The Mining and Lands Commissioner

Le Commissaire aux mines et aux terres

G.H. Ferguson, Q.C.
Mining and Lands Commissioner

Friday, the 25th day of May, 1990.

In the matter of the Conservation Authorities Act

And in the matter of

An appeal against the refusal to issue permission to construct a commercial plaza, parking facility and the placing of fill on Lot 19 in Concession II (northwest corner of Dundas Street East and Scott Street), in the Regional Municipality of Durham.

Between:

Yorkville North Development Ltd.
Appellant

and

The Central Lake Ontario Conservation Authority
Respondent

J.A. Olah, for the applicant, respondent.
M. Manning, Q.C., for the respondent, appellant.

The respondent on an appeal under the Conservation Authorities Act assigned to the Mining and Lands Commissioner for hearing and determination under Ontario Regulation 364/82, moved for costs pursuant to a qualification of a consent to the abandonment of the appeal.

On October 19, 1988 counsel for the appellant appealed to the Minister of Natural Resources from the refusal of the respondent to grant permission for the construction of a commercial plaza and parking facilities and the placing of fill in the floodplain of Corbett Creek in the Town of Whitby. This tribunal on January 13, 1989 appointed March 13, 1989 for the hearing of the appeal. Counsel for the appellant was unable to appear on that date.

On February 20, 1989 counsel for the respondent filed a notice of motion for directions. The motion was set down for hearing on February 27, 1989 but was adjourned until March 7, 1989 on which date a number of principles were agreed and the formal order issued on March 31, 1989 requiring,

  1. service of a written summary of evidence of each witness to be called by the appellant thirty days prior to the hearing of the appeal and a similar summary by the respondent ten days prior to the hearing;
  2. service of copies of reports of expert witnesses of the appellant thirty days prior to the hearing of the appeal;
  3. service of copies of reports of expert witnesses of the respondent ten days prior to the hearing of the appeal;
  4. service and filing by the appellant ten days prior to the hearing of a written summary of facts and law; and
  5. service and filing by the respondent seven days prior to the hearing of a written summary of facts and law; and
  6. fixing October 2, 1989 and following days for the hearing of the appeal.

Counsel for the respondent on September 22, 1989 moved for further directions as the appellant had not served any of the required documents. The motion was heard on September 27, 1989. No one appeared for the appellant although duly served. This tribunal ordered the filing of the material mentioned in clauses (a) (b) and (c) of the order of March 31, 1989 on or before 4 p.m. on Thursday, September 28, 1989, provided for a motion to move for dismissal of the appeal for non-compliance with the order and awarded costs of the day on a solicitor and client basis. The order provided for a motion on September 29, 1989 for dismissal for failure to serve in accordance with the order.

On September 28, 1989 counsel for the appellant filed a notice that the appellant was going to rely on the material then in the hands of the respondent, including the reports. Paragraph 3 of the notice read,

  1. The issues of fact and law to be argued at the hearing of the appeal are those already discussed with counsel for the Respondent many months ago, and consist of the issue of the Respondent arbitrarily reaching its decision, denying the application for reasons which are in contradiction to the "Factors Influencing Decision" listed in the decision and more particularly:
    1. the fact that Reason (1) is not supported by any evidence led by the Respondent or based on any evidence before it and, indeed, is contradictory to the material it had before it;
    2. Reason (2) is not supported by any evidence led by the Respondent or based on any evidence before it; and
    3. Reason (3) is directly contradicted by the Respondent itself where it acknowledged in the "Factors Influencing Decision", that a precedent had already been established thus demonstrating the arbitrariness of the decision.

Counsel appeared on October 2, 1989. Counsel for the appellant requested an adjournment and with the consent of counsel for the respondent, the hearing was adjourned to January 22, 1990 and days following. On January 8, 1990 counsel for the appellant served and filed a notice of abandonment of the appeal. Counsel for the respondent consented to the abandonment subject to the issue of costs being left open.

Counsel were unable to find a commonly acceptable date for the hearing of the motion and this tribunal fixed April 30, 1990 for the hearing of the motion. An affidavit of Donna Fitzgibbon dated April 24, 1990 was served in support of the motion and there was cross-examination on the affidavit on April 27, 1990. The affidavit and the transcript on the cross-examination were filed at the hearing of the motion. Paragraph 6 of the affidavit states that three expert witnesses were retained by the respondent in preparation for the hearing of the appeal, namely Ivan Lorant, a recognized expert in hydrology, V. Milligan, a geotechnical engineer and an expert on environmental impacts.

The cross-examination on the affidavit indicates that Lorant was retained on September 18, 1989 and the biologist, Madeline Austin was retained on or about December 7, 1989 and reports were received from Lorant some time in September, 1989, from the firm of which Austin was a member on or about December 20, 1989 and from Milligan of Golder Associates Limited on January 9, 1990.

Legal and expert expenses are claimed in an amount of approximately sixteen thousand dollars. The cross-examination also indicated that the advice of experts was not obtained by the respondent prior to its decision on September 13, 1988 and for that hearing, relied on the inhouse staff of the respondent.

Mr. Olah argued that under Rule 61. 13(3) of the Rules of Court where an appeal is abandoned, the other party is prima facie entitled to costs, i.e. unless a judge of the appellate court orders otherwise and relied on Re Rogers [1956] O.W.N. 22.

Mr. Manning argued that the respondent had proceeded to hire experts prior to the delivery on the appellant's summary of facts and law and incurred these expenses unnecessarily as the issues addressed by the experts were not put in issue in the summary subsequently filed. He submitted that the thrust of the appeal as disclosed by the summary filed on September 28, 1989 was that respondent acted arbitrarily in making its decision, that the decision was not supported by the facts before the respondent and that the decision was contradictory to the facts relied on by the respondent. He submitted that the cross-examination on the affidavit showed that the respondent, in engaging experts after its decision was made had not acted fairly in making its decision by relying on inhouse staff. He submitted that from the summary filed counsel for the respondent ought to have known that there was no intention to call evidence or make out a complete case by the appellant and the need for the calling of evidence, particularly expert evidence, by the respondent was patently unnecessary.

It was submitted that counsel for the respondent being faced with the delay of the appellant in failing to comply with the orders of this tribunal, should not have prepared his case and should have anticipated an opportunity to prepare his case after the late service of the summary of issues by the appellant. Accordingly it was submitted that the preparations were inordinately extensive in the light of the narrow appeal contemplated by counsel for the appellant. He referred specifically to the hiring of the biological and geotechnical experts after the order of the tribunal allowing a second opportunity to file the statement of issues. It was submitted that the breadth of the appeal was a matter for determination by the appellant.

Counsel for the appellant submitted that the cross-examination established that the respondent should pay the appellant's costs. It was submitted that the cross­examination established that the respondent did not consider the advice of its inhouse experts to be adequate and accordingly should not have made a decision on the advice of such experts. Further the respondent failed to notify the appellant of its lack of acceptance of the advice of its advisers at its hearing and made the decision on the strength of that advice. He further submitted that the nature of the appeal contemplated did not warrant the preparation of a total new case.

In reply Mr. Olah referred to section 134 of the Mining Act. He submitted that the respondent had not only the right but also the duty to have present at the hearing evidence to present to the Commissioner on the appeal on all relevant issues in the application as laid out in the Conservation Authorities Act, namely, control of flooding, pollution and conservation of land and that the error of counsel for the appellant in framing his appeal and summary of fact and issues as if he were appealing to the Divisional Court did not relieve counsel for the respondent from preparing a case de novo for the hearing of the appeal and in so doing the presentation of independent, expert evidence is the proper method of defending an appeal under the Conservation Authorities Act. He submitted that in doing so, there was no abuse of process on the part of the respondent, merely an error of counsel for the appellant.

In holding administrative hearings the tribunal is governed by two statutes. Firstly, the Statutory Powers Procedure Act is generally applicable. Secondly, Part VIII of the Mining Act is applicable. A potential third source is contained in clause 6(6)(a) of the Ministry of Natural Resources Act which provides for the making of rules of practice and procedure before the Commissioner, but no such rules have been made. The hearing and determining of appeals to the Minister of Natural Resources under the Conservation Authorities Act by the Commissioner is effected by Ontario Regulation 364/82 made under clause 6(6)(b) of the Ministry of Natural Resources Act, which provides,

  1. --(6) The Lieutenant Governor in Council may make regulations, . . . . . . . . . . . . . .
    1. assigning to the Commissioner authorities, powers and duties of the Minister.

Subsection 6(7) of the Ministry of Natural Resources Act provides,

  1. (7) Part VIII of the Mining Act applies with necessary modifications to the exercise of authorities, powers and duties assigned to the Commissioner under clause (6)(b).

Section 134 of the Mining Act, a section within Part VIII reads, 134.

  1. The Commissioner shall determine,
    1. an appeal from a recorder, after a hearing by way of a hearing de novo; and
    2. a dispute referred to in section 56 or a claim, question, dispute or other matter within his jurisdiction after a hearing,

pursuant to an appointment fixing the time and place for the hearing.

Sections 135 and 136 contain provisions respecting appointments for hearing and service. Section 137 provides that sections 135 and 136 prevail over the Statutory Powers Procedure Act and set out powers to make orders respecting procedure in individual cases and reads,

  1. -- (1) Sections 135 and 136 apply notwithstanding the Statutory Powers Procedure Act and, subject to that Act, the Commissioner may,
    1. give directions for having any matter or proceeding heard and decided without unnecessary formality;
    2. order the filing or serving of statements, particulars, objections or answers, the production of documents and things, and the making of amendments;
    3. give such other directions respecting the procedure and hearing as he considers proper;
    4. make any appointment, notice or other proceeding returnable forthwith or at such time as he considers proper; and
    5. order or allow such substituted or other service as he considers proper.
  1. The Commissioner may take or order the evidence of any witness to be taken at any place in or out of Ontario.

Section 138 deals with ex parte interim orders as follows:

  1. Notwithstanding the Statutory Powers Procedure Act the Commissioner may hear and dispose of any application not involving the final determination of the matter or proceeding, either ex parte or on notice, at any place he considers convenient, and his decision upon any such application is final and is not subject to appeal but, where the Commissioner makes his decision ex parte, he may subsequently reconsider and amend such decision.W

Sections 147 and 148 deal with costs and read,

  1. The Commissioner may in his discretion award costs to any party, and may direct that such costs be taxed by the clerk of the county or district court or by a local taxing officer or by one of the taxing officers at Toronto, or may order that a lump sum be paid in lieu of taxed costs.
  2. --(1) The costs and disbursements payable upon proceedings before the Commissioner as to any matter in which the amount or value of the property in question does not in the opinion of the Commissioner exceed $400 shall be according to the tariff of the county court and as to any matter in which the amount or value of the property in question in his opinion exceeds $400 shall be according to the tariff of the Supreme Court.
    1. The Commissioner shall in his order or award direct the tariff upon which the costs and disbursements shall be taxed.
    2. The Commissioner has the same powers as a judge of a county court or a taxing officer of the Supreme Court with respect to counsel fees.

From the foregoing it may be noted that the power of the Commission to award costs on appeal from a decision of a conservation authority is derived from subsection 6(7) of the Ministry of Natural Resources Act and section 147 of the Mining Act. Also section 134 of the Mining Act deals with the method of holding appeals. In its express wording it refers to appeals from mining recorders but this tribunal has always treated this qualification as being mutatible. Firstly with reference to the issue of whether the Rules of Court, particularly Rule 60. 13(3) limit in any way the discretion of the Commissioner under section 147, the tribunal has considerable doubt that delegated legislation prevails over or affects the statutory discretion. The illogical result would be that the cost issue would have less discretionary aspect in respect of abandonments than decisions on the merits. Such is a desirable result in litigation where there is a need to discourage appeals in every instance. While this principle may be equally applicable in administrative appeals such as those to the Minister of Natural Resources, such appeals are frequently dealt with by the applicant without legal advice other than notice that they may appeal and applicants may unwittingly incur a risk of payment of costs that is not apparent to them. For these two reasons, this tribunal is not prepared to hold that there is a prima facie right to costs in this instance.

With reference to the arguments of counsel for the appellant, the right of appeal is contained in subsection 28(5) of the Conservation Authorities Act which reads,

  1. An applicant who has been refused permission may, within thirty days of the receipt of the reasons for the decision, appeal to the Minister who may dismiss the appeal or grant the permission.

The tribunal has two difficulties with Mr. Manning's argument. Firstly, his argument that he is entitled to have an appeal allowed without the calling of the entire evidence is contrary to the existing practice of this tribunal and clause 134(a) of the Mining Act.

Secondly, the argument is dependent on the Legislature having vested in the Minister of Natural Resources, a power of judicial review. As such is the function of the regular courts, the tribunal cannot conclude on the terse wording of subsection 28(5) that the Legislature intended to transpose a purely administrative appeal into a matter of judicial review. Further having regard to the provisions of the subsection, the Minister's powers on an appeal are to dismiss the appeal or to grant the permission sought. A dismissal of an appeal differs from an order quashing the appeal and referring the matter back for rehearing and there is no express provision for the latter type of disposition of an appeal by the Minister. In the opinion of this tribunal the subsection does not create a power of judicial review in the Minister and an attempt by the appellant to launch this nature of a proceeding, as contrasted with an appeal, is not provided for by the legislation. Accordingly, the only reasonable assumption that the respondent could make was that a full hearing de novo in accordance with the usual practice was the type of proceedings the respondent had to meet.

Counsel for the appellant suggested that the approach of the respondent in obtaining the services of expert witnesses in three fields, the three relevant fields it may be noted, constituted an in terroram approach. Such a categorization cannot be made. It may well be that the facts of the case, if the usual approach were followed, would well justify the hiring of such experts but this tribunal can make no finding as the matter did not come to a hearing. Further it may be noted that the order of this tribunal signed on March 31, 1989 required the respondent to have its summary of evidence served in early September and its summary of fact and issues filed by September 21, 1989 and that the order fixing the dates had the concurrence of both counsel in its formation and content. It is difficult to understand why counsel for the appellant could have played a role in designing the March order and now asserts that summaries of evidence to be presented and summaries of fact and issues were not necessary for the hearing of the appeal that his client proposed. It can only be concluded that the respondent acted reasonably in obtaining consultants in September particularly as the agreed hearing date was October 2, 1989.

Turning to the question of whether costs should be awarded, in exercising its discretion this tribunal has awarded costs only where there was some outrageous or seriously improper conduct by a party. The appeal was the first appeal brought by the appellant. It cannot be said that the appellant was guilty of bringing a multiplicity of appeals. With reference to whether the failure of the appellant to comply with the March order or seek an extension constituted an abuse of process, the tribunal is satisfied that such conduct, while not only being a breach of the order of the tribunal, was the cause of the respondent incurring the cost of expert evidence in preparation for the case. The appellant had six months to prepare and disclose its case and had it been the original intention to treat the appeal as an application for judicial review, the appellant had plenty of opportunity to advise both the respondent and the tribunal of the inappropriateness of the March order and could have brought an application to amend the March order by removing the unnecessary part which had been agreed upon.

The tribunal can only conclude that, if the present position of the appellant was its position throughout this matter, firstly, the preparation of evidence was unnecessary but was reasonable in the light of the March order agreed to by the parties. Further there was plenty of time and opportunity to amend the March order had it not truly reflected the appellant's position and the failure to do so was the reason for hiring of the expert witnesses. In the opinion of this tribunal, the failure of the appellant to either amend or clearly indicate the inappropriateness of the order in respect of its case was the reason for the incurring of unnecessary costs and between the parties the opinion of this tribunal is that in fairness such costs should be borne by the party that had created the appearance that the usual practice would be applicable and had taken no steps to adjust the usual practice to conform with its now alleged position. Accordingly the motion is allowed.

  1. This tribunal orders that the motion is allowed and that the appellant shall pay to the respondent its costs of the appeal and this motion assessed by an assessment officer in Toronto on a party and party basis according to the tariff of the Supreme Court of Ontario.
  2. This tribunal orders that nothing in this order affects the order of this tribunal in the matter dated the 27th day of September, 1989.

Signed this 25th day of May, 1990.

Original signed by G.H. Ferguson
Mining and Lands Commissioner.