ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

Dubois v. Burkhard 2010 ONNFPPB 3

DATE OF DECISION: 2010-01-31 2010-01

STATUTE: Farming and Food Production Protection Act 1998

HEARING:

BETWEEN: Larry Dubois and Paula Dubois -- Applicants and Walter Burkhardt and 1434343 -- Respondents

I MOTION

1. Larry Dubois and Paula Dubois filed an Application for a Hearing before The Normal Farm Practices Protection Board (hereinafter referred to as the "NFPPB" or the "Board” respectively) pursuant to Section 5 of The Farming and Food Production Protection Act, 1998, S. 0. 1998, Chapter 1 (hereafter referred to as the "Act").

2. The Complaint against the Respondents, Walter Burkhardt and 1434343 Ontario Inc. related to Noise and Vibration Disturbances generated or emanating from activity associated with the use of the Respondents' property (hereafter referred to as the "Burkhardt Lands").The lands in question are owned by 1434343 Ontario Inc. (hereafter referred to as the "Corporate Respondent").

3. The NFPPB agreed to accept the Application as it related to possible Noise and Vibration Disturbances associated with the activities carried on at 282 East West Line, Niagara-on-the-Lake, Ontario.

4. The Application was heard at a Hearing which commenced on November 30, 2010 and a Decision was rendered in writing by the hearing Panel on January 31, 2011

5. Following the issuance of the Decision, the Applicants brought before the Board a Motion for Costs of the Proceedings as against the Respondents.

6. The Board issued a Direction which required the Parties to file written submissions with the understanding that the Panel would consider such and possibly determine if an Oral Hearing on the issue of Costs might be held or if its Decision could be rendered based solely on those written submissions.

II DECISION ON APPLICANT'S MOTION FOR COSTS:

8. The Panel had, at the outset of the Hearing, made certain Rulings including confirmation that there were to be limitations placed upon the Parties as to the extent of the evidence that the Parties could present with respect to the alleged disturbances and the reasons therefor. The expressed reasoning behind those limitations was that the same Parties had been involved in an earlier Hearing for which a Decision had been issued. The Hearing Panel confirmed a portion of its rulings made at the opening of the Hearing to the effect that:

• The facts underlying the Decision in the First Hearing were not relevant to the Complaint presently before the Hearing Panel. The facts which the second Panel was prepared to entertain as being relevant to that Hearing would only relate to events which occurred after the date that the First Panel's Decision was issued and received by the Respondents and, thus, became a Decision which would bind the Parties. The Panel ruled that the operative date would be September 29,2009.

• Notwithstanding that limitation, the Panel agreed that evidence on issues which had transpired before that date which bore on issues of credibility might be accepted as admissible evidence.

9. As the Board's Panels are Panels created pursuant to a Statute, the Panel could only entertain a successful Application for Costs of a Party to a Hearing against another Party to that Hearing within its Statutory Authority to award costs. In this instance, that authority is found in Section 6. (1) of the Board's Rules of Practice and Procedure:

Section 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 10 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.

10. Definitions of the terms used in Section 66. (1) are found in Section 6. (6) of the Board's Rules of Practice and Procedure:

Section 66. (8) Clearly unreasonable, frivolous, vexatious, or bad faith conduct can include, but 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 interest;

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

h. Knowingly presenting false or misleading evidence.

11. The Panel has determined that it will not follow the receipt of written submissions with the scheduling of an oral Hearing to consider the issue of Costs and will render its decision based upon the written submissions filed.

12. The Panel has considered the written submissions of the Applicant and the Respondent and the responding submissions of the Applicant to the Respondent's submissions and has concluded that it is unable to award Costs in these Proceedings to the Applicant against the respondent. It is noted that the Respondent did not seek costs of the Proceedings.

III REASONS FOR DECISION:

13. After consideration of the four preconditions set forth in Section 66. (1), as defined by Section 66. (8), on its review of the transcripts of evidence, the Panel is unable to find that there has been evidence submitted to establish the satisfaction of any of the four necessary preconditions set out therein.

14. Accepting that the Panel, in its decision rendered on January 31, 2011, made comments or observations as to credibility which included negative observations as to the Respondent, Walter Burkhardt, those comments were made solely with regards to findings of credibility and not upon the issues of whether a nuisance had been established which was not a normal farm practice as defined in the Act. While the Applicants submit that those comments are proof of the actions of the respondents bringing them within the ambit of Section 6. (1), the Panel has considered that submission and has determined that it is not a correct use of those observations made solely with respect to findings of credibility.

15. The evidence presented did not, in the Panel's estimation, establish actions of either a 'vexatious manner' or ones undertaken in 'bad faith'. Similarly, the Panel finds that the evidence did not establish a 'clearly unreasonable' action nor one which could be characterized as being undertaken 'frivolously'.

16. In the event that it could be later found that the Panel has erred in its Decision, the quantum of Costs which could have been awarded would total $674.02 as set forth in the Applicants' submissions on the Motion.

IV DECISION:

17. The Panel dismisses the Motion for Costs brought by the Applicants against the Respondents in these Proceedings.

Dated August , 2011 at Guelph, Ontario.

Anthony Little Q.C., Vice Chair, Normal Farm Practices Protection Board

Dwayne Acres, Member Normal Farm Practices Protection Board