Normal Farm Practices Protection Board
Commission de protection des pratiques agricoles normales
1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433 Fax: (519) 826-4232 Email: NFPPB@ontario.ca
1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433 Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca
(Order of the Board)
2026 ONNFPPB 02
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 6 of the Farming and Food Production Protection Act, 1998 (“Act”) for a determination as to whether a by-law is restricting a normal farm practice.
AND IN THE MATTER OF a motion for costs pursuant to Rule 61 of the Board’s Rules of Practice and Procedure.
BETWEEN:
Darrin Smith Applicant
– and –
Norfolk County Respondent
Represented by Nathan Kolomaya
Represented by Andrei Dobrogeanu
Heard: In Writing
Before: Glenn C. Walker, Chair; John Lohuis, Member and Rod de Wolde, Member
DECISION ON COSTS
- The Respondent has made a request for costs pursuant to Rule 61 of the Board’s Rules of Practice and Procedure. Written submissions were ordered and have been received.
Background
On July 14, 2025 Darrin Smith (the “Applicant”) filed an application with the Board under Section 6 of the Act alleging that Norfolk County By-law 2010-84 (“Noise By-law”) was restricting a normal farm practice, that is, his operation of propane cannons to control bird predation.
On or about July 5, 2025, Norfolk County (“Norfolk”) had issued an Order to Comply to the Applicant ordering him to cease using propane cannons at 110 Clubhouse Road Turkey Point, Ontario (“Subject Property”) as being in violation of the Noise By-law.
Several days prior to the Applicant’s application being filed, MacDonald Turkey Point Marina Inc. commenced an application (“MTPM application”) under Section 5 of the Act naming Darrin Smith as the Respondent and alleging the disturbance of noise from the use of propane cannons emanating from the Subject Property.
A joint Pre-Hearing Conference (“PHC”) for both applications was held on July 25, 2025 at which time the issues were reviewed, disclosure orders were made and a hearing date set for December 17, 2025. The MTPM application was stayed to allow the Section 6 application to move forward to a hearing first.
The Applicant was not represented by counsel at the PHC. Norfolk was represented by Mr. Dobrogeanu.
The Applicant was ordered to provide disclosure of all documents and things that he intended to rely upon at the hearing together with a witness list and witness statements at least 60 days before the commencement of the hearing. A similar order was made requiring Norfolk to make the same disclosure at least 30 days before the commencement of the hearing. The Applicant was also permitted to provide reply disclosure at least 15 days before the commencement of the hearing.
After the time for the Applicant to provide disclosure in accordance with the PHC Order expired, the Respondent reached out to Applicant by email dated October 22, 2025 to confirm that it had not received any documents or witness statements. In the same email, the Respondent requested that: “Alternatively, if you intend to abandon your application, please confirm so that the County does not incur unnecessary legal costs in respect of this matter – which it may seek to recover from you.”
The Applicant did not respond to this email.
The Applicant did not provide any disclosure at any time. Norfolk complied with its obligations under the PHC Order.
The Applicant brought a motion before the Board on December 5 seeking an adjournment of the hearing. At this point the Applicant was still unrepresented. Norfolk opposed the motion.
The Applicant failed to appear on the motion for the adjournment. The Board permitted an agent, who was not a lawyer or paralegal, to speak to the motion for him.
No satisfactory explanation was given for the Applicant’s failure to attend the motion. His absence was unfortunate since the motion was proceeding undocumented and the agent did not appear to have personal knowledge of many facts relevant to the issues of the adjournment request.
The motion for an adjournment was dismissed, and the Applicant was given additional time to provide any reply disclosure. None was provided.
On Friday December 12, 2025, the Applicant, now represented by counsel, by email at 7:27 pm withdrew his application 2 business days before the commencement of the hearing. The Board issued a Notice of Withdrawal on Monday, December 15, 2025.
Position of the Respondent
- The Respondent submits that the Applicant engaged in unreasonable, frivolous, vexatious or bad faith conduct, in particular:
i. He failed to attend a hearing or event when given notice of it (the motion of December 5, 2025) contrary to Rule 61(4)(1).
ii. He failed to comply with a procedural order by not filing his evidence as required by the PHC Order dated July 25, 2025, contrary to Rule 61(4)(3).
iii. He failed to present any evidence within the timelines set out by the Board – or at all - prior to withdrawing the Application contrary to Rule 61(4)(7).
iv. The Applicant acted disrespectfully towards the Board and the Respondent contrary to Rule 61(4)(6).
The Respondent further argues that the Applicant has treated the Board, the Respondent and these proceedings with contempt, unnecessarily taken up the Board’s time and resources and caused the Respondent to incur unnecessary legal costs.
The Respondent also submits that it can be inferred that the Applicant brought this application with an ulterior motive, that is to delay the enforcement of the Order to Comply issued under the Noise By-law.
The Respondent seeks costs in the amount of $7,619.21 on a substantial indemnity basis.
Position of the Applicant
The Applicant submits that this is not a case for costs and, in the alternative, that the claim for costs is excessive and should not be awarded on a substantial indemnity basis but rather on a partial indemnity basis.
As grounds for his claim that no costs should be awarded, the Applicant cites that:
i. The Applicant is not a legal professional and not experienced with respect to Tribunal matters and had no legal representation throughout most of the proceeding.
ii. The Applicant was unfortunately unable to attend at times throughout the proceedings because of work commitments that saw him in isolated areas with no effective internet or cellular access.
iii. The Respondent could have sought costs at any point in the proceeding but maximized its legal expense by only claiming costs after the withdrawal of the application.
iv. The award of costs in this proceeding would have a chilling effect on future litigants before the Board.
The Law on Costs
Section 17.1 of the Statutory Powers Procedure 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).
The Board has made rules, and they are found in Rule 61 of its Rules of Practice and Procedure. Rule 61 provides as follows:
- (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:
Failing to attend a hearing event or to send a representative when properly given notice, without contacting the Board;
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;
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;
Conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events;
Failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Board has determined to be improper;
Failing to make reasonable efforts to combine submissions with parties of similar interest;
Acting disrespectfully or maligning the character of another party; or
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.
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 request for costs will be awarded on its own merits based on an assessment of conduct.1
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.
Finally, an award of costs is in the discretion of the administrative tribunal that makes the award.3
Analysis
Are Costs Warranted?
The Applicant failed to comply with the disclosure order contained in the PHC Order dated July 25, 2025. This was prejudicial to the Respondent, who had no notice of what evidence or what witnesses the Applicant intended to call at the hearing and was required to comply with the Order without knowledge of the Applicant’s case.
Not only did the Applicant fail to provide any disclosure, but he did so having been prompted by the Respondent counsel’s email to him dated October 22, 2025.4 The Applicant did not respond to this email.
The Applicant’s conduct was unreasonable and in breach of Rule 61(4)(3).
This conduct was also disrespectful of the Board and Board’s process as well as disrespectful of the Respondent.
The Applicant also failed to attend his motion for an adjournment of the hearing. Instead, he sent an agent who had not been properly instructed with respect to the adjournment request issue.
When a party requests a motion, especially when the Board schedules the motion on short notice to accommodate the request, the party is expected to appear personally when not represented by counsel. This was a virtual hearing. It is not an excuse to say that he could not attend the virtual hearing because he was not in internet or cellular range. He could and should have arranged to attend by telephone at the very least.
At the PHC on July 25, 2025, the Applicant indicated he was going to retain legal counsel in connection with this application. He indicated this as well in several emails with the Board. However, he took no steps to engage counsel until just before the scheduled hearing.
We find that the failure to attend the motion hearing was unreasonable and constitutes a breach of Rule 61(4)(1) as the representative he sent was not properly instructed.
The Respondent argues that the Applicant failed to present any evidence within the timelines set out by the Board or at all contrary to Rule 61(4)(5). We do not accept this submission.
What the Applicant failed to do was to disclose what possible evidence he might call at the hearing, in other words disclose proposed evidence. Evidence is not “presented” until the hearing takes place. No hearing took place here.
The Respondent further argues that the Applicant has treated the Board, the Respondent and these proceedings with contempt, unnecessarily taken up the Board’s time and resources and caused the Respondent to incur unnecessary legal costs. We agree with this submission.
The list of the types of conduct which can be unreasonable, frivolous, vexatious and not in good faith set out in Rule 61(4) is non-exhaustive.
The Applicant treated the Board’s PHC Order with contempt and in doing so exhibited disrespect to both the Board and the Respondent. Although self-represented, a party is still required to comply with Board orders.
The Respondent also submits that it can be inferred that the Applicant brought this application with an ulterior motive, that is to delay the enforcement of the Order to Comply issued under the Noise By-law.
We give no affect to this argument as it would require the Board to speculate on the Applicant’s intentions.
Finally, the Applicant, having delayed getting legal advice to the last moment, decided to withdraw his application several days before the hearing was to commence.
As can be ascertained from the Respondent’s Bill of Costs5 most of the Respondent counsel’s work to prepare for the hearing had been completed by the time the application was withdrawn.
In his email of October 22, 20256 to the Applicant, counsel asked if the Applicant was intending to withdraw his application and warned that failure to do so in a timely manner might trigger a claim for costs. The email states: "Alternatively, if you intend to abandon your Application, please confirm so that the County does not incur unnecessary legal costs in respect of this matter – which it may seek to recover from you”.
It was unreasonable for the Applicant delay getting legal advice and/or to wait until the eleventh hour to withdraw the application.
The Applicant submits that the Respondent could have sought costs at any point in the proceeding but maximized its legal expense by only claiming costs after the withdrawal of the application. The Tribunal cannot accept this submission.
The only point at which the Respondent could have sought costs was for the adjournment motion. If it had done so, the grounds would have been limited to the conduct in connection with the motion and for the costs of the motion.
The times when costs may be requested are limited to following the making of an order or a decision or the matter being withdrawn or dismissed.7
The Applicant also argues that an award of costs in this proceeding would have a chilling effect on future litigants before the Board. We disagree with this assertion.
A costs award is not intended to indemnify the opposing party but to control the process of the Board. A party who participates in a reasonable manner, complies with Board interlocutory orders and directions and attends hearings being well prepared has nothing to fear with respects to costs being awarded against him or her.
The Board must also consider the seriousness of the misconduct and whether the party requesting costs has conducted itself in an unreasonable manner.8
The Board finds that a costs award is warranted in this matter. We consider the conduct to be serious. We also find that the Respondent has conducted itself in a reasonable manner.
Quantum of Costs
The Respondent has provided a detailed Bill of Costs with fees, disbursements and HST totaling $8,459.93. Substantial Indemnity costs (90%) are $7,619.21 and Partial Indemnity costs (60%) are $5,097.05. The Respondent seeks costs on a Substantial Indemnity basis.
The Applicant claims that the Bill of Costs is inflated. He claims that there are items included that are not part of this proceeding and cites emails with Derek Sinko.
Counsel for the Respondent gives a reasonable explanation in his Reply. Mr. Sinko represents MacDonald Turkey Point Marina Inc. in the application brought against the Applicant and referred to in paragraph 4. Having not received any disclosure from the Applicant, counsel was inquiring whether Mr. Sinko had received anything from the Applicant, perhaps in error.
We give no affect to the argument that more than one lawyer was involved on the file and find that this may have actually reduced costs.
The Board finds that the detailed Bill of Cost presented by the Respondent is reasonable in the circumstances.
The Applicant opposes the claim for costs on a Substantial Indemnity basis.
In considering the request for Substantial Indemnity costs the Board refers to the Ontario Court of Appeal decision in Laczko v. Alexander9 where Weiler J.A. stated as follows:
It is well established that costs should be awarded on a partial indemnity basis unless justice can only be done by complete or substantial indemnification: see Foulis v. Robinson (1978), 1978 CanLII 1307 (ON CA), 21 O.R. (2d) 769 (C.A.). As a general rule, justice will only require substantial indemnification where there has been “reprehensible, scandalous or outrageous conduct on the part of one of the parties”: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 134. Alexander’s unjustified failure to comply with his disclosure obligations was no doubt worthy of rebuke; “reprehensible,” “scandalous,” or “outrageous,” it was not. I would, therefore, decline to award costs on a substantial indemnity basis.
The Board declines to grant Substantial Indemnity costs in this matter. Although the Applicant’s overall conduct is worthy of rebuke, the Board does not find that it reaches the level of “reprehensible”, “scandalous” or “outrageous”.
Having said that, the Board wishes to convey that the Applicant’s conduct comes very close to the threshold for Substantial Indemnity costs.
The Board finds that the amount claimed for Partial Indemnity costs in the amount of $5,097.05 is reasonable and proportionate.
Order
- Darrin Smith shall pay to Norfolk County costs of this withdrawn application fixed in the amount of $5,097.05, inclusive of HST, within 30 days of the date of this Order. If costs are not paid in full within 30 days the amount owing shall bear interest at the Courts of Justice Act rate from the date of the Order.
Dated at Chatham, Ontario this 11th day of March, 2026.
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
- Dubois v. Burkhardt (No. 1), 2010 ONNFPPB 55
- Boucher v. Municipality of Central Huron (Costs Decision), 2024 ONNNFPPB 5
- Dell v. Zeifman Partners Inc., 2020 ONSC 3881, (Divisional Court), para.42
- Respondent’s Submissions, Tab 2
- Idem, Tab 4
- Idem, Tab 2
- Rule 61(1)
- Rule 61(5)
- 2012 ONCA 872, 2012 ONCA 0872