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Rule 26 - Discovery

Application for order for discovery

26.01 A party to an appeal may apply to the Tribunal for an order for discovery.

Response to application

26.02 In response to such an application the Tribunal may order,

  1. the discovery of documents;
  2. the examination for discovery of any party;
  3. an examination for discovery by written questions (see Rule 20);
  4. the inspection of property; and
  5. the examination of a witness before the commencement of a hearing under Rule 39.03 of the Rules of Civil Procedure.

Contents of affidavit

26.03 The affidavit in support of an application for discovery under rule 26.01 shall disclose the efforts made to secure the information sought by discovery and the reasons why access to such information is necessary in advance of the hearing.

Order for questions

26.04 The Tribunal may order the examination of a party by another party by way of oral or written questions and may establish the date by which such questions are to be asked and answered.

Payment of expenses

26.05 If the questions are oral, the Tribunal may by order designate which party is to pay the cost of an oral examination and the transcript thereof.

Questions not answered

26.06 If a party is unable or unwilling to answer a question, the party shall,

  1. if the party contends that the question is not relevant to the proceeding, set out in writing its reasons in support of that contention;
  2. if the party contends that the information necessary to answer the question is not available or can not be made available with reasonable effort, provide a response that sets out the reasons for the unavailability of the information and provide in the alternative any other information which the party considers would be of assistance to the party asking the question;
  3. if the party contends that the information is of a confidential nature and should not be disclosed, provide a response which sets out the reasons why the information is considered confidential; or
  4. otherwise explain why an answer can not be provided.

Use of questions and answers

26.07 Except for purposes of impeaching a witness, written questions and answers and transcripts of oral questions and answers are not to be referred to or given as evidence at a hearing without the consent of the Tribunal which consent may be subject to such terms and conditions as the Tribunal considers just.

Rule 27 - Notice of Consitutional Questions

Notice must be served

27.01 Where a party intends to raise a question about the constitutional validity or applicability of legislation, a regulation or by-law made under legislation, or a rule of common law, or where a party claims a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms, notice of a constitutional question shall be served on the other parties and the Tribunal as soon as the circumstances requiring notice become known and, in any event, at least 15 calendar days before the question is to be argued.

Rights of Attorneys General

27.02 Where the Attorneys General for Canada and Ontario are entitled to notice, they are entitled to adduce evidence and make submissions to the Tribunal regarding the constitutional question.

Form of notice

27.03 Notice of a constitutional question shall be given in the form prescribed by the Rules of Civil Procedure.

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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E-mail: appeals.tribunal.omafra@ontario.ca
Author: OMAFRA Staff
Creation Date: 22 November 2010
Last Reviewed: 22 November 2010