Rocca v. Bayer, 2025 ONSC 4206
DIVISIONAL COURT FILE NOS. DC-23-00002201-0000 & DC-23-00002202-0000
DATE: 20250718
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
S.T. Bale, Nieckarz and Davies JJ.
BETWEEN:
Jacqueline Rocca and Claudio Rocca
Applicants (Appellants)
- and -
Roy Bayer and Doris Bayer
Respondents (Respondents in appeal)
Counsel: Eric Gillespie, for the appellants Devan Munch, for the respondents in appeal
AND BETWEEN:
Jacqueline Rocca and Claudio Rocca
Applicants (Respondents in appeal)
- and -
Roy Bayer and Doris Bayer
Respondents (Appellants)
Counsel: Eric Gillespie, for the respondents in appeal Devan Munch, for the appellants
HEARD on April 2, 2024, at Sudbury, by video conference
S.T. Bale J.:-
Introduction
[1] Jacqueline and Claudio Rocca owned a cottage in Sheguiandah, Ontario. They applied to the Normal Farm Practice Protection Board for an order finding that they were disturbed by a farming operation carried on by Roy and Doris Bayer. The Board dismissed their application and ordered that they pay the Bayers’ costs. The Roccas then requested that the Board review the costs order, but not the dismissal of their application. A vice-chair of the Board granted the request for review, finding that there was a reasonable apprehension of bias on the part of the hearing panel. She ordered a new costs hearing, and set a schedule for the delivery of written submissions.
[2] Both parties appeal to this court from the order granting the request for review.
[3] The Bayers appeal on the ground that the vice-chair erred in her finding of reasonable apprehension of bias. They argue that the request for review should not have been granted. The Roccas appeal and argue that based on the vice-chair’s finding of reasonable apprehension of bias, she should have overturned both the dismissal of their normal farm practices application and the costs order, and ordered a new hearing of the application.
[4] I would quash the Bayer appeal. In relation to that appeal, the decision of the vice-chair was interlocutory and not subject to an appeal to this court. It did nothing more than provide for a review of the costs order and the procedure for the conduct of the review.
[5] I would dismiss the Rocca appeal. In relation to that appeal, I see no error on the part of the vice-chair. She decided the case before her which did not include the question of whether the dismissal of the Roccas’ normal farm practices application should be reviewed. While it may have been open to her to request submissions from the parties on that issue, it was not an error on her part to decide only the issues raised by the Roccas in their request for review.
Background facts
[6] In April 2019, Jacqueline and Claudio Rocca applied to the Normal Farm Practice Protection Board under s. 5 of the Farming and Food Production Protection Act, 1998, for an order finding that they were disturbed by odour and flies from the farming operation of Roy Bayer and Doris Bayer. They requested that the Board regulate the storage, application and spillage of manure on the Bayers’ farm.
[7] In August 2022, the Board dismissed the application. They found that the Roccas were not directly affected by the disturbances they alleged, and that therefore the Board did not have jurisdiction to consider whether the Bayers’ farm practices were normal. In the alternative, they found that if the Roccas were directly affected, the Bayers’ farm practices were, in fact, normal and protected under the Farming and Food Production Protection Act, 1998.
[8] The Roccas apparently accepted the Board’s determination. Under s. 64 of the Board’s Rules of Practice and Procedure, they were entitled to request, within a reasonable time after the decision was made, that the dismissal of their application be reviewed by the Board. And under s. 8(2) of the Farming and Food Production Protection Act, 1998, they were entitled to appeal the Board’s decision to the Divisional Court, on any question of fact, law or jurisdiction, within 30 days of the making of the decision. The Roccas did neither.
[9] Following receipt of the Board’s decision, the Bayers submitted a request for costs. The Board heard the request in writing and in December 2022 issued a decision awarding them costs of $40,000. The award was based on findings related to the Roccas’ conduct, including: that the application was frivolous and vexatious; that they had attempted to malign or vilify the Bayers; that they had served an excessive number of documents on the Bayers which were irrelevant and added to the costs of the proceeding; and that they had brought numerous motions, many of which were unsuccessful, vexatious and costly, and delayed the proceedings.
[10] In February 2023, the Roccas requested that the Board review and set aside the costs decision. In their request, they submitted that the Board had made a number of factual errors. In addition, they argued that two of the three panel members had conflicts of interest. They submitted that “it is now clear that the costs hearing should not have proceeded before these panel members”, and that the costs hearing should therefore be “viewed as a nullity.” They did not, however, request a review of the Board’s dismissal of their normal farm practices application.
[11] The request for review was considered by Vice-Chair Brandi Neil. In an interim decision, she found that it was only necessary for the Bayers to respond to two issues. First, whether there was a reasonable apprehension of bias, resulting from one of the panel members sitting on a panel of another tribunal with a partner at the law firm representing the Bayers, in a hearing which overlapped with the hearing in this case. Second, the quantum of costs. She invited written submissions, including affidavit evidence and case law, limited to the question of whether a rehearing or other remedy was warranted.
[12] On August 1, 2023, following receipt of the Bayers’ submissions and the Roccas’ reply, Vice-Chair Neil granted the request for review, based upon a finding of reasonable apprehension of bias, and ordered a new costs hearing to take place in writing. Although finding that there was an appearance of bias at both the hearing of the normal farm practices application and the costs hearing, she noted that the request for review “was only brought with respect to the costs decision so that is all I can address.”
[13] On August 30, 2023, the Roccas filed a notice of appeal. Although it was styled as an appeal from the vice-chair’s order, in addition to asking that her order be set aside, they requested an order setting aside both the dismissal of their normal farm practices application and the order for costs. They requested a new hearing of the application.
[14] On August 31, 2023, the Bayers served a notice of appeal from the vice-chair’s order. In their notice of appeal, they asked that the order be set aside and that the December 2022 costs award be reinstated. They argued that the vice-chair had erred in law in her finding of reasonable apprehension of bias.
[15] As a result of the filing of these appeals, the costs hearing ordered by Vice-Chair Neil has not taken place.
[16] While this court’s decision on the appeals was under reserve, the Roccas filed a motion to admit fresh evidence. The fresh evidence was an affidavit of Jacqueline Rocca in which she said that their cottage had been destroyed by fire, that they were selling the property, and that as a result, they were no longer requesting a new hearing of their normal farm practices application. She said that a new hearing “is a moot point as we cannot be aggrieved by nuisances if we no longer own property near the Bayer farm.” We admitted the evidence.
The Board’s review jurisdiction
[17] Under s. 21.2 of the Statutory Powers Procedure Act, “[a] tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order.”
[18] The Rules of Practice and Procedure of the Normal Farm Practices Protection Board do “deal with the matter”; Rule 64 of those rules provides as follows: “After a decision or order has been issued, if the Board considers it advisable, the Board may review all or part of a decision or order, and may confirm, vary, suspend or cancel the decision or order.”
This court’s appellate jurisdiction
[19] Section 8(2) of the Farming and Food Production Protection Act, 1998 provides for an appeal to the Divisional Court from “an order or a decision of the Board on any question of fact, law or jurisdiction”, within 30 days of the making of the order or decision.
The Bayer appeal
[20] I would quash the Bayer appeal. In relation to that appeal, the decision of the vice-chair was interlocutory and not subject to an appeal to this court.
[21] In their notice of appeal where they deal with this court’s jurisdiction, the Bayers say in paragraph 4: “The appeal concerns an interlocutory order.” However, in response to the Roccas’ position that because the order was interlocutory, no appeal lies to this court, the Bayers now argue that the vice-chair’s decision was a final order. I disagree.
[22] In Strathroy-Caradoc (Municipality) v. Adelaide Metcalfe (Township), 2025 ONCA 180, at paras. 15-16, the court noted that legislation conferring a right of appeal from a decision of an administrative tribunal has generally been interpreted as conferring a right to appeal a final decision only, absent clear language indicating that there is a right to appeal an interlocutory decision. The parties agree that this principle applies in the present case; however, they disagree on the question of whether the vice-chair’s order granting a review of the Board’s costs order was final or interlocutory.
[23] An order is interlocutory where it does not determine the real matter in dispute between the parties – the very subject matter of the litigation – or any substantive right: A. v. B., [2025] ONCA 358, at paras. 17-18; Ye v. Turton, 2025 ONCA 89, at para. 8.
[24] In the present case, the vice-chair did not deal with the merits of the Bayers’ claim for costs. Her order did nothing more than provide for a review of the Board’s costs order and determine the procedure for the conduct of the review.
[25] In Barnes v. Ontario (Social Benefits Tribunal), [2009] O.J. No. 3096 (Div. Ct.), the applicant argued that a request for a review hearing is functionally akin to an appeal in a civil case, in that if granted, a new hearing is ordered. The court disagreed and at para. 20 said: “the more appropriate analogy is that of a decision of a screening body determining whether a hearing should be held by another tribunal at the same level as the original tribunal. It is not a decision which determines the merits of either the applicant’s appeal or the substance of the reconsideration.” At para. 23, the court went on to say:
A decision to hold a reconsideration hearing is not a “final decision” as it does not finally determine the applicant’s right and interest or his eligibility for disability benefits. It is simply a decision to hold a fresh hearing and does not trigger a duty to give reasons either under the SPPA or the Tribunal’s enabling legislation.
Similarly, in the present case, the Board’s decision to hold a review hearing does not determine the Bayers’ right to costs or the amount of those costs. It simply requires them to participate in hearing in which those issues will be determined.
[26] In Barnes, this court held that the Social Benefits Tribunal was not required to give reasons for granting a reconsideration hearing. At paragraph 31 of the decision, the court said that if reasons are given when a rehearing is ordered, they would inevitably touch on the substance of the reconsideration request, raising a concern that those reasons might influence the member presiding at the rehearing. There being such a concern, it follows that the reasons given for granting a request for reconsideration are not necessarily binding on the member presiding at the rehearing. I see no reason why the same principle should not apply in the present case. It will therefore be up to the panel presiding at the rehearing to decide, on a final basis, whether the original panel was tainted by a reasonable apprehension of bias. See also, M.I. v. Administrator, Ontario Works Region of Peel, 2024 ONSC 1975 (Div. Ct.), at para. 15.
[27] In support of their position that the vice-chair’s order was final, the Bayers rely on 2541005 Ontario Ltd. v. Oro-Medonte (Township), 2023 ONSC 5569 (Div. Ct.). In that case, on a motion for leave to appeal to this court from a decision of the chair of the Ontario Land Tribunal granting a request for review, the motion judge held that the decision was final. However, Oro-Medonte is not and should not be taken as authority for the proposition that all orders granting a request for review are final. In fact, in Oro-Medonte, the motion judge said, at para. 32: “This court is not prepared to say that every Review Decision or Review Order will be final. There may well be circumstances that make the Chair’s decision/order interlocutory. This is not one of those circumstances.”
[28] In Oro-Medonte, the township had passed a zoning by-law amendment that restricted the growing of cannabis and industrial hemp crops to two industrial zones and did not permit such activities in agricultural zones. 2541005 Ontario Limited appealed the by-law amendment to the Ontario Land Tribunal. Following a hearing, the tribunal ordered the repeal of the by-law.
[29] The township then requested a review of the hearing decision under s. 23 of the Ontario Land Tribunal Act. Under rule 25.2 of the Tribunal’s Rules of Practice and Procedure, requests for review are considered by the Tribunal chair. Under rule 25.6, the chair has discretion to dismiss the request for review, order a motion to consider the request for review or grant the request for review in whole or in part.
[30] However, rather than simply granting the request for a review of the order, or ordering a motion to consider the request, the chair ordered that the order repealing the bylaw be “set aside and rescinded”, and that the appeal be reheard by a new panel. The basis of the order to set aside and rescind the order, rather than to simply allow the request for review, is unclear. Under rule 25.10 of the Tribunal rules, it is the Tribunal member or panel conducting the review hearing that has jurisdiction to “confirm, rescind, change, alter or vary” any order made by the Tribunal. Under rule 25.2, in order to provide for a rehearing under rule 25.10, it was unnecessary for the chair to set aside the original order. However, despite having said that the order was set aside and rescinded, the chair clarified that he did not intend to “prejudge in any way what outcome will result from the rehearing.” It would therefore appear that he did not intend to deal in any way with the merits of the appeal.
[31] On the motion for leave to appeal the chair’s order to this court, the motion judge found that it was final because it went “to the very heart of the matter. It overturned a lengthy Tribunal Hearing on its merits.” It was not “related to a procedural or collateral issue.” “It “went to the very foundation of this entire matter.” It dispose[d] of a substantive issue in the proceedings.”
[32] In my view, the present case may easily be distinguished. In Oro-Medonte, at the time of the motion for leave to appeal, no decision, approval or order remained extant which the new panel could confirm, rescind, change, alter or vary.
[33] Conversely, in the present case, Vice-Chair Neil did not purport to set aside or rescind the Board’s order. Rather, she granted the request for review, ordered a new costs hearing to take place in writing, and provided a timeline for the parties’ submissions. Accordingly, all that has happened so far is that a vice-chair has exercised her discretion to order a review of the costs order. The decision to confirm, vary, suspend or cancel the order will be made by a new panel of the Board. If the new panel confirms the existing costs award, there will be nothing for the Bayers to appeal.
The Rocca appeal
[34] I would dismiss the Rocca appeal. With respect to that appeal, I see no error on the part of the vice-chair. She decided the case before her which did not include the question of whether the dismissal of the Roccas’ normal farm practices application should be reviewed. While it may have been open to her to request submissions from the parties on that issue given her finding of reasonable apprehension of bias, it was not an error on her part to decide only the issues raised by the Roccas in their request for review.
[35] On receiving the vice-chair’s decision, the Roccas could have requested that the Board also review the dismissal of their farm practices application, based on the finding of reasonable apprehension of bias. However, they cannot, under the guise of an appeal from the vice-chair’s order, request this court to set aside the order dismissing their normal farm practices application. They got what they asked for – a rehearing of the costs issue.
[36] If, in August 2023, after receiving the vice-chair’s decision dealing with the issue of bias, the Roccas wanted this court to set aside the order dismissing their normal farm practices application, they needed to appeal that order, and to move for an order extending the time for doing so. They might have been successful on such a motion, but they would have had to contend with the fact that they knew the facts related to the allegation of bias, upon which they relied in support of the proposed appeal, at least as early as February 13, 2023 (when they filed the request for a review of the costs order). Some meaning must be given to their decision to request a review of the costs order, but not the Board’s dismissal of their normal farm practices application, upon learning the facts which they now want to argue in support an appeal of the dismissal of their farm practices application.
[37] In support of their position, the Roccas rely on R. v. Curragh Inc., [1997] 1 S.C.R. 537, at paras. 7 & 8 where the court said:
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.
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.
Disposition
[39] For the reasons given, I would quash the Bayer appeal and dismiss the Rocca appeal.
[40] Having found that both appeals fail, I would make no order as to costs.
“S.T. Bale J.”
“I agree. Nieckarz J.”
“I agree. Davies J.”
Released: July 18, 2025
CITATION: Rocca v. Bayer, 2025 ONSC 4206
DIVISIONAL COURT FILE NOS. DC-23-00002201-0000 & DC-23-00002202-0000
DATE: 20250718
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
S.T. Bale, Davies, and Nieckarz JJ.
BETWEEN:
Jacqueline Rocca and Claudio Rocca
Applicants (Appellants)
– and –
Roy Bayer and Doris Bayer
Respondents (Respondents in appeal)
AND BETWEEN:
Jacqueline Rocca and Claudio Rocca
Applicants (Respondents in appeal)
– and –
Roy Bayer and Doris Bayer
Respondents (Appellants)
REASONS FOR JUDGMENT
s.t. Bale J.
Released: July 18, 2025
[^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.