Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 17, 2021
CASE NO(S).: PL200044
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Frank De Luca
Subject: By-law No. BL2019-131
Municipality: City of Niagara Falls
OLT Case No.: PL200044
OLT File No.: PL200044
OLT Case Name: De Luca v. Niagara Falls (City)
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Habitat for Humanity Niagara
Request for: Request for an Order Awarding Costs
Costs sought against: Frank De Luca
Heard: June 15, 2021 in writing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Frank De Luca | Self-represented |
| City of Niagara Falls | Tom Halinski* |
| Habitat for Humanity Niagara | Thomas A. Richardson* |
DECISION DELIVERED BY T. PREVEDEL AND ORDER OF THE TRIBUNAL
1The matter before the Tribunal is an appeal pursuant to s. 34(19) of the Planning Act brought by Frank De Luca (“Appellant”) regarding the passage by the City of Niagara Falls (“City”) of a zoning by-law amendment relating to the lands located at 7154 Adams Avenue and 6680 Hawkins Street (“subject lands”). The proposed zoning by-law amendment would facilitate a residential development proposed by Habitat for Humanity Niagara (“Applicant”).
2The Hearing took place on April 7, 2021 by video. At the outset of the Hearing, Thomas Richardson made an oral submission to the Tribunal expressing his concerns regarding the Appellant’s failure to comply with the requirements of the Procedural Order. He requested that the Appeal be dismissed by the Tribunal for the following reasons:
a) The Appellant did not cooperate in preparing a Joint Document Book prior to the deadline of March 26, 2021, despite repeated requests by both Mr. Richardson and Tom Halinski.
b) The Appellant did not provide any input to the Hearing Plan before the stated deadline of March 26, 2021.
c) The Appellant did not provide witness statements to the Tribunal or other Parties as required by the Procedural Order and the Appellant now confirms he will not be calling any witnesses or making submissions.
3The City shared the concerns raised by Mr. Richardson, and further stated that because the Appellant was self-represented, he was treated with some flexibility and given the benefit of the doubt. However, the Procedural Order is quite clear in its conditions, which the Appellant had some difficulty understanding and complying with.
4The Tribunal asked Mr. De Luca to respond to the concerns expressed by counsel. Mr. De Luca confirmed that he did not intend to call any witnesses or make submissions. He told the Tribunal he just wanted the ability to cross-examine all the expert witnesses brought forward by the Applicant and the City with respect to the Issues List provided in the Procedural Order.
5Based on the above, the Appeal was dismissed without a Hearing and a Memorandum of Oral Decision was issued on April 23, 2021. Mr. Richardson, on behalf of his client, brought forward a formal Notice of Motion for Costs, accompanied by an Affidavit by Mark Carl, the Chief Executive Officer for Habitat for Humanity Niagara, outlining in detail the costs incurred for legal and professional services leading up to the Hearing as a result of the Appeal by Mr. De Luca.
6The Motion before the Tribunal is for:
a) An Order of the Tribunal that the Appellant, Mr. De Luca, shall pay to Habitat for Humanity Niagara, its costs of the appeal in the amount of $53,647.39; and,
b) Such further and other relief as Counsel may advise and the Tribunal may deem just.
7Mr. De Luca responded to the Notice of Motion, claiming that his appeal was not unreasonable, frivolous, or vexatious. He also claimed that he never acted in bad faith throughout the Appeal process.
8Mr. De Luca explained, in his response to the Tribunal, that he was acting on behalf of his Aunt and Uncle who reside at 6680 Hawkins Street and several of their neighbors whom he has known for a long time. He was not paid and will not benefit personally from this Appeal.
9He explained that the approval of the Zoning By-Law by City Council was the result of a split decision where the Mayor cast the deciding vote, thus demonstrating that the proposed development was not favoured by all members of Council. He further stated that quite a few of the nearby residents were not in favour of this proposed development, and he felt that this, coupled with the split vote on Council, should be brought to the Tribunal’s attention.
10Mr. De Luca also stated that he had planned to obtain expert witnesses and legal representation through the process. However, after approaching a number of different lawyers and planning firms, they were either too busy, had a conflict of interest, did not want to oppose Council or were closed due to the pandemic.
11The Tribunal feels that the Appellant did, in fact, make some attempt to comply with the Procedural Order at the onset of the appeal process, but faced obstructions due to the provincial emergency order.
12Given that Mr. De Luca did not have legal representation, the Tribunal, although dismissing his appeal, has some empathy for his circumstances.
COSTS
13The Tribunal has the authority to fix costs incidental to any proceedings