Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 17, 2021
CASE NO(S).: PL190555
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Laura Sabourin
Subject: Application amend Zoning By-law No. 2018-65 - Refusal of Application by Town of The Blue Mountains
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: 160 Grand Cypress Lane
Municipality: Town of The Blue Mountains
Municipality File No.: P2740
OLT Case No.: PL190555
OLT File No.: PL190555
OLT Case Name: Sabourin v. Blue Mountains (Town)
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act 2021, S.O. 2021, c. 4, Sched. 6
Request by: Laura Sabourin
Request for: Request for an Order Awarding Costs
Costs sought against: John Kutcy
Heard: in writing
APPEARANCES:
Parties
Counsel*/Representative
Laura Sabourin
Gavin Leitch*
The Town of the Blue Mountains
Leo Longo*
John Kutcy
Self-represented
DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL
1This Member heard an appeal to the Local Planning Appeal Tribunal (the “Tribunal”) by Laura Sabourin 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 160 Grand Cypress Lane (the “Property”).
2In November 2020, the hearing concluded with counsel then making their final submissions. The Tribunal decision was issued on February 3, 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 three-bedroom B & B to the Property.
3On April 30, 2021, under the authority of Rule 23 of the Tribunal’s Rules of Practice and Procedure (“Rules”), Laura Sabourin advised the Tribunal that she would be seeking costs against John Kutcy in written submissions in support of her claim.
4By the provisions of Rule 23.7 of the Tribunal’s Rules, the request for costs is to be determined by the Member who 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 basis of a costs order is set forth in Rule 23.9 of the Rules. For convenience, that sub-rule is reproduced here:
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. 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.
6In the view of the Tribunal, based upon the Rule above, the list can be further amplified by including the following behaviours which have been tested before the Tribunal:
stubborn or willful ignorance
persistent disrespect exhibited in the course of the hearing
failures to abide by Tribunal orders and directions during and/or prior to the hearing
using the appeal process for ulterior self-serving motives
maintaining unsupportable positions in the face of cautions from the Tribunal to cease that course of action
THE HEARING
7Mr. Longo, Counsel to the Town of The Blue Mountains experienced technical difficulties with video on his computer which did not allow him to be visible to the Tribunal. He was successful in participating through audio.
8It was mentioned at the start of the hearing that Mr. Kutcy was being granted Party status and would participate on his own merit as the Residents Association was not incorporated. He understood this completely.
9The Tribunal being brought through the planning evidence was informed that the Town had placed a moratorium on receiving applications relating to short-term accommodations while a study was being undertaken. Ms. Sabourin’s application had been received and deemed complete by planning staff prior to the moratorium being enacted.
10The 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. Ms. Sabourin was successful in the appeal.
11Having 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.
12As Member Swinkin illustrated in Dale Inc. & Dale Inc. II v. Toronto (City), 2020 CanLII 73600 (ON LPAT), PL171267 at paragraph [14]:
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 LAURA SABOURIN AND THE BASIS
13Ms. Sabourin is requesting costs in the amount of $1,465.61 which she declares represents the amount she paid to her Counsel and Planner in pursuing her appeal before this Tribunal with respect to John Kutcy’s pursuit and having been granted Party status. Ms. Sabourin alleges that these costs were directly caused by the unreasonable and bad faith conduct of Mr. Kutcy leading up to and during the proceeding.
14Ms. Sabourin alleges that the behaviour of Mr. Kutcy throughout the process 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 her. Further, Ms. Sabourin cites that Town Council’s refusal of her application was due in part to Mr. Kutcy. In this regard, Ms. Sabourin enumerates the following characters or categories of unreasonable, vexatious and bad faith conduct which ought to attract the disapproval of the Tribunal in the form of a costs award.
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;
15Ms. Sabourin alleges that Mr. Kutcy failed to meet the Procedural Order deadlines by failing to submit his Issues List on time. Further, she notes in this request that it was her counsel that contacted Mr. Kutcy to work with him to enable a timely submission at a cost she bore.
16The Tribunal does not agree with Ms. Sabourin. Parties are expected to prepare for hearings to ensure efficient use of Tribunal time. It is commonplace that Mr. Kutcy, Mr. Longo and Mr. Leitch would communicate to ensure that all documentation is prepared.
17Ms. Sabourin submits that Mr. Kutcy’s revisiting of the Party status granted through the Case Management Conference dated September 2019, to speak on behalf of the Residents Association, an unincorporated entity, delayed the course of the Hearing.
18The Tribunal, as a matter of protocol, asks Parties to identify themselves and speak to their relationship to the appeal. Mr. Kutcy stated that he was part of a Residents Association that has issues with the Application. At a prior Case Management Conference, he was informed that his request to represent the Residents Association was declined as the Residents Association is not incorporated. The Tribunal informed Mr. Kutcy that his testimony as an individual would be weighed accordingly and that his full participation was required for the length of the hearing.
19The Tribunal notes there was no undue delay as suggested by Ms. Sabourin.
d) a course of conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events;
20Ms. Sabourin submits Mr. Kutcy delayed the proceeding based on a number of matters including failing to submit Witness Statements and Exhibits (Covenants and Contracts as Interests of Land and Transfer of Deeds).
21Ms. Sabourin submits the hearing could have ended earlier if Mr. Kutcy had been online and prepared to commence the hearing at the appointed time.
22Counsel for Ms. Sabourin made no mention of late submissions made by Mr. Kutcy. If this were the case, the Tribunal would have investigated thoroughly.
e) failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper;
23Ms. Sabourin submits that Mr. Kutcy appeared on the video hearing walking around which to her was frivolous and distracting behaviour and a direct disregard for the instructions given by the Member at the beginning of the hearing.
24Ms. Sabourin stated:
Mr. Kutcy experienced his family crisis on the first day of hearing, he had another opportunity to remove himself as a Party but rather acted frivolously, in disregard for the Rules of Conduct and with no apology or explanation to the other attendees. While Member Chipman was tolerant of his behaviour as the appellant I had a personal interest in the success of my appeal and found his behaviour to be frivolous, erratic and distracting.
25The Tribunal does not agree with Ms. Sabourin’s statement.
h) knowingly presenting false or misleading evidence;
26Ms. Sabourin claims that Mr. Kutcy presented false or misleading evidence which was presented at the Hearing.
27The Tribunal notes that this is simply not true. All documents submitted at the Hearing were brought into evidence to clarify the issues Mr. Kutcy had with the Application. Submissions are received during the normal course of Hearings to substantiate fact-based evidence and assist the Tribunal in the decision-making process. Further, had Mr. Kutcy submitted documents which the Tribunal felt had no bearing on the matter, Counsel had ample opportunity to challenge its relevance.
THE DISPOSITION
28The Tribunal did not find the conduct of Mr. Kutcy in the hearing process unreasonable or offending the general principles of behaviour established by Rule 23.
29The 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.
30The Tribunal is not persuaded to exercise its discretion to award in this instance. The Motion is therefore dismissed.
“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.