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
David Buurma and 1838107 Ontario Ltd. Vs The Municipality of Brooke-Alvinston 2021 ONNFPPB 10
2021-10-05
003DavidBuurma20
STATUTE:
Farming and Food Production Protection Act, 1998
HEARING:
BETWEEN:
David Buurma and 1838107 Ontario Ltd.-- Applicants
and
The Municipality of Brooke-Alvinston—Respondents
FILE NO.: 003DavidBuurma20
IN THE MATTER OF the Farming and Food Production Protection Act, 1998
AND IN THE MATTER OF an application to the Board, under Section 6 of the Farming and Food Production Protection Act, 1998 (the “Act”) for a determination as to whether municipal by-laws are restricting a normal farm practice.
AND IN THE MATTER OF an application for costs pursuant to Rule 66 of the Board’s Rules of Practice and Procedure.
BETWEEN:
David Buurma and 1838107 Ontario Ltd. Applicants
– and –
The Municipality of Brooke-Alvinston Respondent
Represented by Eric Davis and Trent Johnson
Represented by Peter Pickfield and Colin Léger
Before: Glenn Walker, Chair; John Lohuis, Member; and Rod de Wolde, Member.
DECISION ON APPLICATION FOR COSTS
1This application for costs was made by the Applicants and was heard by way of written submissions.
BACKGROUND
2The application for costs concerns an application under section 6 of the Act. The application related to the centralized storage and distribution of a commercial biosolid-derived fertilizer on the property municipally known as 8123 Churchill Line in the Municipality of Brooke-Alvinston, in the County of Lambton.
3The application was heard by videoconference over 6 days beginning on March 8 and ending on March 22, 2021, and the decision of the Board was issued on May 27, 2021.
LAW ON COSTS
4Section 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 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;
c) the amount of costs or the manner in which the amount of costs is to be determined.”
5The 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.
6In 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. This list is non-exhaustive.
7Subsection 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.”
8Subsection 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 quantum of costs awarded in the Ontario Superior Court of Justice.”
9In the matter of Dubois v. Burkhardt (No. 1) 2010 ONNFPPB 55, the Board stated:
“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.”
10Finally, it should be noted that any award of costs is in the discretion of the administrative tribunal. (Dell v. Zeifman Partners Inc., 2020 ONSC 3881)
THE CLAIM FOR COSTS
11The Applicants submit that an award of costs of $125,000 inclusive of HST and disbursements would be fair, reasonable and warranted given the specific circumstances of this case.
12They base their request for costs on three main areas of concern regarding the conduct of the Respondent Municipality, namely:
(a) The changing of the Municipality’s position;
(b) The failure to present evidence; and
(c) The clear efforts to malign the character of David Buurma as a principal of LaSalle Agri Inc.
13The Applicants also make it clear in their submissions that there is no suggestion that there has been any conduct by legal counsel for the Municipality that is relevant to the issue of costs and that legal counsel was at all times fair and reasonable to deal with.
The Changing of the Municipality’s Position
14The Applicants have attempted to show that the Municipality has acted unreasonably by changing its position between the position taken in correspondence between the parties in December, 2019 and the position taken by the Municipality at the hearing.
15They allege that in that correspondence the Municipality insists that there was a “commercial activity” occurring on the subject property, that there were stockpiles of fertilizer near creek and habitat conservation projects, that there were concerns for its first responders who were called to extinguish episodes of combustion of the fertilizer and that there were concerns in relation to water contamination.
16They further allege that the claim of “commercial activity” was not pursued at the hearing other than in the context of the Municipality’s planning evidence where their planner opined that it was a commercial activity and that, based on his interpretation of the Zoning By-law, it was an activity which was prohibited on the agriculturally-zoned subject lands. They allege that the Municipality changed its position by not calling any evidence on the other issues raised in this correspondence.
17The Applicants argue that in looking at the December 16, 2019 letter from the Municipality in comparison to the closing submissions of the Municipality, what can be seen is that the Municipality elected to shift their concerns and not narrow them despite abundant disclosure being provided prior to the hearing.
18The Municipality denies all of the above allegations and has pointed out what it sees as inaccuracies in the Applicants’ submissions on the Municipality’s position. However, its first argument is that the communications between the Municipality and the Applicants prior to the application being filed are not relevant to the cost determination under Rule 66.
Analysis and Discussion
19The Board agrees with the Municipality’s first argument that the pre-application correspondence is not relevant to the cost issue.
20In Chesterman Farm Equipment Inc. v. CNH Canada Ltd., 2016 ONSC 698, the Ontario Divisional Court considered Rule 28.04 of the Rules of Procedure of the Agriculture, Food and Rural Affairs Appeal Tribunal which is virtually identical to Rule 66 of the Board’s Rules. In that decision, the Court stated at paragraph 184:
“Ordinarily, courts will only impose extreme costs sanctions based on the conduct of the party in the litigation. A similar interpretation applies to the type of conduct that will attract a costs award under s. 17.1 of the SPPA and, indeed, under the Tribunal’s own Rules. It is apparent from the list of circumstances under Rule 28.04 that the behavior contemplated is conduct within the hearing itself, not conduct in relation to the initial dispute between the parties.”
21The Applicants filed their application with the Board on or about February 19, 2020. The letter relied upon by the Applicants is dated December 16, 2019. The Board finds that this correspondence is not relevant to the costs issue, as it is a position taken by the Municipality before the commencement of the litigation.
22Furthermore, it was not unreasonable for the Municipality to shift its position, if in fact it did, once the application was filed with the Board and it became clear what the issues in the litigation before the Board would be.
The Failure to Present Evidence
23The Applicants allege that the Municipality failed to present evidence at the hearing in the following ways:
a) Failure to call evidence from anyone with farming experience to speak to whether or not the central storage of fertilizer was a normal farm practice;
b) Failure to call expert evidence regarding concerns about the environment;
c) Failure to call expert evidence or evidence from anyone who complained about odour concerns to the Applicants;
d) Failure to call evidence from first responders concerning the smoking/smouldering issue.
24The Municipality denies all allegations and argues that the Applicants have misinterpreted Rule 66(8)(e) and that they called appropriate and adequate evidence at the hearing.
25It submits that the Rule clearly indicates that a costs award in only warranted where a party does not bring any evidence to support an issue in the hearing.
Analysis and Discussion
26The Board agrees with this submission and adopts the Municipality’s statement that were the Board to initiate the practice of awarding costs against a party merely because the Board found evidence to be inadequate, it would set a precedent which would discourage participation of parties in the Board decision-making process.
27This interpretation is even more crucial considering the number of unrepresented parties who appear before the Board. These parties often lack an understanding of the nature of evidence they need to call at a hearing despite being referred to an online Guide provided by the Board and a pre-hearing conference process.
28A party should be free to choose the nature and amount of evidence it calls at a hearing. It may be that the party will be unsuccessful in the litigation as a result of that choice. However, that choice does not represent clearly unreasonable, frivolous, vexatious or bad faith conduct; whereas the failure of a party to call any evidence at a hearing might very well be sanctioned by a costs award.
29The Board therefore finds that the Applicants have failed to show that the Municipality failed to present any evidence and is not entitled to a costs award on this basis.
Efforts to Malign the Character of David Buurma
30The Applicants submit that the Municipality made a clear and concerted effort to malign the character of David Buurma as a principal of LaSalle Agri Inc. It is alleged that this started before the hearing and came out further during the course of the hearing by way of references to LaSalle Agri Inc., in Witness Statements, the cross-examination of Mr. Buurma, the evidence of the Municipality’s land use planner and its final submissions.
31The allegation is that LaSalle Agri Inc., who acted as the vendor of the biosolid-derived fertilizer, was related to other cases before the Board presumably to gain some perceived advantage in the within hearing and that there was an attempt to “demonize” the fertilizer itself.
32The Municipality states that this claim is entirely without merit, unsubstantiated by the Submissions of the Applicants themselves and simply untrue.
Analysis and Discussion
33Rule 66(8)(g) provides that clearly unreasonable, frivolous, vexatious or bad fair conduct includes “maligning the character of another party”.
34The Applicants argue that the Municipality maligned the character of David Buurma as principal of LaSalle Agri Inc.; but what they really mean (clear from the addition of the descriptor “as principal of LaSalle Agri Inc.”) is that there was an attempt to malign the character of LaSalle Agri Inc., who is not a party to these proceedings.
35The Board therefore finds that there was no attempt to malign the character of David Buurma personally; and if there was, there is no evidence to suggest that this was done maliciously or met the threshold established by the Board in Smith v. Smith, 2017 CanLII 17617 (ONNFPPB). In that case, the applicants questioned one of the respondents about a previous criminal conviction totally unrelated to the subject matter of the hearing and made a serious allegation that the criminal conviction was of a nature that was morally reprehensible.
Conclusion
36The Applicants have been unsuccessful in their claim for costs on the three grounds put forward in their submissions and their claim for costs is dismissed.
37Other considerations that they have put forward are success achieved in the proceeding and actual costs incurred. They claim that they were successful in the hearing and that they expended over $173,121.05 in costs.
38These other considerations only relate to a decision on the quantum of costs. As no costs are being awarded, it is not necessary to consider these additional points raised by the Applicants.
REQUEST FOR COSTS ON THE APPLICANTS’ COSTS REQUEST
39The Municipality requests costs in the amount of $11,413.00 for the expenses incurred in responding to the Applicants’ costs request.
40The Board finds that the Applicants’ cost request was clearly unreasonable in that it was substantially without merit.
41There has been a disturbing trend where parties, often represented, unsuccessfully apply for costs disregarding the warning of the Board in Dubois v. Burkhardt (supra) that costs will be rarely given.
42As a result, the Board will award costs to the Municipality for responding to the Applicants’ cost request. The award on this occasion will be nominal and in the amount of $1,000.00; however, parties should be aware that the quantum of costs in these circumstances will be more realistic in the future.
Released: October 5, 2021