Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 27, 2021
CASE NO(S).: PL200476
PROCEEDING COMMENCED UNDER subsection 36(3) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 1314102 Ontario Inc. Subject: ZBA-03-2020 Municipality: Town of Niagara-on-the-Lake OLT Case No.: PL200476 OLT File No.: PL200476 OLT Case Name: 1314102 Ontario Inc. v. Niagara-on-the-Lake (Town)
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Referred by: 2601636 Ontario Inc. Subject: Site Plan Property Address/Description: 963 Queenston Road Municipality: Town of Niagara-on-the-Lake OLT Case No.: PL200476 OLT File No.: PL200372
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: 1314102 Ontario Inc. Request for: Request for an Order Awarding Costs Costs sought against: Town of Niagara-on-the-Lake
Heard: in writing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 1314102 Ontario Inc. and 2601636 Ontario Inc. (collectively the "Appellants") | S. O'Melia |
| Town of Niagara-on-the-Lake (the "Town") | R. Di Lallo |
DECISION DELIVERED BY M. RUSSO AND STEVEN COOKE AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Appellants had proposed to develop an Estate Winery at the property located at 963 Queenston Road, in the Town (the "Proposal"). The zoning on the site allowed for the Estate Winery, however, to facilitate its operation and ultimate development, the Appellants required a holding provision to be lifted from the Zoning By-law that applied to the site. The Appellants appealed to the Tribunal, due to the Town's failure to make a decision within the statutory timeline, pursuant to s. 36(3) of the Planning Act (the "Act").
2The sole condition required to be met, in order for the holding provision to be removed by the Town, was the approval of a site plan application for the Site. The Appellants had also applied to the Town for site plan approval. The Appellants, similarly, also appealed to the Tribunal for the Town's failure to approve the site plan application, under s. 41(12) of the Act, and the conditions that the Town proposed to impose upon any approval is pursuant to s. 41(12.01) of the Act.
3The Tribunal, upon hearing the merits of the proposal was satisfied that the proposal had regard to the provincial interests set out in s. 2 of the Act. The Tribunal was also satisfied that the By-law, as amended with the removal of the holding provision, and approval of the site plan and site plan agreement, was consistent with the Provincial Policy Statement 2020, and conformed with the provincial Greenbelt Plan 2017 and further, the Region of Niagara and Town Official Plans represented good land-use planning in the public interest.
4For the reasons provided above, the Tribunal allowed the appeal and directed the Town to amend By-law No. 500XJ-19 in accordance with the Tribunal's Decision and Order issued on February 11, 2021. Further, the Tribunal ordered that the site plan as modified, be approved.
THE MOTION
5The Appellants have made a motion for costs to the Tribunal, in writing, as directed by the Tribunal. The motion is pursuant to Rules 23.2 and 23.4 of the Tribunal's Rules of Practice and Procedure ("Rules").
6The Appellants seek an order:
i. Awarding costs arising from the one-day hearing of the merits heard by the Tribunal on January 20, 2021, in the amount of $24,080.30;
ii. Its costs of this motion in the amount of $3,500.00; and,
iii. Such further and other relief as the Tribunal may deem to be just.
7The Town in its "Responding Motion Record" requests that:
i. The motion for costs be denied in its entirety:
ii. The Town be awarded its costs of this motion in the amount of $3,500.00, and;
iii. Such further and other relief as counsel may request and as the Tribunal may permit.
Materials before the Tribunal on the Motion
8The materials before the Tribunal included the file accumulated for the "Hearing of the Merits" and specific to this Motion are the following:
i. the Appellants' Motion Record, dated May 25, 2021;
ii. the Town's Responding Motion Record, dated June 9, 2021; and,
iii. the Appellants' Response to Reply Submissions, dated June 18, 2021.
ANALYSIS AND FINDINGS
9The Statutory Powers Procedure Act provides that a tribunal shall not make an order to pay costs unless the conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith. The Tribunal has made rules with respect to the ordering of costs, the circumstances in which costs may be ordered and the amount of costs.
10Further, Rules made under s. 32 of the Local Planning Appeal Tribunal Act, in Rule 23.9 sets out the circumstances in which an order for costs may be made. For an award of costs to be made, the Tribunal must find that the conduct or course of conduct of the party against whom costs are sought has been unreasonable, frivolous, vexatious or the party has acted in bad faith.
11The Appellants have claimed in their Motion Record under (d), that the Town's conduct in its processing of their Appellants' site plan application under s. 41 of the Act was vexatious and unreasonable.
12Further in (e) of the Appellants' Motion Record, claims that the Town's actions forced the Appellants to the expense of an LPAT hearing that was not necessary, as Town staff had agreed with the proposed conditions.
13The Tribunal concurs with the submissions of the Town in its Responding Motion Record as provided in (5) and (6), that the threshold to award costs from this Tribunal is set high and evidence to support those findings must be substantial.
14As submitted by the Appellants, the Panel, at the conclusion of the hearing of the merits, did make reference to the pattern that it had noticed by the Town, of late Counsel identification and not being prompt to both the Appellants and Tribunal case coordinator's efforts to ascertain information, not just on this matter but also on other matters the Panel Members had presided over.
15The Tribunal did, however, find at that time, and does concur with Town Counsel, this was and still is not sufficient justification to award costs by this Tribunal. However, substantially more evidence has been provided in this motion for the Tribunal to consider and to adjudicate on.
16Using the submissions of Counsel and additional evidence within this matters file, the Tribunal has been able to formulate a timeline and chronology that it is satisfied with, and has given substantial weight to the chronology provided by Jesse Auspitz.
17Although there are some concerns that arise when reviewing the material leading up to the Applications being heard by the Town and the meetings themselves, the Tribunal finds these questions and concerns do not amount to sufficient grounds to support a claim for costs. Further, weighing into its decision is that the better part of this application was dealt with during the global pandemic. Although by no means the sole determinative factor, the Tribunal cannot exclude this variable while considering this motion.
18Through its analysis, the Tribunal has found it does not have sufficient evidence to substantiate the claims of the Appellants, nor does it have enough to question the actions of Council. As the Act instructs this Tribunal in s. 2.1a, it is to have regard to the approval authority, and its previous decision on this same planning matter. Although the Tribunal chose to allow the appeals and provide an alternate finding to that of Council, the Tribunal found, for the hearing of the merits, the evidence before it, supported its decision. The Tribunal is not persuaded, as it was in the hearing of the merits of the application, that the evidence supports the Appellants' claim for costs.
19The Tribunal, although not having concurred with Council and their decision on the applications, finds that this difference in its findings does not negate the ability and the right of Council to differ with its staff's recommendations or provide decisions as it sees fit and just. This differing, in its findings, does not equate to necessarily being unreasonable, frivolous, vexatious or the party having acted in bad faith. For the reasons provided above, the Tribunal is not persuaded that actions of Council, leading up to the application being heard, meet the tests for awarding costs.
20Council's consideration of the appeal on January 11, 2021, as provided in Counsel's submissions, definitely creates potential difficulties with the exchanging of information between parties before the January 20, 2021 hearing date. However, as previously indicated, the Tribunal has given weight to the pandemic and its factors, as well as the issue straddling the holidays of late December and early January. The Tribunal finds this to be acceptable and again, not supportive of the tests required to award costs.
21In conclusion, when accessing the factors and the evidence of the actions of the Town and Issues arising after the appeal was filed to the Tribunal, the Tribunal is not persuaded these actions support the awarding of costs. Although, the Town could have dealt with this matter more expeditiously respecting certain items and perhaps shown more professional courtesy in responding to inquiries by the Appellants' Counsel, as to who the Town had retained to represent it at the hearing, the Tribunal finds the actions of the Town and its Counsel do not support the claims of the Appellants and threshold of the tests before the Tribunal, that their actions were unreasonable, frivolous, vexatious or that the Town acted in bad faith.
22The Tribunal, after having reviewed the evidence filed in support of this motion as well as the submissions of Counsel, finds that the claims for costs sought by the Appellants do not meet the tests set out by this Tribunal for the awarding of costs, and is therefore not prepared to exercise its discretion to do so. The claim for costs should be dismissed.
23Furthermore, the Town's claim for costs as set out above are also denied.
ORDER
24THE TRIBUNAL ORDERS that the motion for costs from 1314102 Ontario Inc. and 2601636 Ontario Inc. is hereby dismissed.
25THE TRIBUNAL ORDERS that the Town of Niagara-on-the-Lake request for its costs of this motion be denied.
"M. Russo"
M. RUSSO
MEMBER
"Steven Cooke"
STEVEN COOKE
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 ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.