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, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Pilkington Drain 2015 (RE) Costs Municipality of Thames Centre
Pilkington Drain 2015 (RE) Costs Municipality of Thames Centre 2016ONAFRAAT16
STATUTE:
Drainage Act
HEARING:
DATE OF DECISION:
June 27, 2016
022Pilkington15
NEUTRAL CITATION:
2016ONAFRAAT16
PILKINGTON DRAIN 2015 - COSTS
Municipality of Thames Centre
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Albert and Yoka Hoogendoorn, of Belmont, Ontario under section 48(1) of the Drainage Act from the Report of the Engineer on the Pilkington Drain 2015 in the Municipality of Thames Centre.
Before: Marthanne Robson, Vice-Chair; Edward Dries, Member; Tim Mousseau, Member
COSTS DECISION
In its decision of May 13, 2016, the Tribunal directed the parties to exchange and file written cost submissions. Those submissions have been reviewed by the Tribunal panel and our decision with respect to costs is as follows.
Overview
The Municipality argues that as it was 100% successful as respondent in the Hoogendoorn appeal, it should be awarded its costs in the amount of $23,594.21 on a full indemnity basis, which amount represents legal and Engineer’s fees and disbursements, all inclusive of HST. It argues that the appeal was “completely unreasonable and bordering on frivolous”.
The Appellants submit that this is not an appropriate case for costs and full indemnity is unreasonable and unjust in this case. They argue that there was no “ill intent” on the part of the Appellants; they took no actions in bad faith in carrying out work on the drain; the appeal was not “frivolous and vexatious” and the Appellants did nothing to unduly lengthen the hearing process. They submit that in the event the Tribunal finds that this is an appropriate case for costs to be awarded, that costs should be fixed at $2,000 inclusive of H.S.T. and disbursements.
The Tribunal’s Cost Jurisdiction
In administrative hearings, an award for costs is exceptional. However, there is a distinct regime for handling of costs in drainage appeals heard by the Tribunal.
Under section 98 of the Drainage Act, the Tribunal has been granted wide discretionary authority to award costs in appeal proceedings.
(10) 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.
(11) The costs chargeable or to be awarded in any proceedings may include the costs of witnesses and of procuring their attendance, the costs of secretarial staff and such other costs as the Tribunal may direct.
The Tribunal Rules of Procedure incorporate the statutory discretionary authority to award costs.
31.08 The costs of any proceeding before the Tribunal shall be apportioned between the parties in such a manner as the Tribunal considers proper. (Drainage Act, ss.98 (10) part)
31.09 When the Tribunal orders a party or parties to any proceeding to pay costs, the order for payment thereof may be filed with the Small Claims Court and is enforceable as an order of that court. (Drainage Act, ss.98 (11) part)
31.10 The costs chargeable to or to be awarded in any proceeding may include the costs of witnesses and of procuring their attendance, the costs of secretarial staff and such other costs as the Tribunal may direct. (Drainage Act, s. 98(11)
In addition to the statutory authority to award costs in section 98 of the Drainage Act, the Tribunal has the power to award costs under section 17.1 of the Statutory Powers Procedure Act (SPPA).
17.1 (1) Subject to subsection (2), a tribunal may, in the circumstances set out in rules made under subsection (4), order a party to pay all or part of another party’s costs in a proceeding.
(2) A tribunal shall not make an order to pay costs under this section unless,
(a) the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith; and
(b) the tribunal has made rules under subsection (4).
That additional statutory authority is reflected in Rule 28 of the Tribunal’s Rules of Procedure. Costs may be ordered only in cases where the behaviour of a party has been “unreasonable, frivolous, vexatious or in bad faith”. The Rule describes various circumstances in which an order for costs may be made. These generally refer to behaviour in the conduct of the hearing, such as failing to attend, causing unnecessary delay, acting disrespectfully or knowingly presenting false evidence.
The commentary under Rule 28 notes that “an order for costs is very rare”.
There is a significant difference in the cost award authority found in the SPPA and Rule 28 compared to language in the Drainage Act. Under the Drainage Act, there is no legislative direction that costs are only to control a party’s unreasonable, frivolous, vexatious or bad faith actions in the proceeding.
The Municipality argues that the appeal was “completely unreasonable and bordering on frivolous”. The Tribunal found that the Appellants “took matters into their own hands, reconfigured their property. They dug up part of the Pilkington Drain, replacing it with an open channel. This is not permitted under the Drainage Act.” This behavior has been addressed by the Municipality before the Referee, though at the time of the hearing of this appeal, the matter of costs in that proceeding had not been dealt with.
A landowner has a right to appeal under s.48 if “dissatisfied with the report of the engineer”. The Appellants sought to have certain work they did on their property incorporated into the municipal drain. In the Tribunal’s opinion, that merited a hearing and was not unreasonable or frivolous.
The Tribunal finds that the Appellants conduct of the hearing was in no way unreasonable, frivolous, vexatious or in bad faith, notwithstanding they were unsuccessful in their appeal.
The Tribunal’s usual order for costs reflects the provisions in s. 98 (10) of the Drainage Act. The Municipality’s costs of defending an appeal are added to the cost of the drainage works. The costs submitted by the Municipality for legal and engineering fees plus disbursements and HST would in the normal course be added to the cost of the drainage works. These costs are then allocated proportionately to all property owners assessed for the drain. The Municipality does not bear the costs itself.
In this case, the Hoogendoorns bear the largest portion of the costs of this drain hence will pay the largest portion of the Municipality’s costs. Tribunal finds that is a reasonable outcome in these circumstances.
Tribunal Order
The non-administrative costs of the Municipality incurred with respect of these appeals shall form part of the cost of the drainage works, and such costs include the Engineer’s fees and expenses for preparing the Report, as well as well as the Engineer’s fees and expenses for attending and participating in the hearing.
There shall be no other Order as to costs and all parties are responsible for their own costs.
Dated at Ottawa, Ontario this 27th day of June, 2016.