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Wednesday, August 25, 2010

Landowner boycotts hearing of drainage appeal; costs awarded against him

After a series of recent adjournment requests were denied by the Agriculture, Food and Rural Affairs Tribunal, landowner Richard Gosselin decided to boycott the hearing of his Drainage Act appeal.  A letter from his lawyer stated:
... in light of the actions and behaviour of the Tribunal and, in particular Vice-Chair O'Kane, and the recent actions by the Township and its counsel which we feel are highly prejudicial to the Appellants and have resulted in a complete lack of procedural fairness in these proceedings Mr. Gosselin will not be in attendance at this morning's hearing.
Richard Gosselin and others appealed the July 12th, 2002 report under s. 48 and s. 54 of the Act. The Tribunal held that first appeal hearing November 8th, 2002 and released interim decisions on February 20th, 2003 and May 12th, 2003, and a final decision on September 29th, 2003.
The Engineer sought a review of that September 29th, 2003 decision under s. 29 of the Tribunal's Rules. The request for review resulted in a second hearing on June 25th, 2004 and a further Tribunal decision dated October 8th, 2004.

In January 2005, Richard Gosselin and others appealed the assessments in the Report under s. 54 of the Act to the Court of Revision.

In February 2005, Richard Gosselin and others started a proceeding before the Drainage Referee under s. 79 of the Act to compel drain repairs associated with the original 1980 report that created the drains.

On May 25th, 2005, the Tribunal heard the assessment appeals of Richard Gosselin and others from the decision of the Court of Revision. The Tribunal released a decision on June 10th, 2005.

On July 4th, 2005, Richard Gosselin and others attempted an appeal of the Tribunal's June 10th, 2005 decision to the Drainage Referee, even though under s. 101 of the Act that Tribunal decision was a final decision.

During the summer of 2005, Richard Gosselin and others requested the Tribunal review its June 10th, 2005 decision. On August 17th, 2005, the Tribunal declined to grant Richard Gosselin's requested review.

In 2007, Richard Gosselin started a Superior Court of Justice lawsuit against the Township. The lawsuit was over the Township's alleged failure to do necessary repairs and improvements to the drain and it alleged that because of the Township's negligence and breach of statutory duty, Mr. Gosselin had suffered damages. The Court dismissed that 2007 lawsuit (SCJ File No. 55048/07) without costs, on a consent basis by an Order of the Honourable Justice McGarry on March 25th, 2009.

Also in 2007, Richard Gosselin started expropriation proceedings before the Ontario Municipal Board under the Expropriations Act. The essence of Mr. Gosselin's claim for compensation was his assertion that the municipal drainage works resulted in an expropriation of his lands. The Tribunal understands that Richard Gosselin subsequently withdrew that expropriation proceeding.

In the Drainage Act appeal before the Tribunal, the Tribunal concluded that, in these circumstances, Richard Gosselin should pay costs to the Township totalling $10,000.  The Township incurred the legal, engineering and staff costs associated with responding to Richard Gosselin's appeal. The Township incurred wasted costs associated with the adjourned appeal hearings of May 26th-27th and June 24th-25th. The Township incurred costs associated with being ready to respond to Richard Gosselin's appeal on July 21st-22nd even though Richard Gosselin did not appear.  The costs incurred by the Township are ultimately borne by the landowners on the drain as part of the assessment of the costs of the drain project or borne by the taxpayers in the municipality. In either event, it would be unfair to burden landowners on the drain or taxpayers in the municipality with costs incurred because of the tactics of Richard Gosselin that caused needless waste and expense. Therefore, the $10,000 costs assessed against Richard Gosselin will be credited against the costs of the drain before calculating the final assessments of the landowners on the drain.

Also, importantly, the Tribunal noted that had it had the jurisdiction to do so, it would have ordered part of the costs against Gosselin to be paid by his lawyer based on her "unreasonable, frivolous or vexatious" conduct:
Ignoring Tribunal Orders, disregarding Rules, ignoring the Act, seeking to circumvent the Tribunal's jurisdiction under the Act, writing to the Tribunal in the way Ms. Neil did multiple times, serially trying to re-argue already decided issues in correspondence outside a hearing, attempting to intimidate the Tribunal with threats of reviews and judicial review are conduct that individually might be worthy of a "bad conduct" cost award. However, when viewed collectively in the context of this case there is no question that a "bad conduct" cost award is necessary. Ms. Neil failed to attend a scheduled appeal hearing. Ms. Neil filed to cooperate with the Tribunal and opposing counsel at almost every opportunity. Ms. Neil changed her client's position about the grounds for adjourning the appeal hearing on several occasions. Ms. Neil changed her client's position about attending the appeal hearing twice. Ms. Neil tried to circumvent the Tribunal with her strategy to take all her client's issues before the Referee when the Act does not permit that. Ms. Neil sought to adjourn the appeal hearings on multiple occasions, ostensibly in pursuit of irrelevant documentary disclosure. Throughout all of these actions, Ms. Neil failed to provide any evidence that supported her client's position on a balance of probabilities.
This conduct encompasses every one of the Rule 28 examples listed that support an award of costs.

The Tribunal is unaware if Ms. Neil was the architect of this conduct or merely allowed herself to become the puppet in her client's strategy. In either case, Ms. Neil's conduct was unreasonable, frivolous or vexatious.
Read the decision at: Hambly Sabourin Drain.