Normal Farm Practices Protection Board

Commission de protection des pratiques agricoles normales

3rd Floor 1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3549 Fax: (519) 826-3259

3e étage 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3549 Téléc.: (519) 826-3259

Normal Farm Practices Protection Board

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Dubois v. Burkhardt Motion for Cost 2010 ONNFPPB 55

DATE OF DECISION:

2010-02-04

2008-03

STATUTE:

Farming and Food Production Protection Act 1998

HEARING:

BETWEEN:

Larry Dubois and Paula Dubois -- Applicants

and

Walter Burkhardt– Respondents

NORMAL FARM PRACTICES PROTECTION BOARD

IN THE MATTER OF THE FARMING AND FOOD PRODUCTION PROTECTION ACT S.O. 1998, C.1

AND IN THE MATTER OF RULE 66 OF THE NORMAL FARM PRACTICES PROTECTION BOARD RULES OF PRACTICE AND PROCEDURE WITH RESPECT TO MOTIONS FOR COSTS BROUGHT BY BOTH THE APPLICANTS AND THE RESPONDENTS RELATED TO A HEARING BY THE BOARD

BOARD FILE NUMBER: 2008-03

Before: Glenn C. Walker, Chair Helene Blanchard, Member Roger Pelissero, Member

Between: Larry Dubois and Paula Dubois, Applicants

and

Walter Burkhardt and 1434343 Ontario Inc., Respondents APPEARANCEES

Applicants: Peter Dubois -·Agent Respondents: Brigitte Gratl, J.D. - Counsel

DECISION

MOTIONS

The Applicants, Larry Dubois and Paula Dubois (Dubois), seek costs of approximately $98,731.65 on a substantial indemnity basis from the Respondents, Walter Burkhardt and 1434343 Ontario Inc. (Burkhardt). The claim includes disbursements of $8,549. 77 including GST.

In response to Dubois' motion for costs, Burkhardt sought to have the Applicants' motion dismissed and made their own claim for costs against Dubois on a partial indemnity basis in the approximate amount of $40,683.81.

ISSUES

The motions require a determination of whether the conduct of either Dubois and/or Burkhardt during the proceedings up to the end of the hearing warrants an award of costs. If the answer to that question is yes then the second issue is to determine the quantum of such cost awards. Prior to responding to the issues, a brief summary of the applicable law is set out below.

LAW ON COSTS

(a) Statutory Jurisdiction

The Statutory Powers Procedure Act (SPPA) provides that a tribunal may, in the circumstances set out in a rule made under section 25.1, order a party to pay all or part of another party's costs in a proceeding (subsection 17.1(1)). Under subsection 17.1(2) a tribunal shall not make an order to pay costs under section 17.1 unless the conduct of a party has been "unreasonable, frivolous or vexatious or a party has acted in bad faith"; and the tribunal has made rules under subsection 4. Subsection (4) of 17.1 provides that a tribunal may make rules with respect to both "ordering of costs"; "the circumstances in which costs may be ordered"; and the amount. Pursuant to section 23 of the SPPA, a tribunal may "make such orders or give directions in proceedings before it as it considers proper to prevent abuse of its processes" (section 23( 1)).

(b) Board's Rules of Practice and Procedure

The Board's jurisdiction to make general rules regulating its practice and procedure is found in section 25.1 of the SPPA. The Board has made rules of practice and procedure (Rules) pursuant to the SPPA. The Rule dealing with costs is Rule 66. The following subsections of Rule 66 are applicable:

"66(1) Where a party believes that another party has acted clearly unreasonably, frivolously, in a vexatious manner, or in bad faith, considering all of the circumstances, it may ask for an award of costs. The party must notify the Board within ten days after the written reasons are issued that the party will be seeking costs, against whom the costs are sought, and an indication of the approximate amount of costs being sought.

(6) The Board may make a costs award for conduct at any time during a proceeding.

(7) The Board may deny or grant the request or award a different amount.

(8) Clearly unreasonable, frivolous, vexatious, or bad faith conduct can include, but this is not limited to:

(a) failing to attend a hearing event or to send a representative when properly given notice, without contacting the Board;

(b) failing to give notice or adequate explanation or lack of cooperation during pre-hearing proceedings, changing a position without notice, or introducing an issue or evidence not previously mentioned;

(c) failing to act in a timely manner or to comply with a procedural Order or direction of the Board where the result causes undue prejudice or delay;

(d) conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events;

(e) failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Board has determined to be improper;

(f) failing to make reasonable efforts to combine submissions.with parties of similar interests;

(g) acting disrespectively ( sic) or maligning the character of another party; and

(h) knowingly presenting false or misleading evidence.

(9) The Board will consider the seriousness of the misconduct. If a party requesting costs has also conducted itself in an unreasonable manner, the Board may decide to reduce the amount awarded; the quantum of costs awarded shall be in the discretion of the Board. In determining the quantum, the Board may take into consideration the concept of partial and substantial indemnity, and the Rules and Regulations regarding the quantum of costs awarded in the Ontario Superior Court of Justice."

(c) Jurisprudence

This is the first application for costs to this Board and consequently there is no jurisprudence or case law to assist this Board in making its decision. However, it is important to note that each case is specific to its own facts. Unlike the Courts, applications for costs are not routine and cost awards are rare. In short, a successful party appearing before the Board should have no expectation that it will recover its costs. Applicants should have a rigr ht to bring their matters to the Board without the fear of cost consequences; however, the parties must be accountable for their conduct and if that conduct has been unreasonable, frivolous or vexatious, or if the party has acted in bad faith, then an award of costs may be a possibility.

ISSUES AND FINDINGS

(a) Was the conduct of Burkhardt during the proceeding unreasonable, frivolous or vexatious or in bad faith such that an award of costs should be made in favour of Dubois?

Dubois argues that the conduct of Burkhardt was unreasonable, frivolous, vexatious or in bad faith on the following grounds inter alia:

(1) The failure of counsel for Burkhardt to attend the hearing on June 15 and June 16, 2009;

(2) Counsel for the Respondent expressly asking for and insisting upon disclosure of the Applicants' documents via fax and then changing her position in terms of the method of service for the disclosure of documents and thwarting the Applicants' reasonable attempts to provide such disclosure;

(3) Counsel for the Respondent being late for the pre-hearin! conference on February 27, :2009 as well as at various times throughout the hearing.

(4) Counsel for the Respondent failing to provide a complete witness list as directed in the Vice-Chair's pre-hearing Order;

(5) Failure of counsel for the Respondent to confirm the correct name of the owner of the Respondent's farm pursuant to the Vice-Chair's pm-hearing Order and as requested by the Chair during the hearing;

(6) Counsel for the Respondent's failure to provide an appropriate interpreter;

(7) Counsel for the Respondent's failure to prepare adequately for the hearing including not having a witness list, copies of Respondents' documents for the Board and thei Applicants;

(8) Counsel for the Respondent not having reviewed video evidence supplied in advance by the Applicants;

(9) Counsel for the Respondent making disrespectful comments to or about the witness, Hugh Fraser, the Applicants and Katie Dubois during the hearing.

The Board is not prepared to conclude that any of the conduct alleged by the Respondent was clearly unreasonable, frivolous, vexatious and/or in bad faith and therefore meets the threshold test for the Board to consider an award of costs. No doubt the hearing would have gone more smoothly if counsel for the Respondent had been more punctual in meeting time lines for providing documentation and personal attendances but the hearing was not substantially lengthened by her failure to attend on June 15 and 16, 2009. There were no major unnecessary delays as a result of the obvious attempt by the Respondent not to proceed with this hearing in a timely manner.

At the end of the Applicants' submissions, they indicated that they were withdrawing the original claim for "fees" pursuant to the agency agreement in the amount of $90,181.88. The Applicants then submitted a revised "disbursement sheet" setting out the following disbursements:

Mileage Peter Dubois (agent) Ottawa to Niagara return; 1,154 kms return; .46/klm; 11 trips

$5,839.24

Mileage Katie Dubois (assistant to agent)

Niagara region at .46/klm

Martin Sheppard LLP Statement September 8, 2009

$709.28

inclusive of disbursements and GST

Martin Sheppard LLP Statement of November 3, 2009

$935.29

inclusive of disbursements and GST

Martin Sheppard LLP Statement of January 15, 201O inclusive of disbursements and GST

$316.76

photocopies

$523.13

disclosure binder; collateral; including GST

obtained Respondent title

$75.00

transcripts ($1,576.58 inclusive of courier ($18.. 50) and certified cheque ($10.00))

$1,E305.08

Subtotal $8,313.37

GST on mileage $303.53

Total Disbursements $8,616.90

During the hearing, the Applicants were advised that the legal accounts incurred after the final date of the hearing would not be considered appropriate disbursements nor was the request for compensation for the transcripts of the hearing ordered by the Applicants.

No dockets or other verification of the mileage claimed by the agent and his assistant were presented to the Board nor was any documentation with respect to obtaining the title information with respect to the Respondents' lands. Counsel for the Respondents advised that she would compensat 3 the Applicants for the $75.00 charge for obtaining title documentation from the Land Titles office by sending a cheque to Mr. Peter Dubois.

However, in view of the Board's finding that none of the conduct alleged by the Applicants was perceived by the Board to be unreasonable, frivolous, vexatious or in bad faith, the motion of the Applicants for costs is dismissed without costs.

(b) Was the conduct of Dubois during the proceeding unreasonable, frivolous or vexatious or in bad faith such that an award of costs should be made in favour of Burkhardt? Counsel for the Respondents relies upon the following submissions to attempt to establish that the Applicants' conduct during the proceeding was unreasonable, frivolous, vexatious or in bad faith:

(1) The calling of irrelevant evidence by the Applicants;

(2) The Applicants' agent continuing to ask leading questions, raising irrelevant subjects and attempting to introduce improper evidence;

(3) The failure of the Applicants to accept a proposed settlement as developed by agricultural engineer Hobert Chambers;

(4) The allegation that the proposal made by them was superior to the Order obtained after the hearin g.

Again, the Board is not convinced that the submissions upon which the Respondents rely are either true, or if indeed they are, if they meet the threshold test.

There is no doubt that the hearing was longer than it needed to be as a result of the agent for the Applicants' conduct. However, as an agent of the Applicants, he can be held to no higher standard than that of the Applicants themselves as he is not a trained lawyer or paralegal. Taking that into consideration, there is absolutely no evidence that his conduct on behalf of the Applicants was unreasonable, frivolous, vexatious or in bad faith.

As to the Respondents' perception that the proposal made by the Respondents was as good or better than the Order ultimately issued by the Board, the Board does not agree as the terms of the Board's Order were significantly more stringent than Mr. Chamber's plan. The Board therefore remains unconvinced that the Respondents in their motion for costs have met the threshold test as enunciated above. The Respondents' motion for costs is therefore dismissed without costs.

DECISION AND ORDER

The decision in this matter is intended to establish a Board practice that costs are not awarded lightly nor are they awarde!d routinely. Awards of costs will be rare. Potential parties and the public should not be fearful of participating in Board proceedings. Costs should never be used as a threat or a reason to dissuade public participation. The Board has the statutory jurisdiction to award costs for the purpose of controlling its process. Costs befon3 the Board are not intended to follow "the cause" nor are they

intended in any way to indemnify a. successful party. Each application for costs will be decided on its own merit, based on an assessment of conduct.

For all of the reasons given, the Board finds that there is no liability for the costs claimed by Dubois against Burkhardt, nor for costs claimed by Burkhardt against Dubois. The issue of quantum is therefore moot. Both motions for costs are dismissed without

costs.

DATED: February 4:, 2010

Glenn C. Walker - Chair

Roger Pelissefu-Member