Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 31, 2022
CASE NO(S).: PL190339, PL190340
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Humberplex Developments Inc.
Appellant: Friends to Conserve Kleinburg Inc.
Subject: Proposed Official Plan Amendment No. 47 (OPA 47)
Municipality: City of Vaughan
OLT Case No.: PL190339
OLT File No.: PL190339
OLT Case Name: Patterson v. Vaughan (City)
PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Humberplex Developments Inc.
Appellant: Friends to Conserve Kleinburg Inc.
Subject: Proposed Official Plan Amendment No. 48 (OPA 48)
Municipality: City of Vaughan
OLT Case No.: PL190340
OLT File No.: PL190340
OLT Case Name: Patterson v. Vaughan (City)
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Kirby Developments Limited (OPA 47) and East Kleinburg Development Inc. and 1045501 Ontario Limited (OPA 48)
Request for: An Order Awarding Costs
Costs Sought Against: Humberplex Developments Inc. and Friends to Conserve Kleinburg Inc., jointly and severally
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: City of Vaughan
Request for: An Order Awarding Costs
Costs Sought Against: Humberplex Developments Inc.
Heard: In writing
APPEARANCES:
Parties
Counsel
City of Vaughan
B. Engell
C. Facciolo
Humberplex Developments Inc.
G. Borean
D. Donnelly
Friends to Conserve Kleinburg Inc.
D. Donnelly
Kirby 27 Developments Limited (OPA 47), East Kleinberg Developments Inc. and 1045501 Ontario Limited (OPA 48)
I. Kagan
DECISION DELIVERED BY SUSAN de AVELLAR SCHILLER AND ORDER OF THE TRIBUNAL
1This decision deals with two Motions for Costs.
2The Tribunal finds that awards of costs are appropriate in these matters.
BACKGROUND
3The grounds for the Motions for Costs, while similar, are not identical. They both arise out of the conduct of the Appellants in various hearing events dealing with the merits of the appeals. The reader is referred to the decisions issued from these hearing events for details.
4By way of brief background, the City of Vaughan (“City”) adopted Official Plan Amendment 47 (“OPA 47”) and Official Plan Amendment 48 (“OPA 48”). Humberplex Developments Inc. (“Humberplex”) and Friends to Conserve Kleinburg Inc. (“Friends”) opposed these official plan amendments and are the Appellants. Although these matters were not consolidated, they were heard together. In the end, the Tribunal dismissed the appeals.
5Kirby Developments Limited (OPA 47) is the owner of lands subject to OPA 47. East Kleinburg Development Inc. and 1045501 Ontario Limited (OPA 48) owns the lands subject to OPA 48. These interests are the Applicants and are referred together as such in this decision.
6The Applicants have brought a Motion for Costs, payable jointly and severally, against Humberplex and Friends. The City has brought a motion for costs against Humberplex.
7The York Catholic District School Board (“YCDSB”) was a Party to the merits’ proceedings. No costs were sought against YCDSB and YCDSB did not participate in these Motions for Costs.
8The Statutory Powers Procedure Act (“SPPA”) requires submissions for a costs order to be made in writing. The exception is if a party satisfies the Tribunal that to do so is likely to cause the party significant prejudice. The Tribunal is satisfied that there is no significant prejudice to any party to proceed with these motions in writing.
9For these Motions for Costs, the Tribunal had before it the Motion Record and the Reply Record filed by the Applicants; the Motion Record filed by the City; the Motion Responses from Humberplex to each of these Motions for Costs; and the Motion Response filed by Friends to the Applicants’ Motion for Costs.
COSTS SOUGHT
Applicants
10The Applicants are seeking costs, payable jointly and severally by Humberplex and Friends, as follows:
Motion for Costs
$23,165, inclusive of HST
Applicants’ Response to the Motion to strike certain affidavits, exhibits thereto and reports
$15,740.90, inclusive of HST
Continued unreasonable and vexatious actions throughout the appeal process
$10,000.00
Total
$48,905.90
City
11The City is seeking costs against Humberplex as follows:
Motion for Costs
$ 3,000
City’s Response to the Motion to strike certain affidavits, exhibits thereto and reports
$23,000
Total
$26,000
AUTHORITY TO AWARD COSTS
12The Tribunal’s authority to award costs comes from the SPPA, the Ontario Land Tribunal Act (“OLTA”) and the Tribunal’s Rules of Practice and Procedure (“Rules”).
13Costs do not follow cause at the Tribunal. The fact that a party has lost does not mean that costs will necessarily be awarded against it. Costs are awarded based on behaviour. They are not automatic.
Statutory Powers Procedure Act
14In s. 17.1(2), the SPPA sets out the two core requirements for a Tribunal to award costs.
15The first requirement is that an award of costs may only be made where the conduct or course of conduct of a party has been “unreasonable, frivolous or vexatious or a party has acted in bad faith”.
16The second requirement is that the Tribunal has made rules regarding costs. At s.17.1(4)(b), the SPPA requires the Tribunal to identify the circumstances in which costs may be ordered.
Ontario Land Tribunal Act
17The OLTA takes a similar approach in providing a statutory basis for a request for costs.
18Section 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.
Tribunal Rules
19Rule 23 of the Tribunal’s Rules sets out the procedure for a costs motion and the sort of conduct that might attract a costs award.
20Rule 23.9 has the same limitation that is set out in the SPPA. It provides that 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 a party has acted in bad faith”.
21Some examples of this behaviour are set out further in Rule 23.9:
…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; or
i. breaching a confidentiality requirement of mediation, settlement conference or of a decision of the Tribunal in a hearing on the merits.
22Rule 23.10 deals with the amount of a costs award:
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.
23Rule 23.11 speaks to interest on a costs award:
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.1990, c. C.43.
24The Tribunal is not required to order costs when any of the examples of inappropriate conduct occur, or when other behaviour occurs which meets the general overall requirement that the conduct or course of conduct is clearly unreasonable, frivolous, vexatious or in bad faith. The seriousness of the conduct and its impact on the reasonable ability of the Tribunal to ensure a fair and efficient hearing is considered by the Tribunal when a request for costs is made.
ISSUES, ANALYSIS AND FINDINGS
Challenge to Tribunal Jurisdiction
25The Tribunal is a creature of statute. The authority to award costs is set out above and contained in both the SPPA and the OLTA. Two elements are central: there must be costs and they must result from a party’s behaviour.
26Humberplex and Friends have challenged the jurisdiction of the Tribunal to make an award of costs as sought by the Applicants in their request for $10,000 for what the Applicants refer to as continued unreasonable and vexatious actions throughout the appeal process.
27In raising this challenge, Humberplex and Friends dispute whether the Applicants incurred these costs. While the Tribunal must be satisfied on the question of costs incurred before an award may be made, the core of the challenge to jurisdiction is much broader.
28Humberplex and Friends suggest an award arising from a finding of behaviour that attracts an award of costs is punitive. Humberplex and Friends then assert that the Tribunal has no jurisdiction to award costs based on behaviour since to do so would constitute punitive costs.
29This reasoning is circular and fails entirely to appreciate the clear and specific jurisdiction of the Tribunal that is set out in the two key statutes.
30The Tribunal’s jurisdiction to make an award of costs is tied to a finding of behaviour that warrants an award of costs. By characterizing an award of costs as punitive by tying it, as required by statute, to behaviour that warrants an award of costs effectively results in an indirect challenge to the very legislation that provides the Tribunal with the jurisdiction to award costs.
31If the real intention in this line of argument is to challenge the statutory basis of the Tribunal’s jurisdiction to award costs, the challenge is more appropriately directed to another forum.
32The Tribunal finds no lack of clarity in the statutory regime. The Tribunal has the full jurisdiction necessary to make an award of costs arising from a finding of behaviour that merits such an award. Any such award that stays squarely within the statutory requirements is compensatory, as intended by statute.
Parties of Like or Similar Interest
33For the purposes of Response to the Motion for Costs from the Applicants, both Humberplex and Friends attempted to distinguish one from the other. In summary, they did so by referencing what sort of entity each is outside of the proceedings before the Tribunal.
34Friends focused on the fact that it is an incorporated non-profit residents’ association and any award of costs against it might have the effect of discouraging other such non-profit residents’ associations from participating in Tribunal proceedings. The Tribunal dismisses this argument. To accept this as a reason not to award costs, as distinct from the necessary analysis set out earlier, would have the potential for condoning conduct or a course of conduct that is clearly unreasonable, frivolous, vexatious and in bad faith.
35Humberplex sought to distinguish itself from Friends by noting that it is a developer in competition with the Applicants. Paraphrasing this submission, Humberplex suggested that since its competitive business with the Applicants is its primary interest, it could not be considered to be a Party of like interest with a non-profit residents’ association.
36These submissions miss a fundamental point. The Tribunal does not consider whether the Parties have a like interest they pursue beyond the confines of the Tribunal proceedings. Rather, the Tribunal considers their interest within the context of the Tribunal’s proceedings.
37They are both Appellants. They have been represented at the Tribunal in these proceedings by counsel that have appeared jointly and interchangeably. Mr. Borean is counsel to Humberplex and, when his co-counsel was not available, appeared for Friends. Mr. Donnelly is counsel for Friends and co-counsel for Humberplex. Lawyers in Mr. Donnelly’s firm were on and off the file for Humberplex, as well as Friends. One of these lawyers provided the Affidavit in a Response to the Motion to Strike that was filed by Humberplex. Reply in the Motion to Strike that was filed by Friends included an Affidavit of Tony De Cicco, the President of Humberplex. Mr. De Cicco’s apparent role in the Motion to Strike is discussed further below.
38At no point did Humberplex or Friends indicate to the Tribunal that they disagreed with or did not support the submissions made by the other in the course of the merits’ proceedings. The Tribunal relies on the professional judgment of counsel that there is no conflict between the Appellants in their interest in these proceedings that would cast doubt on the appropriateness of the interchangeability of counsel between these two Parties during the course of these Tribunal proceedings.
39In the context of these Tribunal proceedings, the Tribunal finds that Humberplex and Friends are Parties of like or similar interest.
The Motion to Strike
40The Tribunal begins this analysis with the requests for costs brought as a result of the Motion to Strike. Both the Applicants and the City sought costs attributable to the Motion to Strike. The Tribunal’s analysis in this section applies to the request for costs from the Applicants and the request for costs from the City.
41The Motion, brought by Friends, was to strike:
…any of the planning evidence filed by the Applicant or the City of Vaughan that was created or signed off on by Mr. Jason Schmidt-Shoukri, former Deputy City Manager, Planning and Growth Management for the City of Vaughan. [emphasis added by the Tribunal]
42The effect of granting the Motion, had the Tribunal done so, would be to strike all the expert planning evidence referred to or relied upon by City staff and nearly all the expert planning evidence relied upon by the Applicants.
43The Tribunal notes that the material Friends wished to have struck included the City material that was filed as part of the requirement for the City to file the Municipal Record. The Municipal Record includes materials considered by Council in making its decision on the planning instruments under appeal.
44In addition to removing the expert opinions in the Applicants’ case and in the City’s case, removing this material in the Municipal Record would also mean that the Tribunal could not discharge its statutory responsibility to have regard for the materials before Council when making its decisions on these planning instruments.
45Considerably more background and detail on the Motion to Strike is found in the Tribunal’s Decision on that written Motion to Strike. For the purposes of these Motions for Costs, it is unnecessary to repeat it all here. The reader is referred to the Tribunal’s earlier decision on the Motion to Strike.
46The Tribunal denied the Motion to Strike.
47At the outset of this current cost analysis, the Tribunal reviewed the materials filed and finds that the Applicants and the City incurred costs attributable to this Motion to Strike.
48The Tribunal now turns to the question of conduct to determine if any of the identified costs incurred by the Applicants and the City for the Motion to Strike should be compensated with an award of costs.
Professional Codes of Conduct
49Lawyers who appear before the Tribunal, and expert witnesses, have professional codes of conduct to which they are expected to adhere. Such codes are in the hands of the respective professional organization. The Tribunal neither applies nor enforces any of these codes.
50The Tribunal respects and relies on the fact of these codes of professional conduct and the good faith observance of them by those who come before the Tribunal. In this regard, in the case particularly of lawyers, the Tribunal relies on counsel to have considered and found the correct balance between advocacy on behalf of their client and, simultaneously, treating the Tribunal with “candour, fairness, courtesy and respect”.
51That balance should enable the Tribunal to ensure and conduct a full and fair hearing.
52To ensure that filing requirements and deadlines would support a full and fair hearing of any Motion to Strike, the Tribunal turned to counsel to advise the Tribunal of certain procedural intentions. The Tribunal needed to understand whether there would be one Party bringing one Motion to Strike, two Parties bringing a joint Motion to Strike, or two Parties each bringing a separate Motion to Strike. Friends indicated it would be bringing a Motion to Strike. Humberplex indicated client instructions would be required.
Oral Assurance on Procedure and Subsequent Reversal
53From the Tribunal’s perspective and based on the transcript, Humberplex was crystal clear that it would not be bringing a Response to the Friends’ Motion to Strike. This point was important to arrange for a fair proceeding since either a separate Humberplex Motion to Strike or a joint Motion to Strike brought by Humberplex and Friends would both provide a fair opportunity for the Applicants and the City to consider the content and provide their respective Responses in the context of a straightforward procedure with all Responses filed by a single date.
54Since the Appellants were Parties of like or similar interest, and if Humberplex elected to file a substantive Response, a fair procedure might necessitate staggered Response times to provide an appropriate opportunity for the Applicants and the City to fold the Humberplex points into their Responses to the Motion to Strike.
55The Tribunal acted on the Humberplex assurance that it would not be filing a Response and the Tribunal set the filing requirements and dates accordingly. In doing so, the Tribunal understood that instructions were required by Counsel from Humberplex on the question of whether a joint motion with Friends or a separate Humberplex motion would be filed.
56Humberplex did not file a separate Motion to Strike nor did it join Friends in filing a joint Motion to Strike. Instead, Humberplex filed a Response to the Friends’ Motion to Strike.
57This chance from the oral assurance that Humberplex would not file a Response might, depending on the content of the Response, have resulted in an extension of the filing deadlines or possible supplementary Responses from the City and the Applicants. In other words, it might have created additional and unforeseen delay.
58In the result, the Tribunal found the content of the Humberplex Response to be irrelevant, entirely non-persuasive, attached no weight to it and did not extend or add any filing dates to the Motion requirements set out previously. As a result, no timelines were extended and neither the Applicants nor the City were required to prepare and file any supplementary Responses.
59The fact of a Response being filed by Humberplex, when an oral assurance was given that it would not, is not the central issue on the motion to strike. Rather, it is the content of the materials filed in the Motion by Friends, the Response by Humberplex and the Reply by Friends that tells the tale of conduct that may attract an award of costs.
Justification Advanced for the Motion to Strike
60The legislation under which the hearing of the merits, and the preliminary hearing events, occurred was very clear and precise. As upheld in the Court, no Party was able to call or examine a witness. Only the Tribunal had the discretion to determine if a witness should be called and only the Tribunal had the jurisdiction to examine any such witness. That statutory requirement notwithstanding, Friends sought summonses to examine affiants of the City and the Applicants. Having regard to the statutory regime that governed the proceedings, the Tribunal denied the requested summonses. Friends then advised that a Motion to Strike would be brought.
61The key material Friends and Humberplex wished to be struck was the Affidavit and reports of Marc Antoine. As a qualified expert in land use planning, Mr. Antoine was subject two things: the professional code of conduct for Registered Professional Planners in Ontario and his executed Acknowledgement of Expert’s Duty Form that is required of experts intending to provide evidence in matters before the Tribunal.
62Friends suggested the Motion to Strike was necessary to test the credibility of Mr. Antoine since the statutory regime that governed the proceedings did not permit any examination of Mr. Antoine by any Party.
What Actually Got Filed
63To pursue its intended testing of Mr. Antoine’s credibility, Friends filed an Affidavit of Uzzo Calderaro, sworn October 15, 2020.
64Mr. Calderaro’s Affidavit alleges bias on the part of Jason Schmidt-Shoukri, a former Deputy City Manager, Planning and Growth Management. The allegation of bias on the part of Mr. Schmidt-Shoukri appears to be grounded in the fact that Mr. Schmidt-Shoukri supported the applications made by the Applicants and did not support the position advanced by Humberplex.
65Mr. Calderaro then went on to suggest that Mr. Antoine “…may have been improperly influenced by threats, harassment or intimidation that may have affected the independence” of the Affidavits sworn by Mr. Antoine and submitted to the Tribunal.
66Mr. Calderaro’s Affidavit is heavily salted with phrases such as “we have reason to believe”, “may have been” and so on. While the Notice of Motion is not evidence, it must rely on evidence that is advanced in the affidavit in support of the Motion. The Affidavit of Mr. Calderaro, advanced by Friends as the principal support for the Motion to Strike, was nothing more than innuendo and hearsay that lacked entirely hard evidence in support.
67The Tribunal notes that the basis for the allegations in the Affidavit of Mr. Calderaro was acknowledged by Mr. Calderaro as being information given to him by Mr. De Cicco, the President of Humberplex. Specifically, Mr. Calderaro referred to information filed by Mr. De Cicco with the City Integrity Commissioner, which was dismissed, regarding lack of support by City staff and Councillors for the Humberplex positions in opposition to that of the Applicants and the Humberplex competitive applications.
68The Tribunal further notes that the Motion did not contain an Affidavit from Mr. De Cicco, the President of Humberplex. Instead, there was the Affidavit of Mr. Calderaro which was based on what Mr. Calderaro had been told by Mr. De Cicco.
69Even the Humberplex Response in support of the Friends Motion did not include an Affidavit from Mr. De Cicco.
70In was not until the Reply filed by Friends that an Affidavit from Mr. De Cicco was presented to the Tribunal. In that Affidavit, sworn November 9, 2020, Mr. De Cicco stated “…Everything I told Mr. Calderaro is true, his affidavit is correct…” Mr. De Cicco then went on to cite various grievances he had with the City and the Applicants, but failed to provide any hard evidence to refute the concern about Mr. Calderaro’s Affidavit being hearsay or to substantiate the innuendo regarding Mr. Antoine’s expert professional evidence.
71In the absence of any hard evidence to support the challenge to Mr. Antoine’s discharge of his duty as an expert or to his independent expert professional opinion, the Tribunal attached no weight to Mr. De Cicco’s Affidavit that was filed by Friends in their Reply on the Motion to Strike.
72The Tribunal finds that the timing, phasing and content of the Calderaro and De Cicco Affidavits in this Motion to Strike underscore the interwoven nature of the cases of Humberplex and Friends.
73Time and again what these two parties presented were the grievances Humberplex asserted with the process and decisions of the City. These grievances were couched in the context of Humberplex being a commercial entity in direct competition with the Applicants.
74While often submitted by Friends, the Friends material itself is clear that the information comes from Humberplex, attempts to advance the Humberplex position, and is in support of Humberplex as a commercial competitor to the Applicants.
75Having considered the matter, including the operational effect of an award on a joint and several basis, the Tribunal finds that it is more appropriate in these circumstances to make two separate awards as the Tribunal has set out below.
Applicants’ Request Regarding General Conduct
76In addition to costs related to the Motion to Strike, the Applicants sought costs of $10,000 regarding what the Applicants assert was continued unreasonable and vexatious actions by the Appellants throughout the appeal process.
77The Tribunal agrees that several of the instances cited by the Applicants appear to meet the standard of a course of conduct that might attract an award of costs. However, the Tribunal finds that several of the instances cited were dealt with or not pursued by the Tribunal Panels, differently constituted, who sat on various preliminary proceedings. The Tribunal also finds that several instances cited were part and parcel of a robust and hard-fought hearing process that did not lend itself to a clear delineation of time and, therefore, a clear delineation of specific costs attached to the course of conduct.
78The Tribunal declines to award costs for this part of the Applicants’ Motion for Costs.
Conclusion on the Motions for Costs
79On the foregoing analysis, the Tribunal finds that separate awards of costs, one against Humberplex and one against Friends, in response to the request for costs from the Applicants, are appropriate.
80On the foregoing analysis, the Tribunal finds that an award of costs against Humberplex, in response to the request for costs from the City, is appropriate.
81In considering the appropriate amount of the awards of costs, the Tribunal exercises its discretion pursuant to Tribunal Rule 23.10 and fixes the amount of the costs awards as set out in the Order below.
ORDER
82The Tribunal orders that the request for costs brought by Kirby Developments Limited (OPA 47) and East Kleinburg Development Inc. and 1045501 Ontario Limited (OPA 48) is awarded in part.
83The Tribunal orders that the request for costs brought by the City of Vaughan is awarded in part.
84The Tribunal fixes the total costs to Kirby Developments Limited (OPA 47) and East Kleinburg Development Inc. and 1045501 Ontario Limited (OPA 48) at $35,000.00 on an all-inclusive basis, divided as follows: $33,500.00 to be paid by Humberplex Developments Inc. and $1,500.00 to be paid by Friends to Conserve Kleinburg Inc. within 120 days from the issuance date of this Decision.
85The Tribunal fixes the costs to the City of Vaughan at $20,000.00 on an all-inclusive basis to be paid by Humberplex Developments Inc. within 120 days from the issuance date of this Decision.
86The Tribunal orders that post judgment interest shall be payable on the costs ordered from the date payment is due, in accordance with s. 129 of the Courts of Justice Act, R.S.O. 1990. c. C.43, as amended.
“Susan de Avellar Schiller”
Susan de Avellar schiller
VICE-CHAIR
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.