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Administrative - Costs under the SPPA

. Dell v. Zeifman Partners Inc.

In Dell v. Zeifman Partners Inc. (Div Ct, 2020) the Divisional Court considered cost issues emanating under authority of the Statutory Powers Procedures Act:
[2] The Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 (the “Act”) establishes a statutory scheme to shield farmers from liability in nuisance for disturbances caused by “normal farm practices”, a term defined by the Act. The Board adjudicates disputes under the Act, and, in particular, determines whether an agricultural operation meets the “normal farm practice” standard.

....

[28] Following the release of the merits decision, both parties submitted requests for costs under s. 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) and the Board’s Rules.

[29] Subsections 17.1(1) and (2) of the SPPA provide that a tribunal may order a party to pay all or part of another party’s costs on two conditions: the tribunal has made rules respecting the award of costs, and the conduct or course of conduct of a party against whom costs are awarded has been “unreasonable, frivolous or vexatious or a party has acted in bad faith.”

[30] The Board has enacted rules respecting the award of costs in accordance with s. 17.1 of the SPPA. Subsection 66(1) of the Board’s Rules provides that a party may seek costs where it believes that another party “has acted clearly unreasonably, frivolously, in a vexatious manner, or in bad faith, considering all of the circumstances.” Subsection 66(8) sets out a non-exhaustive list of conduct that can be found to be “clearly unreasonable, frivolous, vexatious or bad faith”. According to s. 66(9) of the Rules, if the party requesting costs has also conducted itself in an unreasonable manner, the Board has discretion to deny costs or reduce the quantum of a costs award.

....

[46] As a starting point, it is important to emphasize that an award of costs is discretionary. Moreover, this Board has a limited authority to award costs. In order to make a costs award, it must find that the party against whom costs are sought has acted in a manner that is unreasonable, frivolous, or vexatious or the party has acted in bad faith. Even then, the Board can deny costs or reduce the quantum of costs to a party who has acted unreasonably. As the Board noted in its costs decision, its jurisprudence has established that no party has a right to costs, and costs awards are rare (Dubois v. Burkhardt (No.1), 2010 ONNFPPB 55 (CanLII)).




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