Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 09, 2021

CASE NO(S).: PL200290

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Referred by: M & M Farms Ltd.

Subject: Site Plan

Property Address/Description: 1775 Road 4 East

Municipality: Town of Kingsville

OLT Case No.: PL200290

OLT File No.: PL200290

OLT Case Name: M & M Farms Ltd. v. Kingsville (Town)

PROCEEDING COMMENCED UNDER subsection 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: M & M Farms Ltd.

Request for: Request for an Order Awarding Costs

Costs sought against: Town of Kingsville

Heard: October 13, 2021 in writing

APPEARANCES:

Parties

M & M Farms Ltd.

Counsel

P. Courey A. Pettit

Parties

Town of Kingsville

Counsel

J. Hewitt

DECISION DELIVERED BY STEVEN COOKE AND ORDER OF THE TRIBUNAL

MOTION FOR COSTS

1The matter before the Tribunal is a motion for costs to be heard in writing pursuant to Rule 23.2 of the Ontario Land Tribunal Rules of Practice and Procedure.

2M & M Farms Ltd. (“Appellant”) is seeking an order of the Tribunal to award costs of $15,636.28 from the Town of Kingsville (“Town”). The Appellant’s grounds are listed as follows:

1. On multiple occasions, the Town unreasonably and in bad faith decided not to make a decision on the Appellant’s legally valid site plan;
2. Although the initial site plan was legally valid, refusal to approve, or even decide on it, caused the Appellant additional expenses, such as further consultation with: N.J. Peralta Engineering Ltd., Tracey Pillon-Abbs Principal Planner, legal fees, etc.
3. The Town failed to act in a timely manner by deferring decisions on numerous occasions and in bad faith, by approving the zoning regulation at 16-metre (“m”) set back but declining to approve a site plan that complied with that regulation;
4. On January 4, 2021, the Appellant offered to settle this matter on the same terms provided in the Tribunal’s ruling on a without costs basis, namely that the plan be approved with a 16-m setback;
5. The Town presented no evidence except evidence that supported the Appellant’s appeal.
6. Rule 23 of the Ontario Land Tribunal Rules of Practice and Procedure; and
7. Such further and other grounds as this honourable Tribunal deems just.

3It is the position of the Appellant that, on multiple occasions, the Town acted unreasonably and in bad faith, by not making a decision despite the efforts of the Appellant to resolve or settle the matter. The Appellant further submits that even though the applications had the recommendation of the Town staff, the Council acted in bad faith by approving the zoning by-law but kept deferring the site plan because of concerns by a neighbour.

RESPONSE FROM THE TOWN

4It is on a rare occasion that the Tribunal would award costs against a public authority. The Town submits that the request for costs is not appropriate.

5While the Town recognizes that offers to settle had occurred and that the Staff acted in a professional manner, the Town Council is obligated to consider a wide range of factors, priorities, and legislation that may not abide by the Town staff recommendation.

6The Town takes the position that the Appellant has been treated fairly and respectfully by the Town, during the municipal process and the hearing before the Tribunal. It is not within the jurisdiction of the Tribunal to award costs for conduct occurring outside the proceedings of the Tribunal. With that said, the Town did nothing to delay or prolong the hearing. Important to note that the Town ensured that the Town Planner would be in attendance during the hearing without summons.

ANALYSIS AND FINDINGS

7After taking into consideration the submissions from the Parties, the Tribunal does not find that costs are in order as there is no substantial evidence that the Town acted in a manner that would be considered in bad faith.

8The Appellant submits that the Town acted in bad faith by not making a decision despite the Appellant’s efforts to resolve the issues that had been supported by Town staff. Staff make recommendations to Town Council, but it is ultimately the Council’s discretion on how to deal with the matter. Not making a decision is the right of a Council and should not be considered a matter of costs. The Appellant in this case has the remedy, that it proceeded with, to appeal the matter before the Tribunal.

9During the proceedings before the Tribunal, only one expert witness appeared, being the Town Planner. While giving the oral decision on the matter, before the Tribunal, the Member noted and thanked the Town staff for their assistance to the Tribunal for providing unbiased land use planning evidence.

10The Appellant did not incur costs of a planner or engineer that was brought before the Tribunal. Those costs that the Appellant have submitted for the Tribunal’s consideration are professional costs that would have occurred during the application process regardless of the Tribunal hearing.

11The Tribunal also agrees with the Town that matters that may have occurred outside of the Tribunal’s proceedings are not subject to costs as they are not within the jurisdiction of the Tribunal.

ORDER

12THE TRIBUNAL ORDERS that the application for costs is denied and no costs are awarded.

“Steven Cooke”

STEVEN COOKE MEMBER

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.