AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:
Ontario's
Drainage Act provides mechanisms to
municipalities and landowners to implement drainage solutions on a collective
basis. On petition by landowners, a
municipality may be compelled to construct a municipal drain; a municipality
may develop a municipal drain on its own initiative; an existing municipal
drain may be reconstructed, improved, or maintained. Costs associated with the municipal drain,
including engineering costs, are generally shared by the owners of the lands
that outlet to the drain, with each owner responsible for an amount proportional
to his or her respective share of the total drainage area.
Disputes
related to municipal drains are often the subject of appeals by affected
landowners to the Agriculture, Food and Rural Affairs Appeal Tribunal. Landowners may challenge the necessity for
the drainage work being proposed by a municipality and its drainage engineer,
the scope or extent of the drainage work, the cost of the drainage work, or the
portion of the cost of the drainage work being charged to the landowner. In the normal course, the parties to a
drainage appeal before the Tribunal bear their own costs of litigation, such as
legal fees and disbursements; cost awards against a party are exceptional. However, no party should assume that an
adverse cost award might not be made in the right circumstances.
The
Tribunal's Rules of Procedure include
the following commentary on appeal 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. [emphasis added]
According
to the Rules, a party to a drainage appeal may ask for an award of costs where
another party has "acted clearly unreasonably, frivolously, vexatiously or
in bad faith considering all of the circumstances." Conduct that might warrant an award of costs
can include failing to attend the hearing, changing a position without notice,
failing to prepare adequately for hearing events, failing to present evidence,
acting disrespectfully or maligning the character of another party, or
knowingly presenting false or misleading evidence.
In
a drainage appeal decision released in January of this year, the Tribunal
ordered an appellant landowner to pay the respondent municipality nearly $6,000
in costs. The landowner had brought an
appeal challenging the quality of construction of drainage works, which is a proper
issue for appeal under the Drainage Act. However, the Tribunal found that the
landowner provided no reliable evidence of any quality of construction issue
and, in fact, that the landowner's true complaint was about the design of the
drainage works. The design of the works
was not something that could be appealed to the Tribunal by that point in time,
and the Tribunal dismissed the appeal.
The
respondent municipality had communicated to the landowner early in the appeal
process that the appeal did not actually raise quality of construction issues,
and warned the landowner that the municipality might seek costs if the appeal
continued. This communication apparently
resulted in a settlement between the landowner and the municipality, but the
landowner almost immediately rescinded the settlement. In its costs decision, the Tribunal concluded
that the landowner understood the deficiencies in its appeal, but continued
nevertheless, "using the appeal process and potential associated costs as
a negotiating tactic to get the Township to fund some or all of its private
drainage works of approximately $25,000."
The
Tribunal ordered the appellant landowner to pay the municipality its legal
costs and engineering costs related to the appeal incurred after the failed
settlement, and authorized the municipality to enter the cost award immediately
on the tax roll of any land owned by the appellant assessed under the
particular municipal drain at issue. The
Tribunal found that the landowner had failed to produce any evidence in support
of its quality of construction appeal and, more importantly, that the landowner
had unreasonably reneged on its settlement with the municipality. But for this conduct, the municipality would
not have incurred the costs awarded by the Tribunal.
Read the decision at: Ellis Drain Branch 'A' 2017.
