Jacqueline and Claudio Rocca v. Roy and Doris Bayer, 2025 ONNFPPB 3

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

(Decision and Order)

2025 ONNFPPB 03

DATE OF DECISION: 2025/11/03

STATUTE: Farming and Food Production Protection Act, 1998

HEARING: In writing

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

AND IN THE MATTER OF an application to the Normal Farm Practices Protection Board (“Board”) under Section 5 of the Farming and Food Production Protection Act, 1998 (“Act”) for a determination as to whether disturbances are a result of normal farm practices.

AND IN THE MATTER OF a Motion made pursuant to Rules 18 to 23 of the Board’s Rules of Practice and Procedure.

BETWEEN:

Jacqueline and Claudio Rocca Applicants

– and –

Roy and Doris Bayer Respondents

Before: Glenn C. Walker, Chair

Represented by Eric K. Gillespie

Represented by Devan J. Munch

Heard: in Writing

DECISION OF THE BOARD

1. This is a motion made by the Applicants for leave to bring a motion to dismiss the claim of the Respondents for costs arising out of an application under Section 5 of the Act brought by the Applicants.

2. Leave is denied and the motion dismissed for reasons that follow. For a better understanding of those reasons the factual and procedural history of this case is set out below.

FACTUAL AND PROCEDURAL HISTORY

3. Jacqueline Rocca filed an application with the Board dated April 22, 2019, pursuant to Section 5 of the Act alleging disturbances of odour and flies at her cottage property on Manitoulin Island arising from the agricultural operation of Roy Bayer. Claudio Rocca and Doris Bayer were later added as parties.

4. A Pre-Hearing Conference was held on August 9, 2019. The Applicants were self-represented, and the Respondents were represented by Devan J. Munch.

5. Subsequently, the Applicants brought numerous preliminary motions. Among them was a motion for an order for disclosure and interrogatories which was only partially successful¹. They subsequently brought a motion for an order permitting them to amend their application (dismissed); allowing them a site visit on the Respondents’ property (dismissed); challenging the Board’s jurisdiction over that part of the agricultural operation conducted on an unopened road allowance (dismissed) and an order finding the Bayers in contempt of the disclosure order (dismissed).

6. In its decision with respect to the latter motion dated March 19, 2021, the Board awarded the Respondents costs fixed in the amount of $1,000 and ordered that “The Applicants shall not bring any further motions without leave from the Board, save and except a motion for a site visit by a qualified expert in accordance with Paragraph 27 of the Order of November 2, 2020. Leave will only be granted on a motion brought in writing on notice where the evidence provided by the Applicants shows that the motion will have a reasonable prospect of success.”²

7. The Applicants then requested a reconsideration of this decision which was denied.³

8. During the preliminary stages of these proceedings, as borne out by the full Board record, Jacqueline Rocca made unsuccessful allegations of bias on the part of panel members hearing the motions (the “motions hearing panel”) on the basis that some of them were associated with the Ontario Federation of Agriculture, which organization, she further alleged was supporting the Respondents. She also alleged that she was being prejudiced because of her ethnicity.

9. The application proceeded to a 7-day hearing in April and May of 2022 before a panel which was differently constituted than the panel hearing the motions (the “merits hearing panel”). The application was dismissed.⁴ The Applicants did not request a reconsideration of the dismissal of the application nor appeal the decision pursuant to Subsection 8(2) of the Act.

10. The Respondents made a request for costs pursuant to Rule 61 of the Board’s Rules of Practice and Procedure (the “Rules”). The merits hearing panel considered the motion for costs in writing after receiving written submissions from the parties. In its decision dated December 22, 2022, the Board ordered the Applicants to pay the Respondents $40,000 in costs together with interest.⁵

11. After retaining legal representation, the Applicants requested a reconsideration of the Board’s decision on costs. By order dated February 21, 2023, I stayed enforcement of the costs decision pending completion of the review process.

12. In her decision dated August 1, 2023, Vice-Chair Neil granted the request for review based on a finding of reasonable apprehension of bias related to merits hearing panel member Judy Dirksen sitting as a co-panelist on an Agriculture Food and Rural Affairs Appeal Tribunal panel with Marc Huneault, a senior partner at the firm representing the Respondents during the time period this matter was heard. She ordered a new costs hearing in writing and set out a timeline for the delivery of written submissions.⁶

13. On or about April 6, 2024, the Applicants’ cottage property on Manitoulin Island was demolished by fire as a result of an alleged arson. The Applicants expressed that they did not intend to rebuild.⁷

14. Both the Respondents and the Applicants appealed this review decision to the Divisional Court pursuant to Subsection 8(2) of the Act. The Court quashed the Respondents’ appeal and dismissed the Applicants’ appeal (“Divisional Court Decision”).⁸

15. Upon receipt of the Divisional Court’s decision, Vice-Chair Neil issued an order with new timelines for the delivery of written submissions for the new costs hearing.

16. Counsel for the Applicants then indicated that they wished to bring a motion for an order dismissing the motion for costs (“dismissal motion”). Because they require leave to bring this motion, I issued a procedural order setting out a timeline for the delivery of written submissions for a leave motion in writing.

POSITION OF THE APPLICANTS ON THE LEAVE MOTION

17. In their Notice of Motion, the Applicants request an Order granting leave to bring a motion to dismiss the Respondents’ Costs Application (Motion) without a hearing on the merits pursuant to Rule 8(1) of the Board’s Rules and such further and other relief as the Board may permit.

18. They submit that the sole test for leave is reasonable prospect of success based on the wording of my order of March 19, 2021, and that it is a low threshold, not requiring a full hearing on the merits and something more than issues that are frivolous and vexatious. They further submit that this low threshold has been met and that, consequently, leave should be granted.

19. They rely upon the following four grounds:

Lack of Jurisdiction-Bias

20. The Applicants argue that since their hearing was tainted by a reasonable apprehension of bias, the Board has lost jurisdiction to continue with all matters including a new costs hearing.

Frivolous, Vexatious and/or Abuse of Process

21. Any attempt to pursue costs based on a tainted hearing is frivolous, vexatious and an abuse of process.

Mootness

22. The matters in dispute are now also moot. The Applicants’ property has been destroyed by arson and sold; no live controversy remains. The Tribunal’s mandate does not extend to adjudicating costs in isolation of a live farm practices application.

Ongoing Ex Parte Communications and Procedural Fairness

23. The Applicants allege that repeated ex parte communications and ongoing preferential treatment afforded to Respondents’ counsel gives rise to a further reasonable perception of bias.

POSITION OF THE RESPONDENTS ON THE LEAVE MOTION

24. The Respondents submit that the test to be used on this motion is the three-part test found in the Ontario Court of Appeal decision in Huang v Braga⁹ that requires an examination of whether there are reasonable grounds of appeal that merit the granting of leave; the context in which the order requiring leave was made and whether granting or refusal of leave is in the interests of justice.

25. Whether the test promoted by the Applicants or the three-part test in Huang is used, the Respondents argue that Applicants have failed to establish that leave should be granted.

26. The Respondents also question the Board’s jurisdiction to consider a motion to dismiss a motion for costs under Rule 8 of the Board’s Rules. They ask the Board to find that this lack of jurisdiction is fatal to this motion for leave.

27. They respond to the Applicants’ four grounds stated above as follows:

Lack of Jurisdiction-Bias

28. The Respondents submit that the Board has not lost jurisdiction as a result of Vice-Chair Neil’s finding of a reasonable apprehension of bias on the part of Member Dirksen.

29. They further submit that the final hearing decision dismissing the application still stands until the Applicants take steps to appeal the decision or request a review based on the statements of Justice Bale in the Divisional Court Decision.

30. The same decision makes it abundantly clear that the Board continues to have jurisdiction to conduct a new hearing for costs.

Frivolous, Vexatious and/or Abuse of Process

31. The Respondents submit that their motion for costs is not frivolous, vexatious or an abuse of process, but merely the next step in this litigation as ordered by Vice-Chair Neil and confirmed by the Divisional Court.

Mootness

32. The Respondents submit that their costs motion is not moot as a result of the Applicants selling their property after it was destroyed by fire.

Ongoing Ex Parte Communications and Procedural Fairness

33. The Respondents deny that the Applicants have experienced any prejudice by ex parte communications or that they have been treated unfairly by the Board and that, in any event, if this is true, would not be grounds for granting leave.

Reply Submissions of the Applicants

34. The Applicants provided submissions in reply. The above “Positions” are meant to outline the issues to be addressed in this decision. The Applicants’ Reply submissions will be referenced in the analysis which follows.

ANALYSIS

Test For the Leave Motion

35. I accept the broader Huang¹⁰ test as being the proper one to apply in these circumstances. I do not feel that I am constrained by the wording of my March 19, 2021 order where I stated that leave would only be granted where there was a reasonable prospect of success. It would be unusual for any judge or adjudicator to set out the complete test to be applied in considering leave in his or her order.

36. The Court of Appeal set out the appropriate test to be used in granting leave from an order made under Rule 37.16 of the Rules of Civil Procedure, which is the rule authorizing an order prohibiting further motions without leave in the Superior Court of Justice.

37. The test is found at paragraph 16 of the decision and provides as follows:

This provision helps inform an appropriate test for leave required under an order granted under r. 37.16. Consideration should first be given to the strength of the grounds advanced by the moving party. Put differently, are there reasonable grounds of appeal that merit granting the leave requested? Second, the context of the r. 37.16 order itself should be considered. Is the substance of the leave request a continuation of the frivolous and vexatious or abusive process that had generated the r. 37.16 order in the first place? The r. 37.16 order is of course not a bar, but as stated in Evans. Snieg, 2019 ONSC 7270, at para. 30, “such an order should not be lightly disregarded or blithely treated”. Lastly, the overriding consideration is whether the granting or refusal of leave is in the interests of justice.

38. I would first like to address the Applicants’ attempt to bring the motion to dismiss based on Rule 8(1) of the Board’s Rules.

39. Rule 8(1) provides as follows:

8(1) The Board may dismiss an application without holding a hearing, or, after a hearing has commenced, refuse to continue with the hearing or make a decision if:

a. The subject matter of the application is trivial;

b. The application is frivolous or vexatious;

c. The application was not made in good faith;

d. The applicant has not a sufficient personal interest in the subject matter of the application; or

e. The proceeding relates to matters that are outside of the Board’s jurisdiction.

40. Subsection 8(1) of the Farming and Food Production Protection Act, 1998, S.O. 1998, c.1 also provides the following:

8 (1) The Board may refuse to hear an application under section 5, 6 or 7 or, after a hearing has commenced, refuse to continue the hearing or to make a decision if in its opinion,

(a) the subject-matter of the application is trivial;

(b) the application is frivolous or vexatious;

(c) the application was not made in good faith; or

(d) the applicant has not a sufficient personal interest in the subject-matter of the application.

41. There is no definition of “application” in the Act or the Rules. Section 5 of the Act states that a person “may apply to the Board”. Ms. Rocca did just that. The application was accepted and the issues dealt with in the merits hearing.

42. Rule 61(1) provides that a party “may ask for an award of costs”. Rule 61(3) states that the Board may grant or deny the “request”.

43. A party does not apply for costs and therefore make an application. The ask or request is made by motion within the original application. If the Board or the Legislature had intended that Rule 8(1) or Subsection 8(1) were to apply to motions, they would have said so.

44. Rule 8(1) and Subsection 8(1) have been used recently in two decisions of the Board and confirm the Board’s use of those sections as a gate-keeper function for original applications.¹¹

45. The Applicants address the Respondents’ argument concerning the use of Rule 8(1) and Subsection 8(1) of the Act in paragraphs 10 through 14 inclusive of their Reply Submissions of the Applicants.

46. They argue that Rule 8(1) should be read with Sections 23 and 25.01 of the Statutory Powers Procedure Act (“SPPA”) to permit the Board to control its processes and avoid waste of resources. Subsection 23(1) states that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. Section 25.0.1 states that a tribunal has the power to determine its own procedures and practices and may for that purpose, (a) make orders with respect to the procedures and practices that apply in any particular proceeding; and (b) establish rules under section 25.1

47. They also refer to Rule 5 of the Board’s Rules which provides:

Provided that all statutory requirements are met, the Board may, in accordance with the spirit of these Rules and the principles of procedural fairness and natural justice, dispense with compliance with all or part of any Rule at any time, and may issue directions which shall govern the conduct of the proceedings and prevail over any provision of these Rules that is inconsistent with those directions. In particular, the Board may allocate procedural obligations among the parties, exempt parties from procedural obligations, limit procedural obligations or carry out these obligations itself, based on the capabilities, interests, and resources of the parties.

48. These sections of the SPPA and Rule 5 give the Board powers to exercise its discretion in certain circumstances. The Applicants argue that the Board should exercise its discretion and allow the use of Rule 8(1) and Subsection 8(1) of the Act in the interests of fairness and justice based on their perception that the costs hearing is doomed and would be a waste of time and resources.

49. For the reasons that follow, I have concluded that it would not be in the interests of fairness and justice for the Board to exercise its discretion to allow the Applicants to use either the Rule or the Subsection to bring the dismissal motion.

Reasonable Grounds That Merit Granting of Leave

50. The first prong of the test, that is, are there reasonable grounds that merit granting the leave requested has not been met in my opinion.

51. I will now turn to examine whether the four grounds for granting leave put forward by the Applicants are reasonable and merit the granting of leave.

Lack of Jurisdiction-Bias

52. In her review decision dated August 1, 2023, Vice-Chair Neil made the following finding:

After reviewing the further submissions requested in the Interim Decision dated April 20, 2023, and considering the relevant case law, I have determined that the Request for Review shall be granted based on a finding of a reasonable apprehension of bias of panel member Dirksen.¹²

53. The Applicants submit that “once a reasonable apprehension of bias is established, the proceeding cannot be cured by subsequent hearing(s), and the tribunal loses jurisdiction to continue with all matters.” (underlining mine) To support this position they rely upon Lim et al. v. P.E.O., 2011 ONSC 106 (Div. Ct.) at paragraph 80:

If a reasonable apprehension of bias is demonstrated the tribunal has no further jurisdiction in the proceedings. All decisions and orders made during the proceedings are rendered void and without effect by such a finding. See: R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537, 144 D.L.R. (4th) 614 at paras. 5, 7-8.

54. The Applicants argue that based on this statement by the Divisional Court, this Board has no jurisdiction to rehear the motion for costs.

55. In Lim the applicants sought an order quashing and permanently prohibiting a proceeding against them before the Discipline Committee of the Professional Engineers of Ontario (PEO). They alleged a reasonable apprehension of bias in the Discipline Committee. The Court found that there was a reasonable apprehension of bias concerning the Discipline Committee at paragraph 110 but does not appear in this decision to have made an order quashing the decision of the Discipline Committee or permanently prohibiting a hearing before the Committee.

56. The Court’s statement in paragraph 80 was not relied upon to make an order and therefore is only obiter dicta. I do not believe that the statement of the Court in paragraph 80 reflects the current law in Ontario. I further find that this argument flies in the face of R. v. Curragh (referred to by the Court in Lim above) and the recent Divisional Court decision in this matter.

57. In Curragh (a criminal case) the Supreme Court of Canada made the following statements:

[5] The properly drawn conclusion that there is a reasonable apprehension of bias will ordinarily lead inexorably to the decision that a new trial must be held. In circumstances where reasonable apprehension of bias is demonstrated the trial judge has no further jurisdiction in the proceedings and there is no alternative to a new trial.

[7] The right to a trial before an impartial judge is of fundamental importance to our system of justice. Should it be concluded by an appellate court that the words or actions of a trial judge have exhibited bias or demonstrated a reasonable apprehension of bias then a basic right has been breached and the exhibited bias renders the trial unfair. Generally the decision reached and the orders made in the course of a trial that is found by a court of appeal to be unfair as a result of bias are void and unenforceable.

[8] Certainly, every order of a trial court is enforceable and must be obeyed until it is declared void by an appellate court. In this sense the order may be viewed as voidable. However, when a court of appeal determines that the trial judge was biased or demonstrated a reasonable apprehension of bias, that finding retroactively renders all the decisions and orders made during the trial void and without effect.

58. In the matter of the appeals of Vice-Chair Neil’s review decision, Justice Bale writing on behalf of the panel had this to say:

[37] (second paragraph) Certainly, every order of a trial court is enforceable and must be obeyed until it is declared void by an appellate court. In this sense the order may be viewed as voidable. However, when a court of appeal determines that the trial judge was biased or demonstrated a reasonable apprehension of bias, that finding retroactively renders all the decisions and orders made during the trial void and without effect

[38] I agree that if the Roccas had requested a review of the order dismissing their normal farm practices application as well as the costs order, the inevitable result would have been an order for a rehearing of both. Similarly, had they appealed the order dismissing their farm practices application and the order for costs, and this court found a reasonable apprehension of bias, the inevitable result would have been the quashing of both decisions and an order for a new hearing.[1] However, the point is that a party who believes that a decision against them may have been affected by bias is not required to do anything about it. For any number of reasons, such parties may prefer to leave things as they are, rather than to go through a new hearing. Until they take steps to appeal the decision (or request a review), the order stands.

[1] The Bayers conceded that if we upheld the vice-chair’s finding of reasonable apprehension of bias and dismissed their appeal, the Roccas would be entitled to a rehearing of their farm practices application. However, given my finding of no jurisdiction to hear the Bayer appeal, and the Roccas’ advice that they are no longer interested in a rehearing, the Bayers’ concession is of no effect.

59. The Applicants did not appeal or make application for a judicial review of the merits decision. Nor did they request a review by the Board of the merits decision. No appellate court has declared that the merits decision is void. At best it is voidable. At the present time the order stands. The Applicants’ argument would only succeed if the merits decision had been declared void on the basis of Member Dirksen’s bias by an appellate court.

60. The merits hearing panel, which included Member Dirksen, which also heard the motion for costs is prohibited from hearing any further proceedings in this matter, not the Board as a whole. Any rehearing of the motion for costs would he heard by a panel which will not include any Board members who were part of the motions hearing panel or the merits hearing panel.

61. In their Reply the Applicants cite the recent Court of Appeal decision in Vento Motorcycles Inc. v. Mexico¹³. That decision stands for the proposition that a finding of bias of one panel member taints the decision of the panel despite the decision being unanimous. For the reasons that I have given above this decision does not advance this ground for leave to bring the proposed dismissal motion.

62. For these reasons on this ground, the Applicants would have no reasonable prospect of success on the proposed dismissal motion.

Frivolous, Vexatious and/or Abuse of Process

63. The Applicants submit that any attempt to pursue costs based on a tainted hearing is frivolous, vexatious and an abuse of process. They provided no caselaw to support this ground.

64. The Respondents argue that the Board’s order dismissing the application after a full hearing and from which the costs motion arises remains a binding decision. Therefore. the Respondents are entitled to ask for costs.

65. I cannot accept this as a reasonable ground for bringing the dismissal motion. The Respondents were put to considerable expense to defend the application and are entitled to requests costs from the Applicants. As established above, the merits decision stands and costs may flow from it. It is not frivolous, vexatious or an abuse of process for the Respondents to continue to seek this relief. This process was affirmed by the Divisional Court in its decision.

Mootness

66. The Applicants submit that the matters in dispute, that is the issue of costs, is now moot because the Applicants’ property has been destroyed by arson and sold. The Board’s mandate, they argue, does not extend to adjudicating costs in isolation of a live farm practices application.

67. The Respondents submit that their costs motion is not moot and that the proposed dismissal motion has no reasonable prospect of success based on this ground.

68. The Respondents rely upon the decision of the Supreme Court of Canada in Borowski v. Canada (Attorney General)¹⁴ where the Court makes the following statement:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly, if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.

The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.

69. Applying the first step of the analysis, I conclude that the issue of costs remains a “tangible and concrete dispute” that has not disappeared because of the destruction and sale of the Applicants’ property after the application was heard and decided. There is, therefore, no need to deal with the second step. There was a live controversy at the time of the merits hearing and at the time that the Board issued its merits decision.

70. In their Reply, the Applicants argue that mootness arises because a rehearing of the costs issue de novo is impossible following the arson and confirmed bias. I disagree. A new costs hearing is possible and is what was anticipated by the Divisional Court in the Divisional Court Decision. The arson and sale of the property might make a re-hearing of the application moot, but the application has been heard, a decision has been made and has not been set aside by an appellate court.

71. I find that this ground for the proposed dismissal motion has no reasonable prospect of success.

Ongoing Ex Parte Communications and Procedural Fairness

72. The Applicants submit that there have been repeated ex parte communications and ongoing preferential treatment afforded to Respondents’ counsel giving rise to a further reasonable perception of bias. Based on these allegations which I will deal with separately below, the Applicants argue that there are sufficient and strong grounds for this proceeding to be terminated forthwith.

73. The Respondents deny that the Applicants have experienced any prejudice by ex parte communications or that they have been unfairly treated by the Board.

74. On July 25, 2025 counsel for the Respondents, after the release of the Divisional Court Decision quashing and dismissing the appeals, forwarded a letter to the counsel for the Applicants enclosing materials for use on the new costs motion. He took the position that the original timelines for filing submissions for a new costs hearing in Vice-Chair Neil’s review decision had been paused by the appeals of that decision but reanimated when the appeals were quashed and dismissed.

75. On the same day by separate letter counsel for the Respondents forwarded those same materials to the Board and requested that the new panel for the costs hearing have no affiliation with the Agriculture, Food and Rural Affairs Appeal Tribunal (“AFRAAT”) or Mr. Huneault. Unfortunately, this letter was not copied to counsel for the Applicants.¹⁵

76. By an email to the Board and counsel for the Applicants dated July 31, 2025, counsel for the Respondents confirmed that the failure to copy counsel for the Applicants with this letter to the Board of July 25, 2025 was an oversight on his part.

77. The Applicants allege that counsel for the Respondents unilaterally wrote to the Board and obtained an Order from the Board directing the continuation of the costs motion. There was no need to seek an order for a new costs hearing (not a continuation) as this had already been ordered by Vice-Chair Neil¹⁶.

78. Upon receipt of the Divisional Court’s decision, Vice-Chair Neil issued an order with new timelines for the delivery of written submissions for the new costs hearing. The Board has the power to make orders with respect to procedures and practices that apply in any particular proceeding. There is no procedural fairness requirement to consult with parties for this type of order as long as the timelines are reasonable in the circumstances. I find that they were.

79. The Applicants complain that they were not consulted concerning the composition of the panel for the new costs hearing and my reply to counsel for the Respondents’ request outlined in paragraph 74 above. I replied to that request by letter dated August 8, 2025 addressed to both counsel in which I addressed the issue as follows:

Many of the members of the Board are cross-appointed to AFRAAT and therefore it is not possible to create a three-member panel without any members who are not affiliated with AFRAAT. I will, however, endeavor to ensure that Board members hearing this matter do not at the same time sit on panels with Mr. Huneault hearing AFRAAT matters.

80. It is my prerogative as to who I appoint as members of panels¹⁷. I am not required to seek submissions from parties on who is appointed to a panel provided there is no outstanding conflict of interest or apprehension of bias. In every case proposed panel members are consulted to ensure that they have no conflict of interest or apprehension of bias.

81. I find that there were no “multiple ex parte communications”¹⁸. There was one instance of this in the letter of Respondents’ counsel to the Board dated July 25, 2025 and a reasonable explanation has been given.

82. I find that there is no reasonable prospect of success on the proposed dismissal motion on this ground.

Is There a Continuation of the Frivolous, Vexatious and/or Abusive Process

83. The second prong of the test requires me to examine whether the proposed dismissal motion is a continuation of the Applicants’ behaviour that resulted in the order requiring leave for any future motions.

84. The order requiring leave was made as a result of the Applicants bringing a number of preliminary motions that had little or no merit. For the reasons given above, I find that the proposed dismissal motion is continuing that frivolous, vexatious and abusive conduct notwithstanding that the Applicants are now represented by counsel.

85. There is also a continuation of the unsupported allegations of bias and prejudice.

Is the Granting or Refusal of Leave in the Interests of Justice

86. It is in the interests of justice that both the Applicants and the Respondents be given a new hearing of the costs motion.

87. As Justice Bale stated in the Divisional Court decision, the Applicants “got what they asked for – a rehearing of the costs issue”¹⁹.

88. It would not be in the interests of justice for the Applicants to bring an unsuccessful dismissal motion followed by a rehearing of the costs issue resulting in both parties, now represented by counsel, expending additional time and resources.

89. The Applicants are free to raise the issues raised here before the new costs panel. They are not deprived of making these arguments.

Conclusion

90. I therefore conclude that the Applicants have not established that leave to bring the dismissal motion should be granted based either on the Huang test or on the simple test of reasonable prospect of success.

91. Leave to bring the dismissal motion is denied and the motion dismissed.

New Procedural Order

92. This Order replaces the Procedural Order of Vice-Chair Neil dated July 30, 2025 with respect to timelines.

93. The Respondents shall serve and file their Costs Motion Record on or before November 28, 2025.

94. The Applicants shall serve and file their Responding Costs Motion Record on or before December 31, 2025.

95. The Respondents may serve and file a Reply Costs Motion Record on or before January 15, 2026.

Released: November 3, 2025

This document is also available in French. Please contact the Board at 519-826-3433 or by email at NFPPB@ontario.ca to request a copy in French.

Ce document est également disponible en français. Veuillez contacter le commission au 519 826-3433 ou par courriel à NFPPB@ontario.ca pour demander une copie en français.

Footnotes

1. 1Rocca v Bayer, 2020 CanLII 85178 (ON NFPPB)
2. 2Rocca v Bayer, 2021 ONNFPPB 2021, para. 31
3. 3Rocca v Bayer, 2021 ONNFPPB 5
4. 4Rocca v Bayer, 2022 ONNFPPB 7
5. 5Jacqueline and Claudio Rocca v Roy and Doris Bayer – Costs, 2022 ONNFPPB 10
6. 6Rocca v Bayer, 2023 ONNFPPB 3
7. 7Affidavit of Jacqueline Rocca, affirmed January 10, 2025, para.4
8. 8Rocca v. Bayer, 2025 ONSC 4206
9. 9Huang v. Braga, 2020 ONCA 645 para 16.
10. 10Huang v. Braga, idem
11. 11Kendall v. Melo, 2024 ONNFPPB 2; Dunmatt Farm v. North Glengarry, 2025 ONNFPPB 2
12. 12Rocca v Bayer, 2023 ONNFPPB 3 at para. 35
13. 132025 ONCA 82
14. 14Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC)
15. 15Affidavit of Alexandra Stargratt, sworn September 19, 2025
16. 16Rocca v Bayer, 2023 ONNFPPB 3 para. 38(2)
17. 17Statutory Powers Procedure Act, Subsection 4.2(1); Farming and Food Production Protection Act, 1998, subsection 3(3)
18. 18Applicants’ Motion Record, paragraph 15
19. 19Rocca v. Bayer, 2025 ONSC 4206 at paragraph 35