Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 – to Review an Application for a Licence
Between:
2551665 Ontario Inc. o/a Headquarters
Appellant
-and-
Registrar of Alcohol and Gaming
Respondent
-and-
Friends of the Market and the Lowertown Community Association
Added Parties
COSTS DECISION AND ORDER
Adjudicator: Marisa Victor, Member
Appearances:
For the Appellant: Garett Schromm, counsel
For the Respondent: Rena Khan, counsel
For the Friends of the Market: John Edwards, agent
For the Lowertown Community Association: Norm Moyer, agent
Place and Date of Hearing: Written Motion
REASONS FOR DECISION AND ORDER
A. Overview:
1The appellant applied to the respondent for a liquor licence for a planned hair salon/restaurant operating as Headquarters at 113-115 Clarence St. in Ottawa, Ontario. The Liquor Licence Act, R.S.O. 1990, c. L. 19 provides an opportunity for the public to submit objections to a liquor licence application. As a result, on August 30, 2017 the respondent issued a Notice of Proposal to Review the Application for a Licence to Sell Liquor (the Proposal) on the basis that several objections had been received. Two groups of residents who had objected were granted added party status. A two-day hearing was held on January 9 – 10, 2018 and a decision was issued on February 16, 2018.
2At the conclusion of the hearing, the appellant brought a motion for costs against the two added parties who represent the community objectors. No costs were sought against the respondent and the respondent took no position in this motion.
3I ordered that the motion for costs proceed by written submissions and that I would issue a decision and reasons on the issue of costs.
4The appellant argued that costs were appropriate on the three grounds:
a. The arguments raised by the added parties were unreasonable considering similar unsuccessful arguments were made by the objectors in previous unrelated cases before this Tribunal;
b. The added parties’ focus on the Byward Market area as a whole showed bad faith as they lacked specific evidence against the appellant;
c. The added parties had objected to liquor licences in other proceedings and therefore were being unreasonable and vexatious.
5The test for costs is much narrower than that in a civil court context. Here, it requires a party’s conduct in a proceeding to be unreasonable, vexatious, frivolous or bad faith.
6Tribunals serve the public and must be accessible and open. Self-represented parties appear before the Tribunal yet they may lack the specialized knowledge and experience to successfully navigate these proceedings. Significant leeway must be given to them in order to maintain the Tribunal’s goal of being accessible and fair. Granting costs, especially against a self-represented party, is certainly the exception and not the rule. In addition, the power to award costs is discretionary.
7There will be no order for costs.
B. ISSUE:
8The issue to be decided is whether the added parties have acted unreasonably, vexatiously, frivolously or maliciously in the proceeding.
C. ANALYSIS:
9Rule 19 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version 1 (April 1, 2016) (the Rules) allows for a party to request costs when “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith” (emphasis added).
10The rule requires that the conduct complained of occur during the proceeding itself. The purpose of the rule is to prevent unruly behaviour such as continually interrupting the adjudicator, repetitive motions, aggressive or rude behaviour, maliciously accusations, etc. In other words, the Tribunal expects respectful conduct during the proceeding. The awarding of costs is not necessarily related to success in a case. It is unrelated to how much a party may have paid in order to appear before the Tribunal.
11The Tribunal in 8549 v Tarion Warranty Corporation1 shows how high the bar is set before costs may be awarded. While I am not bound by this decision, I find the reasoning and analysis instructive. In that case, the adjudicator canvassed the difficulties faced by self-represented parties appearing before Tribunals. The conduct of the self-represented party in that hearing was extremely challenging and difficult, and yet costs were not awarded. The case shows how high the bar is set before costs may be awarded, particularly taking into account the particular circumstances self-represented parties face. Parties before this Tribunal may wish to review this decision for the principles it contains on cost awards against self-represented parties.
12There is no question that the conduct of all the parties in this hearing was respectful throughout.
13The appellant argued that the arguments raised by the added parties, and in particular the Lowertown Community Association, had been rejected in previous unrelated cases and that continuing to pursue them in this proceeding was unreasonable conduct.
14The arguments made in previous hearings are not relevant as they were not made within this proceeding and therefore do not fall within the rule. In addition, advocating for a position, even erroneously, is not a reason to award costs within the Rules.
15The appellant also argued that the added parties acted in bad faith by objecting to the liquor licence in a broad sense and not specifically related to the appellant’s establishment. I reject this argument. The added parties were sincere in their objection and focused their argument on the particular establishment. That they did not, in the end, have enough evidence to fully support their position is not bad faith. Bad faith is a very high bar, one which requires much more than simply lack of relevant evidence. To be clear, there was no bad faith on the part of the added parties before me.
16The appellant also stated that the added parties brought repetitious unmeritorious objections and that this was unreasonable and vexatious. The appellant has incorrectly equated filing objections to liquor licences as allowed by the Act, with objections within a proceeding. Again, these arguments are not relevant as I will only consider conduct within this proceeding. In addition, most, if not all, the objections made during the hearing were brought by the appellant.
D. ORDER:
17No costs shall be awarded.
LICENCE APPEAL TRIBUNAL
Marisa Victor, Member
Released: February 27, 2018