Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 17, 2021
CASE NO(S).: PL190554
The Ontario Municipal Board (the “OMB”) and the Local Planning Appeal Tribunal (the “LPAT”) is continued under the name Ontario Land Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board or Local Planning Appeal Tribunal in any publication of the Tribunal is deemed to be a reference to the Tribunal.
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Chedo Stepanovic
Subject: Application amend Zoning By-law No. 2018-65 - Refusal of Application by Chedo Stepanovic
Existing Zoning: R1-1 Residential
Proposed Zoning: R1-1 Residential with site-specific exception
Purpose: To permit a "Bed & Breakfast Establishment" use to the existing residential zone
Property Address/Description: 116 Campbell Crescent
Municipality: Town of The Blue Mountains
Municipality File No.: P2688
LPAT Case No.: PL190554
LPAT File No.: PL190554
LPAT Case Name: Stepanovic v. Blue Mountains (Town)
Heard: In Writing
APPEARANCES:
Parties
Counsel*/Representative
Chedo Stepanovic
Gavin Leitch*
The Town of the Blue Mountains
Leo Longo*
DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL
1This Member heard an appeal to the Local Planning Appeal Tribunal (the “Tribunal”) by Chedo Stepanovic from the decision of the Town of The Blue Mountains (“Town”) refusal of an application to amend Zoning By-law No. 2018-65 to provide a site-specific exception that would permit a Bed & Breakfast Establishment (“B & B”) use to the existing residential zoning related to the property.
2On November 17, 2020, the hearing concluded with counsel then making their final submissions. The Tribunal decision was issued on February 1, 2021. The decision allowed the appeal and ordered the Town of the Blue Mountains to amend Zoning By-law No. 2018-65 and authorized a specific exception to allow a one-bedroom B & B to the Property.
3On April 7, 2021, under the authority of Rule 23 of the Tribunal’s Rules of Practice and Procedure (“Rules”), Mr. Stepanovic advised the Tribunal that he would be seeking costs against the Town in written submissions in support of his claim.
4By the provisions of Rule 23.7 of the Tribunal’s Rules, the request for costs is to be determined by the Member that heard the matter on the merits. The Member has read all the filed material and this disposition represents the decision of the Member on the request.
Circumstances In Which A Costs Order May Be Made
5Although it is expressed to be non-exhaustive, the delineation of the bases of a costs order is set forth in Rule 23.9 of the Rules. For convenience, that sub-rule is reproduced here:
6The 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. Clearly unreasonable, frivolous, vexatious or bad faith conduct can include, but is not limited, to:
(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.
7All of the above provisions relate to one’s conduct during an LPAT proceeding from its commencement up until a final disposition.
THE HEARING
8Mr. Longo, Counsel to the Town of the Blue Mountains presented the Town’s position by calling on two expert land use planners who provided testimony as to the chronology of the Application and the merits by which Town Council decided to pursue a moratorium on short-term accommodations.
9Mr. Robinson, land use planning expert for the Town, maintained that the Town was correct in denying any further B & B applications while the Town’s Tourist Accommodation Review and Administrative Penalties By-law which proposes a B & B licensing requirement are being completed.
10Mr. Westendorp, Director of Planning at the Town provided a timeline as to the Town’s decision to review Short Term Accommodations and B & Bs. Mr. Westendorp confirmed that the Town had seen an increase in B & B applications with most being approved. He informed the Tribunal that a Planning Report was before Town Council and the recommendation was to halt the issuance of Zoning By-law Amendments until a review process had been completed.
11Mr. Stepanovic informed the Tribunal that the timing of this hold coincided with the consideration of his application for a B & B.
12The Tribunal being brought through the planning evidence, was informed that Mr. Stepanovic’s application had been received and deemed complete by planning staff prior to the moratorium being enacted.
13The Tribunal considered the planning evidence placed before it and made a determination that an owner-occupied B & B establishment would not change the character of the community in a negative way and that the application met all planning tests. Mr. Stepanovic was successful in the appeal.
14Having been successful in and of itself before this Tribunal, does not constitute a basis for an award of costs. It also should be noted that awards of costs in connection with Tribunal hearings are rare. Equally important is to keep in view, context when assessing the type of request which is before the Tribunal.
15As Member Swinkin illustrated in Dale Inc. & Dale Inc. II v. Toronto, PL171267:
The sphere of public activity which is associated with a planning application ranges from the informed to the ill-informed and encompasses any number of agendas and motivations. That is endemic to the broad consultation process. For the most part, the Tribunal will not concern itself with trying to understand or disentangle all that goes on at the local level. That is not the mandate of the Tribunal. The Tribunal does have a duty to consider the decision which was made by the local council and whatever is disclosed as its rationale. Beyond that, the actions of the multitude of actors who may have been involved along the way is typically not a line of inquiry pursued by the Tribunal.
THE COST REQUEST BY CHEDO STEPANOVIC AND THE BASIS
16The Tribunal, this Member presiding, allowed the appeal, and the Party now seeks an award of costs filed in accordance with s. 23 of the Tribunal’s Rules of Practice and Procedure, in the amount of $18,978.09 on the following grounds as supported in the motion materials:
17Mr. Stepanovic alleges that the Town Council’s behaviour leading up to the hearing was nothing more than an intention and design to obstruct an attempt to defeat the planning proposal put forward by him.
18Mr. Stepanovic clearly indicated in his Motion for Costs award, that it was the conduct of the Town through the Town Planning Process that was the basis for his claim. He stated:
I therefore bring this motion and provide affidavit evidence in support of my claim for costs, and for no other improper purpose. For the reasons I have attempted to summarize in a concise manner below, I believe the municipality's conduct during the application process and subsequent appeal was unreasonable and therefore warrants an order for costs.
19In making a decision under the Act with respect to an appeal, the Tribunal has to have regard for matters of provincial interest as set out in s. 2 of the Act. Under s. 2.1(1) of the Act, the Tribunal shall have regard for the decision of the approval authority and the information considered by the approval authority.
20The Tribunal heard testimony from the Town on the chronology of the timing of the application process and the decision of Council which was considered in this matter and weighed it accordingly.
THE DISPOSITION
21Having reviewed the submissions of the Parties, including the authorities relied upon, the Tribunal cannot find that the requested award of $18,978.09 costs is warranted in these circumstances for the reasons that follow.
22None of the Town’s conduct alleged by Mr. Stepanovic in his motion relates to the Tribunal proceeding. Rather, it relates to his assessment of the Town’s Planning Act public process leading up to Council’s decision to refuse his site-specific zoning by-law amendment application but before his appeal was filed.
23The example Mr. Stepanovic has cited does not equate to an entitlement for an award of costs, and he has provided no evidence distinguishing the costs claimed from that expected to be incurred in a multi-day contested hearing.
24The Tribunal would characterize the hearing as a typical contested hearing. The only consideration within the jurisdiction of the Tribunal is whether the conduct during the hearing could be characterized to meet the threshold established in its jurisprudence, and the Tribunal finds that there was not.
25The Tribunal is not persuaded to exercise its discretion to award costs in this instance. The Motion is therefore dismissed.
26The Tribunal also dismisses the Town’s request for costs on this motion.
“D. Chipman”
D. CHIPMAN
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.