Thomas A. Richardson

The applicant appealed a Committee of Adjustment decision refusing a minor variance to reduce a side yard setback from 6 metres to 1.5 metres for a covered porch on a reconstructed cottage.

The Tribunal accepted the uncontested expert planning evidence that the variance met the four tests under section 45(1) of the Planning Act, was consistent with the Provincial Planning Statement, and would have minimal impact on neighbouring properties.

The appeal was allowed and the variance was authorized.

The Town and an intervenor association brought motions for costs against the owners after the owners withdrew their objections to notices of intention to designate heritage attributes under the Ontario Heritage Act.

The withdrawal occurred five weeks before the scheduled hearing.

The Tribunal first determined it had jurisdiction to award costs in a proceeding even if the matter was withdrawn before a hearing on the merits.

However, applying the high threshold for costs under Rule 23.9, the Tribunal found that the owners' conduct in withdrawing the objections and their stated reasons for doing so were not clearly unreasonable, frivolous, vexatious, or in bad faith.

The motions for costs were dismissed.

The Town of Niagara-on-the-Lake and the Save Our Rand Estate Association brought motions for costs against the Owners after the Owners withdrew their objections to Notices of Intention to Designate under the Ontario Heritage Act shortly before the scheduled hearing.

The moving parties argued the late withdrawal and the Owners' conduct throughout the proceeding were unreasonable and an abuse of process.

The Tribunal found that while it has jurisdiction to award costs even when a matter is withdrawn prior to a hearing, the Owners' conduct did not meet the high threshold of being clearly unreasonable, frivolous, vexatious, or in bad faith.

The motions for costs were dismissed.

The parties requested an adjournment at the commencement of a two-day merit hearing concerning a minor variance appeal, indicating that a settlement was imminent but required further due diligence.

The Tribunal granted the adjournment, noting the complexity of the case, and scheduled a new two-day merit hearing out of an abundance of caution in case the settlement does not fully materialize.

The appellant appealed a minor variance application seeking relief from Minimum Distance Separation (MDS) setbacks to build a residential dwelling.

During the hearing, it became apparent that the appellant relied on an outdated zoning by-law and sought to change the requested relief mid-hearing.

Due to these material issues and misunderstandings, the Tribunal converted the hearing into a Case Management Conference and ordered procedural steps, including the exchange of revised expert witness statements and sketches, before rescheduling the merit hearing.

The Appellant brought a motion requesting a review of a prior Tribunal decision that dismissed its appeal of the City of St. Catharines' Official Plan Amendment No. 26 in full, and sought a stay of the OPA.

The Appellant argued the Tribunal acted outside its jurisdiction, violated rules of natural justice, and made errors of law by dismissing the appeal in full when the responding parties had only sought partial dismissal.

The Tribunal found the Appellant failed to establish a convincing and compelling case under Rule 25.7 that the Tribunal made any of the enumerated errors.

The motion for review and request for a stay were dismissed.

The applicant brought an application to quash a resolution and by-law passed by the respondent municipality to conditionally appoint a member to fill a potential council vacancy.

The vacancy was anticipated because a sitting councillor was running in a provincial election.

The court found that the Municipal Act requires a vacancy to actually exist and be declared before an appointment can be made.

The resolution and by-law were quashed for illegality as they were passed without jurisdiction.

The appellant appealed the approval of Official Plan Amendment No. 26, which converted certain employment lands to alternative uses.

Several parties brought motions to dismiss the appeal under section 17(45) of the Planning Act, arguing that the appellant's issues were statute-barred because the notice of appeal failed to explain how the decision was inconsistent with or failed to conform to provincial plans, as required by section 17(37.1).

The Tribunal agreed, finding that the notice of appeal lacked the required explanations and that the appellant could not expand its appeal beyond the initial submission.

The Tribunal granted the motions and dismissed the appeal without a full hearing.

A Case Management Conference was held regarding an appeal of Official Plan Amendment No. 26, which redesignates employment lands for alternative uses in St. Catharines.

The Tribunal granted party status on consent to several applicants.

As mediation was deemed unlikely to resolve the issues by most parties, the Tribunal scheduled a second Case Management Conference and a 15-day hearing.

In an appeal concerning an official plan amendment and zoning by-law amendment to permit a medical centre, the applicant brought a motion for directions to exclude three affidavits filed by the appellant Medical Centre.

The Tribunal found that the issues of conformity with the regional and municipal official plans were relevant, and therefore the affidavits addressing those issues were relevant and necessary.

The Tribunal ordered that the affidavits, along with responding affidavits from the Town and the applicant, be admitted as evidence for the hearing of the merits.

Habitat for Humanity Niagara brought a motion for costs against the self-represented appellant, Frank De Luca, after his appeal of a zoning by-law amendment was dismissed without a hearing.

The applicant sought $53,647.39 in costs, arguing the appellant failed to comply with the Procedural Order.

The Tribunal found that while the appeal was dismissed, the appellant had acted in good faith, attempted to comply with the process amidst pandemic-related difficulties, and did not conduct himself in an unreasonable, frivolous, or vexatious manner.

The motion for costs was denied.

The applicant moved to quash an interim control by-law and its extending by-law enacted by the respondent municipality, alleging illegality and bad faith.

The applicant also claimed damages for misfeasance in public office and misrepresentation.

The court found that the emergency meeting where the by-law was enacted met procedural and statutory requirements, including being open to the public.

The court held that the municipality's actions, including extending the by-law due to delays in adopting the Official Plan, were justified and did not demonstrate bad faith.

The motion was dismissed.

The Conservation Review Board held a settlement conference regarding objections by the property owners to Notices of Intention to Designate four properties issued by the Town of Niagara-on-the-Lake under the Ontario Heritage Act.

The SORE Association also appeared as a party.

The Board issued a procedural order directing the resumption of the settlement conference on March 19, 2020.

Following dismissal of an application by a professional regulatory body seeking to restrain alleged unauthorized practice under the Professional Foresters Act, 2000, the respondents sought substantial indemnity costs exceeding $127,000.

The regulator argued that no costs should be awarded because the proceeding raised novel public-interest issues concerning regulation of professional forestry and the enforcement of statutory duties.

The court held that while regulators acting in the public interest may sometimes avoid costs, they are not automatically exempt from the ordinary rule that costs follow the event.

Given the vigorous litigation pursued against the respondent, partial indemnity costs were appropriate.

The court awarded $90,000 in partial indemnity costs to the respondents.

Following the dismissal of her appeal regarding municipal election compliance audits, the appellant argued she should not be liable for costs because she was a public-interest litigant.

The respondents sought costs, alleging the appellant targeted them for private reasons related to a local development dispute.

The court found that the appellant was a public-interest litigant who brought the applications in good faith to address matters of public importance regarding campaign finances.

The court dismissed the respondents' claim for costs and ordered all parties to bear their own costs.

A costs decision following an application under the Municipal Conflict of Interest Act concerning alleged conflicts of interest by a municipal official.

The successful party sought partial indemnity costs exceeding $394,000.

The court considered whether the unsuccessful applicant should be relieved from a costs award on the basis that the litigation was brought in the public interest, applying the factors from St. James’ Preservation Society v. Toronto (City).

The court concluded the litigation was not genuine public interest litigation, noting partisan political motivations and the limited practical significance of the application.

Considering divided success on several substantive issues and the need to balance deterrence of frivolous litigation against discouraging citizens from seeking public office, the court reduced the claimed amount and awarded $170,000 in costs.

An elector appealed decisions refusing to order compliance audits of municipal election campaign finances under the Municipal Elections Act, 1996.

The applications alleged that candidates received excessive contributions from associated corporations and filed incomplete financial disclosure forms (Form 4).

The court held that receiving excessive contributions is not itself a contravention of the Act provided the candidate returns the funds as soon as possible after becoming aware of the violation.

Although several candidates technically contravened the Act by improperly completing Form 4, the compliance audit committee retained discretion whether to order an audit.

Given that the excessive contributions had already been returned and no further information was likely to emerge, it was reasonable to refuse an audit.

A municipal conflict of interest application sought removal of a mayor from office under the Municipal Conflict of Interest Act.

The respondent mayor brought a motion to convert the proceeding from an application to an action requiring a full trial with viva voce evidence.

The court held that the Act does not require all such proceedings to proceed by trial and that applications may be determined on affidavit evidence, subject to the court’s discretion to order oral evidence or a trial of issues where necessary.

At this preliminary stage, the evidentiary record was incomplete and it was premature to determine whether material facts were in dispute.

The motion to convert the proceeding to an action was therefore dismissed without prejudice.

An application was brought seeking a declaration interpreting a municipal zoning by-law to determine whether an existing church could expand its use onto an adjacent parcel of agricultural land once the parcels were merged.

The municipality argued that the by-law permitted only “existing churches” on lands where such uses existed at the time the by-law was passed, thereby preventing expansion onto new lots.

Applying the modern principle of statutory interpretation, the court examined the wording, purpose, and scheme of the by-law.

The court held that the exemption for “existing churches” applied to the building rather than to a specific lot and that the by-law did not expressly restrict expansion onto adjoining lands.

A declaration was granted permitting the merged lands to be used for church purposes.

The respondents brought a motion for costs against the applicants following the dismissal of the applicants' nuisance claim under the Farming and Food Production Protection Act, 1998.

The respondents argued that the applicants' conduct was frivolous, vexatious, and in bad faith, particularly because they proceeded without counsel and failed to establish the minimum threshold of disturbance.

The Normal Farm Practices Protection Board dismissed the motion, finding that the applicants had acted respectfully and that their failure to meet the legal threshold did not amount to bad faith.

The Board reiterated that costs are rarely awarded and should not be used to discourage public participation.