Normal Farm Practices Protection Board 1 Stone Road West, 2nd Floor Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: NFPPB@ontario.ca
Commission de protection des pratiques agricoles normales 1 Stone Road West, 2e étage Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca
NORMAL FARM PRACTICES PROTECTION BOARD
IN THE MATTER of the Farming and Food Production Protection Act, 1998, S.O. 1998, Ch. 1
AND IN THE MATTER of an Application to the Board under Section 6 of the Farming and Food Production Protection Act, 1998, S.O. 1998, Ch. 1 for a determination as to whether a Municipal By-law has the effect of restricting a normal farm practice.
Board File No. 2015-04
BETWEEN
Marc Reid and Andrea Reid
Applicants
And
The Corporation of the Township of Puslinch
Respondent
Representation:
Al Burton, Counsel for the Applicants
Tom Halinski, Counsel for the Respondent
Before:
Glenn C. Walker, Vice-Chair
Jane Sadler Richards, Member
Robert Brander, Member
DECISION
CLAIM FOR COSTS BY THE RESPONDENT
The Respondent, The Corporation of the Township of Puslinch, has made a claim for costs in these proceedings against the Applicants. The Board requested that the parties serve and file written submissions with respect to the claim for costs.
In its submissions the Respondent alleges that the grounds for the costs request are that the Applicants acted “unreasonably and frivolously in approaching, and failing to prepare a case in support of their application” including failing to prepare adequately for hearing events and failing to present evidence. The Respondent incurred legal expenses of $116,648.75 and expert disbursement expenses of $25,453.36 for a total of $142,102.11. It is asking for a costs award of at least one-half of the amount spent by the Township for legal fees and for all of the expert witness fees.
THE GROUNDS
The Respondent argues that the Applicants acted unreasonably and frivolously in failing to call evidence of “demonstrable plans” for their proposed fill project including the production of site alteration management plans, grading plans, groundwater monitoring plans and any expert witnesses to testify with respect to these issues or evidence to permit the Board to consider all of the issues contained in subsection 6(15) of the Farming and Food Production Protection Act, 1998.
In their response submissions the Applicants maintain that there was not a complete failure to call any evidence of this nature but that the Applicants had only failed to call enough evidence to satisfy the Board that the Applicants had met their onus of proof. The strength of a particular case or the evidence called therein does not merit a sanction of costs for alleged misconduct.
LAW ON COSTS
Section 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, sets out the two statutory prerequisites to the Board’s jurisdiction to award costs. That section provides:
“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 subsection 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.”
The Board has made rules reflecting section 17.1 of the Statutory Powers Procedure Act and the rules appear as Section 66 of the Normal Farm Practices Protection Board – Rules of Practice and Procedure. Subsection 66(1) of the Rules provides that where a party believes that another party has acted clearly unreasonably, frivolously, or in a vexatious manner, or in bad faith, considering all of the circumstances, they may ask for an award of costs.
In Subsection 66(8) of the Rules, the Board has enumerated some of the circumstances in which costs may be ordered as permitted by subsection 17.1(4) of the Statutory Powers Procedure Act.
Subsection 66(8) states as follows:
“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 a 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.”
Subsection 66(9) also provides that:
“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.”
The Applicants in their submissions made reference to the Board decision with respect to costs in the matter of Dubois v. Burkhardt (No. 1) 2010 ONNFPPB 55. In the Dubois decision, the Board stated as follows:
“The decision in this matter is intended to establish a Board practice that costs are not awarded lightly nor are they awarded 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 before 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.”
ENTITLEMENT TO COSTS
In considering a claim for costs, the Board must take into account all of the circumstances. Throughout these proceedings, the Respondent was represented by experienced counsel. Although earlier in the matter the Applicants had retained counsel, at the hearing, Mr. Reid chose to represent himself and his wife. Section 6 applications can be complicated, especially those involving site alteration by-laws. These applications can be highly controversial and the municipality always has the advantage of having counsel during the process. In addition, the nature of these types of applications requires the involvement of professional engineers and the production of proposed plans and drawings. On the other hand, those challenging site alteration by-laws do not always have the same resources to retain lawyers, engineers and planners.
Mr. Reid always came to the hearing prepared. Perhaps not as to the nature of the evidence that he needed to provide but it was clear that he had spent much time in preparation of his case, as he saw it. He was doing his best and he did not treat the matter lightly. He submitted engineer reports that he had commissioned earlier in connection with his failed application to the municipality for a site alteration permit. Unfortunately, these were not of assistance to the Board but he may have thought that they would help establish his case.
In the eyes of a reasonable person and in light of the above circumstances, the Board cannot find that the conduct of the Applicants was either unreasonable or frivolous. The Board works with self-represented litigants often and has provided resources for their use. In these circumstances self-represented parties will not be held to the same standard as those represented by counsel.
The Board has established a high bar to meet in order to establish grounds for a cost award after a hearing and costs will rarely be given. For the reasons given above, no costs will be awarded to the Respondent.
APPLICANTS’ REQUEST FOR COSTS
The Applicants seek their costs of responding to the Respondent’s application for costs, on a substantial indemnity basis, in the amount of $7,500.00. For the purpose of responding to the costs issue, Mr. and Mrs. Reid retained counsel and seek reimbursement for this expense. They allege bad faith conduct on the part of the Respondent and submit that, based on the quantum of costs sought, the costs application was aimed at attempting to punish the Applicants for bringing forward an application to the Board in the first place.
We see no substance to that argument. No doubt there is and has been animosity between parties but the Board does not find that the intention of the municipality in bringing the costs application was to punish the Reids. More likely, it was an attempt to recoup some of the cost of the hearing for the benefit of the ratepayers. The Applicants’ request for the costs of the motion is denied.
DECISION AND ORDER
For the reasons given above, the Respondent’s motion for costs is dismissed without costs.
DATED: December 11, 2018