DIVISIONAL COURT FILE NO.: 178/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, NORDHEIMER AND CONWAY JJ.
BETWEEN:
BANGOR RATEPAYERS ASSOCIATION INC.
Applicant
– and –
1712216 ONTARIO INC., THE CORPORATION OF THE TOWN OF BRACEBRIDGE, ONTARIO MUNICIPAL BOARD
Respondents
John Campion, Antonio Di Domenico and Sarah Jane Turney, for the Applicant
Michael M. Miller, for 1712216 Ontario Inc.
Jameson W. Clow, for the Respondent, The Corporation of the Town of Bracebridge
Stan Floras, for the Respondent, Ontario Municipal Board
HEARD at Toronto: August 22, 2012
nordheimer j. (orally)
[1]
Overview
The applicant seeks to prohibit or enjoin the Ontario Municipal Board from conducting a hearing into whether the applicant or others should be required to pay costs to the respondents, the Town of Bracebridge and a developer, 1712216 Ontario Inc. While there is an issue raised as to whether the applicant has standing to bring this application, in light of the conclusion we have reached on prematurity, we do not consider it necessary to address that matter of contention.
[2]
Adjournment Request
The applicant sought, at a very late stage, an adjournment of this application so that it could cross-examine on an affidavit filed on August 10 by the respondents. We decline to grant that adjournment as we do not view cross-examination on that affidavit as being necessary or relevant to the preliminary issue that we must address, namely, whether this application is premature. We were also conscious of the fact that the panel had reviewed the considerable material filed on this application and a day of court time had been set aside for the hearing of it – all of which would be wasted if an adjournment was granted. Rather, we proceeded with the agreement of counsel, to hear submissions on the prematurity issue making it clear that we would not consider, in any way, the affidavit of Robert List filed on behalf of the Town and the developer.
[3]
Background
Turning then to the prematurity issue, two individuals, (who are now said to have acted on behalf of the applicant), the Town and the developer had a hearing before the OMB regarding a decision of the Committee of Adjustment of the Town that granted the developer a consent to sever and convey three lots from an undivided piece of property. Those individuals appealed that decision to the OMB. They were unsuccessful in that appeal. The Town and the developer now seek an award of costs from the OMB arising from that appeal.
4The applicant raises various issues in support of its application for an order of prohibition and an injunction. It asserts that since no transcript of the hearing before the OMB was taken, the applicant is precluded from receiving a fair hearing on costs since the OMB will only award costs where a party has been guilty of improper conduct. Specifically, rule 103 of the OMB’s rules of practice states:
The Board may only order costs against a party if the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or if the party has acted in bad faith.
5The applicant also objects to the OMB’s refusal to allow a recording to be made part way through the proceeding or to consider notes made of the proceedings by one of the applicant’s lawyers. The applicant further contends that the refusal of the OMB member to consider these notes demonstrates that the OMB member is biased and ought to be disqualified from determining the costs issue.
[6]
Analysis
In our view, this application is premature in all of its aspects. No hearing has been held by the OMB regarding the costs requests nor has any decision been made regarding those requests. It is unknown what position the OMB will take regarding the requests for costs. If costs are awarded, it is unknown what the basis will be for that award.
7Courts will not generally permit piecemeal attacks against a proceeding. Rather, the accepted approach is for a party to withhold taking any appeal steps or seeking judicial review until the time when the proceeding is complete in all respects. Judicial review is a discretionary remedy and the court will not generally entertain an application for judicial review during the course of an administrative proceeding absent exceptional circumstances – see Ackerman v. Ontario (Provincial Police), 2010 ONSC 910, [2010] O.J. No. 738 (Div. Ct.) at para. 19. There are no exceptional circumstances present here.
8This general policy has, among other things, the benefit of avoiding a fragmented process that, in turn, leads to delay and increased costs for all parties. For this court to prohibit the OMB from considering the issue of costs at this stage would offend that accepted approach and would countenance what is, in essence, a form of pre-emptive strike. The time for a consideration of the appropriateness of any action taken by the OMB regarding costs is after the costs decision is made assuming, of course, that costs are ultimately awarded. In that regard, we do not accept the argument that costs are a separate stand alone proceeding for the purposes of this principle but even if that assertion were to be accepted, it does not change our conclusion that this application is premature.
[9]
Lack of Transcript
In terms of the assertion that the OMB cannot fairly deal with the issue of costs or accord the applicant natural justice given the lack of a transcript of the proceeding, we would note that courts regularly make costs decisions in proceedings in which there is no record, in whole or in part, of the steps in the proceeding for which costs are awarded. These costs awards include considerations relating to the conduct of parties to the proceeding and their counsel. Proceedings before this court are a perfect example of that fact as are the multitude of costs awards made every day in motions courts. If courts are capable of properly dealing with costs without a formal transcript of every step of a proceeding, we see no reason why the OMB should not be equally capable of doing so.
[10]
Reasonable Apprehension of Bias
Finally, we see no merit in the assertion that there is a reasonable apprehension of bias on the part of the OMB member, who conducted the hearing and must decide the issue of costs, because he refused to consider the notes of the proceeding created by one of the lawyers for the applicant. We would also note that this issue has not been raised before the member which would be a necessary first step to this court considering that issue.
11The application for judicial review is dismissed.
[12]
Costs
We see no basis on the material before us in regard to the matter that we have determined to make an award of costs against anyone other than the Bangor Ratepayers Association, the named party to the application. We do not accept that there is an agreement between the parties that no costs would be awarded regarding the application for judicial review. The applicant was unsuccessful in this application and in accordance with the normal rule that costs follow the event, the Bangor Ratepayers Association Inc., also known as the Bangor Ratepayers Association, shall pay costs to the developer fixed in the amount of $10,000 inclusive of disbursements and HST, and to the Town in the amount of $3,000 inclusive of disbursements and HST.
SWINTON J.
13I have endorsed the Application Record, “This application is dismissed for oral reasons delivered in Court today. The OMB does not seek costs and none are awarded to it. Costs to 1712216 Ontario Inc. fixed at $10,000 and to the Town of Bracebridge fixed at $3,000, payable by the Bangor Ratepayers Association Inc., also known as Bangor Ratepayers Association.”
NORDHEIMER J.
SWINTON J.
CONWAY J.
Date of Reasons for Judgment: August 22, 2012
Date of Release: August 27, 2012
CITATION: Bangor Ratepayers Association Inc. v. 1712216 Ontario Inc., 2012 ONSC 4826
DIVISIONAL COURT FILE NO.: 178/12
DATE: 20120822
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, NORDHEIMER AND CONWAY JJ.
BETWEEN:
BANGOR RATEPAYERS ASSOCIATION INC.
Applicant
– and –
1712216 ONTARIO INC., THE CORPORATION OF THE TOWN OF BRACEBRIDGE, ONTARIO MUNICIPAL BOARD
Respondents
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: August 22, 2012
Date of Release: August 27, 2012