Maynard v. Mississippi Mills (Town), 2022 CanLII 11825

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 16, 2022

CASE NO(S).: PL210127

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Steve Maynard

Subject: By-law No. BL 11-83

Municipality: Town of Mississippi Mills

OLT Case No.: PL210127

OLT File No.: PL210127

OLT Case Name: Maynard v. Mississippi Mills (Town)

Heard: In writing

APPEARANCES:

Parties	Counsel
Steve Maynard ("Appellant")	Self-represented
2241497 Ontario Ltd. ("Applicant")	Philip Osterhout
Town of Mississippi Mills ("Town")	Tony Flemming

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is a request for costs by both the Applicant and the Town against the Appellant, arising out of this Member’s Decision dated October 28, 2021 dismissing the Appellant’s appeal (the “Decision”).

2The Appellant appealed a decision of the Town to pass a site-specific zoning by-law to permit the redevelopment of a shopping center in the Town of Almonte to permit a mixed-use plan including both commercial and residential uses.

3In the Decision, the Tribunal found that the Appellant had no direct interest in the matter other than professing to be a concerned citizen. The Tribunal also noted in the Decision that the Appellant belatedly scoped his issues to four policies of the OP midway through the proceedings and brought no evidence to further his case.

4While the Appellant was generally polite and respectful throughout the proceedings, the Tribunal finds that he generally lacked preparation for the proceedings and raised a significant number of issues that the other parties were required to respond to, which were later never pursued and/or dropped without notice.

5For the reasons that follow, the Tribunal awards costs against the Appellant fixed at the sum total of $10,000.00, to be paid to the other parties as follows:

1. $8,273.64 to be paid to the Applicant; and

2. $1,726.36 to be paid to the Town.

Costs incurred by the Applicant and Town

6The Tribunal received evidence from the Town outlining its costs in the amount of $2,301.81. The Town is seeking $1,726.36 from the Appellant, representing 75% of those costs.

7The Town noted in its submissions that the amount claimed only covers its costs associated with its review of each of the 26 Official Plan policies that were added to the Issues List by the Appellant and preparing related cross-examination material and legal argument in anticipation of dealing with those issues. The Town noted that, had the Appellant provided just five days notice of its intention to drop most of these issues, counsel could have dramatically reduced its hearing preparation costs.

8The Tribunal accepts these figures as being a reasonable representation of the actual costs incurred by the Town in terms of additional preparation time. The Tribunal notes that, if the Town had presented an outline of its costs associated with dealing with the entire appeal, the Tribunal would have considered awarding relief based on such costs.

9The Tribunal also received evidence from the Applicant outlining its costs in the amount of $28,471.50. This amount covers both legal fees and fees associated with retaining a planning expert to provide evidence at the Tribunal hearing. The Applicant is seeking $21,353.63 from the Appellant, representing 75% of those costs. Unlike the Town, the Applicant is seeking costs associated with the entire appeal proceedings, taking the position that the costs of the entire appeal were avoidable but for the impugned conduct of the Appellant.

10The Applicant notes that, despite the appeal being initiated by the Appellant, the Applicant was the party obliged to not only retain legal counsel, but also retain the only planning expert to provide the Tribunal with the necessary planning evidence required to determine the matter.

11The Tribunal accepts the Applicant’s costs outline as being reasonably representative of the actual costs incurred by the Applicant as a direct result of the appeal, and recognizes that it was put in the unenviable position of having to retain both legal and planning representation in order to respond to the appeal. The Tribunal notes that, for the reason below, it finds it appropriate to award costs associated with the entire appeal proceedings, not just the costs associated with the issues added and later dropped by the Appellant, because the very act of bringing the appeal constitutes much of the Appellant’s unreasonable, frivolous and vexatious conduct found by the Tribunal.

STATUTORY REGIME REGARDING COSTS

12The Appellant is correct insofar as he submitted that, as a matter of policy, the Tribunal does not automatically award costs to a successful party. In fact, it is rare to do so. This is primarily because public participation in the planning process should not be discouraged where it is undertaken in good faith. However, the Tribunal’s discretion to award costs is nevertheless important to ensure that parties may be held accountable for unreasonable or inappropriate conduct.

13The Ontario Land Tribunal Act provides the statutory basis for a request for costs. Section 20 provides:

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.

14Rule 23.9 of the Rules of Practice and Procedure (“Rules”) limits the Tribunal’s discretion to order costs against a party to instances where that party’s conduct rises to the level of being “unreasonable, frivolous or vexatious or if the party has acted in bad faith.”

15The Rule goes on to enumerate a non-exhaustive list of behaviour that is “[c]learly unreasonable, frivolous, vexatious or bad faith” [emphasis added]. The Applicant and the Town both cited the following from the list which they posit are applicable to their claims:

(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;

(d) a course of conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events; [and]

(e) failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper;

16Both the Appellant and the Applicant cited Nikmanesh v King (Township), 2019 CanLII 2244 (ON LPAT) (“Nikmanesh”) in support of their respective submissions. In that decision, the Board (as it was then) provided the following explanation as it relates to what qualifies as “unreasonable, vexatious or frivolous”:

“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”. “Unreasonable” means “irrational” or not in accordance with good sense.

Grounds for costs

17Between the Applicant and the Town, the parties raised the following grounds in support of their respective costs claims:

1. The Appellant has no direct interest in the matter;

2. After adding multiple issues to the Issues List, the Appellant dramatically scoped his issues at the hearing without notice to the parties;

3. The Appellant failed to present evidence at the hearing;

4. The Appellant failed to adequately prepare for the hearing; and

5. The Appellant has a history of bringing unsubstantiated appeals against the Town.

1. The Appellant has No Apparent Direct Interest in the Matter

18The Applicant and the Town both drew the Tribunal’s attention to this Member’s finding at paragraph 2 of the Decision: “[t]he Appellant has no apparent direct interest in the matter, other than professing to be a concerned citizen”.

19The Applicant more specifically submitted that, in addition to the Appellant’s obvious lack of direct interest in the matter, his conduct was characterized by a lack of seriousness. It was submitted that he did only the bare minimum to qualify for standing in the appeal, having made virtually no submissions as part of the municipal process (his contributions being limited to a single email to the Town’s planner asking for clarification with respect to the concept plan and proposed density for the site), followed by a general lack of preparation and engagement in the Tribunal appeal process that followed.

20In response, the Appellant submitted that:

My Appeal was not frivolous. It is my (and every citizen’s) right to question any by-law of a municipality in Ontario. The Applicant states that I have “no Genuine Interest in the Zoning By-law Amendment” and the Municipality similarly argues that I have “no apparent direct interest in the matter”. I was born and raised in Almonte and although change is inevitable, I have been trying to be sure that planning related by-laws are legal and conform to Mississippi Mills’ Community Official Plan and the Provincial Policy Statement.

21The Tribunal rejects the submission by the Appellant insofar as he suggests that his entitlement to standing in this matter will somehow automatically legitimize his conduct. The Tribunal’s finding that he has no direct interest in the matter is also already settled. The Tribunal instead accepts the submissions of the Applicant and the Town insofar as it finds the conduct of the Appellant is characterized by a lack of seriousness, for the reasons outlined by the parties both above and in greater detail below. The Tribunal correspondingly finds the nature of the Appellant’s appeal to be frivolous.

2. After Adding Multiple Issues to the Issues List, the Appellant Dramatically Scoped His Issues at the Hearing Without Notice to the Parties

22The Tribunal accepts the following uncontested account of the facts, much of which is reflected in the record of this matter:

• On June 15, 2021, counsel for the Town circulated a draft Issues List to the Tribunal and the parties in advance of the Case Management Conference. The Town’s Issues List had seven lower-tier Official Plan policies that the Town identified as relevant to the Appellant’s original grounds of appeal as stated in Schedule “A” of the Appellant Form.

• Despite it being his appeal, the Appellant did not provide his own Issues List or comments on the Town’s Issues List prior to the Case Management Conference.

• At the Case Management Conference, the Appellant advised that he had not reviewed the proposed Issues List in detail, that he believed most Issues had been captured, but that he would like to consider additional submissions. The Tribunal directed the Appellant to submit his issues to counsel by July 15, 2021 to be included in a draft Procedural Order for the Tribunal’s consideration.

• The Appellant submitted his Issues List to counsel on July 15, 2021. It identified an additional 29 lower-tier Official Plan policies.

• Counsel for the Town and the Applicant consented to adding 25 of the Appellant’s requested policies but objected to the remainder. After hearing submissions from the parties, the Tribunal included 26 of the requested policies on the final Procedural Order issued August 16, 2021.

• Counsel for the Applicant and the Town prepared for the hearing based on this expanded Issues List and Procedural Order.

• At the hearing, without prior notice to the parties, the Appellant announced that he only disputed the conformity of the proposed Zoning By-law amendment (“ZBA”) with four of the lower-tier Official Plan policies. He made no argument with respect to any of the other 22 lower-tier Official Plan policies on the Issues List and led no evidence whatsoever with respect to any of the issues.

23The Applicant submitted that, in addition to wasting the parties’ time with preparing for the issues that he added and then dropped, none of the Issues raised by the Appellant had any reasonable prospect of success in the absence of supporting expert evidence. The Town submitted that the above described conduct of the Appellant was unreasonable and frivolous, as it resulted in considerable unnecessary costs by counsel in preparing to respond to issues that were never eventually pursued by the Appellant.

24The Tribunal finds these actions by the Appellant to be unreasonable, frivolous and vexations. It is unreasonable for being irrational and not in accordance with good sense. It is frivolous for being characterized by a lack of seriousness.

25The Tribunal also finds it to be vexatious because the Appellant’s actions were instituted for the apparent purpose of causing trouble or annoyance to the other parties. In coming to this conclusion, the Tribunal acknowledges that it is generally difficult to determine a person’s intent in this regard, since an unrepresented person may bring a claim without sufficient grounds simply because they lack sufficient experience to know better. However, the Tribunal finds that the Appellant in this case does have sufficient experience to know better, given that this is the seventh appeal that he has filed and third hearing as a party.

26In addition, as will be discussed in greater detail below, the Appellant has demonstrated a pattern of vexatious behaviour leading up to these proceedings, insofar as he has an extensive history of bringing unsubstantiated and/or incomplete appeals against the Town to the Tribunal. Given this additional factor, the Tribunal finds on a balance of probabilities that the Appellant’s actions of adding extensive issues and then later dropping them without notice demonstrates a further effort to cause trouble or annoyance to the other parties, and the Town in particular.

3. The Appellant Failed to Present Evidence at the Hearing

27The Town submitted that the Appellant’s decision to not present evidence to support his own appeal was unreasonable in the context of a ZBA that had been supported by two professional land use planning experts (the Applicant’s planner and the Town’s staff planner), and is further indicia that his conduct was unreasonable and frivolous.

28The Tribunal accepts this submission and finds same. The Tribunal further finds that the Appellant must have known that such an approach would result in no realistic prospect of success, thus knowing that his efforts would result in nothing more than delaying the approval of the project and causing trouble and annoyance to the other parties.

4. The Appellant Failed to Adequately Prepare for the Hearing

29The Applicant and the Town listed the following as examples of the Appellant’s lack of preparation for the hearing:

• The Appellant did not present evidence;

• The Appellant did not cite law, precedent or studies to support his position;

• The Appellant did not provide examples or reasons for why the proposed building was not compatible with surrounding built form;

• The Appellant’s cross-examination consisted largely of his own statements insofar as he disagreed with the Applicant’s expert’s professional opinion; and

• The Appellant made no opening statement and made only very limited closing submissions.

30The Tribunal accepts these submissions of the Applicant and the Town and finds the same as submitted above, noting that the Appellant also admitted to the Tribunal that he lacked preparation. He did so by way of an apology at the hearing, in which he promised to be better prepared the “next time”. The Tribunal finds these actions to be further indicia of unreasonable and frivolous conduct.

5. The Appellant has A History of Unsubstantiated Appeals

31It is uncontested that this is the Appellant’s seventh appeal to the Tribunal (or its predecessors) of a planning decision of the Town over the past three years, with four of those appeals being administratively dismissed when the Appellant took no further action beyond filing the appeal, and a fifth appeal, that was to be conducted in writing, being dismissed following the Appellant not filing any materials.

32The Appellant acknowledged in his responding costs submissions that this matter was his third hearing and made no claim of having a direct personal interest in any of his previous appeals. The Tribunal finds that this pattern of behaviour is, on its face, indicia of vexatious conduct.

33If there was any doubt about the Appellant being a chronic litigant, it was erased when he expressly committed himself to carry out future Tribunal appeals against the Town. These intentions were first expressed during the hearing on the merits when he indicated that the “next time” he had an appeal before the Tribunal, he would be better prepared. The Tribunal recognizes that this could have been an off-handed comment that did not necessarily mean he was already anticipating another appeal. However, through his written submissions regarding costs, he left no doubt about his intentions by stating “[t]his is not my first challenge of planning by-laws and it will not be my last”, followed by “[i]f I don’t try to ensure legal conformity and compliance with planning, then who will?”

34In addressing these submissions, the Tribunal adopts the Town’s succinct response:

There is no reality to the Appellant’s perception that his appeal was necessary to “ensure legal conformity and compliance with planning.” Council approved the zoning by-law amendment after conducting a public hearing and having received extensive evidence, including planning reports from professional planners, a peer-reviewed Transportation Impact Study, a Market Demand Study, and a shadow study and architect’s designs.

As demonstrated at the Hearing, the Appellant had no evidence raising even an apprehension that the amendment was not in “legal conformity and compliance with planning.” Given this, the Appellant’s appeal was unfounded, vexatious and a frivolous use of the Tribunal’s time and the Town’s resources.

35Furthermore, The Tribunal finds that the Appellant sees himself as serving some sort of unofficial gate-keeping role with respect to the Town’s planning decisions, and he uses (and intends to continue to use) the function of the Tribunal to further such efforts. While the Appellant attempts to characterize himself as serving a public interest role, the Tribunal finds the opposite. The Tribunal finds that the Appellant’s baseless appeals cost municipal taxpayers to defend legitimate planning decisions, while also delaying projects that serve public interest policy objectives. Given his history of commencing appeals but not following through and/or lacking engagement in the process, failure to prepare and/or not making material contributions in support of his appeals, the Tribunal comes to the conclusion that the Appellant’s intent is more than just meddlesome; it is to cause as much trouble and/or annoyance to the Town as possible.

36This Tribunal finds such attitude, intent and behaviour to be reprehensible and dangerous, not only prejudicing the Town’s resources and efforts to deal with planning matters efficiently and effectively at a local level, but it also prejudices the Tribunal’s abilities and duties to deal with meritorious matters (bumped down the Tribunal’s schedule in order to deal with the Appellant’s matters) in an efficient and timely manner. This conduct is clearly vexatious and warrants sanctions to not only compensate the prejudiced parties, but also to discourage such conduct by the Appellant or any other person who considers engaging in such practices.

37As a final note, the Tribunal recognizes that the Appellant claimed to have suffered from some sort of brain injury which, he claimed, contributed to his lack of performance at the hearing. However, the Tribunal had an opportunity to observe the Appellant’s performance at the hearing and finds that any health issues of the Appellant had no bearing on it. In exercising its discretion to award costs, the Tribunal has not factored this assertion into its decision.

Conclusion

38The Appellant submitted that the test commonly used by the Tribunal on a request for costs is found in Nikmanesh, supra:

…would a reasonable person, having looked at all of the circumstances of the case, the conduct or course of conduct of a party proven at the hearing, and the extent of his or her familiarity with the Board’s procedure, exclaim “that’s not right; that’s not fair; that person ought to be obligated to another in some way for that kind of conduct.”

39In applying this test, for the reasons set out above, and in exercising its general discretion to award costs, the Tribunal finds that the Appellant’s conduct was unreasonable, frivolous and vexatious, and he similarly acted in bad faith, to a degree that warrants costs in accordance with Rule 23.9 of the Tribunal’s Rules.

40In further exercising its discretion, the Tribunal has elected to cap the costs award at a sum total of $10,000.00. While the Tribunal finds that this falls well short of the relief that could have been ordered against the Appellant considering his conduct, it finds that it is appropriate when balanced against the Tribunal’s duty to avoid discouraging appeals by legitimately concerned citizens which are conducted in good faith.

41Put another way, the Tribunal finds that the amount awarded should be sufficient to deter clearly meritless appeals / serve compensatory purposes, while it is not so severe as to discourage a potential party who:

1. demonstrably believes in the merits of their position;

2. is prepared to contribute to the proceedings in a meaningful way;

3. acts reasonably to avoid causing unnecessary costs to the other parties; and

4. does not demonstrate a pattern of nuisance litigation against another party.

42The Tribunal notes that it has granted the entire amount claimed by the Town, while it has substantially discounted the amount claimed by the Applicant in order to cap the total at $10,000.00. The Tribunal apportioned it in this way because the amount claimed by the Town was based on only part of the Town’s total costs of the Appeal, while the Applicant’s claim was based on its total costs. The result is the Tribunal’s best effort to appropriately apportion the total fixed costs awarded between the Applicant and the Town.

ORDER

43THE TRIBUNAL ORDERS that:

1. the Applicant’s application for costs is granted and directs Steven Maynard to pay 2241497 Ontario Ltd. a costs award in the amount of $8,273.64.

2. the Town’s application for costs is granted and directs Steven Maynard to pay the Town of Mississippi Mills a costs award in the amount of $1,726.36.

3. The Appellant has six (6) months to pay the costs awards of this Order, following which it is subject to interest calculated in accordance with section 129 of the Courts of Justice Act.

"K.R. Andrews"

K.R. Andrews

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.