Hambly Sabourin & Beach Beaulac Municipal Drains- Review Decision

In the matter of the Drainage Act R.S.0. 1990, Chapter D.17, as amended.

And in the matter of: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Sylvain Gauthier, in Thornloe, Ontario; Garry Beach, in Belle Vallée, Ontario; and Richard Gosselin, in Brethour, Ontario, under Section 64 of the Drainage Act from quality of construction of the Hambly Sabourin & Beaulac-Beach Municipal Drains in the Township of Brethour.

And in the matter of: A request for review by Richard Gosselin of the Decision of the Tribunal dated August 20, 2010 under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure for the Tribunal.

Before: Paula Lombardi, Vice-Chair

Decision of the Tribunal

Background to the Review Request

This matter arises from the request for review ("Review") by Mr. Richard Gosselin ("Appellant") of the Decision of the Tribunal dated August 20, 2010 ("Decision"). This Decision is based on written submissions from the parties and a review of the record. No oral evidence was given.

The Township of Brethour ("Township") engaged in repairs and improvements under section 78 of the Drainage Act ("Act") to two existing and related municipal drains: the Hambly Sabourin Drain established in 1980, and the Beaulac-Beach drain (collectively referred to as "Drain") established in 1981. In response to complaints from some landowners about the drains, in 2000 the Township appointed a drainage engineer under the Act to report on repairs and improvements to the Drain. The Township engineer delivered a series of reports that were subject to numerous appeal proceedings under the Act.

On June 24, 2010, the Tribunal issued an Order setting July 21 and 22, 2010 as the dates for hearing the appeals of Garry Beach, Sylvain Gauthier and Richard Gosselin pursuant to section 64 of the Act. Appeals under section 64 of the Act relate to complaints about the quality of construction of the drainage works. Beach, Gauthier and the appellant were advised of the July 21 and 22, 2010 appeal hearing dates after the Tribunal granted two adjournments to previously scheduled hearing dates.

The first adjournment request was granted on May 26, 2010 when the Tribunal convened in the Township for the purposes of hearing the appeal. At that hearing, the Appellant brought a motion for an adjournment to obtain documentary disclosure from the Township. The adjournment was granted and the appeal hearing dates rescheduled to June 24 and 25, 2010. On May 28, 2010, the Tribunal issued its Preliminary Motion Order providing its reasons and directions in response to the Appellant's adjournment request and request for documentary disclosure. The Appellant failed to adhere to the directions of the Tribunal's Order to obtain and review the documents requested on May 26, 2010.

On June 10, 2010, the Appellant wrote to the Tribunal panel members directly which is unorthodox and an unacceptable practice requesting an amendment to the Tribunal's May 28, 2010 Preliminary Motion Order for additional time to respond to the Township's evidence. The timing of the Appellants request resulted in a de facto adjournment of the June 24 - 25 hearing dates.

On June 24, 2010, the Tribunal granted the Appellant's request and adjourned the hearing to July 21-22, 2010. The Appellant wrote the Tribunal on June 29, 2010 to respond to the Township's summary of costs and alleged that the Tribunal acted beyond its jurisdiction in raising the issue of costs. On June 29, 2010 the Tribunal issued its reasons for the adjournment of the appeal hearing to July 21-22, 2010 and provided the Appellant with a review of the Tribunal's jurisdiction under section 64 of the Act.

On July 13, 2010, the Appellant sought a Review of the Tribunal's June 29, 2010 interim Order and requested a pre-hearing conference. However, there were several procedural defects in the Appellant's request for Review. On July 16, 2010 the Tribunal appeal panel issued a decision denying the Appellant's request for a pre-hearing conference. In an effort to assist the Appellant, Tribunal staff, at the direction of the appeal panel, wrote to the Appellant on July 19, 2010 advising that the Tribunal would comment on the request for Review at the start of the July 21, 2010 appeal hearing. The letter also advised the Appellant that a request for review does not operate as a stay of the Tribunal decision and that the hearing of the appeal was proceeding as scheduled.

On July 19, 2010, the Appellant wrote to the Tribunal requesting another adjournment of the July 21-22, 2010 hearing dates. The letter further advised that the Appellant would not attend the hearing. Tribunal staff, again at the direction of the appeal panel, wrote to the Appellant reiterating its statement that the Tribunal's decision was not stayed and the hearing would proceed as previously Ordered by the Tribunal on July 21-22, 2010.

On July 20, 2010, the Appellant wrote to the Tribunal enclosing a Notice of Motion requesting an adjournment of the July 21-22, 2010 hearing dates. The adjournment request advised that the Appellant would provide viva voce evidence in support of the adjournment request. On July 21, 2010, immediately prior to the start of the hearing, the Appellant wrote the Tribunal enclosing an Amended Notice of Motion requesting that the adjournment request be heard in writing as opposed to orally, and that the Appellant would not be attending the hearing. However, the grounds for the Amended Notice of Motion continued to state that the oral evidence of the Appellant would be relied upon in support of the adjournment request. The Appellant did not provide any evidence to support the Amended Notice of Motion.

Gauthier and Beach both were in attendance on July 21 and 22, 2010 and the appeals of Gauthier and Beach proceeded as ordered. The Tribunal issued separate reasons for decision related to the Gauthier and Beach appeals and that decision is not subject to this request for Review.

The decision of August 20, 2010 relating to the Appellant is the subject of this Review. Neither the Appellant, his lawyer, nor a representative appeared for the scheduled appeal hearing on either July 21, 2010 or July 22, 2010.

On August 20, 2010, the Tribunal issued its decision dismissing the Appellant's adjournment request on the basis that there was no sworn evidence before the Tribunal upon which it could make a decision. The Tribunal also dismissed Mr. Gosselin's appeal under section 64 the Act as it had no evidence upon which it could find in favour of the Appellant. Further, the Tribunal issued a costs award against the Appellant in the amount of $10,000.00.

On September 20, 2010, the Appellant filed a written request with the Tribunal seeking a review of the August 20, 2010 decision to: have the decision of the Tribunal overturned; the costs award dismissed; permit Mr. Gosselin's appeal before the Referee or, in the alternative, issue an order granting Mr. Gosselin a hearing before a new panel of the Tribunal; and award costs associated with this Review to Mr. Gosselin on a substantial indemnity basis.

The Tribunal's Rules of Procedure

Pursuant to section 25.1 of the Statutory Powers Procedure Act ("SPPA"), the Tribunal has established Rules of Procedure ("Tribunal's Rules") that includes Rule 29 which is entitled "Review of A Decision". Subsection 29.09 of the Tribunal Rules of Procedure reads as follows:

Evaluation of a request for review

29.09 In deciding whether it is advisable to conduct a review of all or any part of a final decision or

order, the Tribunal may consider any relevant circumstances including,

1. whether there is significant new evidence which was not available at the time of the original appeal;
2. whether the Tribunal made a material error of law or fact such that the Tribunal would likely have reached a different decision;
3. the extent to which any party to the appeal or any other person has relied upon the final decision or order;
4. the extent to which any party to the appeal or any other person will be affected by the review process; and
5. whether the public interest in finality of decisions is outweighed by the alleged prejudice to the requester.

Complaints Behind the Request for Review

The basis of this request for Review is that the Tribunal made numerous errors including errors of fact and law such that the Tribunal would have likely reached a different decision
Issues:

The issues related to the Appellant's request for review of the August 20, 2010 decision can be summarized as follows:

1. Did the Tribunal err in fact and law in considering, granting and subsequently refusing the adjournment requests of the Appellant?
2. Did the Tribunal err in fact and law in dismissing the Appellant's appeal under section 64 of the Act?
3. Did the Tribunal err in fact and law in awarding costs to the Township in the amount of $10,000.00?

Findings

The Tribunal notes that the Appellant's request for Review is overly broad in its scope and attempts to raise issues that are unrelated to the August 20, 2010 decision of the Tribunal. This request for review only relates to the August 20, 2010 decision and not to any prior decisions made by the Tribunal.

The Tribunal was not provided with any viva voce evidence nor did the Appellant provide any sworn evidence that the Tribunal could rely on in making its decision. The letter of July 21, 2010 indicates that the Appellant made a decision not to provide viva voce evidence or any sworn evidence to the Tribunal knowing that the hearing of the appeal was going to proceed on the July 21-22, 2010 hearing dates.

The Appellant was made aware of the July 21-22, 2010 appeal hearing dates and had a positive obligation to either attend the hearing, or at a minimum provide written submissions in the form of an affidavit in support of the Appellant's request for an adjournment and appeal under the Act.

The Tribunal was not provided any evidence at the July 21-22, 2010 appeal hearing relating to the veracity of the Township's documentary evidence or any prejudices that may have been suffered by the Appellant if an adjournment was not granted. The neglect of the Appellant to provide any evidence whatsoever left the Tribunal with no alternative but to dismiss the adjournment motion.

The Appellant has failed to provide any information meeting the requirements of Rule 29.09 to support his request for a review of the decision issued by the Tribunal on August 20, 2010.

The Appellant has a positive obligation and bears the burden of proving his appeal. By failing to attend the hearing, the Appellant did not provide the Tribunal with any evidence in support of his appeal about the quality of construction of the Township's Drain. This is not a case where the Tribunal accepted the evidence of the Township over that of the Appellant. The Appellant, by choosing not to attend the appeal hearing, failed to provide any evidence to the Tribunal in support of the appeal. The Tribunal correctly found that it had no alternative but to dismiss the appeal.

The Act, SPPA and Tribunal's Rules allow for an award for costs where a party has, in the Tribunal's opinion, acted inappropriately. Such cost awards, and the amount awarded, are to discourage conduct that results in the waste of the Tribunal's and a party's time, as well as other resources.

To clarify, costs awards in proceedings before the Tribunal are very rare and are not as common 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 costs is made.

The Tribunal relied on sections 98(10) and (11) of the Act to issue its award of costs against the Appellant. These sections state:

10. The costs of any proceedings before the Tribunal shall be paid by or apportioned between the parties in such manner as the Tribunal considers proper, and where costs are ordered to be paid, the order for payment thereof may be filed in the Small Claims Court and is enforceable as a judgment or order of that court.

11. The costs chargeable or to be awarded in any proceedings may include the costs of witnesses and of procuring their attendance, the costs of secretarial staff and such other costs as the Tribunal may direct.

In understanding its jurisdiction under sections 98(10) and (11) of the Act, the Tribunal appropriately looked to section 17.1 of the "SPPA". Section 17.1 of the SPPA outlines the authority and power of the Tribunal to order costs against a party in a proceeding. Section 17.1 of the SPPA states:

1. Subject to subsection (2), a tribunal may, in the circumstances set out in rules made under subsection (4), order a party to pay all or part of another party's costs in a proceeding.
2. A tribunal shall not make an order to pay costs under this section unless,
   
   1. the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith; and
   2. the tribunal has made rules under subsection (4).
      
3. The amount of the costs ordered under this section shall be determined in accordance with the rules made under subsection (4).
4. A tribunal may make rules with respect to,
   

1. the ordering of costs;
2. the circumstances in which costs may be ordered; and
3. the amount of costs or the manner in which the amount of costs is to be determined.
   

Rule 28.02 of the Tribunal's Rules of Procedure ("Rules") allows the Tribunal to make costs award at any time during a proceeding. Rule 28.04 of the Tribunal's Rules governs the circumstances constituting bad conduct upon which the Tribunal may make a costs award. These circumstances include but are not limited to: the failure to attend a hearing event; failing to act in a timely manner or comply with a procedural order or direction of the Tribunal; conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for a hearing event; failing to present evidence; acting disrespectfully; and knowingly presenting false or misleading evidence. Prior to making a determination of costs, the Tribunal has an obligation to consider the seriousness of the misconduct.

The Tribunal appropriately considered all of the circumstances prior to making its award of costs against the Appellant. If the Appellant had attended the hearing, he could have spoken to the issues of cost and provided testimony in response to the Township's submissions on costs. Further, the Rules clearly state that failing to attend a hearing constitute circumstances amounting to bad conduct. The Appellant, prior to refusing to attend the hearing, ought, or should have known that the failure to attend may result in an adverse cost award pursuant to Rule 28.04. Further, on June 10, 2010 the Appellant attempted to circumvent the Tribunal's processes and procedures by: writing panel members directly; failing to comply with the Tribunal's interim Order of May 28, 2010; and requesting numerous adjournments absent providing any evidence in support of the request.

Conclusion

I therefore find that the Tribunal's August 20, 2010 decision was based on the proper application of the Act; the Tribunal's Rules and, where appropriate the Statutory Powers and Procedures Act.

The request for Review is hereby denied.

Dated at Lasalle, Ontario this 11th day of January, 2011.