Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: May 19, 2020

CASE NO.: 19-021

PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2

Appellant: Johnnie Nielsen (File No. 19-021) Appellant: Robert Wray (File No. 19-022) Appellant: Karen Wray (File No. 19-023) Appellant: Svetlana Melkova (File No. 19-024) (Closed)

Applicant: Tabitha MacDow

Respondent: Niagara Escarpment Commission

Subject of leave to appeal: Approval of a Development Permit Application to construct a one storey addition to an existing barn for washroom facilities, to install a sub-grade cistern to provide water for fire suppression, to widen and extend an existing driveway, and to recognize as-built construction of two decks, all associated with an approved commercial rental facility, on an existing lot

Reference No.: P/C/2018-2019/263

Property Address/Description: Part Lot 8, Concession 3 EHS

Municipality: Town of Caledon

Upper Tier: Region of Peel

NEHO Case No.: 19-021

NEHO Case Name: Nielsen v. Ontario (Niagara Escarpment Commission)

APPEARANCES:

Parties Johnnie Nielsen Tabitha MacDow

Counsel Jora Kuner Matthew Hodgson

HEARD: In writing

ADJUDICATOR(S): Laurie Bruce, Hearing Officer

ORDER

Overview

1This order relates to an application by Tabitha MacDow (the “Applicant”) for costs against Johnnie Nielsen (the “Appellant”) with respect to his appeal of the Development Permit issued by the Niagara Escarpment Commission (“Commission”) dated March 21, 2019 relating to the conversion of a barn on the Applicant’s property into a commercial wedding venue (“wedding barn”).

2The Niagara Escarpment Hearing Office (“Hearing Office” or “NEHO”) heard the appeal on January 14 and 15, 2020. Following the issuance of the Hearing Office’s report confirming the Commission’s decision, the Applicant applied for costs in the amount of $51,562.22, or in the alternative an amount the Hearing Office deems appropriate, and post judgment interest. The Hearing Office received written submissions from the Appellant and the Applicant. The Commission did not provide submissions on the issue of costs.

3For the reasons that follow, the Hearing Office dismisses the Applicant’s application for costs.

Background

4In July 2015, the Applicant applied to the Commission for a Development Permit (the “Original Conditional Approval”) to allow a barn on her property to be converted into a commercial wedding venue. This was conditionally approved by the Commission and appealed to the Hearing Office by the Appellant. The Hearing Office issued a report on April 6, 2018 (see: Nielsen v Ontario (Niagara Escarpment Commission), 2018 ONERT 29507) (“2018 Report”) confirming the decision of the Commission to issue the Original Conditional Approval.

5The Original Conditional Approval included the following conditions:

• Condition 1: “Non-fulfillment or breach of any one of the conditions shall render the Development Permit void.”
• Condition 4: “Development shall take place only in accordance with the site plan and Development Permit application submitted.”

6After the issuance of the 2018 Report, the Applicant determined, in consultation with the Town of Caledon, that various changes to the development would be necessary. Additionally, the Applicant had constructed two decks attached to the barn without prior approval. As a result, the Applicant applied for a further Development Permit to allow her to do the following:

• construct a one-storey addition to the existing barn for washroom facilities;
• install a sub-grade cistern to provide water for fire suppression;
• widen and extend an existing driveway; and
• recognize the as-built construction of two decks.

7On March 21, 2019, the Commission issued a Notice of Decision conditionally approving the second Development Permit (“New Conditional Approval”), which was appealed by the Appellant on April 3, 2019.

8Of importance to this costs hearing is the procedural order Nielsen v. Ontario (Niagara Escarpment Commission), 2019 ONERT 72737 issued by Hearing Officer Justin Duncan on August 1, 2019 pertaining to the New Conditional Approval. At paragraph 46 of his Order, Hearing Officer Duncan stated:

Mr. Nielsen has provided evidence of wedding events taking place on the Subject Property during a period in which Conditions may not yet have been fulfilled. However, this does not mean that the issues addressed in the 2018 Report should be re-tried on these appeals of the New Conditional Approval. Additionally, the [Hearing Office] does not have the power to revoke the Original Development Permit on this appeal, to turn this case into a prosecution or to impose a fine as requested by Mr. Nielsen. I find that the questions that are relevant and within the jurisdiction of the [Hearing Office] for consideration are whether the Original Development Permit served as the foundation for the New Conditional Approval and if so, whether the Original Development Permit is void given the alleged breach of Conditions and, if so, whether the New Conditional Approval is able to stand alone. These are complicated legal and factual questions that ought to be considered with the benefit of evidence and submissions at a hearing. [emphasis added]

9In accordance with the direction from Hearing Officer Duncan, at the January 2020 hearing, the parties provided evidence and submissions on whether the New Conditional Approval was a stand-alone approval.

10Mr. Nielsen submitted extensive evidence that the Applicant had “failed to follow the rules” and was in contravention of Condition 4 in the Original Conditional Approval and therefore, in accordance with Condition 1, the Development Permit was void. He submitted that since the first permit should be void, the second permit should also be void. The Applicant responded and the Commission supported the position that the jurisdiction of the Hearing Office on an appeal is limited to the question of conformity with the requirements of the Plan.

11This Hearing Officer concluded, based on the opinion evidence and submissions received at the hearing, that the Hearing Office lacks the jurisdiction to re-visit or reopen the Original Conditional Approval.

12It is against this background that this Hearing Officer has considered the Applicant’s application for costs.

Legislation and Rules

13Rule 212 of the Environmental Review Tribunal’s Rules of Practice (“Tribunal’s Rules”), which also applies to NEHO proceedings, provides for the reimbursement of reasonable and eligible expenditures incurred by a party for participation in a proceeding before the Tribunal. The objectives of the costs Rules are to provide consistency and predictability in the awarding of costs by outlining relevant principles and evaluation criteria; to encourage responsible conduct in proceedings; and, to discourage unreasonable conduct.

14The NEHO’s jurisdiction to award costs in a proceeding arises from s. 17.1 of the Statutory Powers Procedure Act (“SPPA”). A costs award under s. 17.1(1) of the SPPA is discretionary. The threshold test – set out in s. 17.1(2) of the SPPA and reflected in Rule 225 – is high. Accordingly, the NEHO may only award costs if the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious, or a party has acted in bad faith.

15Rule 225 also states that in determining an award, the Tribunal may consider whether either party:

(a) failed to attend a Hearing or to send a representative when properly given notice, without contacting the Case Coordinator; (b) failed to co-operate, changed a position without notice, or introduced an issue or evidence not previously mentioned; (c) failed to act in a timely manner; (d) failed to comply with the Tribunal’s Rules or procedural orders; (e) caused unnecessary adjournments or delays or failed to prepare adequately for Hearings; (f) failed to present evidence, continued to deal with irrelevant issues, or asked questions or acted in a manner that the Tribunal determined to be improper; (g) failed to make reasonable efforts to combine submissions with Parties of similar interest; (h) acted disrespectfully or maligned the character of another Party; and, (i) knowingly presented false or misleading evidence.

Issue

16The Applicant submits the following in seeking costs:

The Appellant knowingly presented false and misleading evidence to the NEHO and failed to present any evidence, at all, in respect of whether the proposed development was in accordance with the purpose and objective of the Niagara Escarpment Plan (“NEP”) …the Appellant’s conduct on the appeal was, by any objective standard, unreasonable, vexatious, and taken in bad faith, and clearly falls within the class of exceptional cases where an award of costs by the [Hearing Office] is appropriate.

17The issue to be determined is whether the Appellant should be ordered to pay costs to the Applicant in relation to his appeal of the Commission’s decision on the New Conditional Approval.

Analysis and Findings

18In Johnson v. Ontario (Ministry of Environment), [2006] O.E.R.T.D. No. 20, Case 05-031 (“Johnson”) at page 9, the Environmental Review Tribunal (the “Tribunal”) identified a three-step analysis when considering a request for costs:

i. Has the party has engaged in unreasonable, frivolous, vexatious conduct or acted in bad faith? If there is no finding of this type of improper conduct, then the analysis ends, and no costs can be awarded. ii. If yes, should costs be awarded in the particular situation? iii. If the discretion to award costs is exercised, then what amount should be payable?

19Thus, the first step is to determine whether the Appellant has engaged in unreasonable, frivolous, or vexatious conduct or acted in bad faith. If the answer to this question is no, then the request for costs will be dismissed and no further analysis as laid out in the subsequent two steps will be required.

20In this case, the Applicant, referring to the Tribunal Rule 225 submits that the Appellant:

(e) caused unnecessary adjournments or delays or failed to prepare adequately for Hearings; (f) failed to present evidence, continued to deal with irrelevant issues, or asked questions or acted in a manner that the Tribunal determined to be improper; (i) knowingly presented false or misleading evidence.

21The Hearing Office will deal with each of these allegations in turn.

Adjournments and Delays

22Three Pre-hearing Conferences (“PHC”) were held with the parties on October 9, 2019, November 26, 2019 and December 4, 2019.

23The Applicant submits that the Appellant’s conduct during the first and second PHCs caused unnecessary procedural delay and cost. During the October 9th PHC, the parties were asked to consider if there was an opportunity for mediation. The Appellant subsequently advised the Hearing Office on October 23rd that they would not participate in settlement discussions or meditation.

24The Hearing Office therefore scheduled a second PHC for November 26, 2019, which was held by teleconference. At this PHC the Appellant put forward two motions: the Appellant’s first motion was for an adjournment until after a broadly worded Freedom of Information (“FOI”) request made to the Commission had been fulfilled. The FOI request was for any information related to the Applicant’s wedding barn business, the Development Permit application, the subject property, the Applicant and her Agent. The second motion was for a staged hearing that would allow the issue of the status of the Original Conditional Approval relative to the New Conditional Approval to be settled before the merits hearing.

25The Hearing Officer reserved and reconvened a brief teleconference on December 4, 2019 in part to deliver a decision dismissing the adjournment request on the basis that the relevant information would be provided to the Appellant through the exchange of documents in advance of the hearing. The Hearing Officer also directed that there would not be a staged hearing. The Hearing Officer stated that the parties’ submissions and evidence on the issue of the Original Conditional Approval serving as a foundation for the New Conditional Approval would be considered during the hearing of the merits of the appeals, consistent with Hearing Officer Duncan’s direction. At this PHC the Hearing Officer set December 30, 2019 as the date for the exchange of relevant documents.

26The Hearing Officer finds that the Appellant’s motions did not cause a delay in the hearing of the merits of the appeal. The January 2020 hearing dates were established during the October 9th PHC and they proceeded as scheduled.

27The Hearing Officer also finds that the motions made by the Appellant did not result in significant additional time for PHC events. The parties would have been required to attend the November 26th PHC, when the motions were made. The December 4th teleconference was a short event during which the Hearing Officer provided the disposition on the adjournment and staged hearing requests and set out procedural directions in preparation for the hearing.

28The Hearing Office finds that the behaviour of the Appellant in seeking one adjournment and requesting a staged hearing was not improper and was not consistent with a pattern of behaviour that would warrant costs.

Failure to Present Evidence and Dealing with Irrelevant Issues

29The Appellant submits that he “decided to pursue his Appeal along the lines of, among other things, proving that because the Applicant had been persistently and admittedly non-compliant, the Original Development Permit should be deemed void, and the New Conditional Approval should have been void too...this approach to the Appeal was specifically authorized by Hearing Officer Duncan’s Order”.

30The Applicant submitted that if the Appellant had identified during the October 9th PHC that he did not intend to call any witnesses on the development’s conformity to the NEP then she would not have incurred the costs of calling her witnesses.

31The Applicant’s witnesses included Planner Jamie Robinson, who, along with the Commission’s Planner, Michael Baran, provided evidence that the proposed development was in accordance with the purpose and objectives of the NEP. Hydrogeologist Michael Jones also provided evidence in support of the development.

32Section 25(11) of the Niagara Escarpment Planning and Development Act (“NEPDA”) requires the Hearing Office to “report to the Minister a summary of the representations made, together with his or her opinion on the merits of the decision”.

33Further, s. 25(12) of the NEPDA states:

The decision of the delegate shall be deemed to be confirmed if: (a) The opinion of the officer expressed in his or her report under subsection (11) is that the decision of the delegate was correct and should not be changed…

34The Hearing Officer could not have assessed the merits of the Commission’s decision to issue the New Conditional Approval without considering whether the development is:

1. In accordance with the purpose and objectives of the NEP and the objectives of the Escarpment Rural Area Designation; and,
2. Is a permitted use under Part 1.5 of the NEP and is in accordance with the development criteria in Part 2 of the NEP.

35It was in the Applicant’s interest to provide the appropriate evidence and submissions to support the finding that the Commission’s decision to issue the New Conditional Approval was correct. The Hearing Officer therefore rejects the Applicant’s submission that she would not have incurred the costs of her witnesses if she knew that the Appellant would only focus on the non-compliance issue. The Applicant’s witnesses provided compelling planning and hydrogeologic evidence that the Commission’s decision on the development permit could be supported. Indeed, the Hearing Office’s report detailed this evidence in ultimately confirming that the Commission’s decision was correct and should not be changed.

36The Hearing Officer finds that while the Appellant relied heavily on evidence of non-compliance, it was intended as a foundation to address the issue of whether the Original Conditional Approval is void given the breach of Conditions 1 and 4. Since Hearing Officer Duncan identified this as an issue to be heard, it was a relevant matter to the hearing. While the Appellant’s extensive evidence demonstrating the breach of conditions was not necessary, it does not rise to the level of unreasonable, frivolous, vexatious or bad faith conduct. The Appellant’s arguments may not have been effectual, but he should not be penalized for attempting to bring forward his appeal on the basis of what he perceived to be his strongest ground.

Knowingly Presented False or Misleading Evidence

37During the hearing, the Applicant identified an error in materials provided by the Appellant. The file name on a photograph submitted as evidence suggested that an unlawful event allegedly took place at the wedding barn on July 11, 2019 when in fact the photograph was of an event on May 18, 2019. The Appellant submitted that while the file name on the photograph was wrong, there was nevertheless, an unlawful event at the wedding barn on July 11, 2019. The Applicant stated that in cross-examination, the Appellant admitted to “deliberately misleading the [Hearing Office] by falsifying certain documents in his Compendium” by including dates and information pertaining to events that were purported to have taken place at the wedding barn.

38The Appellant acknowledged the inaccuracy during the cross-examination but submits that this was a labelling error and was not done to intentionally mislead. It was not the Hearing Officer’s interpretation that the Appellant intended to purposefully mislead. Regardless, the dates and information on the materials were not determinative since the Applicant had conceded that events had taken place.

Conclusion

39On pages 19 and 20 of the Tribunal’s decision in Baker v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 29, the Tribunal concluded that:

… the standard to determine whether conduct or a course of conduct is unreasonable is whether the conduct or course of conduct interferes with the Tribunal’s ability to secure the just, most expeditious and cost-effective determination of the proceeding before it.

40The question for the Hearing Officer is whether the Applicant has established that the Appellant’s conduct has been unreasonable such that it interfered with the Hearing Office’s ability to achieve a just, expeditious and cost-effective resolution of the issues. The Hearing Officer finds that it has not.

41The Hearing Officer agrees with the submissions of the Appellant that there was no notable delay in the merits hearing. While the Appellant’s focus on non-compliance was ultimately not helpful to his case, this does not rise to a level that warrants costs.

42The Hearing Office’s jurisdiction to issue cost awards is limited under the SPPA to situations where the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith. While the Appellant’s decision to focus on non-compliance was unpersuasive, the Hearing Officer does not find that the Appellant’s conduct was unreasonable, frivolous, vexatious or in bad faith. As the Tribunal previously noted on page 11 in Johnson, supra, “a frivolous argument is not synonymous with an unsuccessful argument”. The Hearing Officer concludes that there are no grounds on which to order the reimbursement of the Applicant’s costs.

ORDER

43The Tribunal dismisses the Applicant’s application for costs.

Application for Costs Dismissed

“Laurie Bruce”

LAURIE BRUCE HEARING OFFICER

If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format.

Niagara Escarpment Hearing Office Environmental Review Tribunal A constituent tribunal of Tribunals Ontario - Environment and Land Division Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248