Roach v. Oro-Medonte (Twp.), 2021 CanLII 61063

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 05, 2021

CASE NO(S).: PL200169

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Patricia Roach
Applicant: Virginia & Ray Gingras
Subject: Minor Variance
Variance from By-law No.: 97-95
Property Address/Description: 3626 Line 5 North
Municipality: Township of Oro-Medonte
Municipal File No.: 2020-A-04
LPAT Case No.: PL200169
LPAT File No.: PL200169
LPAT Case Name: Roach v. Oro-Medonte (Twp.)

PROCEEDING COMMENCED UNDER subsection 33(4) of the Local Planning Appeal Tribunal Act, R.S.O. 2017, c. 23, as amended (now section 20 of the Ontario Land Tribunal Act), and Rule 23 of the Tribunal’s Rules of Practice and Procedure

Request by: Virginia and Ray Gringas
Request for: Request for an Order Awarding Costs
Costs sought against: Patricia Roach
Municipality: Township of Oro-Medonte
LPAT Case No.: PL200169
LPAT File No.: PL200169
LPAT Case Name: Roach v. Oro-Medonte (Twp.)

Heard: May 21, 2021 by Motion in Writing

APPEARANCES:

Parties	Counsel*/Representative
Patricia Roach	Matthew Hodgson*
Virginia and Ray Gingras	Ray Gingras
Township of Oro-Medonte	No one appeared

DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL

1Virginia and Ray Gingras (the “Applicants”), of 3626 Line 5 North (“Subject Property”), in the Township of Oro-Medonte (“Township”), County of Simcoe (“County”), filed a Motion for Costs in respect of the Appeal brought by Patricia Roach (the “Appellant”), which appeal was dismissed by the Tribunal (then known as the Local Planning Appeal Tribunal (“LPAT”)). The Applicants’ minor variances were authorized in the decision dated November 10, 2020.

2The Notice of Motion dated April 21, 2021, supported by the Applicants’ affidavits, dated April 21, 2021, is for:

1. An order that the Appellant pay costs to the Applicants in the amount of $69,194.31 which amount represents the Applicants' legal fees, consultant fees and expert witness fees incurred for the purposes of preparing for and attending the LPAT hearing on October 20^th 2020 in respect of LPAT File No. PL200169 (the "Hearing").
2. An order that the Appellant pay costs to the Applicants in the amount of $10,000.00 for the preparation of this Notice of Motion and related motion materials.
3. Pre-judgement and post-judgement interest in accordance with Rule 23.11 of the LPAT Rules of Practice and Procedure (the "Rules"), as amended.
4. Such further and other relief as this honourable Tribunal may deem just.

3The Appellant’s Notice of Response to Motion dated May 8, 2021, supported by the Appellant’s Affidavit dated May 6, 2021, requested the Tribunal to dismiss the Applicants’ motion for costs; and for such further and other relief as the Tribunal deems appropriate. The Applicants then filed a Notice of Reply to Response to Motion dated May 18, 2021.

4The Appellant was unrepresented at the appeal hearing but for the Response to Motion, the Appellant had appointed counsel who (among other grounds) raised non-compliance to Tribunal’s Rules as a ground for dismissal of the Motion for Costs. The Tribunal regards this alleged non-compliance as a threshold issue that needs to be addressed at the outset.

5As of June 1, 2021, the Ontario Land Tribunal Rules of Practice and Procedure (“OLT Rules”) replacing the LPAT Rules came into force and effect. Rule 23.1 of the OLT Rules provides as follows:

Only a party may ask for an award of costs at the end of a hearing event. If the request for costs is not made before the Tribunal renders its decision at the end of the hearing event, the party must notify the Tribunal and the party from whom costs are sought within 30 days after the written decision is issued that the party will be seeking costs, against whom the costs are sought, and an indication of the approximate amount of costs being sought.

(The italicized portion is added after June 1, 2021 when the OLT Rules came into force and effect).

6The Tribunal issued its decision on November 10, 2020. The informal request for costs was communicated on December 11, 2020, one day past the deadline. There was no indication against whom the costs were sought and no approximate costs amount was indicated. Rule 23.1 is a mandatory provision as the word “must” makes this so. Here the Tribunal notes that the Applicants have failed to notify the Tribunal within 30 days after the written decision was issued, that they will be seeking costs against the Appellant and what the approximate costs are.

7All costs requests shall be considered and disposed of by written motion unless a party satisfies the Tribunal that there is significant prejudice caused to the party (rule 23.2 of the OLT Rules). In this instance, no party has indicated any significant prejudice and the matter was to proceed by written motion.

8Since there was a delay in making a request for costs, the Applicants were required to make written submissions to give reasons with respect to the late filing of the request for costs. The motion for costs was filed on April 21, 2021, and the submissions on the delay was separately received by the Appellant on April 30,2021 (Affidavit of Appellant dated May 6, 2021).

9The Applicants set out a number of reasons why the motion should be allowed to proceed, despite their non-compliance with the OLT Rules. In general, the Applicants’ Request to allow the motion past the deadline submitted:

• In these unprecedented times, delays and extensions in limitation periods are to be expected by all parties. When the Emergency Order was issued on March 20, 2020 the order had the effect of suspending limitation periods retroactive to March 16, 2020 with the effect of extending the time period to submit an appeal. Such unintended consequences in judicial and quasi-judicial processes are to be tolerated and accepting these unprecedented times.
• The Applicants communicated their intention to move for costs to the caseworker managing the appeal the very next day following the expiration of 30-day limitation period. They did not hear a response from the caseworker until they followed up again in January then again in February 2021. Again, such delays are to be expected as a result of the pandemic.
• The Appellant should expect delays and be flexible in the administrative process in light of the pandemic.
• In July 2020, the Applicants communicated to the Appellant that they would be seeking costs in this process. They cannot think of any prejudice to the Appellant should the Tribunal allow the motion of cost to proceed at this time.
• The Applicants’ legal counsel showed substantial flexibility and leeway at the hearing by not objecting to several requests from the Appellant. They ask that the same flexibility be granted to them. For example, they were extremely patient when the Appellant showed up (according to the Applicants) unprepared, with no idea who was going to be the appellant and counsel/representative (between Mr. and Mrs. Roach) and the Applicants graciously agreed to anything the Tribunal asked in terms of granting the Dunns the right to also be appellants or the Tribunal guiding the appellants through the process while the Applicants’ legal team and other experts are billing them by the hour. They were patient despite the lack of understanding of process by the appellants. The Applicants ask that the same flexibility be afforded to them. The Applicants said they are small business owners, work hard, followed the process at all times and respected this process by hiring a lawyer, following all rules and being prepared as to not waste taxpayer’s money.
• They were only “hours” late requesting the motion for costs as they did not realize 30 days had passed given they both run small businesses and were unable to keep abreast of the ever changing environment including Covid guidelines, restrictions and changing rules. They were shocked that 30 days had passed and expressed so on the phone to the caseworker when they called to ask for instructions on submitting the motion for costs. They avoided going into their own offices in Barrie and tried to work from home due to Covid as much as possible. As a result, they were splitting their time between their home offices and work offices with little staff to keep them organized and diarized.
• Upon being successful at LPAT, they re-focused attention on trying to get the building process back on track. They intended to build during the summer of 2020 but were prevented from doing so because of the appeal. Such delay has severely impacted them financially. They are now living in a rental home. Lumber and building costs have gone up substantially. None of these consequential costs are being requested in this motion.
• They understood that their lawyers would be asking for costs and requested they do so at the hearing. After a long day of pleadings they were unsure if costs had been already mentioned or asked.
• The last 6 months of high legal fees, stress and time devoted to the appeal have taken their toll. They are typically extremely punctual and were in shock a deadline was missed (even only by a few hours). They ask the Tribunal to allow the same flexibility and leeway that was afforded to the Appellants.

10The Tribunal’s process at a hearing when lay people are self-represented, typically involves explaining the obligations and rights of parties including the process of presentation of their case, examination and cross-examination of witnesses. It was no different in the appeal that was heard by this Member, for these parties. The Dunns were granted participant status (not as appellants) and Mr. Roach was granted participant status by this Member. The Tribunal notes that Mr. Roach did present the Appellant’s case and also examined witnesses. The appeal hearing was fixed for one day and the hearing was completed in one day where all attending parties were expected to put in the scheduled hours.

11The Tribunal finds that of the reasons furnished, the financial considerations and the experts engaged, are the personal decisions that do not provide a basis for the delay in making a request for costs.

12Similarly, matters prior to and after the appeal hearing, relating to building and the lumber costs or consequential costs, are not relevant to the delay of the costs motion.

13Being busy in running a business or businesses is, in general, not an acceptable reason for not keeping to the required request of motion deadline for the costs motion. In this case, the request for motion is out of time and the Applicants are now required to provide reasons as to why the delayed request should be allowed outside the 30-day period.

14The Tribunal disagrees with the Applicants’ sweeping view that as there is a pandemic, mandatory rules should be or are no longer applicable and that flexibility should prevail. The Provincial Emergency Order, O. Reg 73/20 that suspended limitation periods and procedural deadlines was revoked on September 14, 2020.

15As such, the request for an order for costs deadline of 30 days from November 10, 2020, which fell on December 10, 2020 in this Applicants’ matter under rule 23.1 of the OLT Rules, must be complied with.

16The Applicants’ communicated request for costs fell short as it did not notify the Tribunal within 30 days of the issuance of the written decision; it did not state against whom costs are sought and it did not indicate the approximate amount of costs sought. The Tribunal additionally notes that the costs request shall be by written motion (rule 23.2 of the OLT Rules). The Applicants’ Motion for costs against the Appellant detailing the costs was filed on April 21, 2021.

17The Tribunal cannot accept the Applicants’ reasons for the delay and as the Applicants have failed to persuade the Tribunal, they have failed at the threshold. The motion for costs thus fails for non-compliance.

18Although a party is entitled to take out a motion for costs, one should be mindful that at the Tribunal, an award of costs is rare and is not intended as indemnification of a party’s incurred costs. The public interest factor of a costs award is relevant and costs are not awarded lightly or routinely. Unlike in the civil courts, costs at the Tribunal do not follow the cause. Potential parties and the public should not be put in fear of participating in a Tribunal hearing by the spectre of costs (see Kimvar Enterprises Inc., Re 2009 CarswellOnt 666).

19The Tribunal finds that the Applicants have failed to satisfy the requirements of rule 23.1 of the OLT Rules, and have not raised any acceptable reasons to enable the Tribunal to exercise its discretion to permit the motion for costs as requested by the Applicants.

20Therefore, the Tribunal need not deal with the matters in rule 23.9 of the OLT Rules or the circumstances in which a costs order may be made as this threshold issue of non-compliance with the OLT Rules, rule 23.1 is decided against the Applicants.

ORDER

21UPON MOTION to this Tribunal by the Applicants for an order for costs,

the Tribunal orders that the Applicants’ Notice of Motion is denied.

“T.F. Ng”

T.F. NG 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.