Tribunal awards costs in Green Bay farmland neighbours’ dispute to defendant farmers

The 400-acre Bayer farm on Indian Mountain Road has been farmed for four generations.

GREEN BAY—Costs have been awarded in favour of Green Bay’s Roy and Doris Bayer in a years-long conflict between neighbours. The decision to award the Bayer’s costs of $40,000 was issued December 22, 2022 and the Tribunal proffered a number of grounds for doing so, including the “frivolous and vexatious” commencement of the application by Jacqueline and Claudio Rocca.

The Bayer’s actual costs were much higher, said Mr. Bayer. He was hoping for “more than what was awarded.” The fourth-generation farmer incurred legal fees of $73,243.90, disbursement costs of $160.05 and expert witness fees of $8,935.63, for a total of $82,339.47 including HST, and less an earlier cost award of $1,000. The Bayers were seeking a cost award of $60,000.

Mr. Bayer is 73 years old. He has lived on his property for all except three years of his life. His great-grandfather began farming the property in 1896. The Roccas purchased 25 acres next door to the Bayers in 2011 and built a cottage there, planting gardens and trees.

On March 19, 2021, the Roccas made an application to the Normal Farm Practices Protection Board (NFPPB) alleging that, as a result of the Bayer’s farming operations, they were suffering from manure odours, manure-laden dust and an unacceptable level of flies.

After a hearing lasting seven days in April and May 2022, the NFPPB tribunal rendered their decision in favour of the Bayers. The Bayers then made a claim for costs for the proceedings.

In its 2010 ruling on the matter of Dubois v. Burkhardt, the Board stated, “The decision in this matter is intended to establish a Board practice that costs are not awarded lightly nor are they awarded routinely. Awards of costs will be rare. Potential parties and the public should not be fearful of participating in Board proceedings. Costs should never be used as a threat or a reason to dissuade public participation.”

In another matter, Dell v. Zeifman Partners Inc., decided in 2020, the Board stated that “the party claiming costs must come to the Board with clean hands as to its conduct.”
The bar is set high for the awarding of costs, then, and each case is decided on its own merits. The Board found that “the conduct of the Roccas in this matter crossed over the bar.”

The Roccas had alleged that the Bayer’s altered their farming practices to aggrieve the Roccas, but the Board found that the Bayer’s farming practices had not been altered and further, that the Bayers were carrying out normal farm practices. The Board also pointed to other legal actions the Roccas had initiated against the Bayers that were outside the Board’s jurisdiction, as a factor in the determination of “frivolous commencement of the application.”

The Board also found that the Roccas “raised additional issues during the proceedings and failed to bring evidence at the hearing to substantiate all of their additional issues. On both issues of deadstock disposal and manure laden dust, no relevant evidence was offered at the hearing.”

In their submission for costs, the Bayers claimed the Rocca’s continued attempt to malign or vilify the Bayers as an issue. The Board agreed that conduct was ongoing in the proceedings even though the Roccas asserted that “their being unrepresented should allow that they will be given greater latitude.” The Board found that “greater latitude does not extend to sanctioning allegations of contempt, accusations of deliberate acts to cause the Rocca’s nuisance, and unfounded allegations that the Bayers did not respond to Rocca’s email.”

The Board found the Bayers were entitled to costs due to the serving of excessive documents that added to the cost of the proceedings, stating that 60 percent of the Rocca’s documents were not used and/or entered into evidence.

The Board also found the number of motions filed by the Roccas, many of which were unsuccessful, was unreasonable. The Bayers were awarded costs in the amount of $1,000 on a partial indemnity basis as a result of the motion heard March 4, 2021, and were entitled to further costs from the Rocca’s on the basis of the “vexatious and costly” motions that “delayed the proceedings.”

The final factor stated in the Board’s decision was the continued delay of proceedings as a result of the Rocca’s repeated allegations of bias. The Board responded to the allegations of bias by appointing new members of the Board to the panel for the hearing.

Regarding the rule that the party claiming costs must come to the Board with clean hands as to its conduct, the Board determined that the Bayers conducted themselves appropriately throughout the proceedings.

“We won’t even see the costs,” Mr. Bayer told The Expositor. It will all go to the lawyer for outstanding fees.

After the August 16 NFPPB tribunal decision in favour of the Bayers, Ms. Rocca told The Expositor she had no intention of selling. The Rocca property is currently listed for sale on the MLS website. There was a ‘for sale’ sign up that was taken down after a few days, said Mr. Bayer.

The Bayers are leery now when new people move in, he said. “I can say that over the years I’ve lived here, we’ve had different people move into the community and nothing like that ever happened. We help one another. There’s a couple moved in across from me a little over a year ago and they’re friendly as anything. If they asked me tomorrow to help them do something, I’d go. That’s the way this community is.”

A newer neighbour stopped by and asked some questions about the land. “You’re leery, you know,” he noted. “I don’t expect her to (complain) about the smell of the cow manure because she does own horses. I said to her, ‘you do look like a very nice person but what we went through makes us leery now’.”

The conflict has affected the entire community. There have been allegations and charges of trespassing, and a lot of unfriendly neighbourly behaviour that included rude hand gestures and mimicked shooting. “At the age I am, I’ve never ever lived like that, somebody following and bothering you like that,” Mr. Bayer said. “You never run into that.”

About 32 years ago, four men from southern Ontario bought 400 acres across from the Bayers. “You couldn’t wish for a better four people to come from southern Ontario,” he said. “They’re excellent guys. They come up here hunting and we’ve had no problems with them or anything.”

The end to the NFPPB action is a relief to Mrs. Bayer and their children. Mr. Bayer said he feels “a bit relieved” but isn’t sure the NFPPB tribunal was the end of this dispute, or that there won’t be others in the future.

“I guess it’s happening all over,” he said. “It’s bad. I never thought I’d live life like this. The Manitoulin never used to be like this. People are moving in. They get mega bucks when they sell and move here, get land cheaper, I guess. Not that I’ve got everything against them moving in but they should just mind their business like the rest of us.”