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

Coleman Municipal Drain Request For Review (RE) Municipality of North Perth

Coleman Municipal Drain Request For Review (RE) Municipality of North Perth 2016ONAFRAAT02

Drainage Act

June 17, 2015

DATE OF DECISION:

January 14, 2016

2016-02

2016ONAFRAAT02

COLEMAN MUNICIPAL DRAIN 2013

MUNICIPALITY OF NORTH PERTH

REQUEST FOR REVIEW

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 Finlay and Edith McCormick, in North Perth, Ontario, under Section 64 of the Drainage Act about dissatisfaction with the quality of construction of the drainage works completed under the Engineer’s Report on the Coleman Municipal Drain 2013 in the Municipality of North Perth.

AND IN THE MATTER OF: A decision by the Tribunal dated June 17, 2015 ordering costs to be paid by Finlay and Edith McCormick;

AND IN THE MATTER OF: A request for review by Finlay and Edith McCormick of the Decision and Costs Decision of the Tribunal dated April 23, 2015 and June 17, 2015 under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure for the Tribunal.

Before: Jeffrey J. Hewitt, Vice-Chair

DECISION OF THE TRIBUNAL

Background to the Review Request

On July 17, 2015, Finlay and Edith McCormick filed a request for review of the Tribunal’s decisions dated April 23, 2015 and June 17, 2015 with respect to the Coleman Municipal Drain 2013 under Rule 29 of the Tribunal’s Rules of Procedure.

In a letter from the Chair of the Tribunal dated July 22, 2015, the McCormicks were informed that their request for review of the April 23, 2015 decision was filed almost three months beyond the requirements of Rule 29.10 of the Tribunal’s Rules of Procedure, resulting in the Chair limiting their request for review to the Tribunal’s costs decision dated June 17, 2015. The Chair granted the McCormicks a stay regarding payment of the cost award until such time as the Tribunal had determined the final outcome of any review of the cost award.

Requests for Review Under The Tribunal’s Rules of Procedure

Generally speaking, Tribunal decisions are final and subject only to statutory appeal rights and judicial review by a court of law. However, the Statutory Powers Procedure Act (“SPPA”) does provide for a process to review decisions and, pursuant to Section 25.1 of the SPPA, the Tribunal has established Rules of Procedure to allow for a “Review of A Decision”.

In particular, Sub-rule 29.09 of the Rules of Procedure reads as follows:

Evaluation of a request for review

29.09 In deciding whether it is advisable to conduct a review of all or any part of a final decision or order, the Tribunal may consider any relevant circumstances including,

(a) whether there is significant new evidence which was not available at the time of the original appeal;

(b) whether the Tribunal made a material error of law or fact such that the Tribunal would likely have reached a different decision;

(d) the extent to which any party to the appeal or any other person will be affected by the review process; and

(e) whether the public interest in finality of decisions is outweighed by the alleged prejudice to the requester.

Therefore, the Tribunal’s Rules permitting requests for review are an exceptional process and considering a request for review must balance the principle of finality with other principles such as procedural fairness and prejudice.

My role is to evaluate the request for review, not to conduct the review. The question I must answer is not whether the decision is wrong or even probably wrong but rather, whether I am convinced, on a balance of probabilities, that the decision is possibly wrong and therefore merits a fuller review. If, based on the consideration of the relevant circumstances, including but not limited to the circumstances set out in Rule 29.09, I am satisfied that a review is advisable, I have the power to grant the request for review, in whole or in part, with or without conditions and directions.¹ If I were to grant a review, the procedure for such a review is set out in Rules 29.24 to 29.26 and the Chair would appoint a panel to consider the issue of costs.

In order to determine whether there ought to be a review of the Tribunal’s costs decision, the Review Tribunal reviewed the paper record of the hearing including the exhibits, as well as the submissions pertaining to costs, the Tribunal decision dated April 23, 2015 and costs decision dated June 17, 2015. For the reasons set out below, the Review Tribunal has decided it is not advisable to conduct a review of the June 17, 2015 decision regarding costs. There are no errors of law or fact that would have resulted in the Tribunal making a different decision, and therefore no review is warranted.

McCormicks’ Section 64 Appeal and Resulting Costs Decision

As summarized on page 3 of the Tribunal’s decision dated April 23, 2015, the essence of the McCormicks’ section 64 appeal “was that the drainage works completed under the Engineer’s Report did not comply with the Canadian Standards Association (“CSA”) installation standards, manufacturer’s standards, current engineering standards, and current industry standards and, because of this, the drain would fail sometime in the future primarily due to tree root intrusion along those sections adjacent to trees.” The Tribunal found that the McCormicks failed to discharge their onus of proof and, following lengthy reasons, dismissed their appeal.

In its April 23, 2015 decision, the Tribunal requested submissions from the parties regarding costs. In its submissions, the Municipality claimed for legal costs of $27,306.68 plus engineering witness costs of $22,230.12 for a total claim of costs of $49,536.80. The McCormicks submitted that each party should bear its own costs. In deciding that the McCormicks should pay the Municipality the total costs sought, the Tribunal summarized its reasons for doing so as follows:

This Drainage Act appeal was unusual. Firstly, the quality of construction of the drainage works was challenged in circumstances where the drain was performing exactly as designed. Secondly, the Appellants’ case lacked any reliable evidence to support their challenge. Thirdly, the Appellants pursued issues that were outside the Tribunal’s jurisdiction, and did so contrary to the Tribunal’s directions. Fourthly, the appeal was devoid of merit, and in effect frivolous. Fifthly, shortcomings and the mounting costs were called to the Appellants’ attention before and during the hearing on more than one occasion. Sixthly, these same Appellants had previously pursued a quality of construction appeal on the same drain that another Tribunal Panel determined was unwarranted and, subsequently ordered these same Appellants to pay costs. Despite all that the Appellants pursued a costly and unsuccessful appeal hearing and want their neighbours or the taxpayers of the Municipality to pay for it.

Issues Raised by the McCormicks

By way of a Request to Review dated July 17, 2015 and received by the Tribunal on July 20, 2015, the McCormicks requested that the Tribunal review both the April 23, 2015 decision of the Tribunal and the follow-up costs decision dated June 17, 2015. The majority of the McCormicks’ Request to Review document is directed to issues dealing with the merits and propriety of the April 23, 2015 decision². The McCormicks did not argue in their request that these same issues are a factor in reviewing the appropriateness of the cost award. Given that the Chairman of the Tribunal has already decided that a review of that particular decision was not requested in time and was therefore denied, the appropriateness of that decision cannot be in question here; the findings and decision, and the means by which they were arrived at, are now unassailable. It would not be proper to allow the McCormicks to do through the back door what they cannot do through the front door. Accordingly, this review will not take into consideration the McCormicks’ request submissions as they relate to whether or not the Tribunal erred in either law or fact in denying their Section 64 appeal in the first instance.

With respect to their request submissions dealing with costs, the McCormicks state that the Cost Decision is “grossly unjust”. They rely primarily on Section 73(1) of the Drainage Act, which states:

Except where otherwise provided in this Act or by a decision on an appeal, the cost of any application, reference or appeal and the cost of temporary financing for the construction, improvement, repair and maintenance of a drainage works, shall form part of the cost of the drainage works.

Further, the McCormicks state at no time did the Municipality put a settlement offer on the table. They also claim that they obtained key evidence from a Municipality’s witness very late in the hearing.

Lastly, the McCormicks point out a “clerical error” in the amount of costs awarded by the Tribunal, such that the amount awarded is ten cents greater than the amount claimed by the Municipality.

The McCormicks make no other submissions as to why the cost award made by the Tribunal is grossly unjust.

Discussion

Section 21.2 of the SPPA provides the Tribunal with the authority to review its decisions. As stated above, the Tribunal’s process to review a decision derives from Section 29 of the Tribunal’s Rules of Procedure. As a general rule, internal decision reviews are an extraordinary mechanism that should only be granted in exceptional circumstances; to do otherwise would render the principle of finality meaningless.

Errors of Law and/or Fact

There are no errors of fact in play during this review. First, the McCormicks have not identified any errors of fact relevant to the issue of costs. Second, this Review is limited to the issue of costs, in particular the June 17, 2015 decision of the Tribunal, as a review of the April 23, 2015 decision was denied because such request was made beyond the prescribed time limits. Third, in general, review requests based on alleged errors of fact are particularly difficult; the Tribunal hearing the evidence first hand is better equipped to make determinations of fact than is the reviewing panel.

With regard to errors of law, the McCormicks again have not identified any such errors beyond raising Section 73(1) of the Drainage Act. However, given that they are self-represented, the Review Tribunal appreciates that nuances of the law may not be fully understood by them. Therefore, a closer look at the law regarding costs in these circumstances is warranted.

The starting point of this ‘closer look’ is, indeed, Section 73(1) of the Drainage Act. Given its importance, it is worth repeating the language used:

Therefore, in the normal course, the cost of an appeal shall form part of the cost of the drainage works. However, that concept is qualified by two factors: (1) except where otherwise provided in the Drainage Act, and (2) except by a decision on an appeal. Both of these factors come into play in the present case. There is a decision on an appeal, being the cost decision of June 17, 2015 for which the McCormicks have requested this review. Further, the Drainage Act states:

98(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. [emphasis added]

Clearly, the Drainage Act provides the Tribunal with an unfettered discretion to decide who shall pay costs in whatever manner it considers proper.

Further, this discretion is authorized, and the Tribunal is so empowered, under Section 17 of the SPPA.

(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).

(3) The amount of the costs ordered under this section shall be determined in accordance with the rules made under subsection (4).

(4) A tribunal may make rules with respect to,

(a) the ordering of costs;

(b) the circumstances in which costs may be ordered; and

(5) Subsections 25.1 (3), (4), (5) and (6) apply with respect to rules made under subsection (4).

(6) Despite section 32, nothing in this section shall prevent a tribunal from ordering a party to pay all or part of another party’s costs in a proceeding in circumstances other than those set out in, and without complying with, subsections (1) to (3) if the tribunal makes the order in accordance with the provisions of an Act that are in force on February 14, 2000. [emphasis added]

Distilling the above to its basic relevant elements, the Tribunal may order a party to pay all of the other party’s costs in a proceeding if it has made rules allowing it to do so or it does so in accordance with an Act.

Pursuant to the authority granted to it under the SPPA, the Tribunal has indeed made specific rules regarding the assessment of costs in Drainage Act appeals. Rule 31.08 of the Agriculture, Food and Rural Affairs Appeal Tribunal’s Rules mirrors the language of Section 98(10) of the Drainage Act:

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.

Again, the language in Rule 31.08 gives the Tribunal the same unfettered discretion to determine the apportionment of costs as it considers proper.

Therefore, the Tribunal had the statutory authority to exercise its discretion to order that the McCormicks pay the full costs of the Municipality for having to respond to their appeal. There is no error of law in that regard.

There may be an error of law if a decision maker, once empowered with discretion, fails to exercise such discretion properly. The Ontario Court of Appeal has stated that costs awards are entitled to considerable deference.³ From a review of the June 17, 2015 Cost Decision, it can be seen that the Tribunal carefully considered submissions of the parties, the law and the findings in this case. It is not the Review Tribunal’s position to second-guess the Tribunal’s decision regarding the amount of the cost award or the McCormicks’ obligation to pay the Municipality. The Review Tribunal’s task is to simply determine, on the balance of probabilities, whether or not an error may have been made such that a further review is required. The Review Tribunal finds no such error; the Tribunal exercised its discretion in accordance with the law and its decision in that regard should be granted deference.

Findings

After considering the request for review filed by the McCormicks, the paper record of the hearing including exhibits, as well as the submissions pertaining to costs, the Tribunal decision dated April 23, 2015 and costs decision dated June 17, 2015, the Review Tribunal finds, on the balance of probabilities, that there are no errors of law or fact that would have resulted in the Tribunal making a different decision, and therefore no review is warranted. Any stay previously granted to the McCormicks regarding payment of the costs award shall be lifted.

The McCormicks have quite properly identified a clerical error in the amount of the cost award written on the last page of the Tribunal’s decision dated June 17, 2015. The correct cost amount should be $49,536.80 and not $49,536.90 as stated. The correct amount is noted in other places in the decision. As Rule 29.01 allows the Tribunal at any time to correct a typographical error, the Review Tribunal acknowledges and confirms this typographical error and advises that the Tribunal will send out an amended decision correcting the amount to $49,536.80.

Tribunal Order

The McCormicks’ request for review is hereby denied. The stay regarding payment of the cost award shall be lifted.

The typographical error contained on the last page of the Tribunal’s decision dated June 17, 2015, wherein the cost award is stated to be $49,436.90, shall be corrected to read $49,436.80.

Dated at Tecumseh, Ontario, this 14th day of January, 2016.

Footnotes

Rule 29.22 & 29.23
For example, the McCormicks have broken their submissions down into categories under headings such as “Standard of Proof,” “Similar Fact Evidence and Standard of Proof,” “Evidence of Fact Witnesses,” “Impact on the Public Interest,” “Examples of Bad Faith Demonstrated by the Panel Chairman,” “Court Rules of Evidence do not Apply,” “Failure to Admit Relevant Evidence,” “Cross-Examination of Witnesses,” “Legitimate Expectation of the Parties,” “Improper Purpose,” “Refusal to Exercise Discretion,” “Surreptitiously-Imposed Court Rules of Evidence,” “Interference with Cross-Examination of Tom Gibson and His Stated Opinions,” “Double Standard applied to the Testimony of Chris Dietrich that had been Previously Denied to the Appellants,” and “Presentation of Rely Evidence Denied”, all of which, based on the written submissions contained under such headings, had everything to do with the hearing and nothing to do with costs.
See D’Addario v. EnGlobe Corp., 2014 ONCA 376 at paragraph 9.

Finlay and Edith McCormick v. Municipality of North Perth, 2016 ONAFRAAT 2

Case Summary