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:
Mullen Drain (RE) [Cost Decision] Town of Lakeshore
Mullen Drain (RE) [Cost Decision] Town of Lakeshore 2016ONAFRAAT22
STATUTE:
Drainage Act
HEARING:
September 20, 2016
November 9, 2016
003Mullen16
NEUTRAL CITATION:
2016ONAFRAAT22
MULLEN DRAIN Part of Lot 7, North Middle Road Concession Geographic Township of Tilbury West Town of Lakeshore
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 Judith Murphy of Richmond MI, USA and T. S. Mullen Farms Ltd., c/o Tim S. Mullen of Comber, Ontario under Sections 48(1) and 54(1) of the Drainage Act with respect to the Mullen Drain – Part of Lot 7, North Middle Road Concession, Former Geographic Township of Tilbury West, Town of Lakeshore.
Before:
Harold McNeely, Vice-Chair; Ed Dries, Member; Fred Stulp, Member
Appearances:
Jim Renick, Counsel for the Town of Lakeshore
Gerard Rood, Engineer, Rood Engineering Inc.
Judith Murphy, Appellant
Tim Mullen, T.S. Mullen Farms Ltd., Appellant
DECISION OF THE TRIBUNAL
Overview
The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in the Town of Lakeshore on May 12, 2016. Following the hearing, the Tribunal issued a Decision dated June 13, 2016 directing Gerard Rood (the “Engineer”) to amend his report of September 28, 2015 as more particularly set out in paragraph 3 of the Order of the Tribunal. In paragraph 4 of the same Order, the Tribunal went on to state “If there are any appeals regarding the amended report, the Tribunal panel shall remain seized of the matter and will hold a hearing at a date to be determined. Assessed owners will have 30 days from the mailing date of the amended report to file appeals to the attention of the Clerk of the Municipality. Appeals shall be limited to challenges against the revised assessments only under Section 54 of the Act”.
Following delivery and service on the parties of the Revised Engineer’s Report of Rood Engineering dated June 20, 2016, (Revised Report) an appeal was filed by Judith Murphy and a hearing was held in the Town of Lakeshore on September 20, 2016 to consider her grounds of appeal and to hear the evidence and representations of the parties.
Opening Statements
The Tribunal invited the parties to make opening statements.
Jim Renick, Counsel for the Town of Lakeshore, stated that the Municipality accepted the Revised Report, and invited the Tribunal to confirm the revised assessments in the Report.
Tim Mullen who represents T. S. Mullen Farms Ltd. had filed written submissions prepared by his lawyer in which he advised that the Revised Report was completed according to the Tribunal’s Order and that he took no issue with the revised assessments.
Judith Murphy had filed a Notice of Appeal dated September 15, 2016 in which she stated that the “assessment is unfair because we are not getting half of the dirt”. She also stated the assessments in the revised report gave T. S. Mullen Farms Ltd. a larger compensation. Ms. Murphy repeated this same objections in her opening statement at the hearing.
The Tribunal pointed out to Ms. Murphy that her comments and Notice of Appeal did not relate to a challenge to the revised assessments under Section 54 of the Act but was an attempt to relitigate or reargue the Decision of the Tribunal which called for “all material excavated from the open drain, with the exception of topsoil used for restoration, to be piled in a windrow on the Mullen land within a working corridor of 8 m for disposal by Mr. Mullen”.
At this point, Ms. Murphy stated that she had nothing to add and would not be giving evidence if it was not open to her to request as part of the appeal to have the excavated material divided equally between T. S. Mullen Farms Ltd. and her.
Decision Regarding the Appeal of the Revised Assessments
Since the current appeal by Judith Murphy does not deal with the revised assessments but is an attempt to relitigate issues which were resolved in the Tribunal’s decision of June 13 2016, the appeal of the revised assessments is dismissed.
Submissions Regarding Costs
The Tribunal’s Order of June 13, 2016 dealt with costs up to that date. The Tribunal asked the parties to present oral representations at the hearing with regard to costs of the Appeal heard on September 20, 2016.
The Tribunal then heard brief submissions from the parties regarding costs.
The Town of Lakeshore’s Position
Mr. Renick advised that in the past, the Town of Lakeshore has not sought costs in proceedings before this Tribunal and other Administrative Tribunals such as the Ontario Municipal Board. However, since the Appellant Judith Murphy had not led any evidence to support her appeal and since there was no evidence led by anyone contesting the revised assessments, Mr. Renick stated that it would be unfair for T. S. Mullen Farms Ltd. to pay part of these costs and the Municipality’s costs for the hearing should be charged to Judith Murphy. Mr. Renick was asked to prepare and serve written representations and a bill of costs on behalf of the Town of Lakeshore. The Town of Lakeshore has submitted a bill of costs calculated as follows:
Legal Fees to prepare for and attend hearing - $1,012.50
Engineering fees and disbursements to prepare for and attend hearing - $ 893.60
H. S. T. - $ 260.80
Total - $2,166.90
This amount represents the full indemnity cost of this party.
The Position of T. S. Mullen Farms Ltd.
Tim Mullen advised the Tribunal that he had retained a lawyer to prepare written submissions which he filed at the hearing. He noted that the sole purpose of the hearing was to hear appeals from the revised assessments and that Ms. Murphy had not presented any argument or evidence to dispute the revised assessments. He argued that there should have been no need for a hearing except for Ms. Murphy’s appeal which was based on her request for “one half of the dirt”. He asked that T. S. Mullen Farms Ltd.’s costs, as well as the Municipality’s costs and the Engineer’s costs to prepare for and attend the hearing be assessed against Ms. Murphy. He was requested to prepare and serve a written bill of costs. This party received the advice and assistance of its lawyer Edwin Hooker to prepare its submissions for the hearing. The total Counsel fee claimed by T. S. Mullen Farms Ltd. inclusive of H. S. T. is $768.68. Tim Mullen, as agent asked for compensation of $150.00 to attend the hearing.
Submissions by Judith Murphy
Ms. Murphy stated in her submissions that during the first hearing“, my attorney did not speak up for me and I didn’t know better”. She asked that the decision be done quickly and fairly, that she had come to the Tribunal to ask for an explanation and had received it.
Judith Murphy filed written submissions objecting to paying any of the T. S. Mullen Farms Ltd. costs and submitted that Tim Mullen should not be allowed to claim costs for his attendance. She stated, as well, that the costs claimed by the Engineer for the hearing are excessive. She submitted that she should only pay one third of the Town of Lakeshore costs and one third of the Engineer costs.
Furthermore, she submitted that the proper allocation of costs is on the partial indemnity scale and not on the full indemnity scale.
Finally, she stated that the final report by Gerard Rood contained inaccurate figures for the area of drainage and the only forum in which she could question Mr. Rood was at a hearing. However, the Tribunal noted that these errors had no impact on the revised assessments.
The Tribunal’s Cost Jurisdiction
Sections 98(10) and (11) of the Drainage Act set out some principles which govern the costs of the parties to an appeal. These sections are as follows:
(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.
Therefore, Section 98 of the Drainage Act, gives the Tribunal wide discretionary jurisdiction to award costs of proceedings before it.
The Rules of Practice and Procedure of the Tribunal also contain specific provisions applicable to drainage appeals. Rules 31.08 and 31.10 provide:
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.
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.
Discussion
Judith Murphy did not call any evidence during the hearing of September 20, 2016. Accordingly, the Tribunal is of the view that the hearing of September 20, 2016 was unnecessary since no evidence was provided by the sole appellant Judith Murphy and both the Town of Lakeshore and T. S. Mullen Farms Ltd. supported the revised assessments. The Tribunal’s decision of June 13, 2016 directs the Engineer to amend his report and allows the parties to appeal the revised report only as it relates to the revised assessments. Judith Murphy’s appeal was not an appeal of the revised assessments.
Paragraph 4 of the Tribunal’s Order of June 13, 2016 was clear and unambiguous. Attempting to relitigate an issue which has been decided and had become final is unreasonable, an abuse of process resulting in unnecessary costs for the Town of Lakeshore and to T. S. Mullen Farms Ltd. In the interest of fairness, these costs should not be borne solely by those parties or for that matter, by the other citizens of the Town of Lakeshore. The amount of $2,166.90 claimed by the Town of Lakeshore which includes the engineer’s costs is reasonable. The Tribunal also finds that the costs claimed by T. S. Mullen Farms Ltd. in the amount of $768.68 are reasonable. The Tribunal agrees with Judith Murphy’s submission that the costs be calculated on a partial indemnity scale. The Tribunal exercises its discretion and denies Tim Mullen’s claim for costs of $150.00.
Tribunal Order
The Tribunal orders that Judith Murphy’s appeal of the revised assessments is dismissed.
Judith Murphy shall pay the Town of Lakeshore’s costs on a partial indemnity scale fixed at $1,625.00 inclusive of H. S. T.;
Judith Murphy shall pay the costs of T. S. Mullen Farms Ltd. on a partial indemnity scale fixed at the sum of $576.00 inclusive of H. S. T.;
The representation fee of Tim Mullen in the amount of $150.00 is denied.
Dated at Ottawa, Ontario this 9th day of November, 2016.