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 subsection 20 of the Ontario Land Tribunal Act, S.O. 2021, c.4, Sched. 6, as amended
Request by:
Laura Sabourin
Request for:
Request for an Order Awarding Costs
Costs sought against:
Town of The Blue Mountains
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 the Town 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.
THE HEARING
6Mr. 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.
7Jamie Robinson, land use planning expert for the Town, maintained that the application was premature in nature. He opined that Council 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.
8Nathan 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.
9Ms. Sabourin informed the Tribunal that the timing of this hold coincided with the consideration of her application for a B & B.
10The Tribunal being brought through the planning evidence was informed that Ms. Sabourin’s application had been received and deemed complete by planning staff prior to the moratorium being enacted.
11The 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.
12Having 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.
13As 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
14Ms. Sabourin is requesting costs in the amount of $22,655.75 which she declares represents the amount she paid to her Counsel and Planner in pursuing her appeal before this Tribunal.
15Ms. Sabourin 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 her. In this regard, Ms. Sabourin enumerates the following characters or categories of failing to present evidence and knowingly presenting false or misleading evidence, conduct which ought to attract the disapproval of the Tribunal in the form of a costs award:
Rule 23.9
(e) failing to present evidence
16Ms. Sabourin alleges:
… that during his evidence in chief, the Town’s expert planning witness (Mr. Robinson) placed significant emphasis on the character of Monterra estates and referenced the built form as a measure of character. He failed to produce documentary or pictorial evidence to support his argument that allowing a B & B use would conflict with the character of Monterra Estates.
17While the Tribunal appreciates information on the overall neighbourhood for contextual purposes, the repetitious nature of what had already been described by Ms. Sabourin’s planner would have added little more to the Tribunal’s understanding of the Property. In context of the “character” of the neighbourhood the Tribunal relied on the evidence provided by Michael Wynia (Ms. Sabourin’s expert planning witness) who opined there would be no alterations to the existing single detached residential dwelling being proposed that would alter the residential character of the dwelling or the general appearance of the Grand Cypress streetscape. Mr. Robinson chose to focus his definition on “character” as more of an intangible connection to the existing neighbourhood.
18In the very sense of hearing two sides of evidence, it is the duty of the Tribunal, in the context of all the evidence, to conclude whether the proposed amendment to the Zoning By-law has due regard for all the planning tests and meets the objectives set out by the Province. In this regard, the Tribunal considered both and after having done so agreed with the evidence provided by the Michael Wynia. The Tribunal does not agree with Ms. Sabourin that Mr. Robinson failed to led evidence. Mr. Robinson simply had a different interpretation to present to the Tribunal.
19On the grounds that the planning witnesses abdicated their responsibility, the Tribunal accepts that deferring to or relying upon the opinions and expertise of a specialized witness to inform a position is a norm and a function of the necessary multi-disciplinary review of applications. This cannot be construed as misconduct, and more importantly does not form the basis for an award of costs.
(h) Knowingly presenting false or misleading evidence order or where the result is undue prejudice or delay;
20Ms. Sabourin referred to Mr. Longo’s cross examination when she said she became aware that the Town through its lawyer or expert planning witness had filed an incomplete version of the Monterra Covenants registered instrument which she states in its incomplete form was misleading. Ms. Sabourin believes that the Tribunal would have dismissed its relevance sooner resulting in a short hearing and a quicker Decision.
21Ms. Sabourin alleges that Mr. Longo was aware that the Tribunal does not have authority over Civil matters such as the Monterra Covenant. Ms. Sabourin submits “that based on the pages intentionally omitted, Mr. Longo felt that the Town would not achieve a successful outcome in Civil Court and had a better chance of success before the LPAT.”
22As is the case in any appeal coming before the Tribunal to a contested hearing, it is expected that the Parties will have differing positions on matters of policy interpretation, and provided the issue is germane to the appeal, there is no onus on the Tribunal to predetermine whether an issue is appropriately at issue before hearing submissions or the evidence and determining weight.
23In making a decision under the Planning Act (“Act”) with respect to an appeal, the Tribunal must have regard for matters of provincial interest as set out in s. 2 of the Act. Under s. 2.1(1) of the Act must have regard for the decision of the approval authority and the information considered by the approval authority.
24Ms. Sabourin’s remarks on how the application processed through the Town Planning Process as written in her Motion for costs is not within the Tribunal’s purview to award costs.
THE DISPOSITION
25Having reviewed the submissions of the Parties, including the authorities relied upon, the Tribunal cannot find that the requested award of $22,655.75 in costs is warranted in these circumstances for the reasons that follow.
26On the basis of the award of costs as submitted, the supporting materials and invoices, there is no evidence or analysis provided to apportion costs specifically attributed to any misconduct from what appear to be the majority of costs associated with the preparation and attendance at the contested hearing.
27The examples Ms. Sabourin has cited does not equate to an entitlement for an award of costs, and she has provided no evidence distinguishing the costs claimed from that expected to be incurred in a multi-day contested hearing.
28The Decision issued outlined that the Tribunal does not have the authority to make a determination on the specifics of title or ownership of a property, or the legality of a Restrictive Covenant, or to decide whether the use is, or is not, in compliance with the covenant. This was indicated in the decision of the Tribunal and as such, issues raised by Ms. Sabourin through this Motion cannot be considered as a basis for costs.
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 it did not.
30The Tribunal is not persuaded to exercise its discretion to award costs in this instance. The Motion is therefore dismissed.
31The Tribunal also dismisses the City’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.