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:
Ferragina Drain (RE) [Cost Decision] Town of Bradford West Gwillimbury
Ferragina Drain (RE) [Cost Decision]
STATUTE:
Drainage Act
HEARING:
August 21, 2017
September 19, 2017
001Ferragina17
NEUTRAL CITATION:
2017ONAFRAAT12
FERRAGINA DRAIN
Town of Bradford West Gwillimbury
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 Dan Sopuch of Marshland Gardens Ltd., in Bradford, Ontario under section 48(1)(b) of the Drainage Act with respect to the Ferragina Drain in the Town of Bradford West Gwillimbury.
Before:
Paula Lombardi Vice-Chair; Andrew McBride, Member; Ron O’Connor, Member
COST DECISION OF THE TRIBUNAL
Overview
On May 15, 2017 the Tribunal released its decision dismissing the Appellant’s appeal and directing the parties to deliver written submissions on costs of the hearing. The Tribunal ordered the Town of Bradford West Gwillimbury (“Municipality”) to make costs submissions to the Tribunal within 30 days of the date of the decision and, after receiving those submissions, that the Appellant be provided 14 days to submit a response to the Municipality, following which the Municipality was provided a period of 7 days to provide reply submissions. The Tribunal directed that all of these submissions be made in writing.
On June 20, 2017 the Municipality sent the Tribunal an invoice showing the costs incurred by the Municipality for the hearing with a brief covering letter. The Municipality indicated that the preparation costs were higher than normal due to the complicated nature of some of the issues raised in the appeal as well as being forced to argue issues that the Municipality thought had been agreed to prior to the hearing.
The Appellant failed to provide any submissions to the Tribunal on the issue of costs.
Tribunal’s Jurisdiction to Award Costs
Under sections 98(10) and (11) of the Drainage Act, the Tribunal has broad discretionary power to award costs as the Tribunal deems appropriate in the circumstances.
(10) The cost 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 Statutory Powers and Procedure Act (“SPPA”) also grants the Tribunal the authority to award costs where a party’s conduct has been unreasonable, frivolous, vexatious or in bad faith. This authority is in addition to the discretionary power to award costs under the Drainage Act.
Section 17.1 of the SPPA states:
(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 rule 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
c. the amount of costs or the manner in which the amount of costs is to be determined.
Section 25.1 of the SPPA states that “A Tribunal may make rules governing the practice and procedure before it.”
In accordance with section 17.1 (4) and section 25.1 of the SPPA, the Tribunal has made its own rule with respect to awarding costs. Rule 28 of the Tribunal’s Rules of Procedure sets out the procedural framework for the Tribunal to use when reviewing the conduct and actions of the parties to the proceeding to determine whether or not a costs award is appropriate in the circumstances.
Rule 28 of the Tribunal’s Rules of Procedure states:
28.01 Where a party believes that another party has acted clearly unreasonably, frivolously, vexatiously or in bad faith considering all of the circumstances, it may ask for an award of costs.
28.02 The Tribunal may make a costs award for conduct at any time during a proceeding.
28.03 The Tribunal may deny or grant the request or award a different amount.
28.04 Clearly unreasonable, frivolous, vexatious or bad faith conduct can include, but is not limited, to:
a. Failing to attend a hearing event or to sending a representative when properly given notice, without contacting the Tribunal;
b. Failing to give notice or adequate explanation or lack of co-operation during pre-hearing proceedings, changing a position without notice, or introducing an issue or evidence not previously mentioned;
c. Failing to act in a timely manner or to comply with a procedural order or direction of the Tribunal where the result was undue prejudice or delay;
d. Conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events;
e. Failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper;
f. Failing to make reasonable efforts to combine submissions with parties of similar interest;
g. Acting disrespectfully or maligning the character of another party; and
h. Knowingly presenting false or misleading evidence.
The Tribunal will consider the seriousness of the misconduct. If a party requesting costs has also conducted itself in an unreasonable manner, the Tribunal may decide to reduce the amount awarded.
Rule 28 requires the Tribunal to consider the seriousness of the misconduct of the party from whom costs are being sought, prior to making a determination of costs.
Discussion
In summary, the purpose of the new Drain subject to the appeal was to provide an outlet for the four (4) hectare property owned by Mr. Ferragina (“Ferragina Property”). More details on the new Drain can be found in the Tribunal’s decision dated May 15, 2017.
While steps were taken by Mr. Ferragina to legalize existing outlets on the Ferragina Property they were ultimately unsuccessful. This resulted in Mr. Ferragina submitting a petition under section 4 of the Drainage Act to obtain a legal outlet for stormwater.
Briefly, the Appellant, Mr. Dan Sopuch and his company Marshland Gardens Ltd., own the property located immediately to the west of the Ferragina property and, at the time of the appeal, were the tenant farmers of the properties situated immediately to the north and south of the Ferragina Property. Some of the lands being rented by Mr. Sopuch at that time were owned by the Ferragina’s.
During the oral evidence presented by the Municipality, Mr. Kenn Smart, the Engineer who prepared the report (“Engineer”), was of the opinion that ditch bank seeding was not required in the circumstances. It was the Engineer’s opinion that Mr. Sopuch’s appeal on this particular issue was frivolous and vexations and Mr. Smart advised the Tribunal that the issue had been discussed and resolved at the Drainage Board meeting. However, in response to questioning from the Tribunal, the Engineer did confirm that he would be recommending seeding along ditchbanks of future drains within the Marsh. In its May 15, 2017 decision, the Tribunal concluded that it was reasonable to require that the banks of the Ferragina Drain be seeded and granted this portion of the Appellant’s appeal.
The Tribunal also concluded that the notes on the drawings that were appealed by the Appellant, should be included for historical and continuity purposes but the Tribunal did order some alterations to the wording.
The Engineer for the Municipality made several allegations throughout the hearing that the Appellant’s conduct was frivolous and vexatious but no specific evidence was brought forward in support of these allegations. Furthermore, in its written submissions on costs, the Municipality failed to point to any evidence before the Tribunal to support the claim that the Appellant’s arguments were frivolous and/or vexatious, taking into consideration that the Tribunal granted the Appellant’s appeal in part with some minor modifications.
The Tribunal granted part of the Appellant’s appeal as it related to the seeding of the ditchbanks and wording clarification on several drawings. The remaining portion of the appeal relating to the relocation of the drain due to crop spraying was denied.
An award of costs is a relatively rare occurrence and should by no means be considered standard Tribunal practice. The Tribunal will take into consideration whether the party in question acted “clearly unreasonable” during the appeal process, to the degree that a reasonable person would deem that conduct to be unfair to the other parties involved.
Although the Tribunal does understand the Municipality’s concerns with the actions of the Appellant, we find no facts to substantiate that Mr. Sopouch acted in a “clearly unreasonable” fashion in bringing forward and arguing his appeal.
The Tribunal also finds that, while the Appellant should have raised all of his concerns as early in the process as possible, there is no evidence before the Tribunal that the Appellant’s actions were frivolous or vexatious.
The Tribunal therefore denies the request to award costs.
Tribunal Order
The Tribunal hereby orders as follows:
- That there be no order as to costs and all parties are responsible for their own costs.
Dated at London, Ontario this 19^th^ day of September, 2017.