Agriculture, Food and Rural Affairs Appeal Tribunal
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales
1 Stone Road West, 2nd Floor NW Guelph, Ontario, N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
1 Stone Road West, 2e étage NW Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca
APPEAL: van Beek v Wood’s Dairy Source (RE)
Cost Decision van Beek v Wood’s Dairy Source (RE)
STATUTE: Farm Implements Act
HEARING: August 22, 2019
DATE OF DECISION: August 22, 2019
004vanBeek19
NEUTRAL CITATION: 2019 ONAFRAAT 16
IN THE MATTER OF THE FARM IMPLEMENTS ACT
AND IN THE MATTER OF: An Application to the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) by Johan and Herma van Beek, of Norwood, Ontario, under Sections 10, 11, 12, 13, 21, 22, 31, and 33 of the Farm Implements Act in a dispute with Wood’s Dairy Source, Keene, Ontario concerning a turn-key installation of a new milk dairy parlour.
Before: John O’Kane, Vice-Chair, Tricia Schouten, Vice-Chair, Maurice Janisse, Member
COSTS DECISION
Introduction
After the Decision of the Agriculture, Food and Rural Affairs Appeal Tribunal (“the Tribunal”) was released, counsel for the Respondent, Wood’s Dairy Source (“Woods”), requested the opportunity to make submissions regarding costs. The Tribunal granted the request, and written submissions were filed on behalf of Woods. The Appellant, Johan and Herma Van Beek (“the Van Beeks”) were then granted the opportunity to respond to the written submissions of Woods, which written submissions were filed by the Van Beeks. Woods then requested the opportunity to reply to the written submissions of the Van Beeks. The Tribunal also granted that request, and additional written submissions were filed on behalf of Woods. The Van Beeks then requested the opportunity to reply to the additional written submissions filed on behalf of Woods. That request was denied as there is no right to reply to the additional submissions.
Woods seeks costs in the amount of $15,000.00, being approximately one half of the $32,590.21 in costs and disbursements which Woods claims to have incurred in defending the application.
The Van Beeks oppose any award of costs.
This proceeding consisted of a hearing which lasted two days. Herma Van Beek and Niels Van Beek presented the application on behalf of the Van Beeks, and James Tausendfreund of Zuber & Company LLP acted on behalf of Woods. The Van Beeks called one witness and Woods called three witnesses.
Tribunal’s Jurisdiction to Award Costs
Pursuant to the Statutory Powers Procedures Act, the Tribunal has the authority to make its own rules and to award costs. Pursuant to Rule 28 of the Tribunal’s Rules of Procedure, the Tribunal may award costs if a party has acted clearly unreasonably, frivolously, vexatiously or in bad faith considering all of the circumstances. Chesterman Farm Equipment v. CNH Canada Ltd. confirms that such conduct is not limited to procedural conduct, but also as to the merits of the application or defence itself. The comments which accompany Rule 28 provide that an order for costs is very rare and is not standard as in court proceedings.
Award of Costs
Woods submit that the Van Beeks acted unreasonably, frivolously, vexatiously or in bad faith in two respects. The first with respect to the signed Release, and the second with respect to the potentially harmful allegation that Woods had caused an outbreak of mastitis in the Van Beeks’ herd.
The Tribunal determines that the Van Beeks did not act unreasonably, frivolously, vexatiously or in bad faith in bringing the application notwithstanding the existence of the signed Release. The Van Beeks’ position was that the Release was unenforceable for the following two reasons: it was signed under duress; and, Woods failed to abide by the terms of the Release. Although the Tribunal found as a fact that the Release was enforceable, that finding alone does not establish that the Van Beeks acted unreasonably, frivolously, vexatiously or in bad faith in bringing the Appeal. The Tribunal determines that it was the Van Beeks’ genuine belief that the Release was not enforceable for the aforementioned reasons. There was no bad faith in taking that position.
The Tribunal determines that the Van Beeks did not act unreasonably, frivolously, vexatiously or in bad faith with respect to the allegations that Woods had caused an outbreak of mastitis in the Van Beeks’ herd. The Tribunal determined that the Van Beeks did not provide evidence at the hearing which established that Woods’ actions resulted in the outbreak of mastitis in their herd. Although there was evidence that indicated that there could be a causal connection between the mastitis outbreak and the actions of Woods, the Tribunal determined that the evidence which was presented was insufficient to prove a causal link. Again, the Tribunal determines that the Van Beeks brought the application with the genuine belief that the actions of Woods caused the mastitis outbreak in their herd. Again, the Van Beeks did not act unreasonably, frivolously, vexatiously or in bad faith in taking that position.
The Tribunal determines that the Van Beeks brought the application in good faith and acting reasonably. The fact that the Tribunal determined that the evidence was such that their application was dismissed does not constitute unreasonable, frivolous, vexatious or bad faith on behalf of the Van Beeks.
Quantum of Costs
In the event of an appeal and a determination that the decision not to award costs was unreasonable or incorrect, we have determined that the quantum of costs as submitted by Woods is reasonable.
Conclusion
The Tribunal determines that the Van Beeks did not act unreasonably, frivolously, vexatiously or in bad faith in bringing the application. The request for costs is denied.
Dated at Richmond, Ontario, this 22nd day of August, 2019.