paragraph 14, Madam Justice Brown directed that when determining whether proceedings are vexatious, the whole history of the matter must be considered, and not just whether there was originally a good cause of action, and that the determination should be made against an objective standard.
The specific proceeding before the court in that case was an application under section 140 of the Courts of Justice Act for a declaration that Mr. Xu was a vexatious litigant. The court determined that Mr. Xu was a vexatious litigant, however, he was not deprived of his right to commence proceedings in the courts. The court simply inserted a requirement that he get leave from a judge before starting any further proceedings. Because of the court’s findings about Mr. Xu’s conduct of his lawsuits, the court interposed a “gatekeeper” before he could get any further access to the judicial system. The factual findings of the court included:
- Xu had started multiple actions raising issues that had already been disposed of by courts of competent jurisdiction
- Xu attempted to re-litigate the same issues previously litigated against the same parties in new proceedings
- Xu had brought claims which, at law, had no chance of success
- Xu had brought actions that he admitted were for purposes other than the assertion of legitimate rights
When I compare those findings with the facts of this case, I note that there is no evidence before me on this motion that any of the four remaining section 48 appellants have:
a) started multiple proceedings under the Act raising issues that have already been decided by a body of competent jurisdiction;
b) attempted to re-litigate their drainage issues having previously litigated those issues;
c) raised issues that, at law, have no chance of success;
d) admitted to bringing their drainage appeals for purposes other than asserting legitimate rights.
In that case, Mr. Xu had his “day in court” and then wanted to have it over and over again by serial litigation involving the same issues and same parties.
In this case, unlike Mr. Xu, none of the remaining four appellants have had their “day in court”. The appellants should not be deprived of their “day in court” lightly. The remaining appellants did not consent to the Referee asserting jurisdiction over their appeals and the Referee concurred and confirmed that the remaining appellants did not lose their rights of appeal to this Tribunal. Therefore, no adjudicative body has yet decided the appeal issues raised by the remaining appellants.
Part of the City’s argument on this ground was that all the section 48 appeal notices filed by the appellants were carbon copies or “pro forma”. Those notices simply repeated the language of section 48 of the Act. However, the Act does not prescribe any particular form for the notice of appeal. In my view, it would be an odd result that an appellant’s appeal could be in jeopardy of dismissal as frivolous and vexatious simply by repeating the words of section 48 in the appeal notice.
When I consider the entire history of these matters, the four factors enunciated by the court in the Xu case, and the facts set out in the affidavit evidence on this motion, I am unable to find any factual basis for concluding the four remaining section 48 appeals are frivolous and vexatious or an abuse of process.
Additional Arguments Advanced at the Motion
Counsel for the City argued that the failure of appellants Daniel B. Ellis, Nigel Mole and James Rummerfield to attend at this motion is unconscionable and that the Tribunal should exercise its discretion to dismiss those three section 48 appeals.
Summary dismissal of an appeal deprives a party of the important right of a hearing on the merits. In my view, such summary dismissal should not be granted lightly.
In these circumstances, those three appellants did not appear at the motion hearing to make their positions known.
Tribunal staff did receive a telephone call from James Rummerfield who indicated that he was no longer interested in pursuing his appeal, but he has not filed a notice of withdrawal with the Tribunal. In the circumstances of Mr. Rummerfield’s non-attendance at the motion, coupled with his telephone advice to Tribunal staff, I am satisfied that he no longer wishes to pursue his section 48 appeal rights and therefore I will dismiss that appeal.
However, I have no information about the positions of Mr. Ellis and Mr. Mole other than their original notices of appeal and their non-attendance before me on August 23rd, 2011.
Failure to attend at a hearing made on notice is disturbing to me and in some circumstances might well be sufficient grounds for the Tribunal to summarily dismiss an appeal, however, in light of my findings and ruling concerning the appeal of Mr. Alan Webster, I decline to summarily dismiss the section 48 appeals of Mr. Ellis and Mr. Mole at this time, without prejudice to the City pursuing a future motion for summary dismissal.
The Alan Webster Appeal
Mr. Webster was the only one of the remaining four section 48 appellants who participated in this motion, albeit not through personal attendance.
Mr. Campbell explained that Mr. Webster contacted him during the evening of August 22nd to explain that he could not attend the motion hearing and asked that Mr. Campbell attend in his place.
Mr. Webster filed no evidence on the motion. I was left only with the submissions of Mr. Campbell who was unable to tell me what prevented Mr. Webster attending personally on the motion, why Mr. Webster did not participate in the process before the Referee, what evidence Mr. Webster intended to present at his section 48 appeal, or if Mr. Webster had hired or planned to hire a drainage engineer or drainage contractor in respect of his section 48 appeal.
The only definitive thing Mr. Campbell could tell me was that Mr. Webster wished to proceed with his section 48 appeal before the Tribunal. He submitted the Tribunal has the authority to rule on Mr. Webster’s section 48 appeal. He submitted that he believed that Mr. Webster would introduce evidence on the appeal to further reduce the costs of the drainage works. He also submitted that Mr. Webster sees little benefit from the drainage works to his farms since they are all systematically tile drained. He also submitted that the costs of the drainage works far exceed the benefits to be derived from the work.
Counsel for the City argued that the Tribunal often hears from appellants that they see little benefit from proposed drainage works. The City relied on the July 26th, 2001 decision of this Tribunal in Bellcreft Beach Drainage and Pumping System – Town of Essex. The City extracted from that case the concept that parties engaging their appeal rights under the Act have a duty to understand the basics of the drainage system in the Act and that landowners have not only rights but obligations to other landowners. In that context, the City’s view is that Tribunal concluded that it was insufficient that an appellant simply say to the Tribunal “I am unhappy, please take care of me.”
The context for that Tribunal decision was that the appellant had applied to the Tribunal to extend the time to commence an appeal about the quality of construction of a drain under section 64 of the Act, six months after the one year appeal limitation had expired.
The distinction between the Bellcreft case and the present case is that in Bellcreft the appellant had the obligation to provide the Tribunal with sufficient evidence to engage the Tribunal’s discretion to extend a limitation to appeal by six months, whereas, in the present case Mr. Webster appealed within the statutory time limit and therefore has a valid outstanding appeal. Therefore, the comments from Bellcreft, while helpful in the context of a case where a party seeks to extend a limitation to appeal, have little application to this motion.
Mr. Campbell posed the question “has the Webster appeal (to the Tribunal) been denied by the Referee’s decision?”
The City posed the question, framed in light of the Referee’s decision, “what is left for the Tribunal to do?”
Both questions directly engage considerations of the jurisdiction of the Referee and of this Tribunal.
I have no authority to rule on the Referee’s jurisdiction, but in the context of proceedings before this Tribunal and this motion, I do have authority to rule on the jurisdiction of this Tribunal.
Jurisdiction flows from the law, not from the consent of the parties. The legislature granted this Tribunal jurisdiction to hear matters under section 48 of the Act. This Tribunal’s jurisdiction cannot be ousted by the written consent of the parties. Despite all the proceedings taken before the Referee, this Tribunal has jurisdiction to grant or deny Mr. Webster’s, and the other appellants’, section 48 appeals.
Therefore, my answer to Mr. Campbell’s question is no, the Webster appeal has not been denied by the Referee’s decisions. My answer to the City’s question is that the Tribunal owes Mr. Webster, and the other appellants, their “day in court” to consider and determine their section 48 appeals.
Directions
I am mindful of how much has been spent on this drainage works thus far. I am mindful of how long and expensive the proceedings were before the Referee. I am mindful that the Referee heard extensive evidence about the drain design, the costs versus benefits, the assessments and allowances. I am mindful that all the parties before the Referee and the Referee were confronted by a unique situation. I am mindful that everyone was searching for an expeditious and economical mechanism to achieve a determination of all outstanding issues. However, all those things considered and despite the best intentions of all those involved before the Referee, the issue on this motion is whether these remaining appellants should be denied their “day in court” before the Tribunal.
Mindful of the time and expense involved in the proceedings before the Referee, I do have some reservations about the appellants’ commitment to their appeals to this Tribunal. Those reservations are informed primarily by the absence of those appellants at this motion as well as their lack of filing any responding evidence on the motion. Those reservations are also informed by the City’s evidence and submissions which confirms that since filing section 48 appeals some five years ago, the remaining appellants have had little, if any, communication with the City. Those reservations are also informed by the written submissions filed by Mr. Webster and the City after the motion. Those written submissions suggest to me that the lack of communication may well have fostered misunderstandings about the drainage works and the positions of the appellants that might well be resolved short of a full appeal hearing. Therefore, mindful of all the proceedings to date, and informed by these reservations, I am not inclined to see these appeals proceed in the normal course and, on my own motion, I exercise my discretion to intervene with case management directions to move the remaining section 48 appeals through to the most expeditious resolution that I can provide.
Rule 1.03 of the Tribunal’s Rules of Procedure give me the discretion to exercise any of the Tribunal’s powers under the Rules on my own initiative.
Rule 9.05 gives me the discretion, on my own motion, to give directions respecting the conduct of a pending hearing.
Rule 19.01 gives me the power to order parties to provide particulars, information or documents. Rule 20.01 gives me the power to order parties to disclose documents or things that will be evidence at the hearing. Rule 21.01 gives me the power to require parties to produce witness statements. Rule 4.03 gives me the power to extend or abridge any time prescribed in the Rules.
Therefore, I direct that the remaining appellants, Mr. Daniel B. Ellis, Mr. Nigel Mole and Mr. Alan Webster, within twenty days of the release of this decision, provide the Clerk of the City, in her capacity as clerk of the Tribunal (the Clerk), with full particulars of their section 48 appeals in accordance with Rule 19, a list of all documents and things to be used as evidence at the hearing, in accordance with Rule 20 and a list of witnesses and witness statements, in accordance with Rule 21.
In my view, given that the Engineer’s Report was delivered in March 2006, and more than five years has passed since that time, the appellants have had five years to crystallize and refine their section 48 appeal issues, marshal their evidence, and define their appeal strategy. Therefore, in these circumstances it is reasonable that the appellants provide the level of disclosure directed above within the twenty day time period. As part of these directions, I specifically reserve the City’s right to bring a similar motion to dismiss the remaining section 48 appeals, in the event the appellants fail to abide by the directions ordered below.
The remaining appellants’ responses to this direction should include but not be limited to, the following:
Specific details, information and documents supporting any assertion that the benefits of the drainage works in the Report are not commensurate with the estimated costs;
Specific details, information and documents about how and why the drainage works in the Report should be modified;
Specific details, information and documents about why the allowances and compensation in the Report are inappropriate and what those allowances and compensation should be and why;
A detailed list of all documents and things the appellants intend to refer to in evidence at the appeal hearing;
A signed witness statement from every witness the appellants intend to call at the hearing setting out, in addition to those things required by Rule 21, the substance of the evidence the witness will give at the appeal hearing;
A list of all professional or expert witnesses that the appellants intend to call to testify at the appeal hearing, including the professional’s or expert’s area of expertise;
Copies of the qualifications of all professional or expert witnesses the appellants intend to call at the hearing;
Copies of all reports received by the appellants from any professional or expert witness.
Costs
The City sought costs of the motion of $7,500.00 from the remaining four appellants, split among those appellants whose matters were dismissed.
The commentary accompanying Rule 28 of the Tribunal’s Rules confirms that for matters under the Drainage Act, costs are awarded only as provided in that Act.
Section 98(10) of the Act sets out the Tribunal’s costs authority:
The costs of any proceedings before the Tribunal shall be paid by or apportioned between the parties in such manner as the Tribunal considers proper, and where costs are ordered to be paid, the order for payment thereof may be filed in the Small Claims Court and is enforceable as a judgment or order of that court.
While the Act provides the Tribunal’s authority to award costs in this context, I consider that the Rules and the commentary associated with the Rules provide me with helpful guidance to inform my consideration about whether I should award costs under the Act.
In the circumstances, given the divided nature of the result on this motion, I am not inclined to award the City any costs against Mr. Ellis, Mr. Mole or Mr. Webster or against the one appellant, James Rummerfield, whose appeal I did dismiss.
In the context of my decision regarding costs and Mr. Rummerfield, I am mindful that the Tribunal’s Rule 28, regarding awarding costs, contains an overarching test of “clearly unreasonable” conduct that will possibly attract costs. While Mr. Rummerfield did not attend the hearing, he did communicate with Tribunal staff that he no longer wished to proceed with his appeal. He did not file any notice of withdrawal. Therefore, I must consider his failure to attend at the motion hearing, in light of his communication with the Tribunal staff. In these circumstances, I am unable to find Mr. Rummerfield’s failure to attend is “clearly unreasonable”.
ORDER OF THE TRIBUNAL
Therefore, the Tribunal Orders:
The City’s motion to dismiss James Rummerfield’s appeal under section 48 of the Act is hereby granted without costs. James Rummerfield’s appeal is hereby dismissed.
The City’s motion to dismiss the section 48 appeals of Daniel B. Ellis, Nigel Mole and Alan Webster is hereby dismissed, without costs, and without prejudice to the City bringing a future motion for dismissal.
Daniel B. Ellis, Nigel Mole and Alan Webster are hereby ordered as follows:
a. Within twenty days from the date of the release of this decision, the appellants shall deliver to the Clerk the following:
i. Full written particulars of the appellants’ section 48 appeals, in accordance with Rule 19;
ii. A list of all documents and things the appellants intend to use as evidence at the hearing, in accordance with Rule 20;
iii. A list of all witnesses the appellants intend to call to testify and copies of witness statements, in accordance with Rule 21.
b. The appellants’ materials delivered to the Clerk under paragraph 3 a. should include, but not be limited to, the following:
i. Specific details, information and documents supporting any assertion that the benefits of the drainage works in the Report are not commensurate with the estimated costs;
ii. Specific details, information and documents about how and why the drainage works in the Report should be modified;
iii. Specific details, information and documents about why the allowances and compensation in the Report are inappropriate and what those allowances and compensation should be and why;
iv. A detailed list of all documents and things the appellants intend to refer to in evidence at the appeal hearing;
v. A signed witness statement from every witness the appellants intend to call at the hearing setting out, in addition to those things required by Rule 21, the substance of the evidence the witness will give at the appeal hearing;
vi. A list of all professional or expert witnesses that the appellants intend to call to testify at the appeal hearing, including the professional’s or expert’s area of expertise;
vii. Copies of the qualifications of all professional or expert witnesses the appellants intend to call at the hearing;
viii. Copies of all reports received by the appellants from any professional or expert witness.
Dated at Brampton, Ontario this 1st day of September, 2011