Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 01, 2021

CASE NO(S).: PL200057

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Toronto-Guild Investments Ltd.

Subject: Application amend Zoning By-law No. (7184) - Refusal of Application by the Town of Whitby

Existing Zoning: R3 – Third Density Residential

Proposed Zoning: Appropriate zone category to permit proposed development

Purpose: To permit 20 semi-detached units and 15 block townhouse units

Property Address/Description: 143 Garrard Road

Municipality: Town of Whitby

Municipality File No.: Z-02-18

OLT Case No.: PL200057

OLT File No.: PL200057

OLT Case Name: Toronto Guild Investments Ltd v. Whitby (Town)

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

Subject: Site Plan

Property Address/Description: 143 Garrard Road

Municipality: Town of Whitby

OLT Case No.: PL200057

OLT File No.: PL200058

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

Request by: Toronto-Guild Investments Ltd.

Request for: Request for an Order Awarding Costs

Costs sought against: Town of Whitby

Heard: In writing

APPEARANCES:

Parties	Counsel
Toronto-Guild Investments Ltd. (“TGIL”)	A. Skinner M. Helfand
Town of Whitby (“Town”)	S. J. D’Agostino

DECISION DELIVERED BY S. JACOBS AND ORDER OF THE TRIBUNAL

Introduction

1TGIL was successful in its appeals to the Tribunal to amend the Town’s zoning by-law and approve a site plan for its proposed redevelopment of 143 Garrard Road, consisting of townhouses and semi-detached dwellings. Member Brown issued his Decision allowing TGIL’s appeals on May 27, 2021¹ (the “Decision”), and TGIL has now brought a motion seeking costs from the Town. The Chair directed this Member to hear the motion in accordance with Rule 23.7 of the Tribunal’s Rules of Practice and Procedure (the “Rules”).

2The Tribunal had the benefit of reviewing the following written materials filed in support of the motion and response:

• TGIL’s Notice of Motion, totalling 641 pages and including Affidavits of Jasmine Chung (a lawyer with Aird & Berlis) and Mark Janzen (president of TGIL), as well as a Book of Authorities;
• The Town’s Response to Motion, totalling 268 pages and including the Affidavit of Pouya Dabiran-Zohoory (a lawyer with Thomson Rogers), as well as a Book of Authorities; and
• TGIL’s Reply.

This panel has also carefully reviewed Member Brown’s Decision to understand the hearing event that prompted this request for costs.

3TGIL seeks a total of $109,056.02 in costs, broken down as follows:

Item	Cost Incurred and Sought by TGIL
Legal fees and disbursements from Nov. 20, 2020-March 4, 2021 (at a 50% partial recovery rate)	$60,111.23
R.J. Burnside fees and disbursements that would have been unnecessary but for the Town’s conduct (traffic engineering)	$38,507.00 (alternatively, $17,000.00 - $20,500.00)
Weston Consulting fees and disbursements that would have been unnecessary but for the Town’s conduct (land use planning)	$8,228.00
Architects Unfolded fees and disbursements that would not have been necessary but for the Town’s conduct	$2,209.79
TOTAL:	$109,056.02

It alleges that these costs were directly and necessarily caused by the unreasonable, frivolous, vexatious, and bad faith conduct of the Town.

4The Town’s conduct, as alleged by TGIL, can be grouped into three categories:

1. Delayed Issues List: The Town failed to provide its issues list to TGIL until the afternoon of the day the Tribunal set as the deadline for the parties to finalize the Procedural Order (the “PO”). As a result, TGIL submits that any opportunity to resolve or settle issues before the hearing was foreclosed.
2. Interim Control By-law and Adjournment Requests: The Town enacted an Interim Control By-law (the “ICBL”)² affecting the subject property three months before the hearing and then brought two unsuccessful attempts to adjourn the hearing sine die. These, in TGIL’s submission, are steps contrary to the Tribunal’s expectation that all parties should proceed in a way that secures a fair, just and expeditious determination of every proceeding on its merits.
3. Failure to Present Evidence: The Town failed to present any evidence at the hearing, despite raising land use planning and traffic issues that demanded supporting evidence. Because the Town had included both a land use planning witness and a traffic witness on its witness list, TGIL argues that it incurred unnecessary costs in having its experts attend meetings with and respond to Town experts, who would ultimately not appear at the hearing.

5The Town responds that an award of costs is an extraordinary measure and that none of its conduct reflects the type of conduct typically sanctioned by the Tribunal through a costs award.

6Accordingly, the issue the Tribunal must determine in this motion is whether the Town engaged in conduct that can be considered unreasonable, frivolous, vexatious or in bad faith such that it should be reprimanded with costs. Before considering the issue, it is necessary to set out the key events relevant to TGIL’s request for costs and the Town’s response.

Chronology of Key Events

7While TGIL requests costs it incurred beginning in November 2020, there were events before that date that are important for understanding what later transpired. The chronology of key events is summarized here for ease of reference:

Date	Event
January 29, 2018	TGIL applied to the Town for planning approvals to facilitate its intended development. Following the initial submission and a statutory public meeting, TGIL worked with Town planning staff to refine its proposal.
December 2, 2019	Town planning staff, in a report to the Town’s Committee of the Whole, recommended approval of TGIL’s application. The Committee of the Whole recommended that the Town should deny the application.
December 16, 2019	Town council refused TGIL’s zoning by-law amendment application.
January 6, 2020	TGIL appealed the Town’s refusal of the zoning by-law amendment and the Town’s failure to decide the site plan application to the Tribunal.
February 24, 2020	The Tribunal scheduled a Case Management Conference (“CMC”) for TGIL’s appeals to take place in May 2020.
March 24, 2020	The Tribunal adjourned the CMC due to the pandemic.
October 14, 2020	Member Cooke conducted a CMC for TGIL’s appeals and scheduled a four-day hearing starting March 2, 2021. The Tribunal directed the parties to submit their PO, including issues list, on or before November 20, 2020.
November 20, 2020	The parties filed the PO, including issues list, with the Tribunal.
November 26, 2020	Town counsel requested an extension for the exchange of witness lists from December 4, 2020 to December 8, 2020, citing the need to confer with the Town on a matter that had recently arisen. Counsel for TGIL consented to the extension and the Tribunal approved the extension.
December 7, 2020	Town council met in camera to discuss the TGIL appeals. Following the in camera session, council passed the ICBL.
December 8, 2020	The parties exchanged their witness lists for the hearing. TGIL indicated it would call Ryan Guetter (land use planning) and David Argue (transportation engineering). The Town indicated it would call Kathryn Kram (land use planning) and Kenneth Chan (transportation engineering).
December 15, 2020	Counsel for the Town, through the Tribunal’s Case Coordinator, requested an adjournment of the upcoming hearing due to the passage of the ICBL. TGIL did not consent to the adjournment. The Tribunal denied the adjournment on December 23, 2020, noting that any substantive issues related to the ICBL would be more appropriately put to the hearing panel.
January 15, 2021	The parties filed Agreed Statements of Fact from their land use planning and traffic witnesses.
January 29, 2021	At the Town’s initiation, the parties requested on consent that the PO be amended to delete certain issues, scope certain other issues to apply solely to the proposed site plan, and extend the deadlines for the exchange of expert witness statements and responses. The Tribunal approved the requested amendments to the PO.
February 9, 2021	The parties exchanged witness statements. The Town did not include a witness statement for Ms. Kram. Town counsel advised the Tribunal and counsel for TGIL that he had just learned that Ms. Kram would not be available to testify at the hearing.
February 12, 2021	The Town filed a Notice of Motion to adjourn the hearing, returnable at the start of the March hearing. TGIL filed a response on February 25, 2021 to oppose the adjournment.
February 23, 2021	TGIL filed two reply witness statements, one from its land use planning consultant and one from its traffic consultant, in response to Mr. Chan’s witness statement.
March 2-4, 2021	The hearing proceeded. Member Brown heard and denied the Town’s motion for adjournment and the hearing was completed in three days.

8The Tribunal turns now to the issue raised by this motion.

ANALYSIS

9The Tribunal has authority to award costs pursuant to its enabling legislation, the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, as amended. Section 20 of that statute allows the Tribunal to award costs in accordance with its Rules:

Costs

20. The Tribunal may, subject to any other Act, fix the costs of and incidental to any proceeding, and order a party to the proceeding to pay the costs, in accordance with the rules.

Costs are dealt with in Rule 23 of the Tribunals Rules, which details the procedure for a costs motion, as well as the types of conduct that might attract a costs award.

10Rule 23.9 provides that 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.” The Rule goes on to provide these examples of unreasonable, frivolous, vexatious, or bad faith conduct:

a. failing to attend a hearing event or failing to send a representative when properly given notice, without contacting the Tribunal;

b. failing to give notice without adequate explanation, lack of co-operation with other parties during the proceedings, changing a position without notice to the parties, or introducing an issue or evidence not previously mentioned or included in a procedural order;

c. failing to act in a timely manner or failing to comply with a procedural order or direction of the Tribunal where the result is undue prejudice or delay;

d. a course of conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events;

e. failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper;

f. failing to make reasonable efforts to combine submissions with parties of similar interest;

g. acting disrespectfully or maligning the character of another party;

h. knowingly presenting false or misleading evidence; or

i. breaching a confidentiality requirement of a mediation, settlement conference or of a decision of the Tribunal in the hearing of the merits.

Following this list, the Rule provides an important qualification: “The Tribunal is not bound to order costs when any of these examples occur as the Tribunal will consider the seriousness of the misconduct.” In other words, if one of the listed examples of unreasonable, frivolous, vexatious, or bad faith conduct takes place in a Tribunal proceeding, it will not necessarily lead to an award of costs. Such an award depends on how serious the Tribunal finds the misconduct to be.

11TGIL submits that the Town’s behaviour generally runs contrary to the Tribunal’s expectation for parties to conduct themselves such that a fair, just, and expeditious determination of the proceeding can be achieved. Specifically, TGIL cites Rule 23.9(c) and (e) as examples of the Town’s conduct that can be considered unreasonable, vexatious, and in bad faith.

12Costs awards are, as the Town submits, an extraordinary power of the Tribunal. It is one that is rarely exercised. Where the Tribunal and its predecessors have awarded costs, it has been in the face of conduct that clearly amounted to unreasonable, frivolous, vexatious, or in bad faith. As Vice-Chair Seaborn succinctly put it:

The test for clearly unreasonable conduct that is most often cited in Board decisions is: would a reasonable person, having looked at all of the circumstances of the case, conclude the conduct was not right, the conduct was not fair and that person ought to be obligated to another in some way for that kind of conduct.³

Vice-Chair Seaborn also cautioned that while there is a body of case law that details circumstances in which the Tribunal has awarded costs, each case is specific to its own facts.

13A review of the authorities submitted in this case reveals courses of misconduct so serious that they warranted reprimand in the form of costs. Some examples of clearly unreasonable behaviour include knowingly presenting false facts and evidence,⁴ failing to put any effort into preparing a case,⁵ and bringing an appeal based not on land use planning grounds, but out of fear of a competing business.⁶

14There are few instances of the Tribunal awarding costs against a municipality. The Tribunal and its predecessors have long recognized that a municipality’s participation in an appeal can serve the public interest. While this acknowledgment of a municipality’s public interest role does not preclude the Tribunal from making a cost award against a municipality, the public interest has been a consideration when determining the appropriate amount of such an award.

15Of the many authorities the parties submitted to the Tribunal, only two stand out as exceptional instances in which the Tribunal saw fit to award costs against a municipality. In one such case, the Ontario Municipal Board awarded costs against the City of Toronto, finding that its passing of two official plan amendments and a zoning by-law were without land use planning merit and were the City’s attempt to thwart an applicant’s site specific planning applications. In making that finding, the Board noted:

…on the face of clear and unambiguous evidence, the City's intent in adopting the City Instruments was not above board and the course of conduct before and after adoption, therefore, was unreasonable and vexatious, and constituted bad faith.⁷

16The Board also found frivolous, vexatious, and clearly unreasonable conduct that was in bad faith where the Town of Blue Mountains – on numerous occasions and without notice – changed its position in an ongoing proceeding, introduced new issues, and as a result caused extensive delay.⁸

17The Tribunal will now address each of TGIL’s alleged areas of the Town’s unreasonable conduct, starting with the issues list.

1. Delayed Issued List

18TGIL argues that the Town failed to respond to TGIL with its list of issues until the afternoon on the date the Tribunal had set as the deadline for submitting the PO. As a result, TGIL believes any opportunity for narrowing or settling issues in the appeals was foreclosed. The Town responds that the PO, including issues list, was submitted to the Tribunal on time. There was no delay and, it points out, the Town later proposed deletions and scoping of the issues list that TGIL accepted and the Tribunal approved.

19This panel sees nothing unreasonable in the Town’s conduct regarding the issues list. It is part of the normal ebb and flow of a Tribunal proceeding for the parties to exchange proposed issues even as the submission deadline approaches. In this case, the parties were successful in submitting their issues list on time on November 20, 2020. There was no delay to the proceeding.

20The Tribunal also finds that TGIL’s argument that the Town’s late submission of issues foreclosed opportunities to narrow, or settle issues, is contradicted by the Town’s later efforts to delete issues and scope certain issues to the site plan appeal. All of this would have made for a more efficient hearing and does not amount to unreasonable conduct.

2. The ICBL and Adjournment Requests

21TGIL argues that the Town’s adoption of the ICBL represents an unreasonable attempt by the Town to collaterally attack this ongoing Tribunal proceeding. In TGIL’s view, the Town used the ICBL as a guise to adjourn the hearing. TGIL was careful in its Reply to note that it is not attempting to argue that the ICBL itself was passed in bad faith, as it acknowledges that the ICBL is not before the Tribunal, and this is therefore not the forum for such an allegation. Rather, it ties the passage of the ICBL to the Town’s roles and responsibilities as a party in this proceeding.

22The Town responds that it passed the ICBL to address a longstanding issue regarding infill development, which was part of council’s direction to planning staff when considering TGIL’s application in 2019. It points out that the ICBL is of broad application throughout the Town, as it is designed to protect Whitby’s mature neighbourhoods, and is clearly not an attack on TGIL’s proposed development.

23With respect to its related adjournment requests, the Town submits that these were brought well in advance of the scheduled hearing. When the Tribunal denied the Town’s first request, the Town notified TGIL that it intended to bring a motion for adjournment at the start of the hearing. The Town also points out that the Tribunal’s denial of its first adjournment request indicated that the substantive issues raised by the ICBL would be more appropriately determined by the hearing panel.

24Member Brown heard the adjournment request and ultimately denied it. There is considerable discussion in the Decision concerning the motion for adjournment in paragraphs 10-28 (pages 4-9). At paragraph 26, he noted that he found the timing of the ICBL to be concerning:

The Tribunal finds that the timing of the passing of the ICBL is concerning. This matter has been on the Tribunal’s calendar since March of 2020 and the application was at the Town for a considerable time before that with no indication that the Town was contemplating a review of their Official Plan and Zoning By-law in respect to infill intensification in mature neighbourhoods. The Tribunal finds that an adjournment to a further Case Management Conference to occur a year or more from the date of the hearing and with no ability to anticipate what the next fair and just step in these proceedings might be is not appropriate.

25TGIL relies on this quote from the Decision, along with the Town’s passage of the ICBL immediately following an in camera session to discussion the TGIL appeals, to support its argument that the Town used the ICBL as a litigation strategy in this proceeding. TGIL argues that the Town lacked confidence in its experts and evidence and attempted to use the ICBL as a guise to adjourn the hearing indefinitely, so that it could then use its study related to the ICBL to bolster its case in these appeals. TGIL therefore believes it is entitled to all of its costs responding to the Town’s enactment of the ICBL and then responding to the two adjournment requests.

26Having reviewed Member Brown’s Decision and the motion materials, the Tribunal is not persuaded by TGIL’s argument. The ICBL is clearly of broad application in the municipality, covering a substantial portion of the Town’s urban area. Though it includes the subject property, it extends far beyond. It may be that TGIL’s application represented a catalyst for the Town, as TGIL claims counsel for the Town conceded during closing submissions. However, the Tribunal cannot accept that the ICBL was a litigation strategy designed solely to derail this proceeding.

27There is no question that Member Brown found the timing of the ICBL to be concerning. However, that finding must be read in context of his ultimate finding that an adjournment was inappropriate. It is telling that he not only heard the adjournment motion, but that he spent a significant amount of time in the Decision detailing and grappling with the issues raised by the adjournment request. This indicates that the hearing panel saw some merit in considering the adjournment request, although it was ultimately denied.

28The Town was also invited to raise its concerns with the ICBL with the hearing panel, through the Tribunal’s administrative denial of the first adjournment request. While there was time and expense involved in TGIL preparing a response to the Town’s Notice of Motion for the adjournment, this panel finds that the Town’s adherence to the Tribunal’s Rules to properly prepare and file its motion with notice to the Tribunal and TGIL was not unreasonable. Had it not done so, and instead made an oral request for adjournment at the start of the hearing, neither TGIL nor the hearing panel would have an opportunity to review and consider the grounds for the motion. This could have led to significant delay at the start of the scheduled hearing.

29As it was, this hearing that was originally scheduled for four days was completed within the scheduled time, and, it appears from the Decision, even a day early. In this case, though the timing of the ICBL was concerning, it was not unreasonable for the Town to bring the substantive issues raised by the ICBL to the Tribunal for its determination. It did so with notice to TGIL and the Tribunal – and at the invitation of the Tribunal to raise concerns related to the ICBL with the hearing panel.

30Though the timing of the ICBL is concerning, this panel can draw no parallel to the clearly unreasonable conduct found by the Tribunal and its predecessors in previous decisions. There is an obvious distinction between this case, involving an ICBL that is not before the Tribunal and of broad application in the Town, and SmartCentres, where the Board found the municipality adopted planning instruments that were without planning merit as an attempt to hinder site-specific development applications that were before the Board.

31The Tribunal finds no clearly unreasonable conduct on the Town’s part regarding the ICBL and adjournment requests that would warrant a costs award.

3. Failure to Call Evidence

32TGIL submits that because the Town failed to call a land use planning witness and transportation engineering witness, as it indicated it would do through its witness list and the meeting of experts, TGIL incurred unnecessary costs in preparing its case. It claims that had it known the Town would not be calling a transportation expert, it could have chosen not to call its transportation consultant, Mr. Argue, or that he could have scoped his evidence. This is why TGIL presents a range of appropriate costs relating to its traffic consultant.

33TGIL also claims the costs of its land use planning witness, Mr. Guetter, in having to prepare a reply witness statement to the Town’s transportation witness, Mr. Chan, as well as costs for attending the expert’s meeting with the Town’s intended planning witness and preparing an agreed statement of facts based on that meeting.

34In response, the Town submits that TGIL, as an appellant, has a responsibility to satisfy the Tribunal that its application is consistent with the Provincial Policy Statement, 2020, and conforms with the Town’s Official Plan, regardless of the case the Town presents. Regarding its transportation witness, the Town submits it decided not to call Mr. Chan because his evidence would have duplicated that of Mr. Argue.

35Counsel for the Town advised TGIL and the Tribunal on February 9, 2021 that its land use planning witness, Ms. Kram, would not be available to testify. It therefore did not provide a witness statement for Ms. Kram, though she participated in a meeting with TGIL’s planning witness, Mr. Guetter, to produce an Agreed Statement of Facts. While the Town did provide a witness statement for its transportation engineering witness, Mr. Chan, counsel advised the Tribunal at the start of the hearing that Mr. Chan would not be testifying. There is minimal discussion about this in the Decision, at paragraph 29:

Mr. D’Agostino advised the Tribunal that the Town will not be calling a Transportation witness and requested that the witness statement of Kenneth Chan be struck from the Tribunal’s records. Mr. D’Agostino confirmed that the Town remains opposed to the ZBA.

Additionally, at paragraph 3, the Tribunal indicated: “The Town did not call any witnesses.”

36Through the motion materials, the Tribunal understands that there was no objection from TGIL to strike Mr. Chan’s witness statement, and that Mr. D’Agostino indicated he was prepared to call Mr. Chan were there such an objection. It is clear from the Decision that the Tribunal proceeded without Mr. Chan and did not discuss his witness statement. The Decision focusses only on the evidence of TGIL’s witnesses and raises no concerns with the Town’s failure to call the witnesses it previously indicated it would call.

37Having reviewed the motion materials and the Decision, the Tribunal finds that while it is unfortunate for TGIL that the Town elected not to call its witnesses, this provided for a more scoped hearing. The same can be said given that the Town’s witnesses had participated in the meetings of like experts, which are also intended to scope the issues requiring the Tribunal’s adjudication at the hearing. In this case, those meetings achieved that goal, as the parties were able to remove some issues from the list and scope others.

38The Town indicates in its response to the motion that it saw no sense in calling its transportation engineer to provide evidence that duplicated that of TGIL’s witness. Though it advised TGIL and the Tribunal of this rather late in the proceeding, at the start of the hearing, it made for a more efficient hearing, and there was no debate about it before the hearing panel. The Town’s decision not to call Mr. Chan was an effort to avoid duplicative evidence, and it also allowed the hearing panel to focus on the uncontested evidence it heard from Mr. Argue.

39It is also apparent that traffic was the topic of at least two issues on the approved issues list, and it was also a matter raised by participants in the proceeding. In fact, Town council cited traffic and access as one of the reasons for its refusal of the application. Member Brown referred to that refusal in having regard to the Town’s decision in accordance with s. 2.1 of the Planning Act. It is certainly not unusual in a Tribunal proceeding for a municipality, whose planning staff recommends an application and council refuses same, to present its case through cross-examination and submissions.

40Given that traffic was included on the issues list, the Tribunal would expect to hear evidence on those issues. This is what TGIL did. It also did not object when the Town indicated it did not intend to call Mr. Chan and would like to have his witness statement stricken. While the Tribunal appreciates that TGIL’s transportation witness had already prepared for the hearing by that time, it was open to TGIL to object to the Town’s request, or to decide not to call its transportation witness. It appears from the Decision that Mr. Argue’s evidence was helpful to the hearing panel in making its determinations on the transportation issues raised by the appeals.

41Regarding TGIL’s land use planning witness, the Tribunal agrees with the Town that it is in an appellant’s interest to advance land use planning evidence regardless of a party opposite’s intention to do the same. Here, the Town advised TGIL as soon as it became aware that Ms. Kram was not available to testify, nearly one month before the hearing. It is also important to note that Ms. Kram authored a staff report supportive of TGIL’s applications. TGIL was long aware that the Town’s intended planning witness was supportive of TGIL’s application and had the opportunity to prepare accordingly. Ms. Kram’s support for the application is further evident in the Agreed Statement of Facts she and Mr. Guetter prepared. Had Ms. Kram been available to testify, her evidence would have been duplicative of Mr. Guetter’s evidence.

42The Tribunal also understands that Mr. Guetter prepared a reply to some of the issues Mr. Chan raised, as they related to Official Plan policies, and that TGIL requests those costs. Again, the Tribunal expects an appellant to tender evidence relevant to the established issues list. Here, TGIL made a strategic decision to have its land use planning witness respond to some of the issues raised by the Town’s transportation witness because they related to the Official Plan. The Tribunal would expect all issues related to Official Plan conformity to be addressed by the Appellant regardless of the Town’s case.

43Accordingly, the Tribunal does not find the Town’s failure to call evidence in these circumstances to be unreasonable.

Conclusion

44Having considered the Town’s conduct in this proceeding, based on a careful review of the extensive materials filed by the parties and the Decision, the Tribunal finds no clearly unreasonable conduct that warrants an award of costs as contemplated by its Rules.

45The Tribunal can find nothing unreasonable in the Town’s conduct with respect to the issues list. On the contrary, the Town acted reasonably by identifying issues that could be removed from the issues list or scoped following the meetings of experts. The Town’s failure to call witnesses was similarly reasonable, as it avoided duplication. Though it would have been ideal for the Town to have advised TGIL sooner that it would not be calling its transportation engineer, this decision did not appear to concern the Tribunal nor TGIL during the hearing, and it also appears to have made for a more focused and efficient hearing.

46Although the timing of Town’s passage of the ICBL was concerning to the hearing panel, it is an instrument that is of broader application than the subject property. The Town brought its related adjournment requests with notice and in accordance with the Tribunal’s Rules. Significantly, the request clearly raised issues that the hearing panel found worthy of consideration despite ultimately denying the adjournment request.

47The Tribunal therefore denies the motion for costs in its entirety.

ORDER

48THE TRIBUNAL ORDERS that the application for costs is denied and no costs are awarded.

“S. Jacobs”

S. JACOBS VICE-CHAIR

Ontario Land Tribunal Website: www.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.

Footnotes

1. 1A replacement decision was issued on June 4, 2021 to correct two sentences in the Decision. Any references to the Decision refer to the corrected version.
2. 2The Town passed two interim control by-laws, one for each of its comprehensive zoning by-laws. They are collectively referred to as the “ICBL” in this motion decision.
3. 3Kimvar Enterprises Inc. v. Innisfil (Town), (2009) 55 M.P.L.R. (4th) 305.
4. 4Campione v. Vaughan (City), 2016 CarswellOnt 19377, 91 O.M.B.R. 439.
5. 5Re Midland (Town) Zoning By-law 94-50, 1995 CarswellOnt 5227, 32 O.M.B.R. 4.
6. 6Hanover County Fair Plaza v. Hanover (Town), 2006 CarswellOnt 1468.
7. 7SmartCentres Inc. (Toronto Film Studios Inc.) v. Toronto (City) (2011), 85 M.P.L.R. (4th) 330, 2011 CarswellOnt 4977 (SmartCentres).
8. 8Blue Mountains (Town) v. Canadian Development Management Corp., 2002 CarswellOnt 3101, 33 M.P.L.R. (3d) 21.