Court File and Parties

Citation: Robert Smith v. Corporation of Town of Bracebridge, 2012 ONSC 1509 Divisional Court File No.: 579/11 Date: 2012-03-06 Superior Court of Justice – Ontario Divisional Court

Re: Robert Smith in his own behalf and on behalf of the Bangor Ratepayers Association Inc., Appellant/Moving Party And: The Corporation of the Town of Bracebridge and 1712216 Ontario Inc., Respondents/Responding Party

Before: Pepall J.

Counsel: Antonio Di Domenico and Sarah Turney, for the Appellant/Moving Party Michael Miller, for the Respondent/Responding Party 1712216 Ontario Inc. No one appearing for The Corporation of the Town of Bracebridge

Heard at Toronto: March 2, 2012

Endorsement

[1] The Appellant seeks an extension of the time to file its materials in support of a motion for leave to appeal a decision of the Ontario Municipal Board until 30 days after the issue of costs is finally disposed of. The Respondent, the Corporation of the Town of Bracebridge (“the Town”), consents to the request. The Respondent, 1712216 Ontario Inc. (“the Developer”), is opposed.

[2] The Developer applied to the Town’s Committee of Adjustment for consent to sever and convey three lots fronting on Lake Muskoka. Consent was provided and the Town passed a by-law rezoning the proposed lots. An appeal was taken to the Municipal Board.

[3] In its decision dated November 24, 2011, the Municipal Board described John Campion and Robert Smith as the party appellants and dismissed their appeals. The Respondents seek costs of $225,000 against the parties named in the Board’s decision, namely Mr. Campion and Mr. Smith. The Appellant seeks $5000 in costs against the Respondents.

[4] Pursuant to Rule 103 of the Ontario Municipal Board Rules, an order for costs may only be made against a party if the conduct of the a party has been unreasonable, frivolous or vexatious of if the party acted in bad faith.

[5] The Board has ordered oral submissions on costs without the need for supporting affidavits. The Board originally fixed February 28, 2012 as the date for hearing the costs submissions. Unfortunately, however, Mr. Campion advised that he is unavailable until late June or early September, 2012.

[6] On January 18, 2012, Mr. Di Domenico wrote to the Board requesting that the Reasons be amended to indicate that the Appellant is the Bangor Ratepayers’ Association through Robert Smith.

[7] On February 13, 2012, the Board advised that before proceeding with costs, it will hear the motion to amend the Appellants’ status and that no further materials needed to be filed. Two days will be set to hear both matters. Mr. Campion has written to the Board requesting that those days not be consecutive.

[8] No new dates have yet been set by the Board.

[9] The Respondent Developer asks that the Appellant be granted until March 30, 2012 to file its motion record and factum for its leave to appeal motion. Its counsel submits, among other things, that a moving party is to file a motion record and factum within 30 days of filing its notice of motion for leave. Here, the materials should have been filed on or about January 9, 2012. In addition, the Respondent Developer submits that costs are a separate appealable decision. Before proceeding with its development of the subject properties, the Developer must successfully resist the leave motion.

[10] The Appellant submits that an examination of the merits of steps taken in the proceedings for the purpose of the costs assessment will of necessity involve a review of the merits of the case. An extension of time avoids a multiplicity of proceedings and the risk of inconsistent determinations. If costs are awarded, the Appellant plans to amend its notice of motion for leave to appeal to add the costs decision. The Appellant’s request also avoids bifurcation and reflects an efficient use of judicial resources. In its oral submissions, counsel indicated that his client would file all of his materials by March 30, 2012 but asked that the leave motion not be heard until costs are addressed.

[11] A cost decision is a separate appealable decision. I am mindful of the Respondent Developer’s position and it would be unfair for the leave motion to be unduly delayed. On the other hand, it is desirable that a multiplicity of proceedings be avoided and that there be an efficient use of judicial resources. It seems to me that the outstanding issues before the Board should be determined by the Board before the leave motion is argued. Ideally the leave motion would be argued before the end of June, 2012 and at least by September and, to that end, counsel may have to find some flexibility in their schedules. Having said that, it is for the Board to control its own process and set its own dates.

[12] In the circumstances, the Appellant is to file its leave materials by March 30, 2012 but no date for the hearing of that motion will be set at that time. Once the Board has fixed its dates, counsel are to advise me in writing and I will then fix a date for the hearing of the leave motion. Costs of this motion are reserved to the judge hearing the leave motion.

Pepall J.

Date: March 6, 2012