Southee v. Georgian Bay (Township), 2021 CanLII 102675

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 15, 2021

CASE NO(S).: PL180134

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant (jointly): Kathy (Weekes) Southee and Rick Southee, Duncan Mueller, Catherine Cooper, Peter Fletcher Smith, Wendy Parker, Pam Smith, Beth Halpenny, F.M. Southee, and Eleanor and John Wright

Subject: By-law No. 2018-02

Municipality: Township of Georgian Bay

OLT Case No.: PL180134

OLT File No.: PL180134

OLT Case Name: Southee v. Georgian Bay (Township)

Heard: May 3, 2021 in writing

APPEARANCES:

Parties

Counsel

David Roynon

Sarah L. Hahn

Catherine Cooper, Peter Fletcher Smith, Beth Halpenny, Eleanor and John Wright

Michael Krygier-Baum

Pam Smith

Ian Stauffer and Emily Chan (student-at-law)

Kathy (Weekes) Southee and Rick Southee

Self-represented

DECISION DELIVERED BY R.G.M. MAKUCH AND ORDER OF THE TRIBUNAL

BACKGROUND

1In November of 2014, the Township of Georgian Bay (the “Township”) enacted By-law No. 2014-75, a new Comprehensive Zoning By-law applicable across the whole Township. This by-law had the effect of imposing a holding provision (H2) on the subject lands known municipally as 2764 Island 2060, Georgian Bay and owned by David Roynon (the “Applicant”). The subject property was identified as being a vacant pre-1981 lot in a water-access-only community in the Township. The subject property had never undergone scrutiny for a number of factors (accessibility, serviceability and environmental considerations such as protection of Fish Habitat and Species at Risk) now considered essential before development would be permitted. Any new development of the property would require the owner to apply to lift the Hold (H2) provision and show that the criteria referred to above could be satisfied, The Applicant did not appeal the placing of the holding provision (H2) on the subject property at the time of passing of Zoning By-law No. 2014-75 (“By-law 2014-75”).

2In November 2017, the Applicant made an application for a zoning by-law amendment to rezone the property to “SR7- exception zone” in order to legalize the deficient frontage and lot size and to recognize the lot as “suitable for development”. The amendment would also remove the H2 holding provision.

3Council adopted Zoning By-law No. 2018-02 on January 9, 2018, “being a Zoning By-law Amendment (ZBL 25/17) to remove a Holding (H2) Symbol on 2764 Island 2060 (Cognashene) and to recognize the existing lot frontage and lot area”.

4The Appellants appealed the passing of the amendment. The listed Appellants are Kathy (Weekes) Southee and Rick Southee, Beth Halpenny, Pam Smith, Eleanor and John Wright, Wendy Parker, Peter Fletcher Smith, Catherine Cooper, Duncan Mueller, and F.M. Southee.

5The former Ontario Municipal Board (the “Board”) scheduled a hearing for August 27, 2018. The Board, at that time, was advised that a settlement had been reached and that the Applicant had entered into Minutes of Settlement with the Appellants. Ms. (Weekes) Southee was the only signatory on behalf of the Appellants. Upon inquiry by the Presiding Member, Ms. Southee advised that not all of the Appellants were in agreement. Former Member Jones declined to hear the details of the settlement given that the other appellants were not present and scheduled a further Case Management Conference (“CMC”) by Telephone Conference Call (“TCC”) on November 15, 2018, at which time a hearing was scheduled for April 3, 2019.

6Former Member Milchberg presided over the hearing held on April 3, 2019 and ultimately, allowed the appeals in part in order to amend the amending by-law, By-law No. 25/17 and then dismissed the appeals in all other respects.

MOTION FOR COSTS BY THE APPLICANT

7The Applicant brings a motion for an order of the Tribunal:

a) Awarding costs against the Appellants, jointly and severally, in the amount of $40,593.91; and,

b) An order that each of the Appellants not be permitted to be involved in any Tribunal proceedings until such time as any such costs order has been paid.

8The following documents are before the Tribunal on this Motion:

1. David Roynon’s Submission Concerning Costs dated August 24, 2020;

2. David Roynon’s Notice of Motion dated February 1, 2021, including the Affidavit of Jacklyn Tuckey, sworn August 24, 2020;

3. Response by Appellants Catherine Cooper, Peter Fletcher Smith, Beth Halpenny, Eleanor Wright and John Wright, dated March 16, 2021;

4. Response by Appellants Kathy (Weekes) Southee and Rick Southee dated March 9, 2021;

5. Response by Appellant Pam Smith dated March 17, 2021;

6. Pam Smith’s Book of Authorities dated March 17, 2021; and,

7. David Roynon’s Reply dated March 29, 2021.

The Grounds for the Motion

9The Applicant alleges that the Appellants breached Rule 23.9 of the Local Planning Appeal Tribunal’s (“LPAT”) Rules of Practice and Procedure (“Rules”) in that they:

(a) failed to attend the first hearing date on August 27, 2018;

(b) failed to cooperate with the other parties or the Tribunal during the April 3, 2019 hearing, notably, during the evidence of Beth Halpenny;

(c) failed to act in a timely manner and failed to comply with the procedural order of former Member Jones that Ms. Halpenny could not provide expert evidence. This resulted in undue prejudice and delay;

(d) displayed a course of conduct necessitating unnecessary adjournments and delays;

(e) failed to present evidence, continued to deal with issues and took steps that the Tribunal has determined to be improper during the presentation of evidence;

(f) failed to prepare adequately for hearing events and did not bring required expert witnesses in support of their appeal.

10The Applicant also alleges that the Appellants were responsible for the delay by their unreasonable, frivolous or vexatious behaviour and acted in bad faith resulting in an added expense amounting to $40,593.91.

11It is also alleged that the Appellants were unprepared for two hearing events and despite disagreeing with the agreed upon settlement for the first hearing event, the disagreeing members of the group of Appellants did not attend the hearing to make their concerns known and the matter was adjourned. The Applicant argues that had the Appellants acted reasonably, the second hearing event would not have been necessary.

12The Applicant also refers to the presentation of repetitive and irrelevant evidence, which would have otherwise been excluded, resulting in delay and unfair prejudice to him.

13The Applicant alleges that contrary to Rule 23.9(g), the Appellants acted disrespectfully and maligned his character.

14Furthermore, the Applicant alleges that subsequent to the hearing, members of the Appellant group harassed him and influenced the municipal council inappropriately and continued a campaign to prevent the decision from being implemented.

15The Applicant argues that this pattern of harassment, unnecessary involvement in the Applicant’s private affairs, and confirmed misfeasance all show that the Appellants were acting in bad faith and should be responsible for the added expenses he was subjected to and furthermore, the Appellant group’s disorganization caused him harm by causing undue delay and additional fees in order to respond to the appeal brought against his application without planning evidence. The Applicant states that he is not seeking costs for the first hearing held on August 27, 2018, but rather, the extra costs of the second hearing held on April 3, 2019, caused by the Appellant group’s unreasonable behaviour.

Appellants’ Replies

16The Appellants all oppose the Motion and argue that they all acted reasonably throughout the proceedings. They all filed extensive submissions in response to the Motion.

FINDINGS

17The Tribunal is not prepared, based on the materials before it, to exercise its discretion to order an award of costs against the Appellants.

18The Tribunal is also not prepared to exercise its discretion to make an award of costs against the Applicant in favour of the Appellants for expenses incurred in the preparation of their response to the Applicant’s Motion.

19It is trite to state that the awarding of costs as a result of a hearing before this Tribunal or its predecessors is not routine or the norm. Rather, costs are awarded in rare and exceptional circumstances, and pursuant to its Rules, the Tribunal 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.” It is also trite to state that the jurisprudence on the issue of costs maintains the high threshold that a party must overcome prior to costs being awarded.

20Mr. Roynon’s Motion Record contains numerous allegations respecting the conduct of a number of Appellants as well as the non-party husband of the Appellant Catherine Cooper, none of which has been supported by any affidavit filed by Mr. Roynon on this motion. It is also noted that former Member Milchberg’s decision does not refer to any misconduct by the Appellants. Former Member Milchberg does refer in her decision to the Appellant Beth Halpenny’s attempt to proffer opinion evidence as a land use planner despite a previous ruling by former Member Jones in a prior hearing event that Ms. Halpenny would not be permitted to do so, by reason of her lack of independence as an appellant, in this appeal. That in itself is not sufficient grounds to support the claim for costs. There is simply no evidence to support the allegations made by Mr. Roynon, which would convince the Tribunal to exercise its jurisdiction to make an award of costs against the Appellants. Much of Mr. Roynon’s complaint consists of allegations for conduct outside the hearing process and are not relevant to the Tribunal’s considerations on this motion.

21The only evidence contained in the Motion Record is the Affidavit of Jacklyn Tuckey, sworn August 24, 2020. Ms. Tuckey is a lawyer at Mr. Roynon’s current law firm, and the affidavit does not refer to any misconduct by the Appellants. Her affidavit simply refers to invoices from her firm as well as invoices from Mr. Roynon’s previous firm, and invoices from Mr. Roynon’s environmental witness, Azimuth Environmental Consulting Inc.

22Mr. Roynon’s submissions make reference to the August 27, 2018 hearing before former Member Jones, and that Minutes of Settlement were entered into between Mr. Roynon and the Appellant Kathy (Weekes) Southee, and that somehow the Appellants were responsible for all of Mr. Roynon’s costs subsequent to the August 27, 2018 hearing, which was adjourned because not all of the Appellants were present on that day. It appears from a reading of former Member Jones’ decision emanating from the August 27, 2018 hearing that there was confusion as to who the actual Appellants were and the Tribunal finds that this was not caused by any misconduct on the part of the Appellants.

23It is also noted that the appeal was allowed in part and resulted in some amendments to the by-law under appeal, which required the completion of additional environmental studies in accordance with the recommendations from Mr. Roynon’s environmental consultant in response to the appeal. The revised By-Law approved by the Tribunal also applied two new zones to the property shoreline, which were not included in the original By-Law and nine additional “zone provisions” and “other special provisions”, which further constrained the development.

24The Tribunal agrees with the submissions of the Appellants that Mr. Roynon’s Motion for Costs is brought out of time and should be dismissed on that basis.

ORDER

25Accordingly, the Motion by the Applicant for an order awarding costs against the Appellants is hereby dismissed.

26Furthermore, the requests for an order awarding costs against the Applicant in favour of the Appellants for expenses incurred in the preparation of their Response to the motion are also denied.

“R.G.M. Makuch”

R.G.M. MAKUCH

VICE-CHAIR

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.