Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2nd Floor NW
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West, 2e étage NW
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:
Zavitz Municipal Drain Sherkston North Branch East & West Trail Branch Drains (RE) [Cost Decision] Town of Fort Erie
Zavitz Municipal Drain Sherkston North Branch East & West Trail Branch Drains (RE) [Cost Decision]
STATUTE:
Drainage Act
HEARING:
June 12, 2019
DATE OF DECISION:
June 12, 2019
005Zavitz19
NEUTRAL CITATION:
2019 ONAFRAAT 11
ZAVITZ Municipal Drain, Sherkston North Branch Drain, East & West Trail Branch Drains Town of Fort Erie
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED,
AND IN THE MATTER OF: An application to the Agriculture, Food and Rural Affairs Appeal Tribunal by the Town of Fort Erie, Ontario under Subsection 58(4) of the Drainage Act seeking modifications to the engineer’s report for the Zavitz Municipal Drain Sherkston North Branch East & West Trail Branch Drains in the Town of Fort Erie.
AND IN THE MATTER OF: A decision of the Agriculture, Food and Rural Affairs Appeal Tribunal dated April 17, 2019.
Before: Jeffrey Hewitt, Vice-Chair; James McIntosh, Vice-Chair
COST DECISION OF THE TRIBUNAL
Background
The Town of Fort Erie (“Town”) applied to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) for an order under Section 58(4) of the Drainage Act (“Act”) to correct the Engineer’s Report. By way of a written decision dated April 17, 2019, the Tribunal granted the appeal and ordered that the Zavitz Drain Report should be amended in accordance with the terms of the Order. The Tribunal further ordered that Gary Ross Clee receive compensation in the amount of $8,000.00 for the loss of his tree screen. Lastly, the Tribunal reserved its decision on costs until it heard, by way of written submissions, from the parties as to their respective positions on costs.
On April 29, 2019, Mr. Clee submitted that he was seeking costs in the amount of $7.007.74 comprised of $1,017.00 in legal fees, $4,539.78 in consultant fees, and $1,450.96 for the costs of installing a new culvert; Mr. Clee provided support for these costs by way of invoices and professional accounts. It was Mr. Clee’s position that the City of Port Colborne (the “City”) was responsible these costs and cited the Tribunal’s finding that the actions by the City were “a significant error on the part of the Drainage Superintendent.”
On May 3, 2019, the Town provided written reply to Mr. Clee’s submissions. With respect to Mr. Clee’s costs, the Town stated that the culvert was not required as Mr. Clee had another access to his property and the Town should not have to pay for a new access. The Town questioned whether the full cost of Mr. Clee’s consultant’s report was appropriate, given that the review should have been limited to Mr. Clee’s property alone and not the entire Report. In addition to questioning these costs, the Town stated that it incurred costs of $17,357.23 for its own engineering services for the Amended Report, as well as $1,949.98 for internal staffing costs and disbursements. The Town stated that, as the Tribunal found there were no errors or charges on behalf of the Town, any costs should be the responsibility of the City.
Given that both Mr. Clee and the Town submitted that the City should bear the costs arising as a result of the Tribunal’s decision, the Tribunal sought input from the City. By way of written submissions dated May 24, 2019, the City adopted the Town’s position on all aspects of costs except for the proposition that the City should pay these costs. Instead, the City submitted, these costs should be assessed to the watershed and paid through the assessment process.
Authority to Award Costs
The Tribunal has two sources of authority to award costs. The first is the Drainage Act, which gives the Tribunal broad discretion regarding costs of proceedings. Subsection 98(10) provides:
The costs of any proceeding before the Tribunal shall be paid by or apportioned between the parties in such manner as the Tribunal considers proper….
The Tribunal has created Rules of Procedure and in Rule 31.08 has created a rule titled “Assessment of Costs” specifically for appeals under the Act. Rule 31.08 essentially mirrors the wording from subsection 98(10) of the Act.
The second is the Statutory Powers Procedure Act (the “SPPA”) Besides the discretionary authority in the Drainage Act, the SPPA gives the Tribunal discretion to award costs in proceedings provided the Tribunal has created rules related to costs. Section 17.1 of the SPPA provides:
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.
Analysis
As implied in its original decision, the Tribunal finds that this is an appropriate case in which to award costs. From Mr. Clee’s perspective, nothing that he did was the cause of the increased costs on the Zavitz Drain. It is therefore reasonable to award him his costs in responding to the flawed Report and the damage to his property. With respect to his consultant’s fees, the Tribunal finds that the full cost of the review is appropriate as it would be difficult for a consultant, keeping in mind his or her professional obligations, to review only a portion of an engineering report and confidently arrive at the proper conclusion. The Tribunal also finds it appropriate to award Mr. Clee his legal costs.
However, the Tribunal agrees with both the Town and the City that the costs of the new culvert are not properly attributable to the Drain.
The Town is seeking its costs for additional engineering services for the amended Report, and the City agrees. The Tribunal finds that this is an appropriate cost. On the other hand, the Tribunal finds that any internal staffing and disbursement costs are not appropriate and should be absorbed by the Town.
The remaining issue is “Who pays?” The Town submits that the City should pay. The City admits it should pay but that the costs should be charged against the watershed and paid through the assessment process. The Tribunal disagrees. To visit these additional costs on the assessed landowners would significantly increase their assessments without providing them any input into the process. More importantly, the watershed did not cause the errors that necessitated this appeal.
Therefore, the costs of revising the Report and of these proceedings shall be borne by the City out of its general funds and shall not be assessed as against the lands.
Order of the Tribunal
The Tribunal hereby orders:
The City of Port Colborne shall pay to the Town of Fort Erie its engineering costs in the amount of $17,357.23.
The City of Port Colborne shall pay to Gary Ross Clee the sum of $5,556.78, being his legal fees of $1,017 and his consultant fees of $4,539.78.
The City of Port Colborne shall pay to Gary Ross Clee the sum of $8,000 for the loss of his tree screen (as previously ordered by this Tribunal).
Dated at Tecumseh, Ontario this 12th day of June, 2019.