Rocca v Bayer, 2021 ONNFPPB 5

Normal Farm Practices

Protection Board

1Stone Road West, 2^nd 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, 2^e étage

Guelph (Ontario) N1G 4Y2

Tél.: (519) 826-3433, Téléc.: (519) 826-4232

Courriel: NFPPB@ontario.ca

Rocca v Bayer 2021 ONNFPPB 5

DATE OF DECISION:

2021-04-20

004Rocca19

STATUTE:

Farming and Food Production Protection Act, 1998

HEARING:

Request for Review dated March 20, 2021

BETWEEN:

Jacqueline and Claudio Rocca -- Applicants

and

Roy and Doris Bayer -- Respondents

FILE NO.: 004Rocca19

DATE: 2021/04/20

IN THE MATTER OF the Farming and Food Production Protection Act, 1998

AND IN THE MATTER OF an application to the Board, under Section 5 of the Farming and Food Production Protection Act, 1998, for a determination as to whether nuisances are as a result of normal farm practices.

AND IN THE MATTER OF motions to the Board by the applicants, Jacqueline Rocca and Claudio Rocca, to amend their application to the Board; to allow one of the applicants to attend at the respondents’ property; to challenge the jurisdiction of the Board over NEMI lands and for the respondents’ contempt of the Board’s Order dated November 2, 2020.

AND IN THE MATTER OF a request for review of the Board’s decision dated March 19, 2021, by the applicant Jacqueline Rocca, pursuant to Rule 64 of the Board’s Rules of Practice and Procedure.

BETWEEN:

Jacqueline Rocca

Claudio Rocca

Applicants

– and –

Roy Bayer

Doris Bayer

Respondents

Represented by Jacqueline Rocca

Devan J. Munch, for the Respondents

Before: Brandi Neil, Vice-Chair.

DECISION on REQUEST FOR REVIEW

Overview

The Applicants, Jacqueline Rocca and Claudio Rocca, have made an application under Section 5 of the Farming and Food Production Protection Act, 1998 (the “Act”), for a determination as to whether nuisances are as a result of normal farm practices.

The Board heard a motion brought by the Applicants on March 4, 2021 seeking:

1. to Amend their application to the Board;

2. to allow one of the Applicants to attend the respondents’ property for a site visit;

3. to challenge the jurisdiction of the Board over the NEMI municipally- owned lands;

4. an order that the Respondents were in contempt of the Board’s Disclosure order dated November 2, 2020; and

5. costs.

A decision on this motion was released by the Board on March 19, 2021. The Applicants have sought a review of that decision under Rule 64 of the Board’s Rules of Practice and Procedure.

Although the Applicants do not clearly state which aspects of the March 19, 2021 decision they are seeking review of, their request for a review makes no mention of the Board’s ruling on items one through three set out above. As such, those aspects of the decision will not be considered in my consideration of the request. In assessing the request, I will consider the following portions of the March 19, 2021, decision in accordance with the Applicants’ request for review:

1. their denied request to find contempt by the Respondents and state the case to the Divisional Court for punishment of a person guilty of contempt under s. 13(1)(c) of the Statutory Powers and Procedures Act; and

2. the order of costs for the motion against the Applicants.

Consideration of further arguments made by the Applicants in their request to review follows my findings on these two issues.

Statutory Jurisdiction for a Review

Subsection 21.2(1) of the Statutory Powers Procedure Act provides that, “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.”

Rule 64 of Board’s Rules of Practice and Procedure provides for such a review of its own decisions and provides it shall take place within a reasonable time after the decision or order is made. I find that the request for review has been made within a reasonable time after the motion decision was made.

I have reviewed the following documents and proceedings in making my decision on the request for review:

a) the audio Zoom recording retained by Board from the motion heard on March 4, 2021;

b) the Applicants’ Motion Material;

c) the Respondent’s Motion Material;

d) the Applicants’ Reply material;

e) the Decision of the Board dated March 19, 2021;

f) the previous Decisions of the Board on this matter dated: June 29, 2020, November 2, 2020, and February 18, 2021; and

g) the Applicant’s request for review dated March 20, 2021.

I did not seek submissions from the Respondents on this request for review.

Review of the Motion Decision:

While considering if the motion decision should be varied or cancelled or if further review should take place, I must consider the standard of review. As this would be a review at the same level (by the same Board) the appropriate standard of review is that of reasonableness with a high level of deference to the original decision-maker. The situations warranting less deference as set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, do not apply here. If I find all aspects of the Board’s decision to be reasonable, then no change to the motion decision will be made and no further review will be necessary.

1. The applicants denied request to find contempt by the Respondents and state the case to the Divisional Court for punishment of a person guilty of contempt under s. 13(1)(c) of the Statutory Powers and Procedures Act

As stated in paragraph 25 and 26 of its decision, the Board has no contempt powers under the Statutory Powers and Procedures Act but can state a case of contempt to the Divisional Court for punishment. In their request for review, the Applicants maintain that the Respondents are in contempt as they have not complied with the Board’s November 2, 2020 disclosure orders. The Board found the Respondents had complied with the disclosure order and explained that there had been a misunderstanding regarding acreage that had been corrected. The Applicants also indicated the Board provided no reasons for the finding that there was no contempt. The Board’s decision sets out the reasons for that finding in paragraphs 19-24 of its decision.

The findings of the Board that the Respondents have complied with disclosure orders in the Board’s Order of November 2, 2020 were founded in the evidence before them (i.e. Mr. Bayer’s affidavit). The Board accepted that the omission of four acres in the original information statement provided by the Respondents had been explained as an oversight and was provided prior to the hearing of the motion. This oversight does not come close to meeting the legal requirements for a party being found in contempt as set out by the Ontario Court of Appeal in Prescott-Russell Services for Children and Adults v. N.G. et al, 2006 CanLII 81792 (ON CA) at paragraph 27.

I find the Board’s decision on the contempt allegation to be reasonable and does not warrant a change or further review.

2. The order of costs for the motion against the Applicants

The Board held that the Applicant’s allegation of contempt was unfounded and amounted to unreasonable, vexatious and bad faith conduct. The Respondent’s omission of four acres in the original information sheet was clearly explained in Mr. Bayer’s affidavit and he provided the information as soon as he reviewed the Applicant’s motion materials. I agree with the Board’s finding that it is bad faith conduct on the part of the Applicants in continuing to characterize and argue this oversight as behavior amounting to contempt.

In their request to review, the Applicants point out that the Board does not list any of the eight reasons for cost set out in the Board’s Rule 66(8). This does not create a reason for varying the decision or ordering a new hearing on the issue. Rule 66(8) clearly states that “conduct can include, but is not limited to” those eight reasons. It is reasonable and permitted that the Board can determine that other conduct, specifically conduct amounting to unreasonable, vexatious and bad faith conduct, justifies costs.

Further Arguments by the Applicants in Their Request for a Review of the Decision

The Applicants contend the order of costs against them is unjust and prejudicial and will create a bias in the hearing. There is nothing in the Board’s decision that supports this contention or gives rise to a reason to vary or re-hear argument the costs order.

The Applicants also raise issues with procedural fairness. They claim they were being treated unfairly as unrepresented litigants and that the panel showed leniency toward the lawyer. In reviewing the audio proceedings for this motion, I find that claim to be baseless. The Chair presided over this motion in a professional and fair manner in accordance with the rules of the Board and the principles of procedural fairness.

The Applicants argue that the Board did not follow its Rules 45 and 46. Rules 45 and 46 deal with the presentation of evidence and examination and cross examination as opposed to argument. There was no live evidence presented and the motion was argued based on documentary evidence filed in advance. In any event, Rule 45 provides that evidence can be presented by the parties as the Board directs.

The order set out in Rule 45 for presenting evidence was followed for the providing of argument at the motion with the exception of allowing the Respondent to make brief further submissions at the end. The Chair had Ms. Rocca set out her grounds for the motion and then followed with hearing from counsel for the Respondents, and then gave Ms. Rocca the opportunity to provide a brief reply, which she did. He then had Ms. Rocca make her costs submissions followed by counsel for the Respondents. Ms. Rocca was then given the opportunity to reply to the costs submissions, which she did. As the Chair was explaining he would just consider costs for this motion (not the proceedings at large), counsel for the Respondent used the raise his hand function of Zoom and was given the opportunity to make brief additional comments. These lasted approximately two minutes and did not in any manner affect the fairness of the proceedings. His comments pointed out that the Applicant could have sought the missing disclosure materials directly from counsel instead of bringing a motion.

At no time did Ms. Rocca indicate she had any further comments nor was she denied the opportunity to speak or ask questions. The allowing of the brief further comments was not referenced in the decision of the Board and did not affect the procedural fairness of the motion.

The Applicants’ request for review materials also state the cost order is unjust enrichment. This awarding of costs in these circumstances is in no way unjust enrichment. However, a determination of unjust enrichment is not a matter before this tribunal or within its jurisdiction.

Ms. Rocca also asserts that the Board’s motion decision is causing her irreparable harm and is affecting her career and that the decision is defamatory and possibly libel. These allegations are also unfounded. The Board’s decision was a ruling in law using the language as set out in the rules and is in no way a personal attack on the Applicants’ character. These assertions also do not give rise to a reason to vary or further review the decision.

For all of the reasons set out above, I find the order is reasonable and should not be altered in anyway. A re-hearing on these issues is not warranted.