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

Boucher v Municipality of Central Huron (Costs Decision) 2024 ONNFPPB 05 2024-08-12 005Boucher23 Farming and Food Production Protection Act, 1998

HEARING:

In Writing

BETWEEN:

Christopher Boucher Applicant – and – Municipality of Central Huron Respondent

Self-Represented. Represented by Rocco Giordano Scocco for Cost Submissions

Represented by Nicholas Van Allen

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 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 61 of the Board’s Rules of Procedure.

BETWEEN:

Christopher Boucher Applicant – and – Municipality of Central Huron Respondent

Self-Represented Represented by Rocco Giordano Scocco for Cost Submissions

Represented by Nicholas Van Allen

Submissions from: The Municipality of Central Huron Christopher Boucher

Before: Christine Greydanus, Vice-Chair, Rod de Wolde, Member, John Lohuis, Member

DECISION ON APPLICATION FOR COSTS

BACKGROUND

[1]. This application for costs was made by the Respondent, the Municipality of Central Huron (“Central Huron”) and heard by way of written submissions.

[2]. The application for costs concerns an application brought by the Applicant Christopher Boucher under Section 6 of the Farming Food and Production Protection Act (“FFPPA”) against Central Huron’s use of their By-Law 13 - 2009 Property Standards to prevent Mr. Boucher from carrying on an agricultural operation.

[3]. A Pre-hearing Conference was held on November 28, 2023. Central Huron was given leave to bring a jurisdictional motion on this matter, on or before January 31, 2024.

[4]. Central Huron brought a motion on January 30, 2024 seeking the dismissal of the Application without a hearing or in the alternative, a stay of proceedings. The motion was heard in writing, and the decision of the Board was issued on May 3, 2023.

[5]. Central Huron requested costs in the amount of $4,07.02, being 50% of the total cost expenditure by Central Huron for the Application.

LAW ON COSTS

[6]. 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 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.”

[7]. 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, it may ask for an award of costs.”

[8]. In subsection 61(4) 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.

Subsection 61(4) 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 disrespectfully or maligning the character of another party; or

(h) Knowingly presenting false or misleading evidence.”

[9]. Subsection 61(5) also provides that:

“The Board is not bound to order costs when any of these examples occurs. 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.”

[10]. In the matter of Dubois v. Burkhardt (No. 1) 2010 ONNFPPB 55 (“Dubois”), 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 merits, based on an assessment of conduct.”

[11]. The matter of Dell v. Zeifman Partners Inc., 2020 ONSC 3881 provides that any award of costs is in the discretion of the administrative tribunal; and that “the party claiming costs must come to the Board with clean hands as to its conduct.”

SUBMISSIONS

A. The Frivolous and Vexatious Commencement of the Application

[12]. Central Huron argued that the application, brought by Mr. Boucher was frivolous and unnecessary, noting that the matter was dismissed by the Board citing that “the FFPPA cannot be used to circumvent the land use planning by-laws of a municipality and, in effect, make a prohibited use permitted”. Boucher v. Central Huron, 2024 ONNFPPB 1.

[13]. Central Huron seeks a costs award as it would be appropriate “to compensate the successful party for the expense to which he or she has been put by a lawsuit that has been improperly brought.

[14]. Central Huron submits that the application brought by Mr. Boucher was an effort to relitigate issues that were already pronounced upon by the Board.

[15]. Mr. Boucher submits that the application pertained directly to his property rights and livelihood, specifically his farm business. Mr. Boucher argued that he purchased the property with the express intent of operating a small farm in order to earn a modest income. He further maintains that it is unreasonable to expect him to forgo bringing an application given his potential for a financial loss and his right to defend his interests.

Analysis and Discussion

[16]. The Board does not take the awarding of costs lightly and applying Dubois in this matter will not use costs as a mechanism to dissuade public participation.

[17]. Mr. Boucher was self-represented and self-represented parties will not be held to the same standard as those represented by counsel. Mr. Boucher merely endeavored to advocate for himself.

B. The Attempt to Malign or Vilify Central Huron and Other Individuals

[18]. Central Huron argues Mr. Boucher in his materials unfairly maligned the character of not only Central Huron but other individuals involved in the matter.

[19]. Mr. Boucher submits that he did not engage in any conduct within the hearing itself that is deemed unreasonable, disrespectful, or maligning and that he did not knowingly present any false or misleading evidence with respect to Central Huron or any other individuals within the hearing. Mr. Boucher submits that he introduced evidence that Central Huron challenged, such evidence was purely based on public knowledge and Mr. Boucher’s past experiences when interacting with Central Huron.

Analysis and Discussion

[20]. The Board finds that self-represented parties will not be held to the same standard as those represented by counsel. The bar is high and the Board finds that the Central Huron has not reached it in this instance, however, self-represented litigants should be cautioned to conduct themselves with appropriate decorum, as this finding is not intended to be interpreted that there is no bar in place.

CONCLUSION

[21]. The Respondent Municipality of Central Huron has been unsuccessful in their claim for costs on the two grounds put forward in their submissions. Their claim for costs is dismissed.

DATED at Petrolia, Ontario this 12th day of August, 2024.