The Director under the Environmental Protection Act v. The Becker Milk Company Limited et al. [Indexed as: Ontario (Director (Environmental Protection Act)) v. Becker Milk Co.]
78 O.R. (3d) 556
[2005] O.J. No. 4514
Court File No. 183/04
Ontario Superior Court of Justice Divisional Court, Matlow, Jennings and Reilly JJ.
October 24, 2005
Environmental law -- Procedure -- Costs -- Environmental Review Tribunal not having jurisdiction to make order for costs -- Environmental Protection Act not conferring authority on Tribunal to award costs -- Tribunal not having made rules with respect to costs which complied with s. 17.1(2)(b) of Statutory Powers Procedure Act so s. 17.1 of that Act not conferring authority to award costs -- Environmental Protection Act, R.S.O. 1990, c. E.19 -- Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 17.1.
The Director appealed an order of the Environmental Review Tribunal awarding costs of an appeal before the Tribunal to the respondents.
Held, the appeal should be allowed.
The Tribunal did not have jurisdiction to make any order with respect to costs. There is no provision in the Environmental Protection Act conferring authority on the Tribunal to award costs; nor is there any Act described in s. 17.1(4) of the Statutory Powers Procedure Act ("SPPA") that once gave authority to the Tribunal to award costs that is preserved by that provision. The Tribunal did not have authority to award costs under s. 17.1(1) of the SPPA as the Tribunal's rules with respect to costs did not comply with s. 17.2(b) of the SPPA. Although the Tribunal had adopted Guidelines on Costs Awards, guidelines are not rules and do not serve to substitute for the rules required by s. 17.1(2)(b) of the SPPA.
APPEAL from an order awarding costs.
Statutes referred to Environmental Protection Act, R.S.O. 1990, c. E.19, ss. 140 [as am.], 144 [rep.] Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 17.1 [as am.], 25.1 [as am.], 27 [as am.] Rules and regulations referred to Rules of Practice for the Environmental Review Tribunal, Rules 73, 74
Sara Blake, for appellant. Ahab Abdel-Aziz, for respondent, Becker Milk Company Limited. Franklin T. Richmond and Bryan J. Buttigieg, for respondent, Petro-Canada.
[1] Endorsement BY THE COURT:-- This appeal by the Director is allowed. The order of the Environmental Review Tribunal (the "Tribunal") dated March 3, 2004, awarding costs of the [page557] appeal that was before the Tribunal to the respondents against the appellant is set aside. Counsel may make submissions regarding costs in writing by exchanging them and delivering them to the Registrar of this court within one month from the date of the release of this endorsement.
[2] The respondents appealed to the Tribunal from two orders made by the appellant pursuant to s. 140 of the Environmental Protection Act, R.S.O. 1990. c. E.19 as amended (the "EPA"). Prior to the commencement of the hearing of the appeal, the appellant revoked the orders, effectively granting the respondents the relief they had requested in the appeal. The respondents then requested that their costs of the appeal be paid by the appellant and the Tribunal granted that order which is the subject of this appeal.
[3] The appellant attacks the Tribunal's order on the grounds that the Tribunal, at the time it made its order, had no jurisdiction to make it but, if it did, it should not have done so under the circumstances. No issue was raised before this court by either party about whether it was necessary that the Tribunal also have jurisdiction to award costs at the time that the appeal to it was commenced in December 2001, and, accordingly, we do not intend to address it.
[4] This appeal is brought pursuant to s. 144(2) of the EPA which confers a right of appeal to this court from the Tribunal's order but only on a question of law. We are satisfied that the jurisdictional issue raised qualifies as a question of law for which the standard of review is correctness. We are further satisfied that the Tribunal, as a matter of law, did not have jurisdiction to make any order with respect to costs and that the Tribunal erred in concluding that it did. Accordingly, it is not necessary for us to consider the second ground of appeal, including our jurisdiction to hear it.
[5] There is no provision in the EPA conferring authority on the Tribunal to award costs. Nor is there any Act described in s. 17.1(4) of the SPPA that once gave authority to the Tribunal to award costs that is preserved by that provision.
[6] The Tribunal relied for its authority to award costs on s. 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended (the "SPPA"), which was proclaimed in force effective February 14, 2000. It reads, in part, as follows:
Costs
17.1(1) Subject to subsection (2), a tribunal may, in the circumstances set out in a rule made under section 25.1, order a party to pay all or part of another party's costs in a proceeding. [page558]
Exception
(2) A tribunal shall not make an order to pay costs under this section 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 section 25.1 with respect to the ordering of costs which include the circumstances in which costs may be ordered and the amount of the costs or the manner in which the amount of the costs is to be determined.
Amount of costs
(3) The amount of the costs ordered under this section shall be determined in accordance with the rules made under section 25.1.
Continuance of provisions in other statutes
(4) Despite section 32, nothing in this section shall prevent a tribunal from ordering a party to pay all or part of another party's costs in a proceeding in circumstances other than those set out in, and without complying with, subsections (1) to (3) if the tribunal makes the order in accordance with the provisions of an Act that are in force on the day this section comes into force. 1999, c. 12, Sched. B, s. 16(7).
[7] Section 25.1 of the SPPA reads as follows:
Rules
25.1 (1) A tribunal may make rules governing the practice and procedure before it.
Application
(2) The rules may be of general or particular application.
Consistency with Acts
(3) The rules shall be consistent with this Act and with the other Acts to which they relate.
Public access
(4) The tribunal shall make the rules available to the public in English and in French.
Regulations Act
(5) Rules adopted under this section are not regulations as defined in the Regulations Act.
Additional power
(6) The power conferred by this section is in addition to any power to adopt rules that the tribunal may have under another Act. 1994, c. 27, s. 56(38). [page559]
[8] The Rules of Practice of the Tribunal which were in force at the time that the Tribunal's order was made were those that were adopted by the Tribunal on May 31, 2002. The only rules that deal with costs are Rules 73 and 74 which read as follows:
Costs
In a proceeding in which the Tribunal has statutory authority to award costs, parties are required to make every effort to negotiate a costs settlement. Applications for a costs award can be submitted to the Tribunal only when a negotiated settlement cannot be reached. Negotiated settlements do not require Tribunal review or approval.
A costs application may be filed with the Tribunal at any time prior to the conclusion of the Hearing, or no later than within 30 days from the date of the issuance of the decision and reasons therefor, or final order.
[9] It is evident from a reading of these rules that they do not meet the requirements of s. 17.1(2)(b) of the SPPA. Accordingly, it is our respectful view that the rules of the Tribunal were insufficient to enable the Tribunal to acquire authority to award costs pursuant to s. 17.1(2)(b) of the SPPA:
[10] Although the Tribunal has adopted Guidelines on Costs Awards in addition to guidelines on various other matters, guidelines are not rules and do not serve to substitute for the rules required by s. 17.1(2)(b) of the SPPA. The distinction between rules and guidelines is recognized by s. 27 of the SPPA which reads as follows;
Rules, etc., available to public
- A tribunal shall make any rules or guidelines established under this or any other Act available for examination by the public. 1999, c. 12, Sched. B, s. 16(9).
[11] Nor has the Tribunal provided, as in the previous version of its rules, that its rules require compliance with the guidelines, thereby perhaps effectively incorporating the guidelines into the rules.
[12] In its Guidelines on Costs Awards, at para. 4, published together with the other guidelines separately from the rules, the Tribunal recites the sources of its jurisdiction to award costs by reference to statutes applicable to various types of hearings that the Tribunal is empowered to conduct. Paragraph 4 reads as follows:
- Where does the Tribunal get its Jurisdiction to award costs?
Costs may be awarded for proceedings before the Environmental Review Tribunal under section 21 of the Environmental Assessment Act. Similarly, costs may be awarded for a proceeding before a joint board under section 7 of the Consolidated Hearings Act. Costs may also be awarded for [page560] certain application proceedings before the Tribunal under sections 32, 33, and 36 of the Environmental Protection Act. These sections provide that the Tribunal:
(a) may award the costs of a proceeding before the Tribunal;
(b) may order to whom and by whom the costs are to be paid;
(c) is not limited to the considerations that govern awards of costs in any court;
(d) may fix the amount of the costs or direct that the amount be assessed; and
(e) may direct the scale according to which costs are to be assessed and by whom they are to be assessed.
[13] It will be evident from a reading of para. 4 that none of the sources of jurisdiction is, or is specifically claimed to be, applicable to appeals pursuant to s. 140 of the EPA.
[14] It is for these reasons that the Tribunal's order must be set aside.
Appeal allowed.