Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 18, 2021

CASE NO(S).: PL200386

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Ian Gilchrist

Applicant: Norman Barney and Jane Austin

Subject: Consent

Property Address/Description: Lot 21, Concession VI.

Municipality: Township of Central Manitoulin

Municipal File No.: B07-16

OLT Case No.: PL200386

OLT File No.: PL200386

OLT Case Name: Gilchrist v. Central Manitoulin (Mun.)

PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, and Rule 23 of the Tribunal’s Rules of Practice and Procedure

Request by: Norman Barney and Jane Austin

Request for: Request for an Order Awarding Costs

Costs sought against: Ian Gilchrist

Municipality: Township of Central Manitoulin

OLT Case No.: PL200386

OLT File No.: PL200386

OLT Case Name: Gilchrist v. Central Manitoulin (Mun.)

Heard: June 30, 2021 in writing

APPEARANCES:

Parties	Counsel
Ian Gilchrist	Self-represented
Jane Austin and Norman Barney	Robert Gray
Municipality of Central Manitoulin	No one appeared

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

1Jane Austin and Norman Barney (the “Applicants”) of 444 Greenfield Street, Petrolia, Ontario filed a Motion for Costs in respect of the appeal brought by Ian Gilchrist, (the “Appellant”), which appeal was dismissed by the Tribunal (then known as the Local Planning Appeal Tribunal). The Applicants’ Motion to Dismiss the appeal without a hearing was allowed in the decision dated February 4, 2021. The Applicants' Notice of Motion to Dismiss requested that costs be awarded with post-judgment interest thereon. The Tribunal did not decide on the matter of costs at the time.

2The Motion for Costs dated May 27, 2021 is for:

(a) An order for full indemnity costs payable by the Appellant to the Applicants plus post-judgment interest in accordance with the provisions Rules 23.9; 23.10 and 23.11 of the Tribunal's Rules of Practice and Procedure.

(b) Such further and other relief as this Tribunal deems just.

3The Motion is supported by the Affidavits of Jane Catherine Austin sworn on December 21, 2020 and May 6, 2021, together with the exhibits therein referred to.

4The Appellant filed a Notice of Response to Motion dated June 14, 2021 without any affidavit in support of the Response or a Reply to the Affidavits of Jane Austin.

THE GROUNDS FOR THE MOTION

5The Applicants’ main grounds for costs are:

(i) that this Tribunal has held that the Appellant's Notice of Appeal did not identify a land use planning issue;

(ii) as of February 5, 2020, the Appellant was aware that the western boundary of the Applicants’ land was determined to traverse through the Appellant’s barn pursuant to a decision of the Deputy Director of Titles made under a Boundaries Act Application. The decision was made before the Applicants’ application was finally heard by the Manitoulin Planning Board and the Appeal was filed;

(iii) the Appellant’s reference to the Notice of Appeal to the “status of an encroachment of a pre-existing barn in this plan” was not a land use planning issue;

(iv) the Appeal was not made in good faith, it was without merit and without any purpose other than to delay the establishment of the Applicants' requested right-of-way and the sale of a property which will benefit from the approved right-of-way; and

(v) the reasons for the decision issued by the Tribunal on February 4, 2021 supports an award of costs being made against the Appellant.

6The Appellant’s Response to Motion noted on its face as “We are responding to this notice of motion to say that no costs should be awarded by the Tribunal or payable by the Appellant. Our appeal was in response to the Consent and to protect they(sic) interest in the land owned by Ian Gilchrist and Elizabeth Gilchrist”. The Response listed five documents that will be referred to at the hearing. No affidavit was filed to certify and mark the documents or to reply to the Applicants’ affidavits.

7As of June 1, 2021, the Ontario Land Tribunal’s Rules of Practice and Procedure (“OLT Rules”) replacing the Local Planning Appeal Tribunal Rules came into force and effect. Rule 23.2 of the OLT Rules provides as follows: all cost requests shall be considered and disposed of by the Tribunal in writing unless a party satisfies the Tribunal that consideration of the request in writing is likely to cause the party significant prejudice. No party has indicated that the costs motion should not be considered in writing.

8The Tribunal notes that the Applicants have satisfied the requirements of Rule 23.1 as a party who had made a costs request at the end of a hearing and before the Tribunal rendered its decision.

9Section 17.1 of the Statutory Powers Procedure Act provides that a tribunal may, in the circumstances set out in its rules, order a party to pay all or part of another party’s costs in a proceeding. Section 20 of the Ontario Land Tribunal Act grants the Tribunal jurisdiction to fix the costs and order a party to pay the costs, in accordance with the rules.

10The bases of a costs order are set out in Rule 23.9 of the OLT Rules which provides as follows:

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 Tribunal is not bound to order costs when any of these examples occur as the Tribunal will consider the seriousness of the misconduct.

11The former Ontario Municipal Board in Kimvar Enterprises Inc., Re [2009] CarswellOnt 666 (“Kimvar”), elaborated on the circumstances in which costs may be awarded at paragraph 13:

... unlike the courts, applications for costs are not routine, and costs awards are rare. In short, a successful party appearing before the Board should have no expectation that it will recover its costs. The Board "does not award costs lightly and it does not award costs automatically. In decision after decision, the Board has expressed a sensitivity to the right of appellants to bring matters before this Board" (Westfield Place Inc., Re, [1996] O.M.B.D. No. 1252 (O.M.B.) at p. 19). Nevertheless, the Board has also concluded that parties must be accountable for their conduct and if that conduct or course of conduct has been unreasonable, frivolous or vexatious, or if the party has acted in bad faith, then the Board may order costs.

12The Board has described unreasonable, vexatious or frivolous as follows: frivolous means “characterized by a lack of seriousness”; vexatious describes “actions instituted without sufficient grounds for the purpose of causing trouble or annoyance to another party”; and unreasonable means “irrational or not in accordance with good sense” (Pauze v. Midland (Town), [1995] O.M.B.D. No. 3).

13In Richcraft Group of Companies v. Ottawa (City), [2012] O.M.B.D. No. 840, 2012 CarswellOnt 16281 (“Richcraft”) at paragraph 34, the hierarchy of conduct which may trigger awards of costs in various amounts was addressed. Partial costs (costs on a partial indemnity basis) might be awarded for conduct that was “clearly unreasonable”; but if the conduct went beyond “unreasonable” and became (in terminology originated in the courts) “reprehensible, scandalous, or outrageous”, then the Board could consider costs at a higher “substantial” or “full indemnity” basis.

BACKGROUND

14The Appellant has appealed to the Local Planning Appeal Tribunal (“Tribunal”) against the Manitoulin Planning Board’s (“Board”) approval of a consent application by the Applicants with respect to property located at Lot 21, Concession VI. (“subject property”) for a right-of-way (“ROW”) over an existing private road.

15The Applicants requested consent under s. 53(1) of the Planning Act (“Act”) to provide a ROW along the west boundary and the south easterly to the south east corner of Lot 21, Concession VI. This Proposed ROW is to follow an existing travelled private road. According to the application, there is a dilapidated barn (on the Appellant’s land) encroaching on the west boundary of the subject property.

16Provisional consent (approval) was given by the Board on July 28, 2020. Notice of Decision was issued on July 31, 2020 and on August 24, 2020.

17The Appellant, the adjacent owner of Lot 22, Concession VI. appealed the approval by notice of appeal dated September 11, 2020 with the following reason: “The appeal is in regard to, but not limited to, there is an improper reference to the status of an encroachment of a pre-existing barn in this plan”.

18The Applicants filed a Notice of Motion to the Tribunal dated December 22, 2020 to dismiss the appeal without a hearing.

19The Motion to Dismiss was heard on January 20, 2021 and the Tribunal’s decision dismissing the appeal was issued on February 4, 2021. The Tribunal found inter alia that there is no genuine or authentic planning reason. There is no relevant or tenable issue raised that is worthy of adjudication. Furthermore, the Appellant’s conduct is one of ignoring the fact that his barn is partly encroaching on the boundary line of the Applicants’ property up to 2 metres (“m”) and 2.2 m running north to south of the boundary line at his eastern side lot line with the Applicants’ western side lot line. The Applicants’ counsel submitted that the boundary line has already been adjudicated and an order dated February 5, 2020 given by the Deputy Director of Titles and a boundary plan MD20509 was duly registered on April 22, 2020 under the Boundaries Act before the appeal. The encroachment of the Appellant’s barn is established and is not an issue that can be raised or tenable for the Appellant’s appeal and the Appellant has failed to provide any apparent valid land use planning grounds in his appeal.

20The Tribunal finds that the Appellant's conduct in filing the Notice of Appeal without an appropriate land use planning issue and then failing to correct the identified deficiencies of the Notice of Appeal after being served the Applicants' Motion to Dismiss, places his conduct within Rule 23.9 definition of being “unreasonable, frivolous or vexatious” and “in bad faith” in his attempt to use the Tribunal for a purpose other than for which it is intended.

21The Appellant's unreasonable conduct was shown in his refusal to accept the correctness of the boundary lines despite having knowledge of the fully adjudicated boundary registration before filing his appeal. The Appellant had maintained that the boundary line between his property and that of the Applicants has still not been settled. Although his barn encroached on the neighbours’ adjacent property line, he continued to ignore the encroachment while obstructing the Applicants’ ROW. The Appellant persisted in holding that unreasonable position from the filing of the appeal and at the hearing of the Motion to Dismiss.

22The Appellant has shown little regard for the Tribunal’s process. He has made no attempt to correct his misleading take on the boundary line situation for the Tribunal before or at the hearing of the Motion to Dismiss. At this Motion for Costs, the Appellant has not countered any of the Applicants’ assertions contained in their affidavits apart from a general averment in the response to the motion. There is no Affidavit in Reply with exhibits to reply to the Applicants’ affidavit.

23In paragraph 14 of the Kimvar decision, Vice-Chair Seaborn referred to earlier decisions which defined conduct which was clearly unreasonable as follows:

…Would a reasonable person, having looked at all 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.

24The Tribunal finds that the Appellant's conduct in persisting in filing the appeal despite knowledge of the true boundary line, filing an appeal that is devoid of a planning issue and continuing the narrative at the dismissal hearing, meets the objective test stated. A reasonable person would conclude that the conduct was wrong, unfair and the Appellant should be obligated to the Applicants.

25The Tribunal considers the Appellant’s conduct in wilfully adhering to a misleading narrative as clearly unreasonable conduct that attracts liability for costs. The unreasonable conduct emanated from the Appellant’s recalcitrant stance on the barn encroachment upon the adjacent property line. The Appellant acted in bad faith in the matter.

Quantum

26The Applicants are seeking full indemnity costs plus post-judgment interest. The Tribunal will grant partial costs as the Appellant’s conduct did not rise to the level of being reprehensible conduct. The Appellant is a lay person, not steeped or learned in the intricacies of the rules and strict requirements of a legal process and this has relevance for the Tribunal. The Motion to Dismiss was further disposed of in part of the morning.

27The Tribunal notes the total amount claimed for full indemnity costs is $28,409.87. In exercising its discretion on partial costs, the Tribunal will grant the amount of $1,500.00 inclusive of costs of this Motion.

ORDER

28The Tribunal orders the Appellant to pay the sum of $1,500.00 to the Applicants within 30 days of the date of issuance of this Order with the costs award bearing interests in the same manner as those made under section 129 of the Courts of Justice Act.

“T.F. Ng”

T.F. NG MEMBER

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.