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:
General Drain (RE) [Costs Decision] Jones Realty Inc. Town of Amherstburg 1000083282 Ontario Inc. and 1603844 Ontario Inc.
General Drain (RE) [Cost Decision] 2025 ONAFRAAT 04
STATUTE:
Drainage Act
HEARING:
April 15, 2025
DATE OF DECISION:
April 29, 2025
011GeneralPrivate24
NEUTRAL CITATION:
2025 ONAFRAAT 04
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF Notices of Appeal to the Tribunal by Jones Realty Inc. of McGregor Ontario, under Section 48(1) and Section 54(1) of the Drainage Act (“Act”) with respect to the General Drain (2024) in the Town of Amherstburg.
AND IN THE MATTER OF an application for costs heard pursuant to Rule 34 of the Tribunal’s Rules of Procedure.
BETWEEN:
Jones Realty Inc. Appellant
-and-
Town of Amherstburg Respondent
-and-
1000083282 Ontario Inc. and 1603844 Ontario Inc. Party
Represented by Paul Courey
Represented by Robert Scriven Represented by Stuart Mackay
Heard: April 15, 2025 via Zoom
Before: Glenn C. Walker, Chair
Parties Present:
Dan Huneault - Officer, Jones Realty Inc., Appellant
Paul Courey - Counsel for Appellant
Sam Paglia - Drainage Superintendent, Town of Amherstburg
Josh Warner P. Eng., - R. Dobbin Engineering, Engineer who wrote the report
Robert Scriven - Counsel for Municipality
Stuart Mackay - Counsel for 1000083282 Ontario Inc. and 1603844 Ontario Inc.
COSTS DECISION AND ORDER
background
Jones Realty Inc. (“Jones”) commenced an appeal to the Tribunal pursuant to Sections 48(1) and 54(1) of the Act with respect to the proposed General Drain (2024) (“Drain”). The Town of Amherstburg (“Amherstburg”), the municipality who authorized the Report for the proposed Drain, is the respondent.
There are 15 properties within the watershed for the proposed Drain. Those properties are identified in the Report as Index Numbers 1 through 15. Eight of those properties are presently served by a private drain which is alleged to outlet into the Detroit River.
The appellant’s concerns relate to the increased flow and the possible deposit of contaminated silt and debris as a result of the proposed Drain out letting, not directly into the Detroit River, but into the basin of Jones’ yacht club, which it claims is a water lot owned by it.
1000083282 Ontario Inc. (“1000”) is the owner of properties named as Index Number 3 and 4, which consist of vacant land proposed to be developed into a residential property as River’s Edge Phase 3.
1603844 Ontario Inc. (“160”) is the owner of properties named as Index Numbers 5 and 7 which have been developed as multi-unit condominiums as River’s Edge Phases 1 and 2. 160, as the owner of property designated as Index Number 5, is also one of the petitioners for the proposed Drain.
THE MOTION TO ADD PARTIES
The Tribunal scheduled a Pre-Hearing Conference (“PHC”) in this matter between the appellant and the respondent for February 4, 2025, commencing at 1:00 pm before Vice-Chair Fuller.
In the early evening of February 3, 2025, Mr. Courey, counsel for the appellant, noticed an email in his inbox serving upon him a Notice of Motion from Mr. MacKay stating that he represented the moving party 1339407 Ontario Inc. (“133”), who was seeking an order adding it as a party to the appeal.
The motion (“First Motion”) was made returnable at the PHC the next day. Mr. Courey checked the Report and was unable to understand what connection 133 had to the Engineer’s Report or these appeals. Mid-morning on the day of the PHC, Mr. Courey received a Motion Record from Mr. MacKay.
At the PHC before Vice-Chair Fuller, Mr. Courey argued that the motion was not properly before the Tribunal and objected to it being heard that day. He further submitted that the moving party must be an affected owner to be added as a party and that the motion material did not disclose any relationship between the moving party and the Drain.
The Vice-Chair declined to hear the motion that day and adjourned the motion and the PHC to March 17, 2025. He also ordered the exchange of motion records.
I might add at this point, that at the commencement of this PHC, the Vice-Chair disclosed that he had a conflict of interest with Mr. Scriven, counsel for Amherstburg, as the two of them had co-authored a book on agricultural law. As a result of this disclosure, counsel for both parties and Mr. MacKay consented to him hearing the motion and continuing to chair the PHC and the hearing of the appeal.
Mr. MacKay filed an amended motion record dated February 18, 2025 (“Second Motion”). The Notice of Motion seeks to have 1000 added as a party to the proceedings as the owner of properties with Index Numbers 3 and 4. The motion materials disclose that despite 160 now having been amalgamated into another corporation, 160 remains the registered owner of properties with Index Numbers 5 and 7.
On March 17, 2025, 1000 and 160 were added as parties to the proceedings on the consent of Amherstburg and the qualified consent of Jones. Mr. Courey argued that his client had suffered costs thrown away in the amount of $1,000 since it had to consider and respond to the first motion brought by 133, which motion was entirely without merit, and that he had to deal with the second motion which could have been dealt with less formally in his opinion.
At the hearing on March 17, 2025, Vice-Chair Fuller realized that he had a second basis for a conflict of interest or apprehension of bias with respect to Mr. Scriven. He recused himself and found that he could not make any further decisions regarding this appeal.
Submissions with respect to Mr. Courey’s application for costs relative to the motion to add were heard following the argument of a motion to produce on April 15, 2025. All parties consented to me hearing the submissions with respect to costs of the motion to add and rendering a decision on this issue.
THE LAW OF COSTS
The Tribunal’s authority to award costs is governed by Sections 17.1 and 25.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”). The Tribunal has made rules regarding costs.
Rule 34 of the Tribunal’s Rules of Procedure provides that costs may be awarded where a party believes that another party has acted unreasonably, frivolously, vexatiously or in bad faith considering all of the circumstances (Rule 34.01); that costs may be awarded at any time during the proceeding (Rule 34.02); that costs may be awarded in certain circumstances such as failing to give notice or adequate explanation (Rule 34.04(ii)) and conduct necessitating unnecessary adjournments or delays (Rule 34.04 (iv)); that the Tribunal is not bound by any of the examples provided in Rule 34.04 and that the Tribunal will consider the seriousness of the conduct (Rule 34.05).
As with the courts, awards of costs are within the discretion of the Tribunal. (Dell v. Zeifman Partners Inc., 2020 ONSC 3881)
THE POSITION OF THE PARTIES AND ANALYSIS
The first motion brought by Mr. MacKay on behalf of 133, was not properly before the Tribunal.
The moving party did not comply with Rule 30 of the Tribunal’s Rules of Procedure. The Rule provides that the moving party must first obtain a return date from the Tribunal (Rule 30.02) and then serve the Notice of Motion with a notice period of ten business days (Rule 30.04).
Mr. MacKay did contact the Tribunal and was given a Zoom invitation to attend the PHC which was open to the public. He was not assigned that date as the return date of the First Motion, and his request cannot be construed as a waiver of Rule 30.
The First Motion brought by Mr. MacKay on behalf of 133 was not relevant to the appeal as 133 is not an assessed owner on the proposed drain and had no standing to ask to be added to the proceedings.
Mr. Courey argues that he spent about 2 and one-half hours reviewing the material for the first motion struggling to see how it related to the General Drain appeal. He did not provide any further detail as to how the amount of $1,000 was calculated.
His consent to the order adding 1000 and 160 as parties was made conditional on the payment of the $1,000 in costs and he argues that costs remain a live issue.
He further argues that the conduct of 133 and 1000 relating to the First Motion was unreasonable and/or frivolous and that it necessitated unnecessary adjournments or delays.
He seeks costs of $1,000 against 1000 and 133. He does not seek costs against Amherstburg. He also does not seek costs against Mr. MacKay or anyone else in his firm personally.
The grounds for awarding costs for this and other tribunals, is restricted by the SPPA. Costs should be ordered only in the most egregious circumstances.
With respect to the First Motion, I find that the conduct of 133 was in these circumstances unreasonable and frivolous. The failure to comply with the Rules and name the proper moving party make it so. The actions taken by 133 required an unnecessary adjournment.
The appellants seek costs against both 133 and 1000. 133 is not a party to these proceedings. As Mr. Courey admitted, its motion was never properly before the Tribunal.
I was not referred to any authority which would give me the power to award costs against a non-party. I point out once again that costs are not sought from counsel for 133. I see no grounds on which I could award costs against 133.
On the other hand, I find no unreasonable or frivolous behaviour on the part of 1000. It brought a motion to be added (Second Motion), as was proper. The motion was not argued because the other parties consented.
I would therefore dismiss the application for costs on this basis.
However, in the event that I am wrong in dismissing the application for the above reasons, I have also considered the seriousness of the behaviour of both 133 and 1000. I find that these are not the circumstances in which costs should be ordered.
These are not the egregious circumstances contemplated by the SPPA and the rules. Upon realizing the error, 1000 immediately took steps to bring a proper motion to be added.
I would dismiss the application for costs for these reasons as well.
CONCLUSION
In summary, I am not convinced that costs should be awarded against 1000 and 133 for the reasons given above. In the alternative, the behaviour of the moving parties is not of such a serious nature that costs should be ordered.
The application for costs is dismissed.
Dated at Chatham, Ontario this 29th day of April 2025.