Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: July 19, 2017

CASE NO.: 12-033

PROCEEDING COMMENCED UNDER section 41 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended

Appellant: Concerned Citizens Committee of Tyendinaga and Environs (CCCTE)

Instrument Holder: Waste Management of Canada Corporation

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Terms and conditions imposed under section 20.3 of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, for an Amended Environmental Compliance Approval of the use, operation, and closure of the Richmond Landfill Site.

Reference No.: A371203

Property Address/Description: Lot Pt 1, 2, 3, Concession 4

Municipality: Town of Greater Napanee

Upper Tier: County of Lennox and Addington

ERT Case No.: 12-033

ERT Case Name: CCCTE v. Ontario (Environment and Climate Change)

Heard: In writing

APPEARANCES:

Parties	Counsel
Mohawks of the Bay of Quinte	Eric Gillespie
Waste Management of Canada Corporation	Harry Dahme and Jessica Boily
Director, Ministry of the Environment and Climate Change	Paul McCulloch

ORDER DELIVERED BY JERRY V. DEMARCO

REASONS

Background

1This order of the Environmental Review Tribunal (“Tribunal”) addresses a motion to review (reconsider) an earlier order of the Tribunal. The motion is brought by the Mohawks of the Bay of Quinte (“MBQ”) in respect of a Tribunal order dated May 3, 2017 (Concerned Citizens Committee of Tyendinaga and Environs v. Ontario (Ministry of the Environment and Climate Change), [2017] O.E.R.T.D. No. 24 (“Costs Dismissal Order”)).

2The Costs Dismissal Order dismissed an application for costs brought by MBQ against Waste Management of Canada Corporation (“Waste Management” or “WMC”). The costs application arose from an appeal to the Tribunal by the Concerned Citizens Committee of Tyendinaga and Environs (“CCCTE”) of certain conditions of Amended Environmental Compliance Approval No. A371203 issued by the Director, Ministry of the Environment and Climate Change (“MOECC”) to Waste Management, in relation to the closure of the Richmond Landfill Site (“Landfill”) in the Town of Greater Napanee. The Tribunal granted party status to MBQ in CCCTE’s appeal.

3MBQ brought an earlier application for advance costs against Waste Management prior to the main hearing in the appeal. The Tribunal later adjourned MBQ’s request for costs to a date after the main hearing (see Tribunal orders dated February 2, March 27 and June 18, 2015).

4After the main hearing, MBQ sought an order directing Waste Management to pay MBQ costs in the amount of $445,037.19 for legal representation and expert evidence, on the grounds that Waste Management’s conduct and/or course of conduct in relation to the proceeding was unreasonable. The application for costs was heard in writing by the same member of the Tribunal (“Costs Panel”) that heard the main hearing on the merits. In the Costs Dismissal Order, the Costs Panel found that Waste Management had not engaged in unreasonable conduct and, as a result, there was no authority under s. 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) for the Tribunal to award MBQ costs.

5In this motion to review, MBQ seeks to have a panel appointed pursuant to Rules 239 to 242 of the Tribunal’s Rules of Practice for the purposes of carrying out a hearing to review the Costs Dismissal Order. If MBQ’s review motion is granted and a review hearing is conducted, then MBQ would seek to set aside the Costs Dismissal Order and to receive the costs award it originally sought before the Costs Panel. In this motion to review, MBQ relies on the ground that the Costs Panel committed an error of law. MBQ also seeks costs of this motion to review.

6The Tribunal has reviewed all of the materials submitted by the parties on the motion to review, the relevant Tribunal orders and decision in this proceeding, and the parties’ written submissions to the Costs Panel. For the reasons set out below, the Tribunal concludes that it is not advisable to review the Costs Dismissal Order issued by the Costs Panel.

Issue

7The issue is whether it is advisable to grant the motion to review the Costs Dismissal Order.

Relevant Legislation and Rules

8The relevant legislative provisions and Rules are as follows:

SPPA

Costs

17.1 (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.

Exception

(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).

Amount of costs

(3) The amount of the costs ordered under this section shall be determined in accordance with the rules made under subsection (4).

Rules

(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. […]

Power to review

21.2(1) A tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order.

Tribunal Rules of Practice

COSTS

Objectives of Costs Rules

212. A costs award refers to the reimbursement of reasonable and eligible expenditures incurred by a Party for participation in a proceeding before the Tribunal. The objectives of the Tribunal’s costs Rules are to: provide consistency and predictability in the awarding of costs by outlining relevant principles and evaluation criteria; to encourage responsible conduct in proceedings; and to discourage unreasonable conduct.

Scope of Costs Awards

213. A wide authority to award costs applies to proceedings under the Consolidated Hearings Act and the Environmental Assessment Act and to proceedings under sections 20.15 and 36 of the Environmental Protection Act and section 74 of the Ontario Water Resources Act. A limited authority to award costs in situations of improper conduct applies to all proceedings before the Tribunal except Niagara Escarpment Plan amendment proceedings under the Niagara Escarpment Planning and Development Act and proceedings under the Oak Ridges Moraine Conservation Act, 2001 and Greenbelt Act, 2005.

214. In its costs decision, the Tribunal may order to whom and by whom the costs are to be paid and fix the amount of the costs. The Tribunal may also direct the scale at which the costs are to be assessed and assign the actual assessment, subject to confirmation by the Tribunal, to a designated person.

Other Circumstances in which Costs may be Awarded

225. Under section 17.1 of the Statutory Powers Procedure Act, the Tribunal may only order costs to be paid if the conduct or course of conduct of a Party has been unreasonable, frivolous or vexatious or if a Party has acted in bad faith.

This power applies to all proceedings before the Tribunal except proceedings under the Oak Ridges Moraine Conservation Act, 2001, proceedings under the Greenbelt Act, 2005 and Niagara Escarpment Plan amendment proceedings under the Niagara Escarpment Planning and Development Act, unless the Niagara Escarpment Plan amendment proceeding is brought under the Consolidated Hearings Act.

It is expected that this power will only be used in the rare case where a Party’s conduct warrants such an award. In determining an award of costs under this Rule, the Tribunal may consider, among other things, the conduct of the requesting Party as well as whether the Party against whom a costs award is sought:

(a) failed to attend a Hearing or to send a representative when properly given notice, without contacting the Case Coordinator;

(b) failed to co-operate, changed a position without notice, or introduced an issue or evidence not previously mentioned;

(c) failed to act in a timely manner;

(d) failed to comply with the Tribunal’s Rules or procedural orders;

(e) caused unnecessary adjournments or delays or failed to prepare adequately for Hearings;

(f) failed to present evidence, continued to deal with irrelevant issues, or asked questions or acted in a manner that the Tribunal determined to be improper;

(g) failed to make reasonable efforts to combine submissions with Parties of similar interest;

(h) acted disrespectfully or maligned the character of another Party; and,

(i) knowingly presented false or misleading evidence.

226. The Tribunal is not bound to order costs when any of the instances listed in Rule 225 occurs nor does the Tribunal have to find that one of the instances occurred in order to conclude that the conduct of a Party has been unreasonable, frivolous or vexatious or that a Party has acted in bad faith. The Tribunal will also consider whether the issues respecting the conduct of such a Party can be addressed by a denial or reduction of costs in its favour rather than a costs award against it.

REVIEW OF ORDERS AND DECISIONS (RECONSIDERATION)

235. A Party may request a review of an order or decision.

236. Notwithstanding Rule 98, a Party making a request under Rule 235 shall serve and file a Notice of Motion and all supporting material within 30 days of the date of the making of the order or decision that is the subject of the request, except in the case of orders and decisions made under the Environmental Bill of Rights, 1993, in which case the request must be made within ten days.

237. Notwithstanding Rule 99, a Party who wishes to respond to a motion to review shall serve and file its submissions and all supporting material within ten days of the serving of the Notice of Motion and all supporting material under Rule 236.

238. In deciding whether it is advisable to review all or part of its order or decision, the Tribunal may consider any relevant circumstances including:

(a) whether the Tribunal acted outside its jurisdiction;

(b) whether there is a material error of law or fact such that the Tribunal would likely have reached a different decision but for that error;

(c) whether there is new evidence admissible under the conditions of Rule 234;

(d) the extent to which any person or any other Party has relied on the order or decision;

(e) whether the order or decision is under appeal or is the subject of a judicial review application; and

(f) whether the public interest in finality of orders and decisions is outweighed by the prejudice to the requester.

239. The Tribunal may grant the motion in whole or in part, based on the material filed and/or the record from the original Hearing, and may make procedural directions for the review.

240. The panel who issued the original order or decision shall not hear the motion to review, but may hear the review itself if so designated by the Chair.

241. The panel who heard the motion to review shall not conduct the review.

242. Following the review Hearing, the Tribunal may confirm, vary, suspend, or cancel the order or decision under review in whole or in part.

Discussion

Overview of the Parties’ Positions

9MBQ requests a review of the Costs Dismissal Order. Waste Management opposes MBQ’s motion. The Director does not take a position but submitted brief comments.

Mohawks of the Bay of Quinte’s Submissions

10MBQ seeks a review of the Costs Dismissal Order. MBQ also seeks costs of this motion to review.

11MBQ focuses its motion to review on an alleged clear error of law under Rule 238(b) that is likely to lead to a different result on MBQ’s application for costs, but for the Tribunal’s error. MBQ does not allege an error of jurisdiction pursuant to Rule 238(a) or seek to have new evidence admitted under Rule 238(c).

12MBQ submits that the considerations set out in Rules 238(d), (e) and (f) are not sufficient in this case to negate MBQ’s request for review. MBQ notes, pursuant to Rule 238(d), that the only party that could have relied on the Costs Dismissal Order is Waste Management, which merely did not have to pay the costs sought by MBQ.

13MBQ filed an appeal of the Costs Dismissal Order with the Divisional Court pursuant to s. 145.6(1) the Environmental Protection Act (“EPA”). However, MBQ submits that the appeal should not prejudice MBQ’s ability to seek administrative review before the Tribunal under Rule 238(e) given the principle of law that a party seeking to judicially review or appeal should exhaust its administrative remedies before seeking relief from the courts.

14MBQ argues that the severe prejudice to it of losing any recognition as a First Nation and any ability to seek what for it is an extremely large financial amount strongly favours a review under Rule 238(f). MBQ notes in this regard that the public interest in finality in this case is limited, as the Costs Dismissal Order only involves a single private litigant, Waste Management, whose rights will not be prejudiced by reopening the matter.

15MBQ takes issue with the Costs Panel’s findings, which it alleges were made without regard to the unique and special circumstances of MBQ as a First Nation. MBQ argues that the Costs Panel made an error in law in finding at para. 115 of the Costs Dismissal Order that “a First Nation is in no different position than any other party” for the purposes of considering a request for costs. MBQ argues that the Costs Panel made an error in law in its application of the three-stage costs analysis set out in Baker v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 29 (“Baker (Costs)”). MBQ submits that the Costs Panel erred in finding that MBQ’s status was not relevant to the first stage assessment of the conduct of the party against whom costs are sought and instead would only have applied to the second stage determination of whether the Tribunal should exercise its discretion to award costs.

16MBQ argues that the passages in Baker (Costs) relied upon by the Costs Panel direct the decision-maker to have regard for the “impacts” on the party claiming costs that were caused by the unreasonable conduct of the party against whom costs are sought, and to have regard for the “circumstances” in which this occurred. MBQ states that it “is illogical and irrational for a decision-maker to consider impact in a vacuum. Impact directly depends on who the impact is on”. MBQ states that assessing conduct “in the circumstances” must include consideration of the circumstances of the party seeking costs. MBQ argues that the Tribunal was wrong to ignore MBQ’s status as a First Nation and the associated historic disadvantages experienced and legal obligations owed particularly given the Honour of the Crown, of which the Tribunal forms part.

17MBQ argues that there is no basis in law for the Costs Panel limiting consideration of other relevant factors to the second stage of the costs analysis. Rather, the framework set out in Baker (Costs) and followed by the Costs Panel is a product of the Tribunal and not a requirement of s. 17.1 of the SPPA, which does not distinguish between different stages of a costs analysis. MBQ argues that the Costs Panel arbitrarily excluded MBQ’s status as a First Nation from any consideration in one stage of the analysis but would have considered all of these same factors at another stage. MBQ argues that the various stages set out in Baker (Costs) take place under the SPPA such that all relevant factors are to be considered in arriving at a determination.

18Further, MBQ states that the Costs Panel did not cite other legal authority or case law for its approach to its costs application. MBQ recognizes that the Costs Panel referenced Johnson v. Ontario (Ministry of Environment), [2006] O.E.R.T.D. No. 20 (“Johnson”) in acknowledging that it is proper to consider other relevant factors in exercising its discretion at the second stage of the costs analysis. However, MBQ states that Johnson does not specifically create a bar to assessing the factors raised by MBQ at the first stage of the analysis.

19MBQ also states that the Costs Panel’s approach directly contradicts existing Environment and Land Tribunals Ontario (“ELTO”) jurisprudence and cites cases from the Ontario Municipal Board (“OMB”), which along with the Tribunal is within the ELTO cluster of tribunals. MBQ states that OMB decisions recognize and rely on the circumstances, attributes and characteristics of the parties in determining the “reasonableness” of conduct in relation to costs awards. MBQ argues that the fundamental rules of natural justice and procedural fairness suggest that there should be no distinction between how the OMB and the Tribunal address applications for costs. MBQ further argues that this suggests that the Costs Panel’s delineation of “stages” that resulted in MBQ’s status as a First Nation being ignored should be rejected. MBQ calls for the Tribunal to take up this “clear and direct opportunity to address and redress historic disadvantages that First Nations have experienced”. MBQ argues that the outcome of its costs motion would have been “dramatically affected and different” if its circumstances were properly considered.

Waste Management of Canada Corporation’s Submissions

20Waste Management opposes MBQ’s request to review on the basis that MBQ has not met the high threshold for demonstrating that a review of the Costs Dismissal Order is advisable. It argues that MBQ has failed to point to a material error of law made by the Costs Panel such that the Tribunal would likely have reached a different decision but for that error as contemplated under Rule 238(b). It argues that MBQ presents no credible basis upon which to question the Costs Dismissal Order.

21Waste Management notes that the Tribunal’s power of review is discretionary and is to be used only in exceptional circumstances. Waste Management argues that the threshold to grant a review is even higher here given the right to appeal the Costs Dismissal Order. Waste Management submits that MBQ’s argument on the relevance of its status as a First Nation to the determination on costs amounts to “an attempt to transform the Tribunal’s narrow jurisdiction over costs into a de facto participant funding program aimed at ‘address[ing] and redress[ing] historic disadvantages that First Nations have experienced’”. Waste Management submits this exceeds the jurisdiction of the Tribunal and would instead be a matter for the Ontario Legislature to address by amending the SPPA to provide such costs jurisdiction to the Tribunal as it sees fit.

22Waste Management takes the position that a review is not advisable because the Costs Panel did not make an “error of law” as alleged by MBQ under Rule 238(b). Waste Management submits the Tribunal’s approach in not considering MBQ’s status as a First Nation at the first stage of the costs test is consistent with the limitations on the Tribunal’s jurisdiction to award costs as laid out in s. 17.1 of the SPPA, the Rules, the Tribunal’s test respecting costs, and the Tribunal’s case law (citing Baker (Costs) at paras. 108-112 and Preserve Mapleton Inc. v. Ontario (Director, Ministry of the Environment), [2012] O.E.R.T.D. No. 19 (“Preserve Mapleton”) at paras. 90-91).

23Waste Management states that the Tribunal’s Rules are circumscribed by s. 17.1(2) of the SPPA, which requires a finding of unreasonable, frivolous or vexatious, or bad faith conduct as a precondition to the Tribunal having jurisdiction to make a costs award. Waste Management cites case law for its positions that unreasonable conduct is a precondition for awarding costs under s. 17.1 (Chesterman Farm Equipment Inc. v. CNH Canada Ltd., 2016 ONSC 698 (Div. Ct.) (“Chesterman”) at paras. 180-181) and that policy considerations do not override statutory requirements (Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services), 2007 ONCA 416 (“Kerry”) at paras. 190-193). Waste Management points to the Costs Panel’s factual finding that there was no evidence to substantiate MBQ’s allegations of unreasonable conduct, which was not put at issue in MBQ’s motion for review. Waste Management argues that the Costs Panel lacked jurisdiction to award MBQ costs as a matter of law.

24Waste Management submits that MBQ improperly applies Baker (Costs) respecting “impacts” on the party claiming costs. In Baker (Costs), at paras. 91-93, the Tribunal found that it may consider the impact of the conduct of the party against whom costs are sought on the course of the proceeding, including the impact on other parties. However, Waste Management submits that Baker (Costs) does not suggest that the characteristics, attributes or status of the party claiming costs should be considered in the first stage, as MBQ submits.

25Waste Management asserts that the Tribunal did not err in following its own body of jurisprudence rather than that of the OMB. The OMB holds wider jurisdiction over costs pursuant to s. 97 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28, allowing costs “at the discretion of the Board", which may include consideration of encouraging public participation. As such, the OMB’s case law is not binding on the Tribunal. Rather, the Tribunal’s reliance on its own body of jurisprudence is in accordance with the established principles of administrative law. The Tribunal has explicitly stated, including in Baker (Costs), that there is no consideration of barriers to access to justice or public participation at the first stage of the costs analysis.

26Waste Management argues that, even if the OMB’s case law were persuasive authority, MBQ has in any event misstated the reasoning and holdings of the OMB cases cited to suggest that the nature, characteristics, attributes and circumstances of the party seeking costs are relevant at the first stage of the costs analysis. Rather, Waste Management submits, the OMB cases referenced provide that the nature, characteristics, attributes and circumstances of the party against whom a costs award is sought are relevant.

27Accordingly, Waste Management takes the position that granting a review of the Costs Dismissal Order is not advisable.

The Director’s Submissions

28The Director states that he “does not take a position on the reconsideration request” but submits some “brief comments”. The Director submits that the primary focus under s. 17.1 of the SPPA is on the actions of the party against whom costs are requested. The Director points to s. 17.1(2) as limiting the Tribunal’s authority to award costs to situations where a party exhibited conduct that has been unreasonable, frivolous or vexatious or has acted in bad faith. The Director argues that, while there may be situations where the circumstances of the party claiming costs may be relevant in evaluating the actions of the party against whom costs are requested, ultimately, the Tribunal must first find that there is unreasonable, frivolous or vexatious conduct by that party before awarding costs. Further, the Director submits that the Tribunal was correct in determining that it is the actions of the party as they specifically relate to the proceeding that must be evaluated, as noted at para. 103 of the Costs Dismissal Order.

Reply and Surreply Submissions

29The Tribunal’s Rules on motions to review do not contain an automatic right to submit reply submissions. MBQ requested an opportunity to reply to Waste Management’s submissions on this written motion to review but Waste Management objected to that request. The Tribunal asked the parties to attempt to resolve their differences on the issue of whether reply and surreply was warranted here, but the parties were unable to reach a consensus. The Tribunal, therefore, directed that the parties submit their reply and surreply submissions together with any submissions on the procedural issue of whether reply and surreply was warranted on this motion. The parties filed such submissions on June 28 and 29, 2017.

30Given that the reply and surreply materials ended up being confined to brief submissions that largely clarified earlier submissions without any new evidence or authorities, the Tribunal has determined that the most efficient way to proceed is to simply consider the substance of the reply and surreply submissions without parsing them to determine which parts constitute proper reply or surreply. No prejudice would accrue to either party if the Tribunal simply considers these additional submissions in their entirety. This is not to be taken as an endorsement by the Tribunal that reply and surreply are always warranted on a motion to review or that all of the parties’ submissions fit within the accepted boundaries of reply and surreply. The Tribunal adds that the outcome of this motion to review would be the same regardless of whether all, some or none of the reply and surreply is considered. A summary of the parties’ reply and surreply submissions follows.

31In reply, MBQ submits that Waste Management misconstrued MBQ’s position on this motion to review. The MBQ states that it is not seeking a hearing de novo but rather wishes to have its costs request reconsidered on the same evidence and submissions already before the Costs Panel. As well, MBQ disagrees that its request for costs amounts to a “de facto participant funding program” as alleged by Waste Management.

32MBQ further submits that, while the Tribunal may have previously determined that “barriers to access to justice and public participation” should not be considered at the first stage of the Tribunal’s costs test, this “directly contradicts” Tribunal Rule 1 and has no basis in the SPPA. MBQ also states that it “does not seek a determination that conflicts with the findings in Preserve Mapleton”. MBQ seeks a finding of improper conduct by Waste Management in relation to MBQ as a First Nation. MBQ emphasizes that it is challenging the framework and analytical approach used by the Tribunal and that “where an incorrect legal test is applied, this is an error of law”.

33With regard to its submissions on the alleged inconsistency between the approaches of the Tribunal and the OMB in regards to costs, MBQ submits that both bodies are governed by the SPPA and it is “legally impossible for the jurisdiction of the OMB to be ‘less constrained than the authority to grant costs under section 17.1 of the SPPA’, as the SPPA sets the outer limits of either bodies’ jurisdiction”. As a result, MBQ states, the Costs Panel’s approach results in another error of law. MBQ notes that, “while the Tribunal should seek to follow its own jurisprudence where possible, stare decisis does not apply”. MBQ states that “as a modern enlightened decision-maker, the Tribunal should be as willing and able as its ELTO and OMB counterparts to, at minimum, receive evidence and hear submissions regarding a party’s (and in particular a First Nation’s) characteristics/attributes etc.” in a costs application.

34MBQ also submits in reply that Waste Management was “incorrect in law to assert that the OMB decisions referenced by the MBQ only address findings regarding the impacts, circumstances and characteristics etc. of the party against whom costs are sought, and not the party seeking costs”. MBQ points to specific passages in three of the OMB cases where brief reference to the impacts, means or characteristics of the party requesting costs was made.

35In surreply, Waste Management submits that MBQ’s reply invites the Tribunal to act outside of its jurisdiction and ignore the clear wording of s. 17.1(2) of the SPPA. Waste Management states that the Tribunal’s Rules are subject to and limited by the SPPA and that the threshold test for costs is set out in s. 17.1(2) of the SPPA. Waste Management submits that the Rules “must be interpreted having regard to the SPPA and cannot be interpreted in a manner which conflicts with the wording of the SPPA”.

36Waste Management points out that the OMB derives its costs jurisdiction not just from the SPPA but also the Ontario Municipal Board Act, which is broader than s. 17.1(2) of the SPPA. Waste Management further notes that s. 17.1(6) of the SPPA “specifically provides that where a tribunal makes a costs order in accordance with the provisions of another Act, it is not required to comply with s. 17.1 of the SPPA.” Waste Management states that this provision applies to the OMB “but does not apply to this Tribunal in the case of the hearing in respect of which the MBQ sought costs” because the only costs provision applicable to this hearing is s. 17.1 of the SPPA.

37With regard to MBQ’s reply on the specifics of the OMB cases relied upon by MBQ, Waste Management reiterates that none of the OMB cases states that the “nature, characteristics, attributes and circumstances of the party seeking costs are relevant at the first stage” (emphasis in original). With respect to the three OMB cases focused on by MBQ in reply, Waste Management submits:

In response to paragraphs 7 and 8 of the Reply, the MBQ’s interpretation of the OMB cases is incorrect. A reading of the portion of the decision in Brampton dealing with costs is instructive. Beginning at page 56, the OMB first considered the conduct of IPCF and Costco, the parties against whom an award of costs was sought, finding both “approached this hearing with the single-minded purpose of succeeding in their goals at virtually any cost”.

The OMB then stated that “having regard to all of the circumstances of this hearing, costs will be exacted from parties whose conduct has not been entirely reasonable and awarded to those who are deserving of just compensation of expenses and whose conduct has been reasonable.” In that case, the OMB made its determination that IPCF and Costco had acted unreasonably as the first threshold issue. It then determined costs should be awarded to the City and First Gulf due to their reasonable conduct. This is consistent with the approach adopted in the [Costs Dismissal Order]: first, the Tribunal determines whether there has been unreasonable conduct, and only where there has been unreasonable conduct, may the Tribunal then exercise its discretion to award costs.

Again, a full reading of the costs portion of the decision in Vito v Stratford (beginning at paragraph 22 of that decision) demonstrates that the OMB first determined whether the conduct of the appellant was unreasonable. Similarly in Orangeville (beginning halfway down page 9) the OMB first determined whether the objectors’ course of conduct was clearly unreasonable. In none of these cases did the application of the threshold test for awarding costs involve consideration of any other party’s attributes.

Analysis and Findings

The Costs Rules

38As discussed in greater detail below, the Tribunal has passed costs rules under the SPPA. The party seeking costs has the responsibility to show that costs are warranted (Rule 217). As set out in Rule 213, the Tribunal has a wide costs award power for some proceedings (see Rules 221 to 224), a narrower power for the majority of Tribunal proceedings (see Rules 225 and 226), and no costs power in a few types of proceedings (see Rules 213 and 225).

39For proceedings, including the current one, where there is a narrow costs award power and Rules 225 and 226 apply, the Tribunal has utilized the three-stage analysis summarized in Baker (Costs), which follows the approach from the earlier cases of Johnson and 453294 Ontario Inc. (Phelan) v. Niagara Escarpment Commission, [2007] O.E.R.T.D. No. 47. At para. 47 of the Costs Dismissal Order, the Costs Panel applied the Baker (Costs) approach as follows:

In considering applications for costs, the Tribunal has consistently applied a three-stage analysis, set out in numerous past decisions. The Tribunal adopts that framework in this instance and therefore, in determining whether to grant the award of costs sought by the MBQ, the Tribunal will engage in the following analysis as set out in Baker v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 29 (“Baker”) at para. 38:

1. The Tribunal must first determine whether a Party has engaged in unreasonable, frivolous, or vexatious conduct or acted in bad faith.

2. If so, the Tribunal then considers whether to exercise its discretion to award costs.

3. If the Tribunal exercises its discretion to award costs, the Tribunal then exercises its further discretion in determining the appropriate amount of the cost award.

The Review Rules

40On this motion, the Tribunal adopts the approach used in Baker v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 55 (“Baker (Review)”), which has been consistently applied by the Tribunal. At paras. 15-19, Baker (Review) sets out that the Tribunal’s power to order a review is a discretionary power to be used only rarely:

Under the Rules, review of a decision is a two-step process. The first step is a determination of whether a review is “advisable.” It is only if the answer to this question is yes that the second step, the review itself, is conducted...

The Rules give the Tribunal broad discretion to determine when a review is advisable. In making this determination, Rule 230 [now 238] states that the Tribunal “may consider any relevant circumstances,” including the six listed criteria. In Trent Talbot, the Tribunal held that this list is not exhaustive and that the “first three criteria generally set out examples of possible grounds for when the Tribunal may exercise its authority to grant a review, and the last three criteria set out examples of the circumstances weighing against a review” (para. 37).

The role of the Tribunal here is not to assess whether the decision is “correct”, but to determine

whether there were errors that meet the criteria set out in Rule [230] [now 238], so as to warrant a review. The review process should not be used as an opportunity for a party to reargue the case. A panel hearing a motion to review should refrain from granting a review simply because a different outcome could have been reached by another panel of the Tribunal. (Trent Talbot, para. 41).

This means that the Tribunal should not re-weigh the evidence to see if a different decision could have been reached, but should review the record and the submitted material only with a view to determining whether the original panel made a material error that warrants a review in the circumstances.

In Trent Talbot, the Tribunal determined that “the power to review should only be exercised in exceptional circumstances under the criteria set out in Rule [230] [now 238]” (para. 43). This high threshold test for review acknowledges the importance of the finality of Tribunal decisions.

41More recently, in Concerned Citizens of Brant v. Ontario (Ministry of the Environment and Climate Change), [2016] O.E.R.T.D. No. 26 (“CCOB”), at paras. 68 and 116, the Tribunal added:

As noted in Miller, at para. 18, “any number of reasonable outcomes might be under consideration in a proceeding”. Therefore, the review motion panel should not find that a review is advisable simply because it would have reached a different decision. It is not the role of the panel hearing a review motion to merely substitute its decision for that of the original panel and grant a review hearing too readily. Rather, the power to review should only be used in exceptional circumstances.

The Tribunal finds that, in main hearings and leave to appeal hearings, it is often the case that there is more than one viable outcome for the Tribunal to consider. Just as a court would defer to a specialized tribunal’s decision to choose one preferred option from a range of reasonable alternatives, one Tribunal panel reviewing a decision of another Tribunal panel under Rule 235 should consider the motion to review in a manner that offers considerable deference to the original panel, which examined the evidence and submissions in depth. This deferential approach is reflected in the wording of the Rules and the relevant case law discussed above (i.e., Trent Talbot, Miller, and Baker).

42At paras. 69-79, CCOB also includes a discussion of the threshold that applies to a motion to review having regard to whether the decision subject to the motion is final and whether it can be appealed. The Tribunal finds that the question of which threshold applies to this motion to review does not need to be addressed here as the outcome would be the same under either the higher or lower threshold.

43The Tribunal also notes that Baker (Review) involved the same situation as the current matter, that is, a motion to review a Tribunal order on a costs application. It should be noted that the parties refer to both the original Baker order on costs (Baker v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 29) and the subsequent Baker order on the motion to review the earlier costs decision (Baker v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 55). For clarity, in this Tribunal order, the former is referred to as “Baker (Costs)” while the latter is referred to as “Baker (Review)”.

Rules 238 (a) and (c): Jurisdiction and New Evidence

44Rule 238(a) addresses “whether the Tribunal acted outside its jurisdiction”. Rule 238(c) addresses “whether there is new evidence admissible under the conditions of Rule 234”. MBQ does not rely on Rules 238 (a) and (c). Consequently, these provisions will not enter into the Tribunal’s analysis of whether it is advisable to review the Costs Dismissal Order.

Rule 238(b): Material Error of Law

45Rule 238(b) addresses “whether there is a material error of law or fact such that the Tribunal would likely have reached a different decision but for that error”. MBQ argues that the Costs Panel made an error of law. While not all of the submissions of MBQ necessarily raise pure questions of law, the Tribunal notes that Rule 238(b) encompasses both types of errors. Therefore, the Tribunal will address all of the alleged errors submitted by MBQ. As will be seen below, some of the alleged legal errors submitted by MBQ arise from new arguments and new emphases that the Costs Panel did not consider. The Tribunal has analyzed each aspect below.

i) “No different position than any other party”

46The first error alleged by MBQ relates to the Costs Panel’s use of the following words in para. 115 of the Costs Dismissal Order: “At this first stage of analysis, a First Nation is in no different position than any other party.” In respect of that passage, MBQ argues that the Costs Panel acknowledged “many unique and special circumstances directly pertaining to the Constitutionally protected and other rights of the MBQ” at paras. 48 to 59 but found that there is no indication that Waste Management engaged in any improper conduct at para. 104. MBQ argues that:

…all of the findings of the Tribunal are made without regard to any of these circumstances, issues and concerns put before the Tribunal by MBQ as a First Nation. In the Tribunal’s view none of these factors were relevant to the first stage of the Baker analysis noted above. Instead, they would only have applied if the second stage was reached. As the Tribunal flatly states: “At this [first] stage of analysis, a First Nation is in no different position than any other party.” [Emphasis added [by MBQ], see Decision at para. 115]

With respect, this approach and conclusion that for the purposes of deciding the motion, “a First Nation is in no different position than any other party” and the result that flowed from this is completely wrong in law…

47MBQ also argues that, if a review is not granted, it will suffer severe prejudice by “losing any recognition as a First Nation”.

48It is important to read the words from para. 115 of the Costs Dismissal Order (i.e., “a First Nation is in no different position than any other party”) focused upon by MBQ in their full context. Paragraphs 112 to 116, which are the final part of the Costs Panel’s reasons, state in full:

To conclude, therefore, the Tribunal finds that WMC has not engaged in unreasonable, frivolous, or vexatious conduct, or acted in bad faith.

Given the Tribunal’s determination that WMC has not engaged in unreasonable, frivolous or vexatious conduct, or acted in bad faith, there is no need for the Tribunal to proceed to the second and third stages in the three-stage analysis – the consideration of whether to exercise its discretion to award costs, or its further discretion to determine the appropriate amount of costs.

However, the Tribunal wishes to address the extensive submissions provided by the MBQ relating to their status as a First Nation. As noted above, the MBQ submit that the Tribunal should recognize the unique and exceptional circumstances of the MBQ, and interpret s. 17.1 of the SPPA and the Rules within an Aboriginal context. They submit that costs should be awarded as a matter of public interest and access to justice, and the importance of Aboriginal groups being able to fully and fairly participate in litigation that directly affects their interests. The MBQ note that Aboriginal peoples are historically highly disadvantaged in Canada, citing the First Nations water crisis and the Truth and Reconciliation Commission report. They submit that, in deciding costs, the Tribunal must consider that First Nations, including the MBQ, continue to face a heavy burden of disadvantages.

Had the Tribunal made a determination that there was unreasonable, frivolous, or vexatious conduct or bad faith by WMC in relation to this matter, the appropriate point to fully consider the MBQ’s submissions relating to their status as a First Nation would have been at the second stage of analysis, regarding whether the Tribunal should exercise its discretion to award costs. An administrative tribunal has no inherent powers, but only those powers given to it by statute. As discussed above, the Tribunal’s authority under s. 17.1 of the SPPA to award costs is limited, and the Tribunal is prohibited from ordering a party to pay costs unless its conduct has been unreasonable, frivolous or vexatious, or in bad faith. At this first stage of analysis, a First Nation is in no different position than any other party. The Tribunal must determine that it has the authority to award costs before proceeding to a decision as to whether or not to exercise its discretion. As the Tribunal held in Johnson, at para. 23, with respect to the Tribunal’s discretion at the second stage of its costs analysis:

…In exercising its discretion in this regard, it may consider the conduct of the requesting party and any other relevant factor. The other relevant factors may include many of the same factors courts or tribunals consider in a standard costs application but the key difference is that, under the narrow costs power in section 17.1 of the SPPA, the Tribunal can only proceed to this discretionary stage if it first finds that a party engaged in at least one of the types of improper conduct listed in section 17.1(2)(a).

In conclusion, the Tribunal finds that WMC has not engaged in unreasonable, frivolous, or vexatious conduct or acted in bad faith. As a result, there is no authority under s. 17.1 of the SPPA for the Tribunal to exercise its discretion to consider whether to award costs in this matter. (emphasis added)

49The Costs Panel did not state that MBQ itself was no different than any other party; rather, it said that MBQ was in no different “position” than any other party at the first stage of the costs analysis. Therefore, the Tribunal disagrees that the effect of the Costs Dismissal Order is for MBQ to lose any recognition as a First Nation. All the Costs Dismissal Order states is that any party, including MBQ, must meet the legal standard set out in the SPPA in order to be eligible for costs. Having read the impugned sentence in its full context above, the Tribunal finds that the Costs Panel made no error in concluding that MBQ was indeed in the same position as any other moving party on a costs application under the Tribunal’s Rules and the SPPA, in so far as it had to demonstrate unreasonable conduct by Waste Management. In this regard, it also worth noting that MBQ did not mount a constitutional challenge to the wording of s. 17.1 of the SPPA or seek any Charter relief. No Notice of Constitutional Question was filed in the costs application or this motion to review.

50As will be discussed in greater detail below, the Tribunal does not see how MBQ’s general submissions and evidence regarding its status could lead to a conclusion that Waste Management’s otherwise reasonable conduct became unreasonable because MBQ elected to intervene in the case and Waste Management did not agree with every position that MBQ put forward before the main hearing commenced. As noted by the Costs Panel, by virtue of the SPPA, MBQ was in “no different position” than any other party that could have requested costs in this case. Any party, including MBQ, had to show that Waste Management engaged in one or more of the types of improper conduct listed in the SPPA in order to be eligible for a costs award.

51To conclude this section, the Tribunal finds that the Costs Panel did not make an error when it concluded that MBQ was in the same position as any other party on a costs application in so far as MBQ had to demonstrate unreasonable conduct by the party against whom costs were sought (i.e., Waste Management).

ii) Impacts, Circumstances, and Status

52As part of its argument on the alleged error of law, MBQ argues that the Costs Panel failed to properly consider the circumstances of MBQ in determining whether Waste Management acted unreasonably. MBQ submits:

… the passages in Baker relied upon by the Tribunal direct the decision-maker to have regard for the “impacts” on the “party” claiming costs as caused by the unreasonable act(s) or failure to act of the party against whom a costs are sought, and to have regard for the “circumstances” in which this occurred.

It is reasonably and rationally impossible to consider the impacts on a party without considering in some way who that party is. For example, if an extremely well-resourced party suffers a financial impact, that impact may well be negligible. If an impoverished party suffers the same financial impact, that impact may well be severe. It is illogical and irrational for a decision-maker to consider impact in a vacuum. Impact directly depends on who the impact is on. Numerous other types of examples of this principle abound. […]

Any reasonable interpretation of the word or phrase “in the circumstances” must surely include consideration of the circumstances of the party requesting costs. In this case, the problem is severely exacerbated by the fact that as a First Nation, these circumstances include many historic disadvantages that are extremely well documented and now recognized, and legal obligations including various forms of consultation and duties flowing from the Honour of the Crown, which the Tribunal forms part of. With great respect, all of these circumstances also cannot just be ignored by the Tribunal. To do so appears to be a clear error of law. It is also clear that the outcome of the motion would be dramatically affected and different if they were considered.

53As noted by MBQ, the Costs Panel adopted the approach in Baker (Costs), which clearly provides in para. 34 that the “impact on other parties” can form part of the analysis of the alleged unreasonable conduct of the party against whom costs are sought. At paras. 98 and 99 of the Costs Dismissal Order, the Costs Panel stated:

In Baker, at para. 28, the Tribunal concluded that “unreasonable” conduct is restricted to situations of improper conduct. At para. 34, the Tribunal in Baker further concluded that, in light of the objectives of the Tribunal’s costs Rules to provide consistency and predictability in the awarding of costs and to discourage unreasonable conduct, the standard to determine whether conduct or a course of conduct is unreasonable is whether the conduct or course of conduct interferes with the Tribunal’s ability to secure the just, most expeditious and cost-effective determination of the proceeding. The Tribunal in Baker went on to identify the following three corollaries to this conclusion, at para. 34:

…First, it is the adjudicator who must measure the actual impact of the impugned conduct, or course of conduct, on the course of the proceeding, which includes consideration of the impact of the conduct on other parties. Secondly, "unreasonableness" must be assessed in terms of the circumstances which were known at the time the impugned conduct occurred, or the time period over which an impugned course of conduct transpired. For conduct to be unreasonable, a party must make an improper decision to act, or fail to act, during the course of the proceeding. A decision can only be improper if the impropriety was clear in the circumstances at the time the decision was made. Thirdly, an assessment as to whether conduct is unreasonable does not turn solely on whether the impugned conduct negatively affected another party. Similarly, the Tribunal may objectively find a party's conduct to be unreasonable, even though the party perceived it to be reasonable because it served the party's individual interests at the time.

The Tribunal adopts the conclusion of the Tribunal in Baker that it must consider whether WMC’s conduct or course of conduct interfered with the Tribunal’s ability to secure the just, most expeditious and cost-effective determination of this proceeding. This analysis is consistent with the objectives of the Rules concerning costs, set out in Rule 212, and is therefore appropriate and useful to apply in determining whether WMC’s conduct or course of conduct was unreasonable. Similarly, the Tribunal adopts the reasoning in Baker concerning the three corollaries, noting particularly, the principle that for conduct to be unreasonable, a party must have made an improper decision to act, or fail to act, during the course of the proceeding. (emphasis added)

54The “impact on other parties” referred to in para. 34 of Baker (Costs) can, of course, include the impact on the party requesting costs. An obvious example would be under Rule 225(e), where a party against whom costs are being sought “failed to prepare adequately for hearings”. In some circumstances, such conduct may have little or no impact on another party but in others it may result in another party incurring significant expenses. In the latter situation, the “impact on other parties” (including the party requesting costs) may be such that the conduct of the unprepared party would amount to unreasonable conduct. There does not appear to be any real debate that such specific impacts on the party requesting costs can be considered in addressing the reasonableness of the conduct of the party against whom costs are sought.

55The question on this motion relates more specifically to how relevant MBQ’s evidence and submissions on the general circumstances facing MBQ are to an assessment of the unreasonableness of Waste Management’s conduct. In the Costs Dismissal Order, the Costs Panel thoroughly summarized MBQ’s submissions on its general circumstances but found that the “appropriate point to fully consider” those submissions “would have been at the second stage of the analysis, regarding whether the Tribunal should exercise its discretion to award costs” (para. 115). MBQ views this conclusion as a legal error on the part of the Costs Panel.

56The Tribunal starts its analysis of the relevance of the requesting party’s circumstances at the most general level. Access to justice and public participation considerations have been brought up by a party requesting costs previously. As noted in Baker (Costs) at paras. 40 to 44:

As a factor in determining whether to grant an award of costs, consideration of barriers to access to justice and public participation does not apply to Stage 1 of the analysis. The Tribunal cannot override the requirement to find improper conduct under section 17.1 of the SPPA in order to reduce such barriers to participation. The Costs Applicants are only eligible to receive an award of costs if they can establish that Lafarge has engaged in improper conduct.

Regarding the Stage 2 analysis, the Tribunal, in Johnson, at paragraph 23, observed:

At this stage, the Tribunal has discretion and may elect not to award costs even if the type of improper conduct is present. In exercising its discretion in this regard, it may consider the conduct of the requesting party and any other relevant factor. The other relevant factors may include many of the same factors courts or tribunals consider in a standard costs application but the key difference is that, under the narrow costs power in section 17.1 of the SPPA, the Tribunal can only proceed to this discretionary stage if it first finds that a party engaged in at least one of the types of improper conduct listed in section 17.1(2)(a).

Rule 1 of the Tribunal’s Rules of Practice states, in part, that one of the purpose of the Rules is to facilitate and enhance access and public participation. Accordingly, barriers to access to justice and public participation may be one of the factors considered by the Tribunal at this stage of the analysis. However, it is important to highlight that section 17.1(2)(a) provides that:

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, …

[emphasis added]

Therefore, even when exercising the discretion to award costs, there must be still be some nexus between the portion of the proceeding for which costs are awarded, and the unreasonable conduct. Barriers to access to justice and public participation can only be considered within this limitation. Consideration of these barriers may not result in an award of costs for an entire proceeding, where there is only a narrow incident of unreasonable conduct which has had limited impact on the Tribunal’s ability to secure the just, expeditious and cost-effective determination of the proceeding.

The Tribunal, having decided to award costs for all or part of the proceeding, must then, at Stage 3 of the analysis, determine the amount of the costs award. Consideration of barriers to access to justice and public participation may apply at this stage as well.

57The Tribunal agrees with the above reasoning and finds that general concerns about access to justice and public participation at their broadest level (i.e., without relevance to the alleged improper conduct of a party against whom costs are sought and the impact of that conduct on another party) are not factors that would be relevant to the first stage of the Baker (Costs) analysis. They could be relevant at a later stage, however.

58The Tribunal now turns to the narrower point, that is, the potential relevance of the general status or circumstances of MBQ to the determination of whether Waste Management acted unreasonably in this specific case. MBQ points to Vito v. Stratford (City), [1997] O.M.B.D. No. 1363 (“Vito”) at para. 24 as an authority for the appropriate consideration of the characteristics of a party requesting costs because Vito briefly mentions the characteristics of two parties as well as the characteristics of the party against whom costs were sought. However, it is quite evident that a primary driver for the awarding of costs in that case was the conduct of the party against whom costs were sought, which used the planning appeal process as “a ruse to conceal his own private pursuit” (para. 23).

59The case at bar does not involve an appellant misusing the Tribunal’s processes in order to gain a competitive advantage against another party in the same line of business. Indeed, Waste Management is a respondent that already holds an approval and that approval is actually focused on the proper closure of the facility. Despite the very different circumstances of Vito and the current case, the Tribunal does not rule out that there may be situations where the general status, characteristics, circumstances, etc. of a moving party could be relevant to the “impact on other parties” aspect of the first stage of the Tribunal’s analysis under Baker (Costs).

60To demonstrate relevance at the first stage, a clear connection between the general status, characteristics or circumstances of the requesting party and the conduct of the party against whom costs are sought would need to be shown. To use a simple example, if the Tribunal set out specific procedural directions to address the needs of a particular party in need of accommodation and another party refused to abide by those directions to the detriment of the party in need of accommodation then the general status of the party in need of accommodation who then seeks costs could be relevant in analyzing the reasonableness of the conduct of the party against whom costs are sought. Similarly, the reasonableness of a respondent calling numerous expert witnesses on peripheral issues may be viewed differently in relation to impacts on a well-resourced party that put those peripheral issues in play as compared to impacts on a less-well-resourced party that did not raise those issues but, nonetheless, had to participate in a lengthier hearing.

61In this case, however, if one were to fully consider all of MBQ’s general circumstances in assessing the reasonableness of Waste Management’s conduct at the first stage of the analysis, MBQ has still failed to show that the Costs Panel would likely have reached a different decision, as required by Rule 238(b). Waste Management’s basic course of conduct (i.e., participating as a respondent, contributing to the settlement of many issues, and proceeding to a hearing on what issues remained) was neither unusual nor unreasonable regardless of MBQ’s general circumstances. That is, it was insufficient for MBQ to simply cite the broader circumstances it faces to change the basic result of the Costs Panel’s factual conclusion on the reasonableness of Waste Management’s conduct.

62MBQ (the party with the onus to show that costs should be awarded) did not demonstrate how its evidence and submissions would have led the Costs Panel to conclude that conduct by Waste Management that is on its face reasonable would be considered unreasonable in light of MBQ’s circumstances. Based on that, the Tribunal finds that the Costs Panel made no error in concluding that the general circumstances facing MBQ would have been more relevant, and hence would have been more “fully” considered had MBQ demonstrated unreasonable conduct at the first stage and the analysis had proceeded to the discretionary question of whether costs would be awarded.

63The Tribunal adds that MBQ itself, in its written submissions to the Costs Panel, put forward an analytical framework that is consistent with the Costs Panel’s conclusion that MBQ’s general circumstances were most relevant to the second stage of the Baker (Costs) analysis. Three specific sections of MBQ’s submissions to the Costs Panel follow the three stages of the Baker (Costs) approach and are entitled: “(1) Conduct or Course of Conduct was Unreasonable”, “(2) The Tribunal’s Discretion” and “(3) Appropriate Amount of Costs”. Though there is some reference to MBQ’s circumstances in MBQ’s submissions on the first stage of the Baker (Costs) approach, it is in respect of the second “discretionary” stage where MBQ focused more on its status and circumstances. Most notably, in this section on the second “discretionary” stage of the Tribunal’s approach to costs, MBQ submitted:

Upon a finding of unreasonableness, the Tribunal considers whether to exercise its discretion to award costs. In this instance, the Tribunal should exercise its discretion to award costs to MBQ. […]

MBQ represents an entire community who cannot effectively pursue litigation through its individuals or private funding. MBQ’s leadership made the difficult yet necessary decision to pursue litigation despite the financial impacts in order to advocate for the health and safety of their Community. MBQ, as various levels of government deflect or deny responsibility, are left effectively to attempt to manage the situation alone or with very few resources. This severely compromises MBQ’s ability to address issues from the Richmond Landfill going forward and they must continue to divert funding from other projects that maintain the future of the community. The Tribunal should take the many important and unique circumstances of MBQ into consideration when exercising its discretion regarding costs. These include:

I. The threat of contamination and its effects on MBQ’s lands and Community based on the proximity to the Richmond Landfill;

II. MBQ’s many historic disadvantages as an Aboriginal community;

III. MBQ’s proprietary interests in Aboriginal Title, their lack of options and their duty to the entire Community to protect both their Territory and Traditional Lands;

IV. the long and well-documented history of lack of water protection for Aboriginal peoples, and MBQ’s ongoing water crisis, that will be exacerbated by contamination from the Richmond Landfill;

V. MBQ’s extremely difficult financial circumstances and lack of available resources;

VI. MBQ’s status as a First Nation and the Honour of the Crown which the Tribunal must be cognizant of when contemplating how its decisions impact Aboriginal rights and interests, and how these need to be accommodated. (emphasis added)

64Having reviewed MBQ’s extensive submissions on its circumstances and the manner in which it referred to those circumstances in its own written submissions to the Costs Panel, the Tribunal finds that the Costs Panel made no error in concluding that most of that material would have been primarily relevant to the second stage of the Baker (Costs) analysis.

65To the extent that some of MBQ’s circumstances may possibly have been relevant to the first stage of the costs analysis (i.e., whether Waste Management behaved unreasonably by allegedly conducting itself in a manner that did not contribute to a just, most expeditious and cost-effective proceeding), the Tribunal notes that the Costs Panel clearly considered those aspects of MBQ’s argument. This is evident from paras. 100 and 101 of the Costs Dismissal Order, which state:

…MBQ asserts that WMC’s conduct or course of conduct was unreasonable in that it interfered with the Tribunal’s ability to secure the most expeditious, cost-effective and just determination of the proceeding because, for example: WMC failed to address their concerns in a timely manner; it was unreasonable for WMC to require the MBQ to engage in a lengthy, expensive proceeding; and WMC exacerbated the MBQ’s vulnerable position by forcing them to go through the hearing rather than addressing their issues at the outset.

On this evidentiary basis, the MBQ submit that WMC was unreasonable in forcing the MBQ to engage in a lengthy and expensive proceeding, given the MBQ’s status as a First Nation and their vulnerable position as a historically disadvantaged group with environmental, health and financial difficulties. The MBQ submit that WMC therefore interfered with the Tribunal’s ability to secure the most just, expeditious and cost-effective determination of the proceeding, suggesting that it was unreasonable conduct on the part of WMC to not simply address their issues relating to potential contamination from the Landfill at the outset. (emphasis added)

66MBQ did not argue that its circumstances, viewed entirely on their own without reference to Waste Management’s conduct, could result in a costs award under the wording of the SPPA and the Tribunal’s Rules. Rather, it is clear that MBQ’s argument in favour of costs was premised on it succeeding in showing, on the facts, that Waste Management essentially dragged things out unnecessarily and that this conduct had a negative impact on MBQ.

67In this regard, the Costs Panel, who also presided over the main proceeding, examined Waste Management’s conduct in the context of MBQ’s circumstances (as noted in the underlined portions of paras. 100 and 101 of the Costs Dismissal Order above) and did not find in MBQ’s favour. These findings by the Costs Panel are discussed later in these reasons under the subheading “Waste Management’s Specific Conduct” below.

68Among the Costs Panel’s factual findings are the following, at paras. 104 and 105:

In the MBQ’s affidavit evidence and submissions, there is no indication that WMC engaged in any of the types of conduct listed, or in any other conduct that could be considered unreasonable. The Tribunal received no evidence of any unreasonable conduct by WMC. The conduct on the part of the WMC identified by the MBQ is not the type of conduct contemplated in Rule 225. Instead, the MBQ have raised conduct by WMC that relates to the substance of the issues that were before the Tribunal at the hearing, specifically the different views held by the MBQ and WMC regarding the proper measures to be taken in investigating and monitoring any off-site impacts of leachate from the Landfill. The MBQ suggest that it was unreasonable conduct on the part of WMC to defend itself in this appeal proceeding and/or to not reach a resolution with the other parties through the mediation process.

As noted in Baker, for conduct to be unreasonable, a party must have made an improper decision to act, or fail to act, during the course of the proceeding. The Tribunal in this instance agrees with this expression of what constitutes unreasonable conduct under Rule 225. The Tribunal finds that WMC did not engage in any unreasonable conduct that interfered with the Tribunal’s ability to secure the just, most expeditious and cost-effective determination of this proceeding.

69It is clear that the Costs Panel did not make its findings “without regard to any of these circumstances, issues and concerns put before the Tribunal by MBQ as a First Nation” at the first stage as alleged by MBQ. Rather, it had specific regard to those circumstances, as noted in paras. 100 and 101 of the Costs Dismissal Order. It is also incorrect to state, as MBQ has, that the Tribunal determined that “none of these factors were relevant to the first stage of the Baker analysis”. The Tribunal finds that, the Costs Panel did not completely refuse to consider aspects of MBQ’s general circumstances at the first stage. Rather, it considered them to the limited extent that they could possibly be relevant to an inquiry into whether Waste Management’s conduct was unreasonable in the particular circumstances of this case. The Costs Panel added that MBQ’s circumstances would have been more “fully” considered at the second stage of the analysis (para. 115 of the Costs Dismissal Order).

70The Tribunal sees no error in the Costs Panel’s conclusion that MBQ’s general circumstances would have been more fully considered at the second stage. This was not a case where the Costs Panel completely refused to entertain the idea that the “impact on other parties” of conduct by the party against whom costs were sought could be considered in the first stage. On the contrary, in paras. 98 and 99, it expressly adopted that very conclusion from para. 34 of Baker (Costs) and then implemented that approach in paras. 100 and 101. The Costs Panel carefully summarized MBQ’s submissions on its circumstances and proceeded to examine the alleged unreasonableness of Waste Management’s conduct. It considered MBQ’s circumstances to the limited extent that they were relevant to the first stage of the analysis and reasonably concluded that general circumstances of that nature would be more “fully considered” in the second stage if that stage had been reached.

71On this motion to review, as was the case in the costs motion, MBQ has failed to demonstrate how its evidence and submissions on the general circumstances MBQ faces would result in a conclusion that Waste Management conducted itself unreasonably. It is not enough to simply state that “impact on other parties” is relevant and then to provide extensive evidence and submissions on the general circumstances of MBQ and expect that such information will result in Waste Management’s otherwise run-of-the-mill conduct being deemed to be unreasonable in light of those circumstances. For unreasonableness to be demonstrated, a much clearer relationship would need to be shown between the alleged improper conduct by one party and the impact it had on a second party given the circumstances facing that second party. Without MBQ having demonstrated such a connection to the Costs Panel, or to the Tribunal on this motion, there was no error on the part of the Costs Panel when it concluded that the submissions on MBQ’s general circumstances would have been more fully considered at the second stage of the Baker (Costs) analysis.

iii) The Baker (Costs) Approach and its Application by the Costs Panel

72MBQ submits that the Costs Panel cited no case law or other legal authority of the approach it took in this matter. The Tribunal finds that it is quite evident that the Costs Panel did cite cases such as Baker (Costs), Johnson and Preserve Mapleton (e.g., paras. 45, 47, 98, 99, and 105), the SPPA (e.g., paras. 44, 45, 114, 115, and 116) and the Rules (e.g., paras. 46, 98, 99, 102, 103, 104, 105, 114, and 115) in support of the approach it took. The allegation that the Tribunal did not refer to legal authority in support of its approach is unfounded.

73MBQ appears to now call into question the Costs Panel’s adoption of the three-stage approach of Baker (Costs) even though MBQ cited and applied that analytical approach in its original request for costs. MBQ now states:

…The SPPA itself does not create the framework set out in Baker. That is a product of the Tribunal. As a creature of statute, in all of its costs functions the Tribunal at all times can only act pursuant to subsection 17.1 of the SPPA, which does not distinguish in any way between different “stages” of a costs analysis.

There is no basis whatsoever in the SPPA for arbitrarily excluding all of the important circumstances and characteristics of a First Nation from any consideration in one “stage” of an analysis, so as to completely exclude it from being able to properly claim costs, but allowing all of these same factors in at another stage. All of these stages are taking place under the SPPA and all of these factors can and must be considered in arriving at a determination. There is then no law and no precedents that the Tribunal could rely upon for its most surprising proposition.

74In the above passage, it appears that MBQ is arguing that the Costs Panel either erred in adopting the three-stage approach in Baker (Costs) or erred in its application of the Baker (Costs) approach. Consequently, the Tribunal will analyze those matters below.

75The Tribunal starts by noting that several elements of the above quoted argument by MBQ are completely accurate. First, the Tribunal agrees that the SPPA itself did not directly create the three-stage approach in Baker (Costs). Second, the Tribunal is indeed a “creature of statute” and must act within its statutory authority, as noted by the Costs Panel itself at para. 115. Third, the Tribunal agrees that s. 17.1 of the SPPA does not distinguish among different “stages” in a costs analysis. While all of this is quite accurate, it does not follow that the Costs Panel either misapplied Baker (Costs) or adopted an approach (i.e., the Baker (Costs) approach) that itself is wrong. In order to demonstrate these conclusions, it is important to review the Baker (Costs) approach within the basic structure of the SPPA and the Rules. The Tribunal now turns to that task.

76Section 17.1(4) of the SPPA permits a tribunal to make costs rules. Section 17.1(1) of the SPPA provides for the awarding of costs in the circumstances set out in the rules made by a tribunal. Section 17.1(2), however, stipulates that a tribunal shall not award costs unless “the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith” and the tribunal has made costs rules. Section 17.1(3) directs that the amount of the costs “shall be determined in accordance with the rules” the tribunal made (see also Chesterman at para. 180).

77It is evident from a reading of s. 17.1 that MBQ is correct in concluding that the SPPA does not mandate the three-stage approach set out in Baker (Costs). However, it is also evident that s. 17.1 sets out several requirements if costs are to be awarded, including: i) the type of conduct listed in s. 17.1(2)(a) must be present, ii) the tribunal has to have rules on the subject of costs (s. 17.1(2)(b)), and iii) the costs must be determined in accordance with those rules (s. 17.1(3) and 17.1(4)).

78The Tribunal has indeed made the type of rules contemplated by s. 17.1. One of the objectives of the Tribunal’s costs Rules is to “provide consistency and predictability in the awarding of costs by outlining relevant principles and evaluation criteria” (Rule 212). Because a Tribunal decision must accord with the requirements of those rules as per s. 17.1(3), it is essential to determine whether the three stage Baker (Costs) approach adopted by the Costs Panel actually follows the Rules.

79For the first stage, Baker (Costs) calls for a determination regarding the type of conduct present. This clearly follows Rule 225, which states:

Under section 17.1 of the Statutory Powers Procedure Act, the Tribunal may only order costs to be paid if the conduct or course of conduct of a Party has been unreasonable, frivolous or vexatious or if a Party has acted in bad faith.

80That Rule goes on to list several considerations that may be taken into account in assessing conduct. The list is not exhaustive. The Tribunal concludes that this first stage of the Baker (Costs) approach follows the Tribunal’s Rules on costs and the SPPA itself because it implements the statutory threshold regarding improper conduct.

81The second stage of the Baker (Costs) analysis examines whether costs should be awarded in a particular case where improper conduct is present. The second stage does not arise unless there has been a finding of improper conduct in the first stage. This stage arises from Rule 226, which states (see also Rule 220):

The Tribunal is not bound to order costs when any of the instances listed in Rule 225 occurs nor does the Tribunal have to find that one of the instances occurred in order to conclude that the conduct of a Party has been unreasonable, frivolous or vexatious or that a Party has acted in bad faith. The Tribunal will also consider whether the issues respecting the conduct of such a Party can be addressed by a denial or reduction of costs in its favour rather than a costs award against it.

82The second stage reflects that it is not automatic that costs will follow a finding of improper conduct. It is necessary to engage in this discretionary stage in order to follow the Tribunal’s Rules and, by implication, in order to follow s. 17.1(3) and 17.1(4) of the SPPA because the SPPA states that costs must be determined in accordance with the rules passed by a tribunal. The Tribunal concludes, therefore, that this second stage of the Baker (Costs) approach follows the Tribunal’s Rules on costs and, therefore, the SPPA.

83The third stage of the Baker (Costs) analysis tracks the final parts of the Tribunal’s Rules on costs (see Rules 228 to 231; see also Rule 220), where the amount of costs is determined if the first and second stages have been passed. As with the second stage, it is necessary for the Tribunal to engage in this third stage of analysis in order to follow s. 17.1(3) and 17.1(4) of the SPPA. The Tribunal concludes, therefore, that this third stage of the Baker (Costs) approach follows the Tribunal’s Rules on costs and, therefore, the SPPA.

84The Tribunal acknowledges that the SPPA itself did not set out the exact structure of the Tribunal’s Rules on costs or the Baker (Costs) approach; both the Rules and Baker (Costs) are the product of the Tribunal, not the Legislature. However, the SPPA stipulates that costs are only available where certain types of improper conduct are present and that costs are to be determined in accordance with a tribunal’s rules on the subject. Given those stipulations, it is evident why the Tribunal in Baker (Costs) and other Tribunal cases on costs (including the Costs Dismissal Order at issue here) follow the three-stage analysis. Those stages simply track the three key decision points in the Rules, which themselves must be complied with by virtue of s. 17.1(3) and 17.1(4) of the SPPA.

85To summarize, the Costs Panel did not err in adopting the Baker (Costs) approach. That approach tracks the Tribunal’s Rules, which must be followed because of the wording of the SPPA.

86The Tribunal now turns to the question of whether the Costs Panel erred in its application of the Rules and the Baker (Costs) approach. It is evident from the Costs Dismissal Order that the Panel was aware of the statutory context and Rules framework for its analysis. It stated at paras. 44-46:

The Tribunal’s authority to award costs in relation to an appeal under the EPA arises solely from s. 17.1 of SPPA, which provides, at s. 17.1(2), that a tribunal shall not make an order to pay costs under s. 17.1 unless: the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious, or a party has acted in bad faith; and the tribunal has made rules relating to costs under s. 17.1(4). As set out above, the Tribunal has developed rules concerning costs.

The language in s. 17.1(2) is mandatory, prohibiting the Tribunal from ordering a party to pay costs unless its conduct has been unreasonable, frivolous or vexatious, or in bad faith. In Preserve Mapleton Inc., at para. 88, the Tribunal discussed its authority to award costs:

…The Tribunal only has the authority given to it under an express statutory grant. With respect to the issue of costs, section 17.1 provides this specific statutory authority to grant costs only on the basis that the conduct of a party has been unreasonable, frivolous, vexatious or in bad faith. The Tribunal has consistently held that its authority to grant costs under the SPPA is limited, and that it can only award costs in situations of improper conduct.

The Rules confirm that the Tribunal has only this limited authority to award costs. Rule 225 emphasizes that it is expected that the power to award costs will only be used in the rare case where a party’s conduct warrants such an award.

87The Costs Panel then went on to apply the Baker (Costs) approach to the analysis of MBQ’s costs application within the statutory context and the Rules framework.

88The Tribunal, being a creature of statute, followed the dictates of s. 17.1 of the SPPA and made its Rules on costs. Once it did so, those Tribunal-made Rules had to be followed by the Costs Panel in assessing an application for costs because the SPPA requires such. The Costs Panel committed no error in applying the stages in the Rules themselves or the three-stage approach to those Rules set out in Baker (Costs). Indeed, it would have been an error under s. 17.1(3) and 17.1(4) of the SPPA if the Costs Panel had granted costs without following the Rules and s. 17.1. Consequently, MBQ has failed to show an error of fact or law on the part of the Costs Panel in respect of its application of the analytical steps set out in the Rules as reflected in Baker (Costs).

iv) The OMB Cases and Related Arguments Submitted by MBQ

89A further set of arguments now put forward by MBQ contrasts the analysis set out in the Costs Dismissal Order with MBQ’s understanding of the approach of the OMB in six cases decided during the 1989 to 2013 period. MBQ states that the Costs Panel’s approach “directly contradicts” or “rejects” the jurisprudence of the OMB. After reviewing several paragraphs from the six OMB cases, MBQ submits:

From the foregoing it is evident that the OMB has regularly considered the nature, characteristics and attributes and circumstances directly relevant to the parties in determining costs, and whether conduct was reasonable. The same approach can and ought to be taken by the Tribunal, particularly in relation to a First Nation.

While Waste Management Co. may suggest that the Tribunal’s Rules and procedures are different from those of the OMB, the fundamental rules of natural justice and procedural fairness would also suggest that no distinction can rationally be drawn between how the two bodies should function. It would be totally anomalous, and in MBQ’s respectful submission improper and illegal, for a First Nation to have all of its characteristics/attributes and circumstances properly considered by one ELTO body and rejected by a sister ELTO Tribunal.

If the attributes and circumstances of private developers and retailers, individual litigants and municipalities etc. including their levels of sophistication and financial resources are all relevant to OMB decisions, with respect, the artificial distinctions of “stages” before the Tribunal that resulted in the MBQ’s attributes and circumstances as a First Nation being ignored, which approach is not supported in the SPPA or the existing case law or by any principles of natural justice and/or procedural fairness, should clearly be rejected.

It should also be observed that this is a clear and direct opportunity to address and redress historic disadvantages that First Nations have experienced. The Tribunal and ELTO have an opportunity and responsibility in law and otherwise to recognize the importance of allowing aboriginal and indigenous rights, circumstances and concerns to be presented when decisions involving their communities are being made. If this is not done, Charter, constitutional and Human Rights may well be violated. Alternatively, if these matters can be properly put before ELTO decision-makers there will be opportunities for the historic and current circumstances, disadvantages and damages suffered by these communities to at least be considered fully and fairly when decisions impacting these communities are being made.

90There appear to be several allegations of errors of law or fact within the above paragraphs. The Tribunal will attempt to analyze each but notes that some of them overlap with the alleged errors already discussed above while others are difficult to analyze in depth because they are underdeveloped.

91As regards the general references to the possibility of violations of Charter, constitutional and human rights at the end of MBQ’s submissions, the Tribunal finds those passages of MBQ’s submissions to be not sufficiently particularized to lend themselves to meaningful analysis. This is not meant to understate the importance of those rights and principles; rather, there is simply not enough to go on in MBQ’s submissions. The Tribunal would need to know what specific right or principle was allegedly violated and how in order to even begin such an analysis. As well, the Tribunal reiterates that no Notice of Constitutional Question was filed by MBQ in this motion or the application for costs.

92As pointed out by Waste Management, some of the OMB decisions relied upon by MBQ simply demonstrate that the circumstances of the party against whom costs are being sought can be considered. For example, MBQ relies on Fletcher v. Pelham (Town), [2013] O.M.B.D. No. 600 at para. 36, which contains the following single paragraph on costs:

The applicant requested an award of costs because of expenses related to this hearing. The Board only awards costs in rare and exception[al] circumstances where the behavior of an appellant is unreasonable or reprehensible. The behavior of the appellant who is a lay person who is unsophisticated and not a person familiar with the development or land use planning appeals process does not cross the boundary of when costs can or should be considered. For this reason, the cost request is denied.

93There is no need to delve into cases such as this because the contested question in the case at bar focuses on the more specific question of the relevance of the circumstances of the party requesting costs, not the party that allegedly behaved improperly.

94In para. 32 of its submissions, MBQ argues that the Tribunal, like the OMB, should consider the “nature, characteristics and attributes and circumstances directly relevant to the parties in determining costs, and whether conduct was reasonable”. The Tribunal finds that Rules 225 and 226, which are the Tribunal’s Rules for costs applications under s. 17.1 of the SPPA, permit the Tribunal to consider all the things that MBQ wishes to have considered. Moreover, it is clear that the Costs Dismissal Order did consider those things (see, for example, paras. 48-59, 61-66, 100, 101, 114 and 115). The allegation of error is more focused on what stage of the Baker (Costs) approach certain matters ought to be considered more fully. This has already been addressed above. The Costs Panel found that many of the circumstances facing MBQ were not tied to the first stage of the costs analysis but, rather, would have been more “fully” considered in the second stage, had it been reached (see para. 115 of the Costs Dismissal Order). Even in this motion to review, where MBQ has specifically oriented its current submissions to the question of whether the Costs Panel committed an error of law, the Tribunal is still without the benefit of a persuasive argument has to how MBQ’s general circumstances render Waste Management’s conduct unreasonable at the first stage of the Tribunal’s analysis.

95As part of MBQ’s submissions reproduced above, MBQ alleges an inconsistency in approach between the approach of the Costs Panel (who is also a member of the OMB) and the six OMB decisions cited by MBQ. In this respect, MBQ appears to argue that the Costs Dismissal Order is anomalous, improper or illegal because the OMB would have more fully considered MBQ’s general circumstances in assessing the reasonableness of Waste Management’s conduct and would presumably have awarded MBQ costs.

96Even though the legislative jurisdiction for the OMB’s costs powers (see s. 97 of the Ontario Municipal Board Act) is quite different from the Tribunal’s power in s. 17.1 of the SPPA, the OMB’s costs rules and those of the Tribunal share many similarities. However, MBQ failed to articulate a basis in law for its assertion that the Tribunal and OMB must now harmonize their case law because they are both in the ELTO cluster and because they have costs rules that share some similarities. Similarly, MBQ does not provide a specific basis for its argument that the fundamental rules of natural justice and procedural fairness “suggest that no distinction can rationally be drawn between how the two bodies should function”. In any event, having read the six OMB decisions relied on by MBQ, the Tribunal sees no meaningful inconsistency between the result in this case regarding costs and what would have resulted if the OMB’s case law had been applied instead. Based on a review of the factual findings made by the Costs Panel, the Tribunal concludes that MBQ’s submissions here would have been unsuccessful regardless of whether the Costs Panel had used the Tribunal’s analytical framework or the OMB’s.

97Tribunals have their own statutory context and each has developed its own case law. It is clear that different phrases are often used (for example, several of the OMB cases refer to “clearly unreasonable” conduct as opposed to “unreasonable” conduct) and different precedents are often relied upon. However, there is nothing in the six OMB decisions that shows that MBQ would have been granted costs in these circumstances had this been an OMB rather than Tribunal proceeding.

98As well, the Tribunal does not agree that there is any direct contradiction between the two tribunals’ jurisprudence on unreasonable conduct. The OMB cases mostly focus on the conduct of the party against whom costs were sought, just as the Tribunal cases, though there is some mention of the circumstances of the parties requesting costs in some of the cases. In none of the OMB cases was there a situation where prima facie reasonable conduct by a party was deemed to be unreasonable because of the particular circumstances of the party requesting costs. Rather, the Tribunal understands each of those cases where costs were awarded by the OMB to be ones where the respondent to the costs application conducted itself unreasonably or improperly and the OMB made brief mention of the circumstances of the costs applicant as part of the discussion on why it was exercising discretion to award costs – not as a reason to consider otherwise reasonable conduct to be unreasonable, which is essentially what MBQ seeks here.

99As for those OMB cases where a well-resourced party misused the planning appeal process in order to attempt to gain an economic advantage over a competitor (sometimes referred to as the OMB “store wars” cases; see, for example the discussion in Brampton (City) Official Plan Amendment No. 208 (Re) [Costco, Price Club and Loblaws (Re)], [1993] O.M.B.D. No. 2241) and the OMB then considered the impact of that improper conduct on other parties, this is not inconsistent with existing Tribunal case law. Indeed, at paras. 98 of the Costs Dismissal Order, the Costs Panel adopted this very point (i.e., that the impact on a party can be considered) from Baker (Costs). Thus, the only two general propositions that can be extracted from the OMB cases cited by MBQ (i.e., that the conduct of the party against whom costs are sought can be considered and the impact on another party can be considered) are not even in dispute here or contradicted by any Tribunal case cited by MBQ (including the Costs Dismissal Order). Therefore, it cannot be said the OMB cases reveal any sort of contradiction between the two tribunals.

100As for the specifics of some of the OMB cases, it is quite clear that Waste Management, as an existing approval holder for a landfill closure approval, is not similarly situated to any of the parties that acted improperly in the cited OMB cases where costs were awarded. The circumstances in those OMB cases are so vastly different than the case at bar that they have virtually no relevance to what must be decided on this motion to review. The Tribunal adopts the reasoning from Baker (Review), where a comparison between Tribunal and other OMB case law on costs was made. While that case predates ELTO, a party in it nonetheless also argued that the ERT should follow the OMB’s approach. In Baker (Review), the Tribunal found that the party that requested a review failed to show that the application of the OMB’s approach “would likely have produced a different outcome” (para. 79). Here, the Tribunal reaches the same conclusion.

101The Tribunal also emphasizes that a review motion is not simply an opportunity to reargue a case with a different emphasis than the first go-round. In its submissions to the Costs Panel, MBQ did not put forward the six OMB cases now relied upon in the original costs application or the proposition that Tribunal’s costs jurisprudence must now be harmonized with those six OMB cases. Moreover, as noted above, even if the case law had been brought forward earlier, the Tribunal finds that there is still no convincing rationale for the proposition now being put forward by MBQ that the two streams of case law now need to be harmonized and that a different result would have come about had the Costs Panel applied the OMB case law. In any event, there was no direct contradiction or rejection of any OMB jurisprudence by the Costs Panel.

102Significantly, MBQ did not question the three-stage Baker (Costs) approach in its original costs application and did not propose that it be replaced with another approach. Indeed, MBQ cited Baker (Costs) and a recent application of that decision by the Tribunal under the “Determining Costs” heading in its written submissions to the Costs Panel. The Costs Panel had extensive submissions from the parties that were made in the context of the Tribunal’s well-established approach to addressing costs applications and the Costs Panel issued reasons that reflected that context.

103In sum, the Tribunal finds that the Costs Panel did not commit a legal error in applying the Tribunal’s traditional analytical framework that was properly relied upon by MBQ itself in its original costs application. Viewed in light of the new arguments now put forward by MBQ, including those related to the OMB case law, the Tribunal also finds that the Costs Panel made no error in following Tribunal case law on costs.

v) Waste Management’s Specific Conduct

104Waste Management takes the position that MBQ has not called into question the Costs Panel’s factual findings on Waste Management’s specific conduct. It is true that MBQ focuses nearly all of its submissions on this motion to review towards the alleged errors relating to the Costs Panel’s approach to determining the relevance of MBQ’s submissions on the general circumstances facing MBQ. However, in so doing MBQ does mention some of the specific types of conduct that Waste Management engaged in, such as Waste Management continuing to litigate in the face of MBQ’s positions that could have avoided a hearing. This was clearly more central to MBQ’s original costs application but is now in the background to MBQ’s current emphasis on the alleged legal errors in the approach taken by the Costs Panel. As a result, it is appropriate to only briefly examine the Costs Panel’s reasoning and findings on some of MBQ’s specific allegations of unreasonable conduct on the part of Waste Management.

105The Costs Panel, who had carriage of this proceeding for years, was best positioned to determine the reasonableness of Waste Management’s conduct in light of the circumstances facing MBQ. Thus, deference is owed to those findings (see CCOB, at paras. 68 and 116; see also Kerry at para. 170). The Costs Panel carefully reviewed Waste Management’s conduct and found that it did not engage in any unreasonable conduct, using the wording of the statutory standard that was applicable. The findings in that regard (see paras. 97-116 in particular) are all supportable on the facts and were made by the Tribunal member who was most familiar with the actual conduct of the parties. The Costs Panel made specific reference to many of the examples of improper conduct set out in the non-exhaustive list in Rule 225 (see para. 102) and found that nothing that Waste Management did fit within the realm of unreasonable conduct. The Costs Panel also appropriately confined its inquiry to conduct relating to the proceeding before the Tribunal (see para. 103).

106In assessing whether the Costs Panel made any error in its specific findings on Waste Management’s conduct, the Tribunal returns to the basic and unremarkable facts of this case. Waste Management was a respondent to this proceeding. It had an approval from the MOECC but that approval was appealed by CCCTE, thereby bringing Waste Management into a proceeding before the Tribunal. MBQ successfully intervened in the case as an added party. The parties were able to settle several matters before the main hearing and an order was issued by the Tribunal implementing the partial settlement. In the contested phase of the proceeding before the Tribunal, Waste Management took steps to defend its position on the outstanding issues, including opposing positions taken by an added party, MBQ.

107There is nothing in the various orders and final decision in this matter, or in the record on this motion to review, to indicate that Waste Management behaved unreasonably. As concluded by the Costs Panel, at para. 111:

The MBQ appear to submit that WMC should not have defended itself in these proceedings, and instead should have agreed to the MBQ’s requests from the beginning. The Tribunal rejects this argument, however, and finds that it was not unreasonable conduct for WMC to respond in this appeal by defending its position, engaging in mediation and ultimately proceeding to a hearing on the outstanding issues. The MBQ did not provide the Tribunal with any case law in support of finding such conduct to be unreasonable.

108The record confirms that Waste Management actually agreed to several revisions to the approval at an earlier stage of the proceeding as part of an all-party resolution of portions of CCCTE’s appeal (see Tribunal Order dated April 26, 2013). This demonstrates that Waste Management was not taking a position of unreasonably litigating every difference among the parties, including matters that could have been easily settled. Rather it responded to the proceeding it was brought into as a respondent, engaged in mediation, agreed to a partial settlement, and then participated in the main hearing to resolve the final matters that were not settled. The fact that not every issue was settled in mediation and some required a main hearing is not unusual. If that sort of run-of-the-mill behaviour by a respondent were to be automatically considered unreasonable simply because MBQ intervened in this case, then the result of MBQ’s position in this case would be that the high threshold set out in s. 17.1 of the SPPA would be rendered meaningless.

109Also, it cannot be said that the appropriateness of MBQ’s positions on the remaining items under appeal after the partial settlement was so evident that it was unreasonable for Waste Management to have not agreed to them without the need for a hearing. Indeed, it was not even the case that every position that MBQ took at the main hearing was eventually adopted in the decision in the main hearing (see, for example, paras. 452 and 464 of the Order dated December 24, 2015). As well, it must be recalled that an unsuccessful position is not synonymous with unreasonable conduct. As for all of the other conclusions by the Costs Panel considering the reasonableness of Waste Management’s conduct, the Tribunal sees no error in any of them. The conduct that Waste Management engaged in was typical of that of a respondent to an appeal of an instrument that was issued to it by the MOECC.

110The Tribunal finds that MBQ has failed to show any error in law or fact in regards to the Costs Panel’s finding in the costs application that MBQ did not demonstrate unreasonable conduct by Waste Management. MBQ has failed to show on this motion that its evidence and argument regarding MBQ’s status would have changed the product of the analysis from a conclusion that Waste Management behaved reasonably to a conclusion that it behaved unreasonably.

111As noted above, the terms of the SPPA significantly constrain the Tribunal from addressing the very important factors MBQ raised in its costs application and again in this motion to review because the SPPA imposes a high initial threshold that is limited to specific types of improper conduct. As noted in Baker (Review) at para. 110:

… the Costs Panel did not “up the price” of public participation in its proceedings by refusing to award costs. The Tribunal acts in the public interest but in doing so it is bound by the provisions of the SPPA and its Rules.

(See also, Baker (Costs) at para. 40 and Kerry at para. 193, which states in another costs context: “Policy considerations cannot override the clear terms of the statute”.)

112In this type of Tribunal proceeding, costs awards can only be made in those limited circumstances set out in s. 17.1 of the SPPA, as reflected in Rule 225. The Tribunal is acutely aware of the importance of fostering access to justice, as specifically noted in Tribunal Rule 1 (Purposes of the Rules). In the costs context, the Tribunal has also reflected this in Rule 223 (see also Rules 222 and 224) in regards to those types of proceedings where the Legislature has provided the Tribunal with a wider costs power than that which is available under the SPPA. Rule 223 clearly allows the Tribunal to consider using its broader costs powers to “help defray the costs of participation”. The Rule explicitly recognizes the disparity in resources that parties may have and allows for costs awards to some parties regardless of whether proponents or government bodies acted unreasonably. For cases where the Tribunal has a wider costs power, Rule 223 states:

Costs awards may be ordered to help defray the costs of participation borne by Parties, other than the Proponent, the Director and government decision makers, who make a substantial contribution to the proceeding through responsible participation.

113However, Rule 223 does not apply to this proceeding as this proceeding is an “appeal” for which the only costs jurisdiction is s. 17.1 of the SPPA. Parenthetically, the Tribunal notes that an unintended consequence of MBQ’s proposal to have the Tribunal adopt the OMB’s general approach to be costs would be that, in the cases where the Tribunal has a wider statutory authority to award costs (as reflected in Rule 223), the Tribunal would presumably have to read that down to the detriment of such participating parties and only award them costs where another party engaged in improper conduct because the OMB limits costs awards to those situations.

114The Tribunal points out that the statutory differences between the narrow and wide costs powers of the Tribunal are clearly reflected in the Tribunal’s Rules. The two different costs regimes under which the Tribunal operates (the narrow one under s. 17.1 of the SPPA and the wide one for “application” hearings under s. 7 of the Consolidated Hearings Act, R.S.O. 1990, c. C.29, s. 21 of the Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 20.15 and 33 of the EPA and s. 7 of the Ontario Water Resources Act, R.S.O. 1990, c. O.40) are the product of choices that have been made by the Legislature. In seeking to implement the important policy goals of access to justice and public participation and to address the circumstances faced by MBQ, the Tribunal as a “creature of statute” cannot ignore the strict dictates of the applicable statute. Here, in a proceeding to which s. 17.1 of the SPPA applies rather than the wider powers noted above, the Costs Panel did not err in concluding that the larger considerations raised by MBQ did not affect the answer to the threshold question of whether Waste Management acted unreasonably in this particular case.

115To conclude this section, the Costs Panel’s findings on the reasonableness of Waste Management’s specific conduct are all supportable. MBQ has failed to show any error in respect of those findings.

Rules 238 (d) to (f)

116Given that MBQ has not raised any grounds for review under Rules 238 (a) and (c) and has not been successful in demonstrating any error under Rule 238(b), it is not necessary in these circumstances to address the criteria in Rules 238 (d) to (f) that could weigh against a review.

Overall Conclusion

117MBQ has not demonstrated that any of the factors that weigh in favour of a review under Rule 238 apply to the Costs Dismissal Order. The Tribunal, therefore, concludes that it is not advisable to review the Costs Dismissal Order.

Costs on this Motion to Review

118The Tribunal notes that MBQ has sought its “costs of this request for reconsideration”. Waste Management did not request costs. Having regard to all of the circumstances of this motion (including the status and circumstances of MBQ), the Tribunal finds that Waste Management appropriately responded to the review motion and did not engage in any of the types of improper conduct listed in s. 17.1 of the SPPA. No costs are awarded on this motion.

ORDER

119The motion to review is dismissed.