Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 18, 2022
CASE NO(S).: PL200646
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Michael Cardinal
Applicant: Wadah Al-Yassiri
Subject: Minor Variance
Variance from By-law No.: 8600
Property Address/Description: 2400 Riverside Drive West
Municipality: City of Windsor
Municipal File No.: A-039/20
OLT Case No.: PL200646
OLT File No.: PL200646
OLT Case Name: Cardinal v. Windsor (City)
Heard: Heard in writing
APPEARANCES:
Parties
Counsel
Michael Cardinal
Jeffrey J. Hewitt
City of Windsor
Patrick T. Brode
DECISION DELIVERED JATINDER BHULLAR AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Michael Cardinal (“Cardinal”/”Appellant”) brings a motion for an award of costs in favor of himself on a substantial indemnity basis pursuant to Tribunal’s Rule 23 in the amount of $6,282.70 inclusive of HST and cost of their motion, payable by the City of Windsor (the “City”) pursuant to s. 20 of the Ontario Land Tribunal Act. The request for costs arises from the Tribunal’s decision in this matter dated August 8, 2021 granting Cardinal appeal against the City.
2In this proceeding, the City has dual status. The City is an Applicant and also carries the role of defending the approval authority, the COA. The City decided to not attend the hearing in either capacity.
3The materials before the Tribunal on this Motion are the following:
a. Cardinal Motion Record dated August 9, 2021, including the Affidavit of Michael Cardinal, sworn on August 6, 2021;
b. The City’s response to Cardinal’s Motion dated September 1, 2021; and
c. Cardinal’s reply to City’s Response dated September 13, 2021.
4The Tribunal’s Rule 23.9 states that the Tribunal may only order costs against a party if the conduct or course of conduct of a party has been unreasonable, frivolous, vexatious or if the party has acted in bad faith. Rule 23.9 also sets out some circumstances where a costs order may be made.
CARDINAL GROUNDS FOR THE MOTION
5Specifically, Cardinal alleges that based on City’s actions leading up to the hearing and as outlined in the Motion record; the City and/or its representatives were unreasonable and demonstrated bad faith. These submissions are based on the Affidavit of Michael Cardinal, sworn, August 6, 2021 and the submission states;
a. The Appellant submits that the City's conduct of the proceeding (by withdrawing and by not consenting to an order) is the very definition of "unreasonable".
b. The Appellant further submits that, by proceeding in this fashion and considering the facts stated above, the City has acted in bad faith.
c. The Appellant further submits that, by proceeding in this fashion and considering the facts stated above, the City has abused the planning process, in particular the appeal process before this Tribunal.
d. Lastly, the Appellant submits that the conduct of the City creates a variation of the "chilling effect", whereby normally a private citizen is potentially discouraged from engaging the planning appeals process for fear of a cost award against him or her. Here, the chilling effect arises from a situation wherein a party actually commences an appeal and is now faced with thousands of dollars in legal and planning expenses against a municipality who simply decided it was cheaper not to show up and lose, than participate and lose.
6Cardinal submits that as a result of (i) the City's refusal to consent to an order allowing the appeal, and (ii) the need for a hearing, the Appellant was put to significant, and unnecessary costs in the amount of $5,282.70 (inclusive of HST and disbursements), to obtain a decision that was, for all practical purposes, inevitable given the City's position.
7Cardinal further contends that pursuant to Rule 23.09, this is a situation that is unreasonable and demonstrates bad faith. Accordingly, he should also be awarded his costs of the appeal (and of this Motion, if successful).
8The specific relief sought by the Appellant is as follows;
a. An order for costs of the appeal in the amount of $5,282.70, inclusive of HST and disbursements;
b. If successful on this Motion, an order for costs of the motion in the amount of $1,000; and,
c. Such further and other relief as counsel may request and the Tribunal may order.
CITY RESPONSE TO CARDINAL MOTION
9The City submits the following:
a. The Appellant initiated the proceedings to contest a decision of the Committee of Adjustment for the City of Windsor to grant a minor variance.
b. On April 21, 2021, two days after a notice of appointment for hearing was issued, counsel for the City of Windsor ("City") provided a letter to the Appellant Michael Cardinal ("Cardinal") that the City did not intend to appear at the above noted hearing.
c. This notice was sent more than a month prior to the commencement of the hearing on May 26, 2021.
d. The hearing was scheduled to commence on May 26, 2021 and would have proceeded at that time whether or not the City consented to an order. Five participant requests were granted for the hearing and Cardinal, his expert witness and another witness gave evidence.
10The City contends that as result the City acted appropriately as per Rule 23.9 when it carried out the following actions:
a. Advising Cardinal that it would not appear or present evidence at the hearing and further so advised the Tribunal; and
b. This notice was given in a timely manner long before the hearing.
FINDINGS
11In the Motion of Cardinal and the response by the City there is little dispute about the basic facts of the case. These are;
a. Notice of appointment for a hearing was issued by the Tribunal around April 19, 2021;
b. The hearing was set for May 26, 2021
c. The City informed the Tribunal and Cardinal on April 21, 2021 that it will not attend.
d. The parties confirm that Cardinal approached the City to consent for an order of the Tribunal to allow the appeal as the City was not making a case at the May 21, 2021 hearing.
12The Tribunal notes that it was not engaged in any discussions regarding the establishment of a possible consent between the parties or was requested to consider alternate approaches.
13For the Tribunal to consider any award of costs, it must determine if the following submitted by Cardinal is established in evidence before it:
Unreasonable; and/or
Bad faith
UNREASONABLE
14The City submits that the hearing would have to proceed regardless any consent established between the parties as there were participants who have tabled their inputs for Tribunal’s consideration. The City contends that consideration of participant inputs would have required the hearing to be conducted. Cardinal states that the participants were in support of their position and as such the success of the appeal was also their objective. Whereas Cardinal may be stating its view of the participant statements, such interpretation can only be provided due weight in Tribunal’s considerations when witnesses with appropriate qualification review participant inputs. The Tribunal notes that it is not uncommon in review of participant inputs that other matters become of important consideration and review. The Tribunal finds that consideration of participant statements at the hearing would have been a necessity.
15The City states that they had no obligations to attend the hearing but only to inform the parties and the Tribunal in a timely fashion, which they did. The City further adds that Cardinal is attempting to extend the meaning of the term “unreasonable” under Rule 23 by inferring an obligation to consent. It is noted that Cardinal chose to select and focus on getting consent. The Tribunal notes that even matter of consents require due scrutiny at a hearing, albeit of more focussed and lesser magnitude. Any consented resolutions require appropriate sworn Affidavit(s) of experts, presentation of expert testimony and associated expert opinions to assist the Tribunal in making its determinations. It is also common for the counsel for consenting parties to attend at the hearing.
16The Tribunal finds that whereas a possible consented approach could have been beneficial to Cardinal it would have added costs to City’s processing and participation in a hearing on consent. If the City chooses, as it did in this case, the Tribunal cannot impose upon the City to participate or make a case or encumber costs in so doing.
17The Tribunal thus finds that the City did not act unreasonably in their approach when they duly and on a timely basis informed the Tribunal and Cardinal that they will not attend at the hearing on May 21, 2021.
BAD FAITH
18Cardinal has identified alleged bad faith by the City to following areas as in the sworn Affidavit of Mr. Cardinal, sworn on August 6, 2021
a. Withdrawing and not consenting;
b. The City stating to the media that they will save tens of thousands of dollars by not attending;
c. The City spokesperson speaking to the media that they will get it done other ways anyway.
19The Tribunal notes that it has no authority to:
a. force an Applicant to appear or cause them to provide consent if they determine to not appear; or
b. force a City to defend a COA decision or to provide consent if it decides not to defend the decision of a COA.
20The Tribunal notes that media communication by City personnel while may have felt bad to Mr. Cardinal; is of little consideration for Tribunal determination in this matter.
21The Tribunal has already addressed the question of City’s withdrawal and refusal to consent to the Appellant as part of the reasoning in determination of “unreasonable”. The analogous reasons apply for consideration of alleged bad faith as stated and submitted by Mr. Cardinal. The Tribunal finds that the City did not act in bad faith when it informed about its non-participation at the hearing and refused to provide consent as sought by Cardinal.
22The Tribunal based on these reasons finds that Cardinal has failed to establish bad faith as a basis for any consideration of an award of costs by the Tribunal.
23In conclusion, the Tribunal having considered all the evidence before it and submissions by the parties, finds that Cardinal has not established either of the alleged elements for the consideration of an award of costs; i.e. the City’s conduct was unreasonable and/or in bad faith.
24THE TRIBUNAL ORDERS that the motion is denied, and no costs are awarded.
“Jatinder Bhullar”
JATINDER BHULLAR
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.