Agriculture, Food and Rural Affairs
Appeal Tribunal
1Stone 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:
Mullen Drain (RE)
[Cost Decision]
Town of Lakeshore, Ontario
Mullen Drain (RE)
[Cost Decision]
STATUTE:
HEARING:
July 16, 2019
DATE OF DECISION:
July 16, 2019
007Mullen19
NEUTRAL CITATION:
2019 ONAFRAAT 15
MULLEN drain
Town of Lakeshore, Ontario
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 Judith A. Murphy, of Richmond, Michigan, U.S.A. under Section 64 of the Drainage Act, regarding the Mullen Drain in the Town of Lakeshore.
Before:
John O’Kane, Vice-Chair, Ed Dries, Vice-Chair, and Sarah Judd, Member
COST DECISION OF THE TRIBUNAL
Judith A. Murphy appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) under section 64 of the Drainage Act, R.S.O. 1990, Chapter D.17, as amended (the “Act”) because of her dissatisfaction about the quality of construction of drainage works constructed under an engineer’s report prepared by Gerard Rood of Rood Engineering Inc. (the “Report”) dated June 20, 2016 and known as the Mullen Drain.
The Tribunal dismissed the appeal because the Appellant failed to prove that the drainage works were not constructed as designed in the Report. The Respondent, the Town of Lakeshore, seeks an order for engineering and legal costs related to the hearing on April 3, 2019, which totalled $8,293.92 inclusive of HST. The appellant, Ms. Murphy, submitted no documents related to costs.
The Tribunal orders Ms. Murphy to pay some costs borne by the municipality as detailed herein.
Background
The Mullen Drain was constructed after an amendment was made to the original September 28, 2015 drainage report.
The drainage area has a relatively flat grade and it encompasses only two properties; Ms. Murphy’s property and the T.S. Mullen Farms Ltd. property. The drain itself centres on the Mullen/Murphy property line and allows T.S. Mullen Farms Ltd. to drain 19.6 ha of affected land, while allowing Ms. Murphy to drain 4.0 ha.
Usually under the Act, the property that will receive the most direct drainage benefit by the construction of the drain is assessed a higher rate of benefit assessment than those properties not as directly serviced. In this case, as shown in the 2016 Engineers report, the benefit costs assessed against the Mullin property is much greater than that assessed against the Murphy lands. Further, the area of the Mullin lands within the defined watershed of the drain is much larger than that of the Murphy lands and hence the outlet assessment against the Mullin lands is much larger than that shown against the Murphy lands.
Jurisdiction to Award Costs
The Tribunal has the authority to award costs under both the Statutory Powers and Procedures Act (SPPA), and the Drainage Act.
The SPPA section 17.1 provides:
(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.
Exceptions that apply to this rule are also outlined:
(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.
The Drainage Act section 98 provides:
(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 provide guidance on who may request an Order for costs, what kind of costs may be awarded, and how costs may be apportioned:
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.
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.
Therefore, Section 98 of the Drainage Act gives the Tribunal wide discretionary jurisdiction to award costs of proceedings before it and Rule 31 of the Tribunal’s Rules animate that Drainage Act jurisdiction.
Section 17.1 of the SPPA gives the Tribunal limited discretionary jurisdiction to award costs and Rule 28 of the Tribunal’s Rules animate that SPPA jurisdiction.
Analysis
The Tribunal exercises discretion in cost awards. Not all appeals are worthy of cost awards and often, the Tribunal cannot make an order to pay costs. However, considering the scope of this appeal, the Tribunal finds that the conduct of the appellant has been unreasonable, and frivolous.
Landowners have a statutory right to appeal under section 64 of the Drainage Act which relates to the quality of construction of the drain. However, the appellant’s arguments must remain within the scope of the section on which they want to appeal. The decision released on April 8, 2019 stated that Ms. Murphy’s appeal was dismissed because the evidence provided could not satisfy the Tribunal that the drain was not functioning as designed.
The only engineering evidence during the hearing was from Gerard Rood, a professional engineer who the Tribunal qualified as an expert to give opinion evidence in drainage engineering. His evidence was that the drain was supervised and inspected by his firm and was constructed to plans, profiles and specifications of the Report.
Although Ms. Murphy raised other issues related to the drain and her property, they were not within the scope of section 64 and did not relate to constructing the drain. Ms. Murphy came unprepared to present argument on construction, plans, profiles and specification or any engineering evidence by an expert qualified to provide such argument. Attempting to relitigate an issue which has been decided and had become final is unreasonable, and is an abuse of process resulting in unnecessary costs for the Town of Lakeshore and T. S. Mullen Farms Ltd.
The Tribunal finds there was no basis for appeal and that it was not reasonable to bring the appeal forward. Ms. Murphy would have determined there was no basis for an appeal with simple assistance or advice from a legal advisor or drainage engineer.
Ms. Murphy has been involved with previous decisions before the Tribunal associated with the Mullen Drain. Ms. Murphy would know that the previous appeal decisions awarded costs against her. With this knowledge, the Tribunal finds that a reasonable appellant would seek advice or consultation from an expert to test the grounds of this appeal.
Ms. Murphy’s frivolous and unreasonable appeal cost the other parties and Tribunal a great deal of time. The Tribunal considers that the costs being sought by the Town are not unreasonable in the circumstances.
Quantum of Costs
The Town of Lakeshore submitted costs for legal and engineering fees regarding this hearing:
Legal Fees: $3,555.00
Disbursements: $330.75
Engineering Fees: $2,898.00
Disbursements: $556.00
HST: $954.17
Total: $8,293.92
In this matter the landowners within the drainage area pay for the drain and the associated costs for appeal, including the costs borne by the Municipality. Typically, the appeal costs would be distributed among the land owners in the drainage area according to the assessment schedule.
However, for this hearing the assessment against the T. S. Mullen Farms Ltd property represents 75.5% of the total cost of the works. Consequently, for every dollar of appeal hearing costs apportioned to the drain, Mr. Mullen’s cost would be 75.5%. The Tribunal finds it is unreasonable for Mr. Mullen to contribute this amount to the drain because of this hearing since there are only two landowners affected by this drain, one of whom is Ms. Murphy.
The Tribunal notes that Mr. Mullen’s rights are protected through the process and it is not unreasonable for Mr. Mullen to contribute something towards the drain.
The Tribunal has determined that the cost awarded against Ms. Murphy is $6,638.40, or 80% of the cost sought by the Town with the remainder of the costs to be apportioned to the overall cost of the drain.
Order of the Tribunal
Based on the findings and analysis:
The Tribunal orders that the appeal costs are fixed at $8,293.92
The Tribunal orders that the Township of Lakeshore shall recover appeal costs of $6,638.40 from Judith Murphy.
The Tribunal Orders that the Township of Lakeshore is free to enter the costs awarded on the tax roll immediately against any land owned by Judith A. Murphy assessed under the drain.
The Tribunal Orders that the balance of the Township of Lakeshore’s appeal costs of $1,655.52 shall be a charge against the Mullen Drain and apportioned among the lands on the drain in accordance with the current by-law.
The Tribunal orders that no other or additional costs associated with the appeal shall be charged against or to the drain account.
Dated at Collingwood, Ontario this 16th day of July, 2019.