COURT FILE NO.: 542/02

DATE: 20030620

SUPERIOR COURT OF JUSTICE - ONTARIO

(Divisional Court)

RE: SAVE THE ROUGE VALLEY SYSTEM INC. (mOVING pARTY) AND SIXTEENTH WARDEN LIMITED (RESPONDING PARTY)

BEFORE: Justice Edward Then

COUNSEL: Mr. Murray Klippenstein, for the Moving Party

Richard Storrey, for the Responding Party

HEARD: May 13, 2003

E N D O R S E M E N T

[1] The moving party, Save the Rouge Valley Systems Inc. (SRVS) seeks leave to appeal the order for costs in the amount of $10,000 made by P.L. Wyger of the Ontario Municipal Board (OMB) on June 12, 2002.

[2] By way of factual background, in 2001, Sixteenth Warden Limited (SWL) appealed to the OMB a decision of the Town of Markham not to grant approval of SWL’s draft plan of subdivision for a development of 47 large detached dwellings and for SWL’s request for a rezoning of the relevant lands.

[3] SRVS, a public interest advocate for the environmental protection of the Rouge River opposed the development and became a party to the OMB hearing.

[4] SRVS who is an experienced litigant before the OMB was represented at this hearing by Mr. Donnelly, who is relatively inexperienced before the OMB, on a pro bono basis.

[5] On the first day of hearing, counsel for SWL advised her intention to seek costs against SRVS at the end of the hearing based on the failure of SRVS to strictly comply with a time deadline for the production of a witness list and witness outline. On the last day of the hearing counsel for SWL requested the Board to award costs against SRVS.

[6] The Board found that SRVS had failed to provide SWL with an outline of the evidence of its expert, Mr. Heaton as well as with its witness list nor did counsel for SRVS inform SWL of his intention to call Mr. Heaton despite opportunities to do so. As a result SWL was unaware of the evidence of Mr. Heaton until a few days before the hearing and then only because of diligence on the part of SWL’s counsel.

[7] Although SWL objected to the tendering of Mr. Heaton’s evidence in the circumstances the Board allowed the evidence of Mr. Heaton because of its importance to the public interest notwithstanding SRVS’s breach of the Board’s procedural order.

[8] In order to mitigate additional costs to the parties and to reduce the amount of time and resources wasted the Board directed:

that SRV prepare and deliver by a specified time, an outline of Mr. Heaton’s evidence including the list of issues that Mr. Heaton would be addressing in the hearing;

that Mr. Heaton meet with Ms. Houser and her client’s environmental planner (Dr. Kitchen);

that the order of evidence in the procedural outline be changed, so that the issues regarding the lot sizes and development standards be dealt with first and the environmental matters be dealt with later; and

that Mr. Heaton be provided with the details of the proposed plan of subdivision being considered in the hearing and that he be provided with copies of the relevant studies and reports prepared by the proponent’s witnesses. (The Board considered it only fair that Mr. Heaton be aware of the details of the proposal he was being called upon to oppose.)

[9] Again, SRVS failed to meet the deadlines set by the Board and ultimately provided a brief outline of Mr. Heaton’s evidence. The Board specifically found that the failures of counsel to provide a witness list and an outline of Mr. Heaton’s evidence in a timely manner was not inadvertent. The Board found that six additional hearing days were required and that some of the additional hearing time was directly attributable to the failure of SRVS to comply with the Board’s procedural order.

[10] In my view, in the circumstances it would have been obvious to counsel for SRVS precisely what egregious conduct of his was the subject matter of SWL’s costs request. It would have been equally obvious that this conduct was directly responsible for substantially increased costs to all parties.

[11] Counsel for SRVS asked for the request for costs to be provided in writing without reference to the then operative Rule 100 of the OMB’s Rules of Practice and Procedure which required requests for costs be made in writing as well as details of various factors outlined in the rule. The request for costs in writing was refused but an adjournment to prepare, which was also sought, was granted.

[12] It should be noted that the current equivalent of Rule 100 does not mandate a written request for cots.

[13] In its reasons the Board did not advert to either Rule 100 or to Rules 5 and 6 which allow for the possibility of dispensing with or requiring strict compliance with the rules. It should also be noted that SRVS submitted its own costs request against SWL without complying with Rule 100.

[14] On June 12, 2002, the costs request of SWL against SRVS was allowed in the amount of $10,000 and the costs request of SRVS against SWL was dismissed.

[15] The notice for leave to appeal is dated September 10, 2002 and accordingly an extension of time is admittedly required before the application for leave to appeal is dealt with on the merits as the notice for leave to appeal has clearly not been filed within 30 days of the costs decision.

[16] Counsel for SWL submits that it is clear that there was no intention to appeal within 30 days nor can it be said that the failure to file a notice of appeal was inadvertent. Counsel for SRVS submits that if inexperienced counsel had known of Rule 100 an appeal would have been taken in a timely fashion. Counsel for SRVS submits that SRVS should not, in circumstances where counsel sought a written request for costs, be penalized for the OMB’s failure to enforce its own mandatory procedure as contained in Rule 100. In my view, it would be inappropriate to penalize SRVS for its counsel’s mistakes in failing to appreciate the effect of Rule 100 and thereby failing to file a prompt notice for leave to appeal. Accordingly, I would exercise my discretion to extend the time for filing the notice of leave to appeal.

[17] Rule 62.02(4)(b) which governs the granting of leave to appeal in this case specifies by its terms that leave to appeal shall not be granted unless:

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance, that, in his or her opinion, leave to appeal should be granted.

[18] The applicant submits that in the absence of any reference by the Board to either Rule 100, 5 or 6, this Court cannot assume that Rules 5 and 6 were invoked by the OMB to dispense with strict compliance with Rule 100. The applicant relies upon a recent decision of Epstein J., sitting as a single judge of the Divisional Court in Blue Mountain (Town) v. Canadian Development Management Corporation, [2002] O.J. No. 2497 to support its contention that there is good reason to doubt the correctness of the OMB’s decision and that the impact of the Rules of the OMB was a matter of importance. At page 7 Epstein J. stated:

However, what is the point of having detailed rules of practice and procedure that includes mandatory language if other forms of proof will suffice? In my view, given the evidence in the record that demonstrates unexplained vagaries in the accountant’s evidence together with the lack of adherence to rule 100, there is good reason to doubt the correctness of the Board’s proceeding as it did.

. . . . [t]hose engaged in the planning process are entitled to know the impact of the rules of practice and procedure of the Board.

[19] In view of the opinions expressed by my colleague Epstein J. I might have ordinarily been persuaded to grant leave so that both matters could be heard together given the similarity of the issues raised.

[20] However, I have been persuaded by the respondent that I ought not to grant leave to appeal. In the first place, the Blue Mountain case, supra, has settled but more importantly the Rule 100 relied upon by SRVS and upon which the Blue Mountain case is premised has undergone significant amendment such that the new OMB Rule 100 and 100.1 expressly permit oral submissions on a motion for costs without filing a written request which is the error alleged by SRVS. Accordingly, there is no longer an issue of sufficient public importance to warrant the granting of leave to appeal – the matter is only of importance to the parties. I agree with the respondent that the amendment to the rules renders moot the very issue raised by SRVS. Nor is it necessary for this Court to grant leave to prevent an injustice. Any failure to comply with Rule 100 on the part of the OMB did not result in unfairness to SRVS in terms of failure of notice as it would have been obvious in the circumstances which of the failings of its counsel were the subject of the costs requests. Finally, I agree with the respondent that the amount of $10,000 in costs awarded constitutes a de minimis award given the impact of failings of counsel on additional expenditures to the parties. The applicant was not prejudiced because the additional costs were not itemized.

[21] In my view, the applicant has not met the requirements of Rule 62.02(4)(b) and the application for leave to appeal must be dismissed with costs to the respondent. If the parties cannot agree, brief submissions may be made to the Court within 30 days of the receipt of this decision.

Then J.

DATE: June 2003