The Friends of the Greenspace Alliance v. Ottawa (City)
CITATION: The Friends of the Greenspace Alliance v. Ottawa (City), 2011 ONSC 472
DIVISIONAL COURT FILE NO.: 10-DV-1612
DATE: 20110124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
THE FRIENDS OF THE GREENSPACE ALLIANCE
Moving Party
– and –
CITY OF OTTAWA, ABBOTT-FERNBANK HOLDINGS INC., CRT DEVELOPMENT INC., KIZELL MANAGEMENT CORPORATION, 2129786 ONTARIO LIMITED, 2087875 ONTARIO LIMITED, 1383341 ONTARIO INC., and 2128447 ONTARIO LIMITED
Respondents
A. David Morrow, for the Moving Party
William R. Hunter, for the underlined Respondents
HEARD: January 18, 2011
REASONS FOR decision
C. McKinnon j.
[1] This is an application brought by The Friends of the Greenspace Alliance (FGA) to be relieved from a costs order following their abandonment of an appeal from a decision of the Ontario Municipal Board (OMB). FGA submits that in its capacity as a public interest litigant it should be excused from the obligation to pay costs pursuant to Rule 37.09 of the Ontario Rules of Civil Procedure which provides:
Where a motion is abandoned, or is deemed to have been abandoned, a responding party on whom the notice of motion was served is entitled to costs of the motion forthwith, unless the court orders otherwise. [emphasis added]
[2] It has been held that costs of an abandoned motion for leave to appeal to the Divisional Court are governed by Rule 37.09: Stewart v. Oribine, [2010] O.J. No. 1230 (S.C.J.) at para. 20.
[3] Abbott-Fernbank Holdings Inc. and the three numbered companies own various lands within the Jock River watershed. They do not own lands within the Carp River watershed. Both watersheds are included in the City of Ottawa Official Plan Amendment 77 (OPA 77). Approximately one-third of the area covered by OPA 77 is in the Carp River watershed and two-thirds in the Jock River watershed.
[4] On July 22, 2009 FGA appealed City of Ottawa OPA 77 to the OMB.
[5] Certain respondents, including the responding parties in this motion, brought a motion to dismiss the appeal without a hearing because it did not relate to the Jock River watershed. In a detailed decision dated March 12, 2010, it was determined by the OMB that FGA’s appeal related only to the Carp River watershed and not to the Jock River watershed. The OMB found that the lands in the Jock River watershed were never the subject of the appeal and determined that any issues concerning the Jock River watershed were being addressed by two environmental assessments being conducted by the Ministry of the Environment, and that the City of Ottawa Council’s Official Plan in relation to the Jock River watershed was operational.
[6] FGA sought a review of the OMB’s decision in accordance with the appeal procedures within the OMB Act. In a decision dated April 21, 2010, the OMB upheld its earlier decision and refused to re-hear the motion.
[7] On May 6, 2010, FGA brought a motion for leave to appeal the decision of the OMB to the Divisional Court. On August 9, 2010, FGA abandoned its motion for leave to appeal. The respondents on this motion are seeking their costs of the motion for leave to appeal pursuant to Rule 37.09(3) and have scheduled an assessment of their costs. FGA has brought the within motion to be relieved of the costs consequences of bringing, and subsequently abandoning, its motion for leave to appeal.
[8] In consequence of the appeal to the Divisional Court, the Jock River respondents in the present motion commenced preparing for the appeal by thoroughly reviewing materials of the moving party, thoroughly reviewing the decisions of the OMB, meeting with counsel who represented the Jock River respondents at the OMB hearings, researching law and preparing a draft factum. The motion was scheduled to be heard on August 24, 2010. The notice of abandonment was filed on August 9, 2010.
[9] The basis of FGA’s appeal to the Divisional Court is that the OMB should be guided by the decision of the Supreme Court of Canada in Hunt v. Carey (1990) 1990 90 (SCC), 2 S.C.R. 959 which provides that pleadings should not be struck unless it is “plain and obvious” that a statement of claim (in this case the notice of appeal) discloses “no reasonable cause of action.”
[10] In a decision of the OMB dated June 17, 2010, relating to another developer affected by FDA’s appeal of OPA 77, Executive Vice-Chair Lee and Vice-Chair McKenzie dealt specifically with FGA’s argument in respect of the application of Hunt v. Carey. The Board reviewed the established law contained in OMB decisions originally decided in East Beach v. Toronto, (1996) OMDB 1890, which specifically sanctioned the validity of the provision of the Planning Act that the OMB “may dismiss all or part of an appeal without holding a hearing on its own initiative or on the motion of any party if, it is of the opinion that,
(i) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the plan or part of the plan that is the subject of the appeal could be approved or refused by the Board,
(ii) the appeal is not made in good faith or is frivolous or vexatious.”
[11] The Board stated:
...the central assumption of Mr. Morrow is flawed. It is intellectually perilous to compare the cause of action in a pleading of a tort action as in Hunt v. Carey with a notice of appeal in the planning context. We find that an appeal to a municipally adopted Official Plan is a right conferred by statute; it is not one comparable to a cause of action based on common law. The right to appeal under the Planning Act is not automatic in the sense that it is as-of-right, but has to be based on stringent procedural requirements that one must meet. In fact, an appeal to an Official Plan must be based on the Municipality taking its first step, i.e. the legislative step of adopting the OP. These are not the only reasons why one cannot so readily cross-pollinate from one regime to another. There are more substantive and fundamental reasons at play.
It is a truism but nonetheless important to take note that a land use planning dispute is not confined to a “lis inter parte”. Planning appeals and the issues involved invariably must address the public interests at large. In Cloverdale v. Etobicoke (1966) 1966 205 (ON CA), 2 O.R. 439, Aylesworth J., speaking on behalf of the Court of Appeal, points out that in the consideration of an Official Plan or its amendments, the Board stands in the stead of the minister; the decision it makes is administrative in nature and must transcend the interests of the parties and address the interests of the public at large.
In this panel’s view, the issues in an appeal of an OPA cannot be held hostage by the parties’ whims only. Issues of “land use planning” must be grounded upon the public interests within the four corners of the Planning Act. There is a concomitant discipline imposed on every decision-maker, including the OMB. The Board must have regard to the enumerated provincial interests in the Act and municipal decisions; that its own decisions must be consistent with and conforming to the Provincial Policy Statements (the “PPS”) and the various provincial plans. This web of public interests imposed by the provisions of the Planning Act binds and encumbers every player involved, including an appellant to an Official Plan.
[12] In further reasons found at page 10 of the decision the Board stated:
What is being sought ultimately by the Alliance would only result in the method of implementation being remitted back to council whereas council had already spoken decisively as to the manner and process of implementation. This can become tautological and circular.
[13] Suffice to say, I am persuaded by the reasoning of the OMB and would be hard-pressed to find that the principles enunciated in Hunt v. Carey apply to the OMB in its determination of dismissing appeals without a hearing, but that is a decision I am not obliged to make.
Costs in Public Interest Litigation
[14] It has become a generally accepted principle in Canadian courts of law that individuals or groups who pursue litigation in the public interest and for unselfish reasons are subject to a unique costs regime: see Incredible Electronics Inc. v. Canada (Attorney General) (2006), 2006 17939 (ON SC), 80 O.R. (3d) 723 per Perell J. (S.C.J.) and the cases cited therein and in particular, British Columbia (Minister of Forests) v. Okanagan Indian Band, (2003) 2003 SCC 71, 3 S.C.R. 371.
[15] In St. James Preservation Society v. Toronto (City), 2006 22806 (ON SC), [2006] O.J. No. 2726 (S.C.J.), T. Ducharme, J. provides a convenient roadmap concerning costs jurisprudence with respect to public interest litigation and lays out five tests to determine whether an unsuccessful litigant should be excused from paying costs because it was acting in the public interest. Although his result was overturned on appeal reported 2007 ONCA 601, [2007], 227 O.A.C. 149, I remain attracted to his analysis. The five steps are:
- The nature of the unsuccessful litigant.
- The nature of the successful litigant.
- The nature of the lis – was it in the public interest?
- Has the litigation had any adverse impact on the public interest?
- The financial consequences to the parties.
1. The nature of the unsuccessful litigant
[16] T. Ducharme, J. makes reference to the decision of Incredible Electronics Inc., supra, at para 95 wherein he stated that “a public interest litigant must, to some extent, manifest unselfish motives,” and to Odhavji Estate v. Woodhouse (2003), 2003 SCC 69, 3 S.C.R. 263 at 304 in which Iacobucci J. recognized two categories of typical public interest litigants, namely those who have no direct pecuniary or other material interests in the proceedings (e.g. a non-profit organization); and litigants who do have a pecuniary interest, but whose interest is modest in comparison to the cost of the proceedings.
[17] T. Ducharme J. held that exerting purely a private interest would disentitle the litigant to claim public interest status even when the matter would involve public authorities and raise issues of public interest. Second, he held that the litigant must have a bona fide belief that the litigation is in the public interest. Third, the unsuccessful litigant must have a genuine interest in the matter as opposed to being “a mere busybody or interloper”, the concern being to balance access to the courts with the need to ensure that judicial resources are not over-extended, and fourth, whether there were other potential litigants better suited to bring the litigation.
[18] With some reservations I am prepared to assume for the purposes of this costs motion that FGA is a public interest litigant. The opposition to OPA 77 is not private to FGA. Its members obviously believe they are acting in the public interest, have a genuine interest in the matter, and FGA was the only body to challenge the decision of City Council. The reservations I harbour relate to the judgment exercised by FGA in launching the appeal in relation to the Jock River watershed, but that concern may more appropriately be addressed under another test.
2. The nature of the successful litigant
[19] In this step of the analysis T. Ducharme J. drew from the caselaw that there is clearly a distinction to be made as to whether the successful litigant is a government actor or a private actor. Where the successful litigant is a government actor costs are frequently foregone because they are borne by the public who benefit from such public interest litigation. However, as was stated at para. 23:
The same principles do not apply to a private actor, certainly not to a private actor who has done nothing illegal and has been forced to participate in the litigation. As a result, where a private actor is successful, it is more difficult to justify depriving them of the costs order they would ordinarily be entitled to.
[20] In the instant case the responding parties are private actors who have done nothing illegal and were forced to participate in litigation that, in my opinion, was ill-advised.
3. The nature of the lis – was it in the public interest?
[21] Under this heading T. Ducharme J. suggests a five point inquiry. The first is whether the litigation involved an issue or issues the importance of which extended beyond the immediate interests of the parties involved. The answer to this question must be in the affirmative. The second inquiry is whether the issue is one that needed to be litigated. The litigation should address a new and unsettled issue. In this case the OMB found, correctly in my view, that there was no issue for the Board to deal with. As such, it did not need to be litigated. The third question is whether the litigation addressed an issue of practical importance to the public at large. In my view, the litigation could not have any practical importance because the Official Plan had already been passed in respect of the Jock River wetlands and the OMB had no jurisdiction to change it, and, more important, the Ministry was conducting two independent environmental impact studies in respect of the Jock River watershed. The fourth question is whether there was broad public support for the position advanced by the unsuccessful litigant. There is no evidence on this point. The fifth question is whether the public benefitted from the consideration by the court of the issues raised in the litigation. Again, this question must be answered in the negative. There was no benefit to the public by the issues raised because they were outside the jurisdiction of the OMB. It may be concluded that the litigation was not in the public interest.
4. Has the litigation had any adverse impact on the public interest?
[22] The answer to this question must be in the negative because the appeal in respect of the Jock River wetlands was frivolous in the circumstances and, as stated, two environmental impact studies had been ordered by the Ministry. The only thing accomplished was lost time and wasted costs. This adversely impacts on the public interest.
5. The financial consequences to the parties
[23] Under this heading the court is invited to take a hard look at the advisability of commencing the litigation. In my opinion the litigation in respect of the Jock River watershed was ill-advised. Perhaps even more ill-advised was the continuation of the proceedings following the original decision of the OMB dismissing the appeal without a hearing, then the bringing of an appeal to the Divisional Court.
[24] During the course of argument, I was informed by counsel for the responding parties that his clients were obligated to pay legal fees in the approximate amount of $40,000 to defend the appeal before the OMB. One can only imagine the costs that would have been encountered had a hearing been held. Costs are awarded in OMB proceedings only in exceptional circumstances.
[25] The FGA argues that a costs order would be potentially crippling to the small group that constitutes its membership. In my view, public interest litigation must be pursued responsibly, not recreationally, particularly when responding parties are private actors. The delay and cost borne by these private actors responding to public interest litigants must be reserved for those cases where the public interest litigants have asserted legitimate claims. In my view, the claim in this case was unreasonable.
[26] For these reasons I decline to make an order excusing FGA from paying costs as a consequence of the appeal brought to the Divisional Court. The application is dismissed.
[27] In the event that counsel are unable to agree on costs of this motion, I will entertain submissions within 20 days on a schedule agreed to by counsel.
The Hon. Mr. Justice C. McKinnon
Released: January 24, 2011.
CITATION: The Friends of the Greenspace Alliance v. Ottawa (City), 2011 ONSC 472
DIVISIONAL COURT FILE NO.: 10-DV-1612
DATE: 20110124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
THE FRIENDS OF THE GREENSPACE ALLIANCE
Moving Party
– and –
CITY OF OTTAWA, ABBOTT-FERNBANK HOLDINGS INC., CRT DEVELOPMENT INC., KIZELL MANAGEMENT CORPORATION, 2129786 ONTARIO LIMITED, 2087875 ONTARIO LIMITED, 1383341 ONTARIO INC., and 2128447 ONTARIO LIMITED
Defendants/Respondents
REASONS FOR decision
C. McKinnon J.
Released: January 24, 2011