Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
November 30, 2022
CASE NO(S).:
OLT-21-001321
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant:
Garret McKeag
Appellant:
Don and Heather Sneyd
Subject:
Consent
Property Address/Description:
Fire Route 155B/ Part of Lot 28, Con. 10
Municipality:
Township of McKellar
Municipal File No:
B27/2021
OLT Case No.:
OLT-21-001321
OLT Lead Case No.:
OLT-21-001321
OLT Case Name:
Sneyd v. Parry Sound (District)
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by:
Garret McKeag
Request for:
Request for an Order Awarding Costs
Costs sought against:
Don and Heather Sneyd
Property Address/Description:
Fire Route 155B / Part of Lot 28 Con 10
Municipality:
Township of McKellar
Municipal File No.:
B27/2021
OLT Case No.:
OLT-21-001321
OLT Lead Case No.:
OLT-21-001321
Heard:
in writing
APPEARANCES:
Parties
Counsel
Donald and Heather Sneyd
Marilyn Sparrow
Garret McKeag
Marc Kemerer
DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Garret McKeag ("Mr. McKeag" or the "Applicant") filed a written motion requesting various costs against the Appellants, Marilyn Sparrow and Norman Edward Davidson as set out in the Motion Record dated April 26, 2022 ("Costs Motion" or "Motion"). This Motion relates to the dismissal of the Appellants' appeal of a consent application decision in the case of Sneyd v. Parry Sound (District) issued on March 25, 2022 ("Consent Appeal" or "Consent Appeal Decision").
2The Costs Motion filed after the dismissal of the Consent Appeal requests that the Appellants pay the Applicant's legal and planning costs, on a full indemnity basis, in the amount of $28,327.72, and invoices are provided to support the request ("Supported Costs Request"). It also requests the amount of $25,000.00 against Ms. Sparrow, as an indirect party/true litigant, and $10,000 against Mr. Davidson, as an indirect party/true litigant. The costs requests against Ms. Sparrow and Mr. Davidson are based on a finding by the Tribunal that a Collective Interest exists between the Appellants, Ms. Sparrow and Mr. Davidson and it is argued that they are both indirect parties or true litigants. The costs requests against Ms. Sparrow and Mr. Davidson are not supported by any invoices ("Unsupported Costs Requests").
CONSENT APPEAL HISTORICAL BACKGROUND
3In the Consent Appeal, the Appellants appealed the second provisional consent granted by the Parry Sound Area Planning Board ("Board"). This Provisional Consent permits the severance of a portion of the mainland property fronting onto Lake Manitouwabing (the "Lake") legally described as Part of Lot 28, Concession 10 and described as Part 9 on Reference Plan No. 42R-20625 ("Subject Property"). The severance will permit the creation of a separate parcel having a shoreline frontage of 55 metres ("Shoreline Access Parcel"), which is to be sold to David Lewis, who owns property with a cottage on an island in the Lake ("the Lewis Island Cottage"). The Shoreline Access Parcel was rezoned prior to the granting of the second provisional consent for landing area uses with no residential use being permitted. The First Provisional Consent granted by the Board lapsed due to an appeal by Mr. Davidson relating to the rezoning of the Shoreline Access Parcel ("Rezoning Appeal"). Mr. Davidson, was the named party in the Rezoning Appeal, and was represented by his spouse, Ms. Sparrow.
4The Applicant filed a motion to dismiss the Consent Appeal under section 53(31) of the Planning Act ("Act"), which was granted by the Tribunal. The Tribunal dismissed the appeal without a hearing under section 53(31) of the Act. The Tribunal found that the Consent Appeal disclosed no apparent land use planning grounds for refusal of the requested consent, was an abuse of process, was made for the purposes of delay and vexatious.
REZONING APPEAL
5Prior to dismissing the Consent Appeal, the Tribunal dismissed the Rezoning Appeal under section 35(25) of the Act, without a hearing in its decision in the case of Davidson v. McKellar (Township), 2021 CanLII 58456 (ON LT) issued on June 29, 2021 ("Rezoning Appeal Dismissal").
6In the Rezoning Appeal, Mr. Davidson, a land use planner was the named appellant, Ms. Sparrow, the spouse of Mr. Davidson, was the appellant's representative, and the Sneyds were participants but did not bother filing a participant statement. Mr. Davidson was presented as a witness to provide evidence in this hearing but was disqualified for a lack of impartiality.
7With the disqualification of Mr. Davidson, the Tribunal was left with grounds of appeal in the Rezoning Appeal that were unsupported by any objective expert opinion evidence. There were no legitimate land use planning grounds raised in the Rezoning Appeal and it was dismissed by the Tribunal.
8On July 29, 2021, Ms. Sparrow and Mr. Davidson filed two separate requests for a review of the Rezoning Appeal Dismissal. Both requests were refused by the Tribunal. The First Provisional Consent lapsed due to the delays caused by the Rezoning Appeal.
COLLECTIVE INTEREST FOUND TO EXIST IN THE CONSENT APPEAL
9It is important to identify that in the Consent Appeal, the roles changed. Ms. Sparrow continues as representative of the Appellants. The Sneyds, who were participants in the Rezoning Appeal, are now the Appellants. Mr. Davidson continues to be presented as the planning witness but is not a named appellant.
10Mr. Jackson, an objective planning witness, gave evidence at the Consent Appeal hearing that the Sneyds, Mr. Davidson and Ms. Sparrow are "cohorts". The Tribunal accepted this evidence and found that there is an arrangement between Mr. Davidson, Ms. Sparrow and the Sneyds to delay and to thwart the sale of the Shoreline Access Parcel and that they share a collective interest in achieving this objective ("Collective Interest"). The Tribunal questioned whether both Mr. Davidson and Ms. Sparrow should be found to be indirect parties to the proceedings due to the Collective Interest shared with the Sneyds. No submissions were made by counsel on this issue at the Consent Appeal hearing.
COSTS ORDER REGARDING THE REZONING APPEAL
11A motion for costs was filed by the Applicant relating to the Rezoning Appeal and was granted by the Tribunal in its decision in the case of Davidson v. McKellar (Township) issued on May 20, 2022. Costs were granted in the amount of $18,500.00.
12The Tribunal made the following finding in rendering its decision, in para. 52:
The Tribunal agrees with the submissions of the Applicant that the Appellant as a planner, and Ms. Sparrow, with her legal background were experienced and knowledgeable about proceedings before the Tribunal. In the Tribunal's view Ms. Sparrow as a former practicing member of the Bar, and Mr. Davidson as a Planner, indeed "knew, or should have known, better" to use the colloquial expression in respect of many aspects of the Appeal.
REVIEW OF COST REQUESTS
13In reviewing the Unsupported Costs and Supported Cost Requests in the motion for costs, the Tribunal must determine whether they should be awarded in the amounts requested and against whom they should be awarded.
UNSUPPORTED COSTS REQUESTS
14The requests for Unsupported Costs seek orders directing:
Marilyn Sparrow, as an indirect party/true litigant, to pay costs in the amount of $25,000 for:
(i) her role in orchestrating the Collective Interest (as defined by the Tribunal in its Decision of 25 March 2022 (the "Decision") dismissing the Sneyds appeal) so as to oppose and delay McKeag for a period of over two years on the simple matter of obtaining a modest consent; and
(ii) her unreasonable behavior throughout;
Norman Edward Davidson, as an indirect party/true litigant, to pay costs in the amount of $10,000 for his role in organizing the Collective Interest (as defined by the Tribunal in its Decision of 25 March 2022 dismissing the Sneyds appeal) to oppose and delay McKeag for a period of over two years on the simple matter of obtaining a modest consent.
15The submissions of counsel for both parties on the Unsupported Cost Request are extremely weak. The Applicant's request does not include any statutory, rule or case references that could be relied upon as authority for imposing such an order. The Appellants' response does not address the issue of a costs request where there are no invoices to support that any such costs have been incurred. The Appellant’s submission label it “extortion”.
16The Applicant's motion under Rule 23 of the Tribunal’s Rules of Practice and Procedure (“Tribunal’s Rule” or “Rules”) is for a costs order. It is trite law that requests for costs must always be supported by proof that the costs have been incurred. The Applicant has provided no invoice support that proves costs in the amount of $25,000 or $10,000 have been incurred. In reviewing the Applicant's submissions, the basis for the $25,000 cost request is founded upon the role that Ms. Sparrow and Mr. Davidson played in organizing the Collective Interest. This cost award is essentially a punitive damages request for their behaviour. In reviewing the Tribunal’s Rule 23, the Tribunal finds that it has no authority to order punitive damages or costs unsupported by invoices and will not award them.
SUPPORTED COSTS REQUEST
17The Supported Costs request seeks an order directing:
the Appellants, Heather and Donald Sneyd, to pay McKeag's legal and planning costs, on a full indemnity basis, in the amount of $28,327.72 for the:
(i) preparation of the Motion to Dismiss their appeal; and
(ii) participation in the hearing of that Motion;
This cost request was supported by invoices for legal and planning costs, which were reviewed by the Tribunal and appear to be reasonable.
THE GROUP AGAINST WHICH THE COSTS SHOULD BE AWARDED
18The Supported Costs Request is only as against the Appellants. The issue that arises for the Tribunal is whether, due to the roles played by Mr. Davidson and Ms. Sparrow in organizing the Collective Interest, the Supported Cost Request should be granted against the named Appellants alone or broadened to include Mr. Davidson or Ms. Sparrow as true parties to the proceedings?
19The Tribunal did not find the submissions of counsel for the Applicant helpful on this issue. The Tribunal was referred to case law that related to the Ontario Superior Court governed by a different statute and having authority at common law and the Ontario Municipal Board, which operated under a different statute with clear authority to award costs against individuals other than parties. The Appellants' submissions did not address this matter either. They focused on why the decisions of the Tribunal in both the Rezoning Appeal and the Consent Appeal were wrong.
20Section 20 of the Ontario Land Tribunal Act, states the following:
Costs
20 The Tribunal may, subject to any other Act, fix the costs of and incidental to any proceeding, and order a party to the proceeding to pay the costs, in accordance with the rules.
21The Tribunal is only entitled to order Costs against a party to the proceedings. Mr. Davidson and Ms. Sparrow are not named parties to the Consent Appeal. Should they be added to the proceedings as parties or otherwise recognized by the Tribunal as parties to the proceedings?
22The Tribunal found in the Consent Appeal decision that the Appellants, Mr. Davidson and Ms. Sparrow all share a Collective Interest in thwarting the sale of the Shoreline Access Parcel but did not find that they were parties to the proceedings. Mr. Davidson, represented by his spouse, Ms. Sparrow, in the Rezoning Appeal was unsuccessful and the case was dismissed. Ms. Sparrow and Mr. Davidson essentially used the same materials that were used in the Rezoning Appeal including planning evidence from Mr. Davidson. He had already been disqualified as an appropriate expert in the Rezoning Appeal due to bias. Ms. Sparrow and Mr. Davidson were involved in presenting a fresh face on the appeal with the Appellants as the named parties.
23This was a clear abuse of process. Mr. Davidson and his spouse lost their Rezoning Appeal and their two requests for a review of the decision were rejected by the Tribunal. They had the temerity to present essentially the same materials and expert witness for the purposes of the Consent Appeal with other parties named. Ms. Sparrow and Mr. Davidson continue to tell the Tribunal that its decisions were wrong in the materials filed in response to the costs motion. They advise the Tribunal that its decision in the Consent Appeal was “preposterous”. This represents a clear abuse of process.
24The Tribunal re-iterates the statement made in the costs decision regarding the Rezoning Appeal. Mr. Davidson, as a planner, and Ms. Sparrow, with her legal background had extensive experience before the Tribunal and understand the demands on Tribunal time. They "knew, or should have known, better" than to continue with this unacceptable conduct especially after being admonished by the Tribunal.
25In reviewing this conduct, the Tribunal must ask itself whether Mr. Davidson and Ms. Sparrow are parties to the proceedings in fact due to their conduct. The definition of party in the Rules states:
"party" includes a person entitled by the statute under which the proceeding arises to be a party to the proceeding and includes those persons whom the Tribunal accepts or adds as parties on such terms as the Tribunal may determine;
26This Rule allows the Tribunal to “accept” or add parties to the proceedings in its discretion. This situation is clearly a situation that supports the addition of Mr. Davidson and Ms. Sparrow to the proceedings as parties. They are in control of the proceedings and how they were presented to the Tribunal and made arrangements with the Appellants to take on party status in the Consent Appeal. Section 12(2) of the Ontario Land Tribunal Act allows the Tribunal to adopt practises and procedures that in the Tribunal's opinion offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings. In the Tribunal's view, it is only fair to recognize and accept the facts as they are. Mr. Davidson's and Ms. Sparrow's conduct in controlling and orchestrating the proceedings in the Consent Appeal makes them factually parties to the proceedings, even if they are not named as Appellants with the Sneyds. Thus, Mr. Davidson and Ms. Sparrow are accepted and accorded status as parties in these proceedings (collectively "Parties in Fact"). In the Tribunal's view, it is only fair and just that Mr. Davidson and Ms. Sparrow share in any cost order that may be imposed on the Appellants in these proceedings.
QUANTUM OF COSTS TO BE AWARDED
27Under Rule 23.9 of the Tribunal’s Rule:
Circumstances in Which Costs Order May be Made 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.
28The Tribunal found in its decision relating to the Consent Appeal that the conduct of the Appellants and the Parties in Fact had been unreasonable, frivolous and vexatious. Based on this finding, this is an appropriate case for ordering costs. Costs are in the discretion of the Tribunal.
29The Tribunal accepts the submission of Counsel for the Applicant that there are no mitigating factors which would justify an award on a partial indemnity basis. The instigation of the Consent Appeal by the Appellants and the Parties in Fact, coupled with the behaviour of both Ms. Sparrow and Mr. Davidson, means that partial indemnity costs would be inadequate.
30Substantial indemnity awards are to be made in cases where the behaviour of a party, particularly a sophisticated party with uncooperative or difficult counsel or agent, goes beyond merely unreasonable to be reprehensible, scandalous or outrageous (2684360 Ontario Ltd. v Kingston – issued February 25, 2021). Such cost awards are made where self-interest is at the root of an appeal or where a party adopts an all or nothing attitude involving positions which are not proper or tenable (Customized Transportation Ltd. v. Brampton).
31The Tribunal accepts the submissions of counsel for the Applicant that this is a case where, for the reasons explained in this Decision, the behaviour of the Sneyds, Davidson and Sparrow went beyond merely unreasonable into the realm of the reprehensible. The Sneyds, Davidson and Sparrow well knew that there was no merit to the Consent Appeal and that they had no credible evidence to support it. They knew, or well ought to have known, that there was a low chance of success, and that a Consent Appeal would represent a significant expense and delay to the Applicant. This conduct carried with it a high risk of costs being awarded against them.
32The Appellants' response to the Costs Motion is also telling. The Appellants, through their representative, Ms. Sparrow filed voluminous materials that did not deal with the costs issues at hand. They were:
a. A Response consisting of 19 pages;
b. The Affidavit of N. Edward Davidson, sworn May 20, 2022 of 76 pages;
c. The Affidavit of Donald Sneyd, sworn May 19, 2022 of 16 pages; and,
d. The Sneyd Document Book and Tribunal Cases consisting of 159 pages.
33The Tribunal accepts the Reply submission of the Applicant that the Response and supporting material are essentially an appeal of the Consent Appeal Decision in disguise. The Response alleges that the Tribunal's decisions were incorrect in both the Rezoning Appeal and the Consent Appeal and the Consent Appeal decision was preposterous. Ms. Sparrow attacks the finding that there was a group that Shared a Collective Interest and presents new evidence in affidavit form, untested by cross-examination, purporting to prove that it did not exist. Ms. Sparrow was free to present evidence at the hearing to refute the evidence presented by Mr. Jackson that a cohort existed. Importantly, she did not bother doing so. In her submissions on the costs motion, she implies at paragraph 91 that it was the Tribunal’s responsibility to question Mr. Davidson regarding his personal interest in the Consent Appeal. She can not, through a response to a costs motion, seek to overturn the Consent Appeal Decision. This motion is neither an appeal nor a review of the Consent Appeal Decision. The Tribunal rejects the Appellants' submissions and evidence regarding the finding that there is a Shared Collective Interest and finds them to be wholly inappropriate.
34Ms. Sparrow further contends, in the Response to the Costs Motion, that both she and Mr. Davidson did nothing wrong. The Tribunal has found that the Appellants and the Parties in Fact have by their conduct moved into the realm of reprehensible with respect to the Consent Appeal. Based on this finding coupled with the unapologetic submission of Ms. Sparrow that both she and Mr. Davidson did nothing wrong, exacerbated by the efforts to further waste the Tribunal's time with cost submissions that are a disguised appeal, the Tribunal rules that costs should be paid on a substantial indemnity basis by the Appellants and the Parties in Fact, jointly and severally, in the amount of $24,827.72.
35The Tribunal calculated the substantial indemnity cost award as follows. Invoices for $18,040.14 in legal fees, taxes and disbursements were submitted to support the legal work by counsel related to the Consent Appeal (excluding the work related to the costs motion) and $5,287.58 to support the planning fees related to the Consent Appeal and the Tribunal finds that they are justified. Fixed legal fees of $5,000 were charged by counsel for the Applicant for the legal work related to the motion for costs. The Tribunal finds the fees for this work related to the Costs to be excessive and reduces the allowable fees for this motion to $1,500.00 inclusive of applicable taxes. Thus, the total allowable costs on a substantial indemnity basis are $24,827.72.
36It will fall to the Appellants and Parties in Fact to determine amongst themselves how they will share responsibility for the cost award. As it relates to the Applicant, the Appellants and the Parties in Fact are all responsible for the costs award.
ORDER
37The Applicant's Request for Costs is allowed in part and Donald Sneyd, Heather Sneyd, Norman Edward Davidson and Marilyn Sparrow shall pay to the Applicant the total sum of Twenty-Four Thousand, Eight Hundred and Twenty-Seven Dollars and Seventy-Two Cents ($24,827.72) forthwith upon the issuance of this Order and in any event, not later than twenty-one (21) days from the date of this Order.
38In accordance with Rule 23.11 of the Tribunal's Rules of Practice and Procedure, the amount payable under this Order shall bear interest at the rate of 4% per annum, calculated from a date twenty-one (21) days following the date of this Order.
“A. Cornacchia”
A. CORNACCHIA
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.