Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 28, 2022
CASE NO(S).: PL190453
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Heather-Jo Causyn
Subject: Application to amend Zoning By-law No. 1-Z-2014 – Refusal or neglect of the Norfolk County to make a decision
Existing Zoning: Marine Commercial (CM) and Hazard Land Zone (HL)
Proposed Zoning: Urban Residential Type 5 (R5) zone and Marine Commercial (CM), with special provisions and a holding symbol
Purpose: To permit the construction of a 6-storey residential apartment building
Property Address/Description: 24 Lynn Street
Municipality: Norfolk County
Municipality File No.: ZNPL2019046
OLT Case No.: PL190453
OLT File No.: PL190453
OLT Case Name: Causyn v. Norfolk (County)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Heather-Jo Causyn
Subject: Application to amend Zoning By-law No. 1-Z-2014 – Refusal or neglect of the Norfolk County to make a decision
Existing Zoning: Marine Commercial (CM) and Hazard Land Zone (HL)
Proposed Zoning: Urban Residential Type 5 (R5) zone and Marine Commercial (CM), with special provisions and a holding symbol
Purpose: To permit the construction of a 6-storey residential apartment building
Property Address/Description: 24 Lynn Street
Municipality: Norfolk County
Municipality File No.: ZNPL2019046
OLT Case No.: PL190453
OLT File No.: PL200064
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Heather-Jo Causyn
Subject: Request to amend the Official Plan – Failure to make a decision by the Norfolk County
Existing Designation: Lakeshore Special Policy Area
Proposed Designated: Site Specific
Purpose: To permit the construction of a 6-storey residential apartment building
Property Address/Description: 24 Lynn Street
Municipality: Norfolk County
Approval Authority File No.: OPNPL2019045
OLT Case No.: PL190453
OLT File No.: PL200063
Heard: April 13, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Heather-Jo Causyn | Nancy Smith |
| County of Norfolk | Peter R. Tice |
DECISION DELIVERED BY N.P. ROBINSON AND CARMINE TUCCI AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Appellant, Heather-Jo Causyn, applies to the Ontario Land Tribunal (“Tribunal”) for costs against the County of Norfolk (“County”).
2The County takes the position that the circumstances of the matter do not warrant or justify an Order for costs.
Overview of Timelines
3On September 29, 2020, a Case Management Conference (“CMC”) was held before Member Chipman and the Member issued a Decision on October 16, 2020.
4The CMC Decision notes in paragraph 8 that the Appellant was requesting a seven-day hearing to commence in the Spring of 2021.
5The Tribunal set April 6, 2021 as the commencement date for such hearing and the hearing occurred as scheduled.
6The same Decision also scheduled a further CMC for January 21, 2021 to finalize the Procedural Order and Issues List.
7The County provided a revised Issues List subsequent to the January CMC.
The Motion Record
8The Appellant’s Motion Record outlines behaviour by the County that it describes as unreasonable, frivolous or vexatious, to support the request for a costs award.
9The County argues, and the Tribunal agrees, that the relevant portions of the Motion Record which ought to be considered in determining the issue of costs include the Appellant's assertions as to changes in the County's position - relating to the servicing issue, the consideration of affordable housing and the consideration of urban design principles.
10If the Appellant's submissions are properly understood, these assertions are that:
- The County changed its position by firstly arguing that the application was premature due to the servicing problems, in the First Issues List, and then changed its position to one whereby an "H" would be imposed to address this issue, in the Amended Issues List, and then changed back to arguing prematurity in the witness statement provided. Just before the hearing was to commence the County reverted back to agreeing that an "H" could be used with respect to this issue.
11The County raised affordable housing for the first time in the Amended Issues List, which was then referred to in the Witness Statement and then, at the hearing, the evidence was changed to withdraw affordable housing as an issue.
12An urban design issue was listed on the First Issues List, was not listed on the Amended Issues List and then evidence was given on this point at the hearing.
ISSUES AND ANALYSIS
Applicable Law
13Rule 23.9 of the Tribunals Rules of Practice and Procedure details the circumstances under which a costs award may be awarded against a party. That Rule clearly states that costs may be award against a party only if the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious.
14The Rule provides a non-exhaustive list of examples of such conduct, and also states that the Tribunal is not bound to order costs when any of the examples occur—as the Tribunal will consider the seriousness of the misconduct. The Appellant bears the onus of establishing that costs are warranted in the circumstances.
15The Tribunal, along with its predecessor, the Ontario Municipal Board (“OMB”), have issued a number of decisions that clarify the scope of the Rule.
16The OMB decision Brumm v. Stafford (Township), 1987 CarswellOnt 605, 20 O.M.B.R. 369, 35 M.P.L.R. 314 states at paragraph 19:
Lawyers are accustomed to the normal practice in the Supreme and County Courts wherein costs follow the cause but the Ontario Municipal Board has not followed this procedure and the board would like to refer, with approval, to the following excerpt from the decision of Mr. A.J.L. Chapman, Q. C., of the board in the matter known as Re Murray Planning Area Official Plan Amendment 6 (No. 2) (1983), reported in 15 O.M.B.R. 192 where at p. 193 he says as follows:
... It seems to me that all persons, and I include municipal councils, appearing before the Ontario Municipal Board on planning matters ought not to have to worry that if they express their views and fail they run risk of having to pay costs simply because they failed. If that were the rule we would soon face the problem of citizens, including municipal councils, staying away from the board in droves and suppressing their anxieties and concerns over planning matters rather than run the risk of having to pay substantial sums in the event their views did not find favour with the board.
It would seem that what Mr. Chapman is saying is that the onus of establishing that the board should, in any particular case, assess costs rests strongly on the proponent requesting the assessment of costs. [Underlining added]
17The holding then goes on to consider an assessment of costs against that municipality and Member Rogers states:
In the opinion of this panel, the board, in assessing the application of the facts to the criteria, must find that the council acted irresponsibly. They might well find that the council, as a result of such irresponsibility, proceeded in an ill-conceived and ill-founded manner. Mr. Sheppard, of course, is saying that the council did not have any foundation for the steps which it took and that the by-law was, in fact, ill-conceived but we do not feel that the next necessary step, stating that the council acted irresponsibly, can be found. It is not the intention. as is stated by Mr. Chapman above, to place councils. in a position where they need be so frightened of costs being assessed against them that they cannot take any steps to assist ratepayers. [Underlining added]
As long as their procedures are undertaken honestly and responsibly. their actions should not be criticized by the awarding of costs. [Underlining added]
18In Midland (Town) Zoning By-law 94-50, Re, 1995 CarswellOnt 5227, [1995] O.M.B.D No. 3, 32 O.M.B.R. 4, the OMB wrote as follows:
- "Frivolous" means "characterized by lack of seriousness" (Shorter Oxford English Dictionary T1 ed., Little, Wet al. and Onions, C.T. (ed.), Clarendon Press, 1968) at p.753; see also Black's Law Dictionary fifth edition., Black, H.C., (West Publishing Co. 1979) at P. 601).
Vexatiouso: particularly in legal parlance, describes action ''[i] instituted without sufficient grounds for the purpose of causing trouble or annoyance "to another party (Shorter Oxford English Dictionary, ibid, at p. 2352. See also Black's Law Dictionary, ibid, at p. 1403). And "unreasonable" means "irrational" or not in accordance with good sense (Shorter Oxford English Dictionary, ibid., at p 2311; see a/so Black's Law Dictionary, ibid., at p. 1379).
- 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 a/so be unreasonable without making any effort at all.
19The OMB then provided comments that have subsequently been cited as the simple test to be applied:
- The Guidelines suggest that there is a relatively simple test to be applied in determining whether an order of costs should be made, and this member finds it a good, roughand-ready standard (at p. 4):
... 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
20In the case of Smith v. Toronto (City) Committee of Adjustment, 1998 CarswellOnt 5498, 37 O.M.B.R. 197, at paragraph 11, the OMB described the standard as follows:
The award of costs is a discretionary power of the Board, exercised with more than the usual amount of prudence and care. Unlike the practice before the courts (as I understand it), the authority to award costs has never been a power that is normal or in any way routine, but is available for those rare and extraordinary occasions where the board feels obliged to address a patent injustice which diverts from the normal practices before it, or to deal with behaviour that is clearly unreasonable, vexatious, or frivolous.
21The Motion for Costs must be assessed having regard to the principles stated in these decisions, which have been followed in numerous other cases.
Use of an "H" or Prematurity
22As to the use of an "H" or an argument as to prematurity, any change in position by the County could not have led to any substantial increased preparation on the part of the Appellant. Further, the position supporting prematurity was identified no later than December 21, 2020, when the first Issues List was published.
23In its written submissions for the within matter, the County argues that it was:
undertaking a very significant project to consider water capacity for Port Dover during the period of time prior to this application and continuing onwards while this appeal process was underway. There was significant concern and uncertainty on the part of the County as to what the likely solution was going to be and the County was faced with a large number of applications for development within Port Dover, including this particular application, that would be impacted by this issue. As early as June of 2019 the issue was known publicly and a development moratorium generally was being considered.
[…] Eventually the County was able to accept an "H" just before the start of the hearing since a solution to the issue was then in the final stages of being developed. Such solution was in fact approved by County Council on June 15th, 2021.
24The County argues that the scope of this servicing issue was therefore well known to the Appellant and that this issue would not have caused any significant additional preparation in advance of the hearing.
Affordable Housing
25While specific policies relating to affordable housing, such as s.1.5.1(b) in the Provincial Policy Statement, 2020 and policy 2.2.4.2(a) in the County's Official Plan, specifically appear for the first time on the Amended Issues List, the Appellant’s land use planner would have considered these policies to some degree while undertaking an initial assessment of applicable polices when the application was filed and would have therefore already begun, to some degree, to consider this issue.
26The subsequent withdrawal of this issue on the part of the County is in fact an example of the process that can occur during any appeal proceeding. Some issues are resolved as the hearing preparations move along towards the start of the hearing and during a hearing.
Urban Design
27While urban design as an issue was specifically listed as Issue Number 6 in the First Issues List, urban design policy was not removed from the Amended Issues List, wherein Official Plan policy 7.16.2, which includes subsection (c) was still listed. Policy 7.16.2 (c) states that new development "shall be designed and sited to maximize the compatibility with abutting uses including adherence of the companion Urban Design Guidelines".
28While the urban design issue is referenced in a different format, the issue was always on the Issues List and evidence was provided on this matter at the hearing.
Summary of Changes
29The County argues that the change in position for the servicing issue was under constant assessment by the County due to the severity of the water service issue and this was known by the Appellant; that the change in position as to affordable housing was part of a normal process at many hearings; and that in fact, there was no change in position relating to urban design.
30The County submits, and the Tribunal agrees, that the seriousness of the changes in the County's position must be taken into account in determining if the County has offended Rule 23.9(b). Tribunal cannot effectively measure the level of seriousness without proper quantification of the additional costs incurred as a result of those changes.
31The County argues that it is difficult to ascertain the extent to which the changes in position prolonged the hearing or otherwise created delays.
32The evidence before the Tribunal does not support the proposition that the changes in position are "a patent injustice which diverts from the normal practices before it, or to deal with behaviour that is clearly unreasonable, vexatious, or frivolous" as stated in the Smith case at paragraph 8.
33The Appellant cites Menkes Lakeshore Ltd. v. Toronto (City)(“Menkes”) [2008] O.M.B.D. No. 93 as support for the proposition that the conduct of the County, in particular the changes in position, was “clearly unreasonable”. Menkes states that:
The purpose of having an Issue List is to ensure that parties opposite know the case to be met. The issue becomes an alert to parties opposite that they may have to call expert evidence to satisfy the Board that the concern raised by the issue has been dealt with. Placing an issue on the Issue List is a decision that should be taken carefully, with a full appreciation of the responsibility to be borne by the party that does so. In a proceeding such as this, with sophisticated and experienced parties, the Board expects those who place an issue on the Issue List to then take the necessary and appropriate steps in support of that issue. Such steps would normally include retaining an expert in the field, filing an expert witness statement or report, and calling evidence in support of the concern identified in the issue.
34Ms. Given, the Director of Planning for the County, opined negatively on the affordable housing issues in her witness statement. In relation to the Official Plan, she stated:
There are no affordable units proposed in this development and it does not respond to the targets of the Official Plan. Following staff turnover, planning proposals ceased to be circulated to housing. While this proposal was initially in circulation, I was still working within housing at the County and it did not come to my attention. Had the proposal been circulated, I would have commented on this issue at that time.
35The Appellant had prepared for the hearing of the affordability issue. Several County reports and documents were assembled to cross-examine Givens to challenge her opinion. Ms. Givens changed her evidence at the hearing without notice to the Appellant.
36The Tribunal recognizes that the County did take some steps in support of the affordable housing issues as Menkes would require. It cannot be said that the County’s conduct was “clearly unreasonable” because no further evidence was adduced or because Ms. Givens’ opinion changed.
37Admittedly, the conduct in question is concerning. This stated, the Tribunal is unable to speculate as to the County’s reasoning for not pursuing the affordable housing issue in the context of a hearing with viva voce evidence. Further, the extent to which the hearing was prolonged and the extent of the inconvenience suffered is difficult to ascertain. One would further presume that the land use planning expert for the Appellant had considered the issue of affordable housing regardless in preparation for the hearing.
38The Tribunal is unable to conclude, on the evidence before it, that the actions of the County in relation to the affordable housing issue were clearly unreasonable. The Tribunal would also find that the County’s change in position on the affordable housing issue is not sufficiently serious to merit a costs award.
Submission of Offers
39The Appellant argues that the submission and ultimate rejection of offers to the County ought to be considered in relation to the issue of costs. The Tribunal agrees that the offers are to be considered but finds nothing in the facts that would merit a costs award on this basis.
40The Appellant does not provide any authority that confirms that the municipality must accept any offer made for the purposes of settlement. The municipality is free to consider and then accept or reject any offer submitted. The Tribunal has no evidence to suggest that the rejection of the offers was unreasonable. A municipality must act in the public interest and no adverse inference is drawn with respect to the County's rejections of these offers.
The Waterfront Trail Matter
41The Appellant asserts that the relief sought in relation to the waterfront trail was a legal impossibility.
42At the hearing, the Tribunal heard evidence as to why the proposed trail was infeasible. Indeed, the purpose of the hearing was to determine issues such as the feasibility of the trail. The County OP endeavours to create a system of shoreline trails and the County acted to promote this objective.
43The Tribunal concluded that the Trail, as sought by the County, was infeasible but this does not mean that the County’s actions in advocating for the trail were groundless.
44Indeed, the purpose of the hearing is to adjudicate issues of this nature and the Tribunal has no hesitation in finding that this issue does not support a claim for costs. A finding against a party does not impute that the position taken by the party is unreasonable.
45The County argues that various portions of the Motion Record are irrelevant and ought not be considered in assessing the claim for costs. The Tribunal recognizes that these issues might be relevant insofar as they are indicative of a broader course of conduct.
46In particular, the County argues that the Freedom of Information (“FOI”) Request, The Expropriations Act, the Review Request and the Interim Control By-law (“ICBL”) are irrelevant to the issue of costs.
The FOI Request
47There are references to a request for information pursuant to the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”) but there is no connection between that process and this claim. There is no information as to how such request has any bearing upon the alleged conduct of the County that could lead to a costs award.
48An MFIPPA request is an independent statutory process and is not relevant to the appeal proceedings nor to this motion.
The Expropriations Act
49The Expropriations Act operates in a very different public policy regime and it is clearly intended to compensate a property owner that has its land or an interest in land taken by a public authority for a public purpose.
50This is in contrast to the policies and regulations established for a cost award in proceedings under the Planning Act, which is the applicable statute. Given the broader public participation contemplated for the proceedings under the Planning Act, and the role of the municipality to look beyond the Appellant's narrow personal interest to develop land, to consider broader public and other interests, it is not surprising that cost awards in matters before the Tribunal or its predecessors are infrequent at best, and, when awarded, it is only due to the high standard of serious misconduct as described in Rule 23.9 having been met.
51The references to the Expropriations Act and its process regarding costs awards are irrelevant to the issues at hand.
The Review Request
52Any party to proceedings before the Tribunal is entitled to make a request for review. The Tribunal is not persuaded that the request relates to any of the grounds for costs.
The Interim Control By-law
53The Tribunal does not have the evidence required to make a finding that the passage of the ICBL could support a claim for costs.
FINDINGS
54The Appellant is seeking costs on either a substantial indemnity basis, or in the alternative, on a partial indemnity basis. The Appellant seeks same on the basis that the conduct of the County was reprehensible, scandalous or outrageous, based on assertions relating to the alleged impossibility of the County's argument on the main issue(s), coupled with the rejection of offers made to the County.
55The Appellant asserts that the County changed its position on a number of issues and therefore costs should be awarded. The Tribunal finds that the changes in position did not rise to the level of being seriously unreasonable. The mere change in position is not sufficient as to carry the consequence of a costs award being made, particularly when there was no delay or extension to the proceedings.
56The Appellant asserts that the County should be penalized by a costs award due to its submissions seeking a waterfront trail. Only in hindsight is the Appellant entitled to say that the County's position on that issue was impossible.
57In Pickering Harbour Co. v. Pickering (City), 2003 CarswellOnt 4775, [2003] O.M.B.D. No. 127, 45 O.M.B.R. 362, the Tribunal states:
The standard for cost award against a municipality in a hearing is the same for a municipality as any other persons appearing before the Board. It should not be more onerous because of its key role in the planning process. Nor should it be less simply because the burden of the costs may be passed onto the innocent or hapless ratepayers at large.
58The onus to prove a claim for costs rests on the party seeking such costs and such an award should only happen on "rare and extraordinary occasions", as noted in Smith v. Toronto (City) Committee of Adjustment, 1998 CarswellOnt 5498, 37 O.M.B.R. 197.
59The conduct of the County has not risen to the level of being seriously unreasonable or any level which might warrant an award of costs.
ORDER
60The Motion for Costs is dismissed.
“N.P. Robinson”
N.P. ROBINSON VICE-CHAIR
“C. Tucci”
C. TUCCI 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.