Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
March 02, 2022
CASE NO(S).:
PL210076
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990,
c. P.13, as amended
Appellant:
Manning Developments Inc.
Subject:
By-law No. 092-2020
Municipality:
Town of Lakeshore
OLT Case No.:
PL210076
OLT File No.:
PL210076
OLT Case Name:
Manning Developments Inc. v. Lakeshore (Town)
PROCEEDING COMMENCED UNDER subsection 34(25) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Motion By:
Beachside Development Inc.
Purpose of Motion:
Request for an Order Dismissing the Appeal
Appellant:
Manning Developments Inc.
Subject:
By-law No. 092-2020
Municipality:
Town of Lakeshore
OLT Case No.:
PL210076
OLT Case No.:
PL210076
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by:
Beachside Development Inc.
Request for:
Request for an Order Awarding Costs
Costs sought against:
Manning Developments Inc.
Heard:
By Written Submissions
APPEARANCES:
Parties
Counsel
Beachside Development Ltd. (“Beachside”)
J. Hewitt
Manning Developments Inc. (“Manning”)
P. Harrington
Municipality of Lakeshore (“Municipality”)
J. Meader
DECISION DELIVERED BY BLAIR S. TAYLOR AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is a request for costs arising out of this Member’s Decision dated September 17, 2021 allowing the Motion to Dismiss brought by Beachside and wholly dismissing the Manning appeal.
DECISION
2For the reasons set out below the Tribunal finds that Manning acted in a patently unreasonable and vexatious manner and the Tribunal hereby awards costs to Beachside in the amount of $12,500.00 all inclusive.
GROUNDS
3Counsel for Beachside summarized the main grounds for costs (Exhibit 1) as follows:
a. The Tribunal found that Manning’s Notice of Appeal did not identify a land use planning issue;
b. The Tribunal found that Manning’s reference to servicing issues was not a land use planning ground and not within the jurisdiction of the Tribunal;
c. The Tribunal found that Manning’s dispute with regard to servicing for its development had nothing to do with land use planning and more particularly, nothing to do with Beachside.
d. The Tribunal found that the appeal was without merit, without any purpose other than to delay the Beachside development.
e. Thus, the conduct of Manning was unreasonable, frivolous and vexatious, and Manning acted in bad faith.
4Counsel for Beachside submits that Manning is an experienced land developer and it was represented by a law firm also experienced in land use planning matters.
5Counsel cites the following from the Tribunal decision:
a. [Para 57] The fact that a dispute may have arisen with regard to the servicing for the Manning development appears to have nothing to do with land use planning nor with Beachside.
b. [Para 58] That the issue of servicing the Manning Lands is in these circumstances, not within the jurisdiction of the Tribunal and that the Manning appeal does not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal. This finding is fatal to the Manning appeal.
c. [Para 62] That Beachside was nought but a collateral third party in an on-going dispute between Manning and the Municipality, and that the purpose of the Manning appeal of the Beachside ZBA was to delay development within the Amy Croft Secondary Plan area, to advance the Manning position in its servicing dispute with the Municipality and also to enable Manning’s own development to advance at the delay of Beachside.
d. [Para 70] That the appeal is not based on any allegation that the impugned ZBA is inconsistent with the PPS or fails to conform or conflicts with the official plans of the County and the Municipality.
e. [Paras 75, 76, & 77] That there has been an obvious disconnect between the servicing plans as envisioned and the ultimate development application by Manning. That disconnect has nothing to do with Beachside. That disconnect is a matter strictly between Manning and the Municipality, and it deals with the servicing of the Manning Lands.
6Counsel for Beachside submits that the Manning appeal was motivated by competition and therefore vexatious, and found to be without genuine, legitimate or authentic planning reasons.
7As the appeal was without any land use planning grounds, the appeal was without seriousness and thus frivolous, and was instigated for the purpose of causing Beachside trouble or annoyance and thus vexatious, and when all the circumstances are combined it comprises bad faith on the part of Manning.
8Counsel submits that the test the Tribunal ought to apply is whether a reasonable person would find that “it’s not right” and “it’s not fair’ for Manning to have commenced its appeal in these circumstances and therefore Manning should be obligated to Beachside for that kind of conduct.
9Were the Tribunal to apply that test, then counsel argues that the Tribunal should find that Manning’s conduct has been unreasonable, frivolous and vexatious, and that Manning has acted in bad faith and that Beachside should be awarded its costs on a full indemnity basis in the amount of $15,661.10 plus $1,000.00 for the Motion, as Manning’s conduct was egregious.
MUNICIPALITY
10While the Municipality was a party to and supported the Beachside Motion to Dismiss, on the request for costs counsel for the Municipality advised the Tribunal that it would not be making any submissions (Exhibit 2).
MANNING RESPONSE
11The Manning Response (Exhibit 3A) notes that costs at Tribunal hearings are not routine and not automatic.
12Reference is made to Rule 23.9 of the Tribunal’s Rules of Practice and Procedure (“Rules”) as providing guidance for the circumstances in which the Tribunal may order costs, and submits that the examples set out in Rule 23.9 involve either active intention to engage in inappropriate conduct or a lack of consideration for the procedural requirements of the Tribunal.
13Thus, the Manning Response argues that the Tribunal would need to find that a party either actively ‘clearly’ engaged in inappropriate conduct or unreasonably disregarded its obligations as an Appellant in a Tribunal proceeding.
14Dealing firstly with whether Manning’s conduct on the Beachside Motion was reasonable, the Manning Response points out that Beachside unilaterally brought the Motion to Dismiss to which Manning filed a response on a timely basis with an affidavit by a land use planner. No requests were made for any adjournment or cross-examinations.
15Thus, it is argued that there are no grounds related to Manning’s conduct on the Motion to warrant awarding costs.
16The Manning Response then argues that while Beachside is seeking its costs of its Motion to Dismiss, the Tribunal’s assessment should be limited to Manning’s conduct on the Motion to Dismiss.
17In the alternative, were the Tribunal to consider the “merits of the Manning appeal” for assessing costs, the Manning Response submits that its appeal was not frivolous as it raised a matter of servicing capacity.
18Were the Tribunal to consider the “merits of the Manning appeal” it is submitted that its appeal was not vexatious, as its appeal related to available servicing capacity for other development within the Amy Croft Secondary Plan.
19Were the Tribunal to consider the “merits of the Manning appeal” the Manning Response notes that the Tribunal had jurisdiction to consider the appeal including the holding provision and that it was not an unreasonable or irrational issue and costs ought not to be awarded.
20On the issue of bad faith Manning argues that its own development application had been deferred and that Manning reasonably believed that the same issue should have been raised for Beachside. And despite the fact that the Tribunal found that Beachside was a “collateral third party”, the Manning Response argues that such a finding is not the same as a confirmation that Manning acted in bad faith.
21Thus the Manning Response argues that Manning’s conduct throughout the subject proceedings in no way rose to the standard of the conduct that would warrant an award of costs and certainly not at a full indemnity basis, as for that to occur, the party’s conduct must be especially egregious and to award costs on a full or substantial indemnity basis the Tribunal must find that the conduct of the party was reprehensible, scandalous, or outrageous, which it is argued in this case it was not.
22Thus, the Manning Response pleads that the Motion for Costs should be dismissed.
BEACHSIDE REPLY
23Exhibit 4 is the Beachside Reply, which is brief and succinct.
24Firstly, it submits that the Manning Response misstates the law: costs are not limited to just conduct on the Motion to Dismiss, but are to be considered for any or all part of the proceeding including an assessment of the merits of the appeal itself.
25In support of this counsel references s. 20 of the Ontario Land Tribunal Act (“OLTA”) which 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.
26And further that s. 1.2 of the Rules defines a proceeding as meaning:
a. Any matter, procedure, appeal, referral or application before the Tribunal and this includes matters which may be initiated by the Tribunal.
27Thus, it is argued that costs are not limited to just the motion, and the Tribunal’s jurisprudence supports this contention as found in 2684360 Ontario Ltd. v. Kingston (City) 2021 CanLII 15101.
28As to the request for full indemnity costs, the Reply submits that the Tribunal’s findings of fact support the contention that the Manning conduct was simply self-serving and, therefore, egregious, and that any reasonable observer would say such conduct was reprehensible, scandalous, and outrageous.
STATUTORY REGIME
29The OLTA provides the statutory basis for a request for costs.
30S. 20 as noted above 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. (Emphasis added)
31Ontario Land Tribunal’s Rules of Practice and Procedure (“Rules”) deal with costs in Rule 23 and generally provide a procedure and timing for such requests, (which themselves are not at issue in this request).
32Rule 23.9 is entitled “Circumstances in Which Costs Order May be Made” and provides guidance for the consideration of a costs request:
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 and 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;
i. Breaching a confidentiality requirement of mediation, settlement conference or of a decision of the Tribunal in a hearing on 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 conduct.
33Rule 23.10 states:
The Tribunal may deny or grant the application for costs or award a different amount and fix the costs of and incidental to the proceeding and direct payment be made by a certain date by order.
34Finally Rule 23.11 states;
Awards of costs may bear interest in the same manner as those made under section 129 of the Courts of Justice Act, R.S.O., C. 43.
The Planning Act (“PA”)
35As this request for costs arises out of a PA decision, s. 1.1 sets out the purposes:
The purposes of this Act are:
(a) to promote sustainable economic development in a healthy natural environment within the policy and by the means provided by this Act;
(b) to provide for a land use planning system led by provincial policy;
(c) to integrate matters of provincial interest in provincial and municipal planning decisions;
(d) to provide for planning processes that are fair by making them open, accessible, timely and efficient;
(e) to encourage co-operation and coordination among various interests;
(f) to recognize the decision-making authority and accountability of municipal councils in planning.
JURISPRUDENCE
36The jurisprudence of the Tribunal and its predecessors (the Ontario Municipal Board and the Local Planning Appeal Tribunal) have carefully distinguished the administrative practice of awarding costs from that of the civil courts. Here, awards of costs are not routine, and a successful party should have no expectation that it will recover its costs. (Kimvar Enterprises Inc. v. Innisfil (Town) [2009] O.M.B.D. No.33).
37This notwithstanding, the Tribunal has also acknowledged that parties must be accountable for their conduct and that if that course of conduct has been unreasonable, frivolous, or vexatious, or if the party has acted in bad faith, then the Tribunal may award costs.
38The test for assessing that conduct has been the “reasonable person” test: i.e. would a reasonable person looking at all of the circumstances, conclude that the conduct was not right, that the conduct was not fair, and that the person ought to be obligated to another in some way for that kind of conduct. (Midland (Town) Zoning By-law 94-50 (1995) 32 O.M.B.R. 3.
39The Midland case also very aptly summarized the meaning of frivolous, vexatious, and unreasonable:
The different facets of a party’s participation are reflected in the …use of the terms “frivolous”, vexatious, and “clearly unreasonable”. Contrary to popular assumption, these are not synonyms, but are meant to reflect different types of inappropriate conduct…
“Frivolous” means “characterized by lack of seriousness” …
“Vexatious”, particularly in legal parlance, describes action “instituted without sufficient grounds for the purpose of causing trouble or annoyance to another party…”
“Unreasonable” means “irrational” or not in accordance with commons sense…
Thus, in the colloquial, we have the “silly”, the “nasty”, and the “foolish”. And it appears to this Member that to be either “silly” or “nasty” in this context requires some deliberateness of purpose: one is trying not to be serious or is trying to be bad. And while there is no doubt that one can intend to be unreasonable, one can also be unreasonable without making any effort at all.”
40In cases where costs are awarded, the next issue to be decided is at what scale ought the costs to be awarded?
41In cases where the conduct is unreasonable the Tribunal may look to an award of costs on a partial indemnity basis. Where the conduct is beyond unreasonable, and became (in the court’s terminology) reprehensible, scandalous, or outrageous, then the Tribunal may award costs at either a substantial or full indemnity basis. (See Wal-Mart Canada Corp. v. Signum Corp. [2004] O.M.B.D. 1234).
COMMENTARY AND ANALYSIS
42Is an award of costs against Manning limited to consideration of Manning’s conduct during the Motion to Dismiss?
43Counsel for Manning argues that the Tribunal should limit its consideration of Manning’s conduct to that conduct during the Motion to Dismiss. Counsel for Beachside disagrees, and points to s. 20 of the OLTA that he says provides the Tribunal with the jurisdiction to consider costs of and incidental to any proceeding (which is defined to include an appeal) before the Tribunal. The Tribunal finds the Manning argument is but an attempt to divert focus from the entire course of action that Manning undertook, and especially his client’s appeal of the Beachside application that led to the Motion to Dismiss. The Tribunal finds that s. 20 of the OLTA is abundantly clear that the Tribunal’s jurisdiction includes the Manning appeal.
44In these circumstances is an award of costs appropriate?
45In this case, the Tribunal notes that Manning is an experienced land developer and the Tribunal found that Manning’s course of conduct in filing the appeal against the Beachside development proposal lacked any land use planning ground, was not within the Tribunal’s jurisdiction, but was a deliberate act designed to delay development within the Amy Croft Secondary Plan area, to advance the Manning position in its own servicing dispute with the Municipality, and also to enable Manning’s own development to advance at the delay of Beachside, an unfortunate collateral third party.
46Using the above referenced Tribunal test, to the reasonable person, were the actions of Manning in this case not fair, not right or appropriate, and ought Manning to be obligated in some way for that form of conduct?
47The Tribunal finds that Manning acted intentionally by filing an appeal against the Beachside Phase 2 development that was rooted in Manning’s own servicing dispute with the Municipality. That appeal lacked any land use planning grounds, was related to a servicing issue which was beyond the jurisdiction of the Tribunal, and the purpose of the appeal was to delay development within the Amy Croft Secondary Plan, to advance the Manning position in its servicing dispute with the Municipality, and also to enable Manning’s own development to advance at the delay of Beachside. The Tribunal finds that this course of conduct was patently unreasonable and vexatious, and the Tribunal will award costs.
48The question then becomes at what scale should the costs be awarded?
49In 2684360 Ontario Ltd., (noted above) that matter was also a request for costs arising from a Motion to Dismiss. There the Tribunal found that the appeal was not in good faith, and was vexatious as the matter was rooted in competition and where the real appellant had incorporated a new company and had attempted to withhold his true identity. The claim for costs was for full indemnity of $27,076.04, in the alternative $22,636.50 on a substantial indemnity scale, and $18,196.95 on a partial indemnity scale.
50The Tribunal found that an award of costs on a partial indemnity scale was appropriate and fixed the costs at $17,500.00 as it found that awards for full indemnity and substantial indemnity are reserved only for the most egregious conduct that is “reprehensible, scandalous or outrageous” and is beyond “merely” unreasonable, vexatious or bad faith conduct.
51In terms of the scale of the award of costs in this matter, the Tribunal finds that this is not a case for full or substantial indemnity of costs, but rather on a partial indemnity scale, as while the conduct of Manning was patently unreasonable and vexatious, it did not approach the level of egregious conduct that would warrant costs at a higher scale.
52Accordingly, the Tribunal will exercise its discretion and pursuant to Rule 23.10 will fix the costs at $12,500.00 on an all inclusive basis (including this costs request) to be paid within 120 days from the issuance date of this Decision.
53Post judgment interest shall be payable on the costs ordered from the date of payment is due, in accordance with s. 129 of the Courts of Justice Act R.S.O. 1990 c. C.43, as amended.
54This is the Order of the Tribunal.
“Blair S. Taylor”
BLAIR S. TAYLOR
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.