File No: CA 008-10

H. Dianne Sutter
Deputy Mining and Lands Commissioner

Wednesday, the 12th day of February, 2014.

THE CONSERVATION AUTHORITIES ACT

IN THE MATTER OF:
An appeal to the Minister of Natural Resources under subsection 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C. 27, as amended, against the refusal to grant permission for development within a Regulated Area of the Etobicoke Creek watershed and for the recognition of the recent placement of fill on the property, municipally known as 7080 Dixie Road, City of Mississauga, Province of Ontario;

AND IN THE MATTER OF:
Ontario Regulation 166/06.

BETWEEN:

ONTARIO KHALSA DARBAR INC.
Appellant

– and –

TORONTO AND REGION CONSERVATION AUTHORITY
Respondent

ORDER ON COSTS

WHEREAS a request was made to this tribunal on the 21st day of January, 2013, by Mr. Jonathan H. Wigley, Counsel for the Respondent, who requested an Order For Costs against the Appellant, the Ontario Khalsa Darbar Inc. (“OKDI”) following the Decision of the Deputy Mining and Lands Commissioner in this matter, dated the 20th day of December, 2012;

AND WHEREAS, a response was received from Mr. John L. O’Kane, Counsel for the Appellant on the 15th day of February, 2013 and a reply was received from Mr. Wigley on the 22nd day of March, 2013;

AND WHEREAS on the 6th day of December, 2013, the tribunal requested and received further input from the parties regarding an Ontario Divisional Court decision, being Ondaatje Securities Corporation v. Brian Carter, 1996, Carswell Ont. 65, 17 C.C.E.L. (2d) 42, 88 O.A.C. 72, 96 C.L.L.C. 210-018;

AND WHEREAS the tribunal has determined that the Respondent is entitled to the portion of its costs as requested, comprised of legal fees and disbursements, both non-taxable and taxable;

1.         IT IS ORDERED that the tribunal will fix costs in the amount of $27, 334.70 to be awarded to the Respondent, the Toronto and Region Conservation Authority, by the Appellant, Ontario Khalsa Darbar Inc.

2.         IT IS DIRECTED that Ontario Khalsa Darbar Inc. provide a reasonable payment schedule to the tribunal and to the respondent, to not exceed twelve months from the date of this Decision AND that proof of payment be filed with the tribunal.

Reasons for this Order on Costs are attached

DATED this 12th day of February, 2014.

Original signed by H.D. Sutter

H. Dianne Sutter
DEPUTY MINING AND LANDS COMMISSIONER

 

File No: CA 008-10

H. Dianne Sutter
Deputy Mining and Lands Commissioner

Wednesday, the 12th day of February, 2014.

THE CONSERVATION AUTHORITIES ACT

IN THE MATTER OF:
An appeal to the Minister of Natural Resources under subsection 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C. 27, as amended, against the refusal to grant permission for development within a Regulated Area of the Etobicoke Creek watershed and for the recognition of the recent placement of fill on the property, municipally known as 7080 Dixie Road, City of Mississauga, Province of Ontario;

AND IN THE MATTER OF:
Ontario Regulation 166/06.

BETWEEN:

ONTARIO KHALSA DARBAR INC.
Appellant

– and –

TORONTO AND REGION CONSERVATION AUTHORITY
Respondent

REASONS

Counsel for the parties (John L. O’Kane for the appellant and Jonathan Wigley for the respondent) agreed to provide written submissions to the tribunal, including a rebuttal document from the respondent, as requested by the tribunal. There were no oral submissions. A further request for comments was made to both parties by the tribunal on November 19, 2013, with regard to an Ontario Divisional Court decision, Ondaatje Securities Corporation v. Brian Carter dated January 16, 1996, Carswell Ont. 65, 17 C.C.E.L. (2d) 42, 88 O.A.C. 72, 96 C.L.L.C. 210-018 (Ondaatje).

This application for costs follows the tribunal’s decision on the merits of December 20, 2012, in which the appeal of Ontario Khalsa Darbar Inc. (OKDI) against the Toronto and Region Conservation Authority’s (TRCA) refusal of its applications was dismissed.

BACKGROUND

The OKDI is the owner of land on which they had placed approximately 10,360 cubic metres of fill covering an area of 1214 square metres of regulated floodplain in the Etobicoke Creek valley for the purposes of upgrading a sports field.

The OKDI did not seek permission to carry out this work, but proceeded with it until stopped by an Order from the Ontario Superior Court of Justice. Although the tribunal dealt with the appeal on the basis of the application in question, it was, in effect, an “after the fact” application.  The TRCA requested costs based upon the outcome and the actions of the OKDI leading up to the dismissal.  However, in response, the OKDI challenged the jurisdiction of the Mining and Lands Commissioner (the tribunal or the MLC) to award costs.  This costs application is the first challenge to the tribunal’s cost awarding jurisdiction in Conservation Authority appeals.  It also deals with the merits of why costs are warranted on the specific facts of this case.

Position of the Toronto and Region Conservation Authority

In requesting costs or a portion of the overall costs incurred by the TRCA for this project, the TRCA submitted the following arguments:

  1. The OKDI dealt with the TRCA on two previous occasions in 1994-95 and 2003-05 and a court conviction resulted from the 2004 filling.  As a result, any argument that they were not aware of the necessity to consult with the TRCA before they preceded to place fill in the regulated floodplain cannot be sustained.
  2. Since the application itself was submitted “after the fact”, no studies were undertaken to determine what might have been done to solve the issue of the safety of the sports field. The evidence provided “after the fact” to the tribunal was developed to justify what was done, not to show what might be done and how it might be done. The tribunal found that the OKDI did not succeed in its attempt to fit into the TRCA’s Policy guidelines.
  3. The cost of appeals of this nature falls back on the public, either provincially or municipally. By ignoring past experiences, the OKDI “made the choice to ignore the public authorities charged with the protection of the floodplain” and as such, the Khalsa was “acting simply for its own interests”.
  4. The Appellant has not challenged the amount of the costs claimed by the Respondent. The challenge that has been submitted surrounds the jurisdiction of the Mining and Lands Commissioner (MLC) to award costs.

Position of the Ontario Khalsa Darbar Inc.

Through their analysis, the Appellant submitted that the MLC has issued over 200 decisions regarding section 28 of the Conservation Authorities Act, of which only thirteen have involved any sort of cost award. Many of the cases dealt with “after the fact” permission requests within the regulated floodplains. The majority of the appeals have been dismissed without costs, including the jurisdictional hearing regarding the Khalsa application in 2011.

Costs have been awarded only in exceptional circumstances. The reasons for this are imbedded in the following:

In summary, the Appellant argues that the MLC does not have jurisdiction to award costs with regard to appeals under the Conservation Authorities Act.

Rebuttal Position of Toronto and Region Conservation Authority regarding the jurisdiction of the Mining and Lands Commissioner to award costs

Based on the following arguments, the Respondent rejects the Appellant’s submission that the M LC does not have the requisite jurisdiction over the awarding of costs in matters under the Conservation Authorities Act.

1.  The process of appeal from a refusal to issue a permit by a Conservation Authority begins under the provisions of subsection 28 (15) of the Conservation Authorities Act. The appeal is directed to the Minister of Natural Resources. The powers and duties to hear these appeals has been assigned by the Lieutenant Governor in Council to the MLC under the provisions of Ontario Regulation 571/00 made pursuant to the Ministry of Natural Resources Act.

2.  The Ministry of Natural Resources Act specifically directs that Part VI of the Mining Act is applicable to such hearings (with necessary modifications) as assigned to the MLC, which includes appeals under the Conservation Authorities Act. Through the assignment of the Minister’s powers to the MLC, the latter is empowered to decide appeals under the Conservation Authorities Act to which it’s procedural and substantive jurisdiction under Part VI of the Mining Act will apply, which includes the power to award costs.

3.   Sections 126 and 127 of the Mining Act outline the jurisdiction and manner for awarding costs including the scale of costs and Counsel fees. This power of the MLC is unambiguous and applies as written.

4.   Subsection 6(7) of the Ministry of Natural Resources Act must be read in its ordinary and grammatical sense.  Reference is made to Bell ExpressVu Limited Partnership v. Rex, [2002] 2.S.C.R. 559, wherein Elmer Driedger’s definitive formulation (p. 87 of his Construction of Statutes (2nd ed, 1983)) states:

“Today there is only one principal or approach, namely, the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.”

The Respondent maintains that the language of Part VI outlines the clear intent of both the Mining Act and the Ministry of Natural Resources Act to give the MLC the same jurisdiction over the awarding of costs as it has over the holding and deciding of de novo hearings regarding conservation authority appeals.

5.  With reference to the SPPA, the Respondent notes that the provisions of section 17.1 of that Act do not apply to the MLC since decisions are made under the provisions of an Act that was in force on February 14, 2000, namely the Mining Act and Part VI of that Act. Section 32 of the SPPA specifically sets out this exception. The need for rules under the SPPA, accordingly, does not apply. In addition, it was noted that Drover v. Grand River Conservation Authority, (1987) 62 O.R. (2d) 141, cited by the Appellant, does not apply to the issue of costs. In effect, the argument is made that the decision actually supports the applicability of the Mining Act’s cost sections.

6.  The Appellant’s argument that neither the Minister of Natural Resources or, by extension, the MLC, have been given jurisdiction to award costs in words under the Conservation Authorities Act, they, therefore, do not have that power. They have been given this power, however, through Part VI of the Mining Act under the Ministry of Natural Resources Act and Ontario Regulation 571/00. If this was not so, then none of the guidelines that are followed under Part VI of the Mining Act would apply with regard to the de novo hearings by the MLC. With regard to the Deputy-Commissioner’s request to comment on Ondaatje, the Respondent stated that this decision reiterates the position presented in Bell ExpresVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559 (Bell ExpressVu) concerning the meaning of “necessary modifications”.  Carter restates the definitive formulation found in Dreidger, E. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983, that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”  This position has been upheld by the Supreme Court of Canada.

This argument is particularly relevant to an “ambiguous statute.” However, the Respondent argues that there is nothing ambiguous in any of the legislation that provides jurisdiction to the MLC.

In summary, the Respondent states:

“The words ‘Part VI applies’ must mean something. The only logical conclusion is that the sections in Part VI relating to process, procedure and costs of hearings apply equally to conservation appeals as to other  MLC hearings.” (p/7).

ISSUES

1.         Does the Mining and Lands Commissioner have jurisdiction to award costs in  an appeal under the Minister of Natural Resources Act, when hearing an appeal to the Minister pursuant to subsection 28 (15) of the Conservation Authorities Act and rendering a decision in the stead of the Minister?

2.         Should costs be awarded to the Respondent in this matter?

DISCUSSION

ISSUE #1:   Does the Mining and Lands Commissioner have jurisdiction to award costs in an appeal under the Minister of Natural Resources Act, when hearing an appeal to the Minister pursuant to subsection 28 (15) of the Conservation Authorities Act and rendering a decision in the stead of the Minister?

Although the Appellant has submitted that only 13 of over 200 decisions issued by the MLC have dealt with the issue of costs, the tribunal finds that the important issue here is not the numbers, but the fact that this appeal is the first to challenge the jurisdiction of the Commissioner in so far as the awarding of costs in a Conservation Authority appeal is concerned. It is important to note that the Appellant did not challenge the Commissioner’s jurisdiction with regard to the hearing of appeals under subsection 28 (15) of the Conservation Authorities Act and is only challenging the jurisdiction to award costs. The tribunal believes this is the key distinction with regard to this issue because the OKDI has never questioned the MLC’s jurisdiction to hear appeals in the stead of the Minister.

The Appellant for the OKDI argued that the MLC does not have the requisite jurisdiction while the Respondent has provided rebuttal argument on this issue. The Appellant submits that there is ‘no anchor’ in the Conservation Authorities Act for the Commissioner to deal with cost awards, while the Respondent enunciates the Driedger approach, which requires that ALL of the statutes should be read together as a whole.

To appreciate the Driedger perspective of reading the legislation as a whole, it is necessary to review the legislative/statutory framework through which the MLC receives the responsibility to hear these appeals. The statutes, in this case, are the Conservation Authorities Act, the Ministry of Natural Resources Act, the Ministry of Natural Resources Regulations and Part VI of the Mining Act.

Part VI is imported into appeals to the Minister of Natural Resources by virtue of the assignment of his/her power to hear an appeal pursuant to subsection 28(15) of the Conservation Authorities Act to the MLC.  Any such assignment, in turn, will involve the procedural and jurisdictional powers of the MLC found in Part VI of the Mining Act.  The authority to assign is found in cl. 6(6)(b) and the specific words “necessary modifications” are found in s.s. 6(7) of the Ministry of Natural Resources Act.  Therefore, before dealing with the legislative framework, the tribunal considers it necessary to review what these words actually mean.

Meaning of “With Necessary Modifications”

The pivotal words “necessary modifications” within the legislative documents are relevant to the decision that must be made. As a result, the tribunal believes that these words need to be analyzed by themselves in order to understand their relevance for the MLC.

No reference was found in Black’s Law Dictionary.

The Oxford Pocket Dictionary (7th Edition 1984) provides the following definition for these two words. First, “necessary” can mean “required” or “that must be done”. Secondly, “modification” can mean “change made”. The root of modification is “modify” which can mean “make partial changes in”.

A search on the internet’s Wikipedia finds “with the necessary modifications” being the English translation for Mutatis mutandis.[1] These Latin words have a meaning of “changing (only) those things which need to be changed” or more simply “[only] the necessary changes having been made”. The two phrases have become interchangeable, with the former or first wording being more prevalent in recent legislation.

Quoting from the Wikipedia:

“the phrase carries the connotation that the reader should pay attention
to differences between the current statement and a previous one. It can
be understood as meaning “acknowledging the difference  between the
two” or (more succinctly) as “acknowledging differences”.

Based on this search, the tribunal accepts that the phrase “necessary modifications” covers all of the various changes that would be required without developing another piece of legislation that would provide specific details for both substantive and procedural matters in the legislation being discussed.

Court Cases

In addition to the review of the accepted meaning of the words, the tribunal has reviewed various other decisions of the Courts as well as decisions issued in the past, by previous Mining and Lands Commissioners. Both the Respondent and the Appellant have provided references, which have been reviewed by the tribunal, some of which form part of this discussion.

In Drover an Ontario Divisional Court held a Judicial Review in 1987, dealing with a “Limitation period for appeal”. The Court observed the difference between the jurisdiction of an Ontario Mining Recorder and the MLC indicating that the rules for Mining Recorders fell strongly under the Mining Act with regard to the issue before them. However, the Court also discussed the fact that

“there is an imperfect fit when provisions of one statute  are imported
into a totally different statute. This is why the words “with necessary
  modifications” are used .” (p.144-a)

When the Mining Commissioner was granted the jurisdiction over Conservation Authority appeals in 1973 by the Minister of Natural Resources, (thereby becoming the Mining and Lands Commissioner), there was a need to cover many issues directly relating to Conservation Authority appeals. This was done, as will be outlined, through the Ministry of Natural Resources Act and by applying Part VIII (now VI) of the Mining Act “with necessary modifications” to the Act.

The Respondent submitted the Supreme Court of Canada decision on appeal from the Court of Appeal in British Columbia, Bell ExpressVu which dealt with the issue of interpretation of the statutes. The Court accepted the guidance of Elmer Driedger, a noted Canadian federal legislative counsel and academic (1913-1985) in his Construction of Statutes.  Although quoted on page 6 of this decision, it bears repeating:

“Today there is only one principal or approach, namely, the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.”

Driedger describes this as the “modern principle” which has been accepted by the Supreme Court of Canada as the preferred approach to the interpretation of statutes. The tribunal will apply this modern principle to arrive at an understanding of the Conservation Authorities Act and all the other statutes in which jurisdiction, authority and decision-making is conferred for purposes of subsection 28(15) appeals to the Minister.

The tribunal requested submissions on a case it provided to the parties. The Ondaatje Securities Corporation v. Brian Carter decision by the Divisional Court, January 16, 1996, which dealt with a matter, on appeal, under the Employment Standards Act relating to wages and benefits. The Court discussed the implication of “with necessary modifications” in the following manner:

“Section 67(5) of the Act provides that the adjudicator ‘may with necessary modifications’ exercise the power conferred on an employment standards officer under this Act” Section 67 (1) of the Act does not specifically empower an employment standards officer to award interest. The term, “necessary modification” should be given the interpretation that best accords with the purposes of the legislation, one of which is to provide for prompt payment of amounts owing …. It is consistent with the purpose of the legislation that the decision of the adjudicator under s. 67 should not put an employee in a worse position…..”

The tribunal takes from Ondaatje that it is of paramount importance that the words, “necessary modifications” must be read within the context of the legislation in which they are found, keeping in mind the ordinary sense in connection with the scheme, the object and the intention of the legislature. The tribunal finds this approach compelling under the circumstances.

Jurisdictional Path

Although, most decisions released by the Commissioner have traced the accepted jurisdictional path, it is in the context of Driedger’s “modern principle” that the tribunal has undertaken a review of the legislation and regulations that, historically, the Mining and Lands Commissioner has interpreted in issuing decisions in Conservation Authority matters. This path has been outlined many times in most conservation authority decisions.

Beginning with the Conservation Authorities Act, the objects are outlined in Section 20 which describes the responsibility to set up a program “designed to further the conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals”.  Seventeen powers for the operation of a Conservation Authority are outlined in Section 21.  Section 28 empowers an authority to make regulations, which must be approved by the Lieutenant Governor in Council. This section restricts and in some cases, prohibits development in specific areas of the assigned watershed and it is this section which has the most impact on the responsibilities of the Mining and Lands Commissioner.

In reading the Conservation Authorities Act as a whole, it is obvious to the tribunal that the ground rules for the implementation of the objects are in place. These objects have been expanded since the Act first received legislative approval in 1946. The Minister of Natural Resources was and is still assigned responsibility for this legislation. Subsection 28 (15) provides for the applicant/appellant’s right to appeal a decision made by an Authority to the Minister. However, the Act did not and still does not specifically make this right of appeal to the Mining and Lands Commissioner. It is noted, however, that the amended Act directly assigns an appeal of the levy against any member municipality to the MLC as appointed under the Ministry of Natural Resources Act with no right of appeal. (Section  27).

The tribunal accepts that by legislating an appeal process for ‘development’ to the Minister, as well as providing an appeal process for the municipal levy to the MLC, there is a requirement and a responsibility to provide for a hearing process. Subsection 27(12) refers to “matters to be considered at a hearing”. Subsection 28(11) requires a hearing before an Authority who may refuse or grant permission with or without conditions with subsection 14 requiring reasons for any decision to be given. If the Authority refuses permission, the Act continues by allowing for an appeal to the Minister. The same words describe the responsibility of the Minister, as being exactly those exercised by the Authority in the first instance, namely to either refuse or grant permission, with or without conditions.

 The Appellant submits that these are the only powers granted to the Authority, the Minister and the MLC. In so far as it goes, the Appellant is correct.  But in following the path of Driedger, the tribunal understands that the Conservation Authority Act was enacted for the purposes of establishing individual Conservation Authorities throughout the Province of Ontario on a watershed basis. It allows these bodies to enact Regulations, undertake projects and basically be stewards of the watersheds. An approval process was established which included an appeal process within the Conservation Authority itself but allowed the public to go beyond that level to the Minister of Natural Resources. That is where that Act ended. The anchor for the process is imbedded in the right of appeal to the Minister.

The next step in the process gave the Minister’s responsibility of hearing appeals from Conservation Authority decisions to the MLC. Ontario Regulation 571/00 was passed pursuant to cl. 6(6)(b) of the Ministry of Natural Resources Act in contemplation of such an eventuality. It is quite clear that the Regulation assigned to the Commissioner, the

“powers and duties of the Minister of Natural Resources for the purpose of hearing and determining appeals under subsection 28 (15) of the  Conservation Authorities Act O. Reg. 571/00, s.1.”

 At this point, the Mining and Lands Commissioner has been acknowledged as standing in the stead of the Minister of Natural Resources to hear Conservation Authority appeals. In addition, under subsection 6 (7) of the Ministry of Natural Resources Act, Part VI of the Mining Act is applied “with necessary modifications” to the actions of the Commissioner.

It is this tribunal’s understanding that since the Mining Act provides all or most of the procedural and jurisdictional rules, the Legislature of Ontario did not think it was necessary to create another piece of legislation for this added responsibility. Instead it added the words “with necessary modification” to the Ministry of Natural Resources Act indicating that Part VI of the Mining Act would govern the Commissioner’s activity dealing with any such appeals to the Minister that the legislature chooses to assign to the MLC. In effect, Part VI is the guide for all the responsibilities and jurisdiction assigned to the Mining and Lands Commissioner and provides the final piece of the legislative anchor of jurisdiction.

The Respondent pointed to Subsections 126 and 127 of Part VI, which reads:

126. The Commissioner may in his or her discretion award costs to any party, and may direct that such costs be assessed by an assessment officer or may order that a lump sum be paid in lieu of assessed costs. R.S.O. 1990, c. M.14, s. 126.

Scale of costs
127. (1)The costs and disbursements payable upon proceedings before the Commissioner shall be according to the tariff of the Superior Court of Justice. R.S.O. 1990, c. M.14, s. 127 (1); 2000, c. 26, Sched. M, s. 17.

Counsel fees
(2) The Commissioner has the same powers as an assessment officer of the Superior Court of Justice with respect to counsel fees. R.S.O. 1990, c. M.14, s. 127 (2); 2000, c. 26, Sched. M, s. 17.”

The tribunal agrees with the respondent’s statement in section 9 of their March 22, 2013 submission:

“There is nothing in these sections making them applicable only to certain types of proceedings. These sections do not need any “necessary changes” (per section 6 (7) of the MNR Act). They are unambiguous and apply as written.”

It is interesting to note that a submission by the Appellant with respect to Rules enacted by the Ontario Municipal Board indicates that any decision to be made regarding costs is determined by the panel which heard the merits of the case, rather than being off loaded to an assessment officer who is an officer of the court separate from the decision-maker for a decision about costs. Further, the Ontario Municipal Board Act provides the Board with the ability to award costs and lays out details as to when a party can ask for costs, among other things.

In Part VI – Practice and Procedure, the words in subsections (1) through (3), provide a cost determination regime although it is distinguished from that found in Part VI of the Mining Act which, although far more succinct, more closely resembles the authority of the Courts under the Rules of Civil Procedure. The provisions in sections 125 and 126 reflect the same discretion and specify that costs may be fixed, found according to scale or set by an assessment officerReturning to the OMB Rules:

Costs
97.  (1)  The costs of and incidental to any proceeding before the Board,  except as herein otherwise provided, shall be in the discretion of the Board, and may be fixed in any case at a sum certain or may be assessed.
Taxation
(2)  The Board may order by whom and to whom any costs are to be paid, and by whom the same are to be assessed and allowed.
Scale
(3)  The Board may prescribe a scale under which such costs shall be assessed.
R.S.O. 1990, c. O.28, s. 97.”

In both cases, the decision is at the discretion of the Board or Commissioner.

Guidelines

The tribunal also has reviewed the matter of guidelines or rules available to the Commissioner.  The appellant submitted that the Commissioner should have rules set out under the Statutory Powers Procedures Act in so far as the Mining Act does not provide any rules re the ordering of costs.  However, the Respondent pointed out and the tribunal has accepted that the Statutory Powers Procedures Act (section 17.1) does not apply to the MLC as the costs provisions were in force on February 14, 2000 and as a result, it is excepted from this direction by section 32 of the Statutory Powers Procedures Act.

The tribunal also recognizes that the MLC has established Rules and Guidelines Procedures for the operation and processing of Conservation Authority appeals. They do not form part of any legislation or regulation, but have been developed with the intent:

“to facilitate and enhance the participation of all parties to a hearing before
 the Mining and Lands Commissioner”.

The document entitled “Procedural Guidelines for Hearings before the Mining and Lands Commissioner” clearly state that they are guidelines only. However, Rules or Guidelines do exist for the matters dealing with a hearing from an appeal under Section 28 of the Conservation Authorities Act.

Of particular note is the matter dealing with costs:

“Part XV - Costs
40. For those matters affected by Part VI of the Mining Act, the Commissioner may award costs, either on his or her own iniative, or on the request of a party.”

Past Decisions of the Mining and Lands Commissioner

The final piece in this review deals with the words of various Mining and Lands Commissioners in their discussions of costs and the jurisdiction of the Commissioner to deal with the matter. These decisions all accept the jurisdictional issue as a given, but, they look at the issue more specifically in relation to the awarding of costs.

Commissioner Ferguson, in the Credit Mountain Land Co. Limited v. Credit Valley Conservation Authority, (December 19, 1978, unreported), outlines the history of cost awards by the tribunal and the jurisdiction of the Commissioner to settle such matters. His words affirm this tribunal’s view with regards to Issue #1.

“Commencing with the principle that the power of a statutory tribunal to  levy costs is dependent upon statutory authority to that effect, Part VIII [now Part VI] of The Mining Act R.S.O. 1970 c.274 sets out, inter alia, the code of procedure to be followed by, the right of appeal from and  the power to award costs of the Mining and Lands Commissioner in respect of matters under that Act. Section 157 and 158 provide a wide power and discretion for the awarding of costs. The jurisdiction of the Commissioner in this and similar cases flows from section 5a of The Ministry of Natural Resources Act, 1972, as amended by The Ministry of Natural Resources Amendment Act, 1973. Subsection 6 of the section authorizes the assignment by way of regulation of powers and duties of the Minister of Natural Resources to the Commissioner. Subsection 7 of the section provides,

“ (7) Part VIII of The Mining Act applies mutatis mutandis[2] to the exercise of authorities, powers and duties assigned to the Commissioner under clause b of subsection 6.”

The wording of subsection 7 is broad and is not restricted to matters of procedure. Accordingly, there is a statutory base for the award of costs.”

The Appellant also referred to the Judicial Review of Drover v. the Grand River Conservation Authority on the basis that the decision is applicable to the request for costs by the Toronto and Region Conservation Authority

The Appellant submitted, that in the Drover case, the Divisional Court acknowledged the jurisdiction of the MLC under Part VIII [now VI] of the Mining Act with regard to procedures to be followed in appeals, but because other sections (126, 127, and 128) are not procedural provisions but substantive authority granting sections, they apply only to matters under the Mining Act and would not apply to appeals under the Conservation Authorities Act.

The Respondent, however, has outlined the fact that this case of judicial review was not dealing with the jurisdiction of the MLC to award costs, but with the right of Drover to bring forth a request for judicial review within the very specific time frame outlined in the Mining Act.  It was found that the then section 156 (now 135) specifically applied to decisions made “under this Act” (meaning the Mining Act). Since the Drover appeal was under the Conservation Authorities Act and not the Mining Act, it was found that only the section 156, (now 135) the 30 day time limit, did not apply. The tribunal prefers the Respondent’s submission what Drover stands for. The Drover appeal dealt with the time limitation involving time sensitive mining claims and made specific reference to decisions of the Commissioner or a recording in this Act and did not deal with the general cost awarding jurisdiction. Both are procedural matters. The tribunal finds that the Drover decision carries no substantive discussion with regard to the awarding of costs.

Commissioner Kamerman’s Order, of April 25, 1997, in Bill Chalmers v. Grand River Conservation Authority (MLC File CA 007-95, unreported) summarizes the process, accepted by Commissioner’s in the past, by which the awarding of costs is allowed.

“Sections 126 and 127 of Part VI of the Mining Act deal with the issue of  awarding of costs, and by virtue of subsection 6(7) of the MNR Act,  Part VI of the Mining Act applies with necessary modifications to the exercise of authorities, powers and duties assigned to the Commissioner under clause 6(6)(b). As the representatives of the parties are aware, subsection 28(5) of the Conservation Authorities Act provides for an appeal to the Minister of Natural Resources. The powers and duties of the Minister have been assigned to the tribunal by regulation.

In addition to receiving submissions on the issue of whether the facts of this case are deserving of an award of costs, the tribunal would like to receive submissions on the question of whether an award of costs is appropriate where the appeal is allowed by legislation to the Minister.”

In March of 1992, Acting Commissioner Yurkow in Vanden Brink and Niagara Peninsula Conservation Authority (March 10, 1992, unreported) reiterated the position held by Commissioner Ferguson and outlined his understanding of the Commissioner’s jurisdiction.

“Subsection 28 (5) of the Conservation Authorities Act provides for an appeal to the Minister. Clause 6(6)(b) of the Ministry of Natural  Resources Act allows the Lieutenant Governor in Council to assign,  by regulation, authority, power and duties of the Minister to the Commissioner. Subsection 6(7) of the Ministry of Natural Resources Act makes Part VI of the Mining Act applicable, with necessary modification, to the exercise of the assigned authority.   By Ontario Regulation 364/82, the Minister’s authority and duty to  determine appeals from conservation authorities were assigned to the  Commissioner.

Section 126 of the Mining Act allows the Commissioner to award costs either as assessed by an assessment officer or as a lump sum. This section is in Part VI of the Act.        

This reasoning was affirmed in Re Drover et al. and Grand River Conservation Authority and followed by Commissioner Ferguson in Yorkville North Development Ltd. and The Central Lake Ontario Conservation Authority.

I take it as settled law that this Tribunal has the discretion to award costs on appeals from conservation authorities”.(p.3)

The tribunal views the statements by both Commissioner Ferguson and Acting Commissioner Yurkow as very explicit in any argument regarding the jurisdiction and/or the discretion of the Mining and Lands Commissioner to award costs.

Acting Commissioner Yurkow noted a continued relevance of section 126 of the Mining Act which he stated allows “the Commissioner to award cost“. Obviously, the Divisional Court decision did not have a great impact on the views of the Commissioner regarding the jurisdiction to award costs since the Court was not dealing with that issue. This is the view also held by the Respondent in this case and accepted by this tribunal.

In reviewing the submissions of the parties, the tribunal finds the words of the Mining Act provide the proper interpretation and direction for the Mining and Lands Commissioner to deal with any decisions surrounding the initial hearing and any subsequent hearings concerning the initial appeal. The anchor exists when considering the matter as a whole, from the initial Conservation Authorities Act through the Ministry of Natural Resources Act to the Mining Act.

Based on the respect given to the Driedger approach, known in statutory interpretation as the modern approach, the tribunal finds that it will apply this approach. It further finds that the anchor first of all resides in the right of appeal to the Minister of Natural Resources found in the Conservation Authorities Act, followed by the delegation to the MLC of the powers and authority of the Minister in the Ministry of Natural Resources Act. Ontario Regulation 571/00 provides the detail of this designation, followed by the application of Part VI of the Mining Act, which obviates the application of the SPPA with regard to costs, as submitted by the Appellant. The SPPA might be relevant if proper rules were not laid out for the

Commissioner in the Mining Act, as well as in published Procedural Guidelines which the Commissioner follows and provides to everyone who appeals a decision. In following the path determined by the three pieces of legislation, the tribunal finds no ambiguity in the process that is followed and the jurisdiction provided through the Minister to the Commissioner.

In addition, the tribunal finds that sufficient court decisions agree with what the tribunal understands “with necessary modifications” basically means. This tribunal is clear as to what the guidelines are and how they are to be followed. It is clear that with the directions in Part VI of the Mining Act, the tribunal is provided with sufficient ability to make a fair judgment and to deal with costs as part of the process. The phrase “necessary modifications” covers all the various changes that would be required without developing another piece of legislation that would provide specific details for both procedural and jurisdictional matters.

The tribunal finds that the Mining and Lands Commissioner has now and had in the past, adequate tools or jurisdictional guidelines to allow it to make decisions regarding appeals and any related issues to such appeals. In this case, a decision on costs is a related issue and can be viewed as a condition to be granted or not granted as each case dictates.

ISSUE #2 - Should costs be awarded to the Respondent in this matter?

The tribunal has found that its jurisdiction to make determinations concerning the awarding of costs is provided through the Ministry of Natural Resources Act and Regulation 571/00 and further, through Part VI of the Mining Act. While the jurisdiction to hear a subsection 28(15) appeals originates with the Minister, the Legislature has seen fit to assign this duty to the Mining and Lands Commissioner. The tribunal has also accepted the jurisdiction to award costs through the Mining Act and not, as submitted by the Appellant, through the Statutory Powers Procedures Act.

In Vanden Brink et al. v. Niagara Peninsula Conservation Authority (1992), Acting Commissioner Yurkow discussed the circumstances under which costs should be awarded.

Court Rules Not Followed
The usual practice before a court is that the person who loses pays some portion of the costs of the person who wins. This, however, is not a practice that is necessarily applied before an administrative tribunal.
Right To Appeal
The current case is an appeal by a member of the public from a decision of a conservation authority, a publicly funded body. The Conservation Authorities Act gives the right of appeal. The conservation authority has to appear at the hearing to defend its decision.
Usually No Costs
The general principle established by the Ontario Municipal Board is very similar to that followed by this Tribunal: costs will not be awarded if there is a genuine dispute and the parties have acted reasonably. Certainly, costs have not been routinely awarded by this Tribunal to a publicly funded body - for example, a conservation authority or a ministry - that successfully defended an appeal.

The underlying premise seems to have been that so long as an appeal has some substance to it, a publicly funded body should not expect to collect costs”.

The tribunal acknowledges OKDI’s historical reference to the tendency of the tribunal to have not awarded costs in over 200 past decisions, where only 13 saw an award of costs. In the earliest decision, it was stated that cost awards would be based on expectation rather than merit.  Clearly, the MLC has since departed from this position.  The following sets out that evolution.

Before proceeding further, it should be noted that one of the appellant’s referenced dismissals dealt with the motion by the TRCA which submitted that the MLC did not have jurisdiction to hear any appeal by the Khalsa Darbur on the basis that it was an “after the fact application”.  This type of action - do the work and THEN ask for approval/forgiveness after the fact - was not acceptable to the Authority. This is an issue facing many Authorities in their day-to-day work. However, in the case referenced here, it should be noted that the TRCA motion was dismissed on the basis that it was also “after the fact”. The jurisdiction of the MLC to award costs was not the issue in that appeal, nor was the jurisdiction to hear appeals under section 28 of the Conservation Authorities Act.

With regard to the ‘Right of Appeal’ section (# 2). The significant point for the tribunal is that a Conservation Authority must defend its decision or, as many authorities do, make compromises to their policy decisions in order to avoid the costs of an appeal.

Acting Commissioner Yurkow continued by noting that the first case where the MLC considered costs in appeals under the Conservation Authorities Act was the Credit Mountain Land Co. Limited v. Credit Valley Conservation Authority (December 19, 1978, unreported). Commissioner Ferguson (on page 11) said the following:

"There is precedent in the courts for an award of costs where improper procedures have been implemented and in making the award, the courts have referred to the doctrine of abuse.

I can think of no more effective a device [the awarding of costs] to prevent the bringing of insignificant or unauthorized applications before any tribunal ... However, in my opinion it is not necessary to find that the conduct of an appellant constitutes an abuse of process in order to award costs against the appellant.”

This tribunal has no complaint about the actions or conduct of the Appellant during the actual hearing, but the need for the hearing itself is close to being considered an abuse of process. It is not, however, on this basis that a decision has been made.

Acting Commissioner Yurkow also referenced the decision in Parres v. Minister of Mines (April 4, 1991- unreported):

"The Tribunal sees the purpose of the appeal process as providing a remedy from an administrative action by a mining recorder that results in an unfair or unjust consequence to the appellant. It does not feel that every appellant who is not successful should necessarily be penalized by having costs awarded against the appellant. However, the business of the Ministry could be ground to a halt if appeals are undertaken where there has been no unfairness or injustice or the appellant does not have a reasonable case on the merits. The Tribunal is prepared to award costs to the Ministry if it has to defend appeals that turn out to have been essentially frivolous.”

The Parres principle was followed in another appeal under the Mining Act, 798839 Ontario Limited v. Minister of Mines and Andre Boudreau where the following comment appears:

"It is contrary to the public interest for the Ministry to be called upon to defend appeals that are without any semblance of merit. The Tribunal will, therefore, follow the reasoning of the early decision and award costs to the Ministry to be paid by Boudreau."

The tribunal notes the Parres phrases referencing “reasonable case on the merits” and “without any semblance of merit”. Referring again to Credit Mountain Land Co. Limited v. Credit Valley Conservation Authority, Commissioner Ferguson discussed the question of the merit of the case indicating that the approach followed at the time was more “a matter of expectation than a matter of merit of the case”.

This tribunal has reflected on these few words and finds that the question of merit should provide the basis for awarding or not awarding costs, in this case. That is the approach the tribunal has adopted in most past decisions and it finds that it will proceed on this basis.

The tribunal believes that the history of the relationship between OKDI and the TRCA has implications on its decision. The OKDI case was reviewed as if it was a new application, while in fact, it was not a new application. The tribunal is aware that the filling of the Etobicoke Creek floodplain had taken place without a request for a permit and continued until the TRCA requested the Court to stop the work.

In addition, the tribunal cannot accept that the OKD did not know that the filling was occurring in the floodplain area and, from past experience, knew an approval from the Authority would be required. This was the third time that such activity had taken place on the property without the Khalsa first discussing the plans with the TRCA and attempting to come to a compromise decision. In the tribunal’s view, once might be understandable, but not three times.

It should be noted that this particular decision (MLC File CA 008-10), recommended that the Appellant be required to remove the fill from the floodplain and this recommendation was accepted by the Court in making its final determination.

During the hearing, the Appellant indicated that there is no hierarchy for decision making within the Khalsa organization.  The filling of the floodplain was described as organized by the families using the sports field. The tribunal accepts how this kind of a plan might get started, but does not accept, nor understand, how there is no group in the Khalsa itself to give project approval in order for the costs to be assumed and paid. Since this had happened before and the Courts had been involved, the tribunal cannot accept that the knowledge regarding the need for approval was not known. It is on this basis, that the tribunal believes that the merits of the case are of great importance.

The Conservation Authority had made suggestions about what would need to be done to rectify the situation. Although it was admitted that an even more passive use would be more beneficial in the floodplain, the TRCA never stated that a sports field could not be developed.  It appears that suggestions were made, both before and during the 2012 hearing that would have solved the issue if the Khalsa had been receptive. Co-operation is now, apparently, underway.

In the meantime, the TRCA has had to assume significant cost to make sure their mandate and responsibility were upheld. These funds must come from the public and under the present funding formula, most of those funds come from the local municipalities through an annual levy. Budgets are not always able to deal with appeals of this nature, so that when they happen through no fault of the public body, it appears to this tribunal that some responsibility lies with the group or groups that caused the cost to be incurred. Past experience, at best, made the Khalsa appeal unreasonable.

In his Order with regard to Vanden Brink v. the Niagara Peninsula Conservation Authority, Acting Commissioner Yurkow also spoke of this issue:

“It has never been this Tribunal’s intention to discourage genuine appeals. There is a duty, however, to protect publicly funded bodies from  unreasonable expense. There is an obligation on appellants to behave  in a responsible manner.”

Although each cost request should be dealt with on its own merits, the lack of merit of this appeal and the lack of responsibility by the OKD to properly oversee what happens on their property, provides the tribunal with sufficient reasons for the granting of the cost request on the basis of merit. The tribunal further believes that this outcome could have been expected by the OKD.

The tribunal finds it is not constrained in making a cost award either by the legislation or the historical facts. The point that the tribunal did not find the Appellant‘s arguments or actions frivolous or vexatious does not prevent the tribunal from ruling on the matter of costs. The matter of merit of the case has not played a significant role in any cost decisions in the past, but it is this tribunal’s view that costs should be awarded based on the merits or, strictly speaking, the lack of merit of the Appellant’s submissions.

As a result of these reasons, the tribunal will grant the request of the TRCA, being fully aware that the amount requested represents a small part of what this whole matter has cost them and the public at large. It is hoped that the Appellants have learned from this experience.

It will therefore be ordered that the Appellant, the Ontario Khalsa Darbar Inc. pay to the Respondent, the Toronto and Region Conservation Authority, the sum of $27,334.70 according to the Bill of Costs, as found in Appendix “A” of the TRCA’s Cost Submission, dated January 21, 2013 and attached hereto, marked Schedule “A” and forming part of this Order On Costs.

It will be further directed that the Ontario Khalsa Darbar Inc. provide a reasonable payment plan to the tribunal and to the respondent, to not exceed twelve months from the date of this decision and that proof of payment be filed with the tribunal.

1 Mutatis – to change and mutandis – having been changed.

2 Oxford Dictionary translation – with due alteration of details. whereas to-day’s language would be ‘with necessary modifications”.