Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal)

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Rule 28 - Costs

Comments on Costs: Costs are a sum of money ordered to be paid from one party to another party in order to cover only this party's expenses incurred for preparation and attending the proceeding. This may include such things as preparation and hearing time for counsel, consultant and witness fees, and travel expenses. It does not include business or personal financial losses. If the party's conduct caused such losses, however, this conduct may be included in considering a cost order.

A cost order may be made if a party requests it, if one party has in the Tribunal's opinion acted inappropriately, as in Rule 28.04. Such orders and the amount awarded are to discourage conduct that wastes a great deal of the Tribunal's and parties' time as well as other resources. Note that for matters under the Drainage Act, costs are awarded only as provided in that Act.

An order for costs is very rare. Recovery of costs is not standard as in court proceedings. It is only where the Tribunal finds that a party wrongly brought the appeal or participated unacceptably in preparation or hearing events, that an award of cost will be made. Only a party may make a request for costs. Participants, witnesses or others without official party standing can request or receive costs only in the most unusual circumstances.

There must be no threats to potential appellants that costs will be requested. This could prevent opponents who have different but sincerely held opinions from exercising their right to appeal. The governing legislation provides this appeal right. If this is abused there are other remedies available, such as dismissal without a hearing. The Tribunal will use a test for "clearly unreasonable" conduct which was described in this way: "...would a reasonable person, having looked at all of the circumstances of the case, the conduct or course of conduct of a party proven at the hearing and the extent of his or her familiarity with the Tribunal's procedure, exclaim, "that's not right; that's not fair; that person ought to be obligated to another in some way for that kind of conduct."

Who May Request an Order for Costs

28.01 Where a party believes that another party has acted clearly unreasonably, frivolously, vexatiously or in bad faith considering all of the circumstances, it may ask for an award of costs.

Period Eligible for Costs Order

28.02 The Tribunal may make a costs award for conduct at any time during a proceeding.

Powers of Tribunal

28.03 The Tribunal may deny or grant the request or award a different amount.

Circumstances in which Costs Order May be Made

28.04 Clearly unreasonable, frivolous, vexatious or bad faith conduct can include, but is not limited, to:

  1. Failing to attend a hearing event or to sending a representative when properly given notice, without contacting the Tribunal;
  2. Failing to give notice or adequate explanation or lack of co-operation 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 Tribunal where the result was 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 Tribunal 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; and
  8. Knowingly presenting false or misleading evidence. The Tribunal will consider the seriousness of the misconduct. If a party requesting costs has also conducted itself in an unreasonable manner, the Tribunal may decide to reduce the amount awarded. (The Tribunal will not consider factors arising out of a mediation or settlement conference except where, for example, it finds that a request for change to a settlement is unreasonable.)

Interest on Award

28.05 Awards of costs will bear interest in the same manner as those made under section 129 of the Courts of Justice Act.

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