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

Kendall v Melo et al (Costs Decision) 2024 ONNFPPB 06 2024-11-13 001Kendall24 Farming and Food Production Protection Act, 1998

HEARING:

In Writing

BETWEEN:

Sandra Kendall Applicant – and – Jose and Maria Connie Melo and King Township Respondents

Self-Represented

Represented by Steven Chadwick and Christoper Lee Represented by Tom Halinski

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 disturbances are as a result of a normal farm practice, and under Section 6 of the Farming and Food Production Protection Act, 1998 for a determination as to whether a municipal by-law is restricting a normal farm practice.

BETWEEN:

Sandra Kendall Applicant – and – Jose and Maria Connie Melo and King Township Respondents

Self-Represented

Represented by Steven Chadwick and Christoper Lee Represented by Tom Halinski

Heard, In Writing

Before: Glenn C. Walker, Chair; John Lohuis, Member and Rod de Wolde, Member

DECISION ON APPLICATION FOR COSTS

1. The Respondents, Jose and Maria Connie Melo, have made an application for costs against the Applicant by way of submissions dated May 31, 2024 with respect to the Board’s decision dated May 2, 2024.

2. The Board ordered that the application be heard in writing and received submissions from the Respondents, Jose and Maria Connie Melo and the Applicant. The Respondent, King Township, did not seek costs.

BACKGROUND

3. The Applicant, Sandra Kendall (“Kendall”), made an application to the Board pursuant to Sections 5 and 6 of the Farming and Food Production Protection Act, 1998, S.O. 1998 c. 1 (“Act”).

4. Kendall and Paul Davidson are the registered owners in fee simple of the property legally described as part of Lot 26, Concession 8 in the Township of King and municipally known as 5840 18th Sideroad, Schomberg, Ontario (“Kendall Property”).

5. Jose Melo and Maria Connie Melo (“Melos”) are the registered owners in fee simple of the property legally described as Part Lot 26, Concession 8 in the Township of King and municipally known as 16105 Hwy 27, Schomberg, Ontario (“Melo Property”).

6. Since approximately 2017 there has been a dispute between Kendall and the Melos concerning the use of the Melo Property.

7. The Board advised the parties that it was considering dismissing the applications without a hearing pursuant to Rule 8(1) of the Board’s Rules of Practice and Procedure on the basis that it may lack jurisdiction. It sought and received written submissions from all parties.

8. In a decision dated May 2, 2024, the Board found that it did not have jurisdiction with respect to the Section 5 application as Kendall was unable to identify an agricultural operation on the Melo Property. Further, it decided that it had no jurisdiction with respect to the Section 6 application as it had no authority to enforce or to cause the municipality to enforce its Noise By-law.

9. In addition, the Board found that the Section 5 application was vexatious as it was an abuse of the Board’s process.

10. On or about September 22, 2023, Sandra Kendall had commenced an action in the Ontario Superior Court of Justice against Jose Melo and Maria Connie Melo. These are the same parties as in the application before the Board.

11. The claim is for damages for nuisance in the amount of $35,000,000 and, inter alia, a mandatory Order restraining the Melos from all commercial and industrial-related activities that interfere with the use and enjoyment of the property of the Plaintiff.

12. The nuisances are alleged to be noise, dust, smoke, fumes, odour and vibration.

13. The Board found that the court action involved the same parties, arose from the same factual matrix and alleged essentially the same nuisances (disturbances) as the application before it and constituted a multiplicity of proceedings.

14. With respect to both the sections 5 and 6 applications, the Board found that the applications were frivolous as it was plain and obvious that they could not succeed.

15. As a result of these findings and others the Board dismissed the applications.

LAW ON COSTS

16. Section 17.1 of the Statutory Powers Protection Act, R.S.O. 1990, c. S.22 states that a tribunal may make an order to pay costs when the conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith and the tribunal has made rules under Subsection 4.

17. The Board has made rules. They are found in Section 61 of its Rules of Practice and Procedure and provide as follows:

18. (1) Where a party believes that another party has acted unreasonably, frivolously or in bad faith considering all the circumstances, it may ask for an award of costs within 30 days of an order or decision being made or the matter being withdrawn or dismissed.

(2) The Board may make a costs award for conduct at any time during the proceeding.

(3) The Board may grant or deny the request or award a different amount.

(4) Unreasonable, frivolous, vexatious, or bad faith conduct can include, but is not limited to:

1. Failing to attend a hearing event or to send a representative when properly given notice, without contacting the Board;

2. 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;

3. 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;

4. Conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events;

5. Failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Board has determined to be improper;

6. Failing to make reasonable efforts to combine submissions with parties of similar interest;

7. Acting disrespectfully or maligning the character of another party; or

8. Knowingly presenting false or misleading evidence.

(5) 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.

(6) Awards on costs will bear interest in the same manner as those made under section 129 of the Courts of Justice Act, RSO 199, c C.43.

18. The Board has established a practice that costs are not awarded lightly or routinely nor are they intended to follow “the cause” or to indemnify a successful party. They may, however, be awarded to control the Board’s process. Each application for costs will be awarded on its own merits based on an assessment of conduct.¹

19. Furthermore, the Board has held that self-represented parties will not be held to the same standard as those represented by counsel.² That is not to say, however, that a self-represented person can never be subject to a costs award.

ANALYSIS

20. In its decision concerning the Kendall applications, the Board found that, with respect to the Section 5 application, the application was vexatious as it constituted an abuse of the Board’s process. It also concluded that both the section 5 and section 6 applications were frivolous.³ No appeal or application for judicial review has been made with respect to this decision. It is not necessary for the Board to make further findings in this decision.

21. Based on these previous findings that the applications in question were vexatious and frivolous, the Melos have established grounds for a costs award.

22. The bar for a costs award against an unrepresented litigant has been met in this matter for the following reasons.

23. When Kendall commenced her action in the Superior Court on or about September 22, 2023, she was and presumably still is represented by counsel.⁴

24. On or about January 20, 2024, Kendall filed applications with the Board seeking some of the same relief⁵ as in the court action. She remained unrepresented in the unsuccessful proceedings before the Board.

25. In her written submissions with respect to the costs application, Kendall states “While there is an exchange of pleadings in the civil action, I did not proceed with continuing that claim while the Board’s proceedings were taking place.”

26. A prudent person, having commenced litigation in the courts through counsel, should have sought the advice of that counsel as to whether commencing an application to the Board based on the same facts and complaints was wise. Whether she did so or not is unknown.

27. It is unreasonable for Kendall to now argue that she was simply attempting to advocate for herself. In her submissions she states: “that I simply attempted to advocate for myself in circumstances where there are ongoing issues between the parties based on the operations on the property of the respondents”.

QUANTUM OF COSTS

28. The Melos seek costs in the all-inclusive amount of $7,350. The quantum of costs claimed has not been challenged by the Applicant.

29. They have provided a detailed Bill of Costs showing actual costs for defending the applications of $20,067.50, a substantial indemnity rate (90%) of $18,060.75 and a partial indemnity rate (65%) of $13,043.888, and disbursements of $525.91.

30. Partial indemnity costs with HST and disbursements total $14,739.58. The amount claimed is approximately one-half of that.

31. Considering that the Melos have been put to a substantial cost unnecessarily in defending the applications, in addition to the cost of defending the court action, we find the amount claimed to be reasonable and proportional.

ORDER

32. The Applicant, Sandra Kendall, shall pay to the Respondents, Jose and Maria Connie Melo, costs fixed in the amount of $7,350 with interest after 30 days at the Courts of Justice post-judgment rate.

RELEASED: November 13, 2024

Footnotes

1. 1Dubois v. Burkhardt (No. 1), 2010 ONNFPPB 55
2. 2Boucher v. Municipality of Central Huron (Costs Decision), 2024 ONNNFPPB 5
3. 3Kendall v. Melo et al., 2024 ONNFPPB 2
4. 4Schedule “C” (Statement of Claim) to the Responding Submissions of the Respondents, Jose and Maria Connie Melo, dated March 21, 2024
5. 5The Board has no authority to order the payment of damages.