Askander v. Richmond Hill (Town), 2022 CanLII 34916

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 25, 2022

CASE NO(S).: OLT-22-003009 (Formerly) PL180073

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 10870 Yonge Street Limited Appellant: Saad Askandar Appellant: Dogliola Developments Inc. Appellant: Richmond Hill Retirement Inc. et al; and others Subject: Official Plan Amendment No. 8 Description: To permit a guide for future development around the intersection of Yonge Street and Bernard Avenue Reference Number: D11-17001 Property Address: Yonge & Bernard Key Development Secondary Plan Municipality/UT: Richmond Hill/York OLT Case No.: OLT-22-003009 Legacy Case No.: PL180073 OLT Lead Case No.: OLT-22-003009 Legacy Lead Case No.: PL180073 OLT Case Name: Askander v. Richmond Hill (Town)

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

Appellant: 10870 Yonge Street Limited Appellant: Saad Askandar Appellant: Dogliola Developments Inc. Appellant: Richmond Hill Retirement Inc. et al; and others Subject: By-law No. 1117-17 Description: To permit a guide for future development around the intersection of Yonge Street and Bernard Avenue Reference Number: D24-17001 Property Address: Yonge & Bernard Key Development Secondary Plan Municipality/UT: Richmond Hill/York OLT Case No.: OLT-22-003025 Legacy Case No.: PL180074 OLT Lead Case No.: OLT-22-003009 Legacy Case No.: PL180073

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Yonge MCD Inc. Subject: Request to amend the Official Plan - Failure of Town of Richmond Hill to adopt the requested amendment Description: To permit a mixed-use commercial/residential high-rise building, 3 high rise residential buildings, 22 street townhouse dwelling units, 160 condominium townhouse dwelling units, 8 single detached dwellings, and a public park Reference Number: D01-16002 Property Address: Various Addresses Municipality/UT: Richmond Hill/York OLT Case No.: OLT-22-003019 Legacy Case No.: PL170770 OLT Lead Case No.: OLT-22-003009 Legacy Lead Case No.: PL180073 OLT Case Name: Yonge MCD Inc. v. Richmond Hill (Town)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Yonge MCD Inc. Subject: Application to amend Zoning By-law No. 2523 and By-law 190-87 - Refusal or neglect of Town of Richmond Hill to make a decision Description: To permit a mixed-use commercial/residential high-rise building, 3 high rise residential buildings, 22 street townhouse dwelling units, 160 condominium townhouse dwelling units, 8 single detached dwellings, and a public park Reference Number: D-02-16012 Property Address: Various Addresses Municipality/UT: Town of Richmond Hill OLT Case No.: OLT-22-003023 Legacy Case No.: PL170771 OLT Lead Case No.: OLT-22-003009 Legacy Lead Case No.: PL180073

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Yonge MCD Inc. Subject: Proposed Plan of Subdivision - Failure of Town of Richmond Hill to make a decision Description: To permit a mixed-use commercial/residential high-rise building, 3 high rise residential buildings, 22 street townhouse dwelling units, 160 condominium townhouse dwelling units, 8 single detached dwellings, and a public park Reference Number: D-03-16006 Property Address: Various Addresses Municipality/UT: Town of Richmond Hill OLT Case No.: OLT-22-003024 Legacy Case No.: PL170772 OLT Lead Case No.: OLT-22-003009 Legacy Lead Case No.: PL180073

PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: City of Richmond Hill Request by: Dogliola Developments Inc. Request by: TSMJC Properties Inc. Request by: Yonge MCD Inc. Request by: Yonge Bernard Residents Association Request for: Request for an Order Awarding Costs Costs sought against: North Elgin Centre Inc.

Heard: In writing

APPEARANCES:

Parties	Counsel
City of Richmond Hill	Raj Kehar
Dogliola Developments Inc.	Ira T. Kagan
TSMJC Properties Inc.	Quinto M. Annibale and Brendan Ruddick
Yonge MCD Inc.	Patrick Harrington
Yonge Bernard Residents Association	Jason Cherniak
North Elgin Centre Inc.	Jeffrey Streisfield

DECISION DELIVERED BY G. BURTON AND D.S. COLBOURNE AND ORDER OF THE TRIBUNAL

1Following the hearings in this matter, the Tribunal received many motions for costs against the Party, North Elgin Centre Inc. (“NEC”), and also an informal motion for costs by NEC against other Parties. These written motions were followed by Responses and Replies, as generally permitted under the Tribunal Rules and Practice and Procedure (“Rules”), Rule 23.

The Appeals

2The Ontario Land Tribunal (“OLT”), formerly Ontario Municipal Board (“OMB”) and Local Planning Appeal Tribunal (“LPAT”), heard and determined several Appeals of the following planning instruments of the City of Richmond Hill (“City”). These included:

• The Yonge & Bernard Key Development Area (“KDA”) Secondary Plan (the “Secondary Plan”),

• Zoning By-law No. 111-17 (“ZBL”), and

• Amendments to Part 1 of the City of Richmond Hill Official Plan (the “Part 1 Plan”).

3The KDA includes the four quadrants surrounding the intersection of Yonge Street and Bernard Avenue/Canyon Hill in the City. Several landowners within this area had appealed these instruments to the OLT. Many public authorities and other persons were granted Party status to the proceedings.

4After numerous pre-hearing conferences dealing with the many Appeals and issues, Vice Chair Makuch in his Decision of June 29, 2020 (the “CMC Decision”) ordered that the Hearing of the Appeals would proceed in two phases. The Phase 1 Hearing, he determined, would address the policies governing the entire area of the KDA, in all the applicable instruments. The Phase 2 Hearing would then deal with site and/or quadrant-specific issues, and those for the Greenway.

5The subject matter and issues to be dealt with in each of the two phases of the Hearing were very clearly delineated by the Tribunal in the CMC Decision. Thus the Tribunal had ordered, prior to the Phase 1 Hearing, that this first segment would be restricted to KDA-wide issues, including the following policies:

• Proposed densities on a KDA-wide basis, and within each of the four KDA quadrants;

• Proposed building heights across the KDA;

• Traffic, transportation and related infrastructure, such as a public road network and possible ring road system;

• The existing holding by-law regime; and

• The proposed redevelopment/expansion of the existing Bernard Bus Terminal (“BBT”) in the southeast quadrant.

6Also in the CMC Decision, Vice Chair Makuch had made it clear that if the Tribunal did approve a uniform policy regime for the KDA following the Phase 1 Hearing, it would not be treated as approved policy for anyone seeking a different policy regime for their quadrant and/or site in the Phase 2 Hearing. Thus the CMC Decision included specific “without prejudice” language that could be included in the Tribunal Decision following the Phase 1 Hearing. This suggested language was included in the Phase 1 Decision of February 26, 2021 (the CMC Decision is a final decision, not subject to further review or appeal).

7The Phase 2 Hearing proceeded to address the site-specific Appeals, mainly in the eastern part of the KDA, as well as the possible designation of Greenway in the northeast quadrant. The Tribunal Order following Phase 1 brought into effect the documents under appeal for the west side of the KDA, except for the DiPede lands (addressed in Phase 2).

Requests for Costs

8Following the conclusion of the Phase 1 Hearing, several Parties indicated an intention to seek costs, all but one of them against NEC. Counsel for NEC intimated that it might request costs against “the public authorities”. Formal Motions for Costs, in writing, were ordered to follow Phase 2 and not Phase 1 (see Tribunal Order of February 26, 2021). This direction was not followed in NEC’s recent “Response to Motion” filed January 31, 2022, at para. 46b, as it cited only “a claim for costs against the City, and its supports” (sic). No further particulars were provided. On the other hand, full Written Motions were filed by the City, Appellants Dogliola Developments Inc. (“Dogliola”), TSMJC Properties Inc. (“TSMJC”), Yonge MCD Inc. (“Yonge MCD”), and the Residents’ group, Yonge-Bernard Residents Association (“YRA”).

Motion No. 1 – The City of Richmond Hill

9On January 19, 2022, the City filed a formal Motion for Costs against NEC for the entire Hearing, supported by Affidavit of its counsel Mr. Kehar.

10Its reasons were as follows.

11The Phase 1 Hearing was held over 15 days in July and September of 2020. NEC as a Party fully participated in the Phase 1 Hearing.

12At the time Phase 1 commenced, all the landowner Parties within the KDA except NEC, had consented to the Tribunal’s approval of the planning instruments provided in evidence. The City submits that throughout the Phase 1 Hearing, NEC alone repeatedly engaged in conduct that actually prolonged the proceeding. The City and the other Parties had to expend time and money in responding to NEC’s unreasonable conduct.

13Despite the Tribunal’s earlier Order on the phasing of the hearing, counsel for NEC refused to accept or comply with this Order. He refused to scope NEC’s issues (numbering about 50) for the Phase 1 Hearing. During the hearing, NEC’s counsel repeatedly attempted to tender evidence on issues directed to be heard only in Phase 2. In cross-examination as well, counsel consistently addressed site-specific, Phase 2 issues. When the Tribunal ruled against NEC’s counsel when faced with a number of objections to his inappropriate questions, counsel was argumentative with the Tribunal rather than deferential to its rulings.

14The City asserts, in its Motion that this cycle of trying to tender improper evidence, objections and argument, rulings on these from the Tribunal, and NEC counsel’s defiance, was repeated throughout the proceeding. This wasted many hours of allocated hearing time.

15The City provided, in its supporting Affidavit, an itemized chart of the total hearing time that it claims was wasted in Phase 1 by NEC’s inappropriate conduct. For every hour of wasted hearing time, the City’s lawyers and experts were forced to spend three hours in preparation. The wasted preparation time included:

• the City’s lawyers having to prepare arguments in response to NEC’s unwillingness to scope its issues during the Phase 1 Hearing;

• the City’s lawyers and witnesses having to respond to NEC’s written evidence in the Phase 1 Hearing by “redacting” or eliminating Phase 2 issues when NEC refused to do this, contrary to the Tribunal’s ruling; and

• the City’s witnesses having to prepare for NEC’s Phase 2 evidence during the Phase 1 Hearing, because NEC had refused to scope its issues, and because NEC continued to try to raise Phase 2 Hearing issues in the Phase 1 Hearing, all contrary to the Tribunal’s rulings.

16The City pointed out that NEC’s counsel had appeared to recognize that his conduct during the Phase 1 hearing was unacceptable. At the close of the Phase 1 Hearing, NEC’s counsel made an apology, recorded on the YouTube video, admitting that his conduct had been unreasonable. Unfortunately, notwithstanding this acknowledgement, NEC’s conduct did not improve during the Phase 2 Hearing.

17At the end of the Phase 1 Hearing, the City and several other Parties notified the Tribunal that they intended to seek costs against NEC. They provided an estimate of the quantum of those costs. The Tribunal ruled then that it would deal with any Motions for Costs in writing, following the Phase 2 Hearing.

18The Phase 1 Decision and Order (February 26, 2021) approved all the instruments before the Tribunal excepting the Greenway policies, deferred, as mentioned, to the Phase 2 Hearing. The instruments under appeal (KDA Secondary Plan, Zoning By-law and amendments to the Part 1 Plan) were ordered into effect for all lands on the west side of Yonge Street (except for the DiPede lands). Also as mentioned, a “without prejudice” clause preserved the right of NEC and other Parties to argue in Phase 2 for a different policy regime on a quadrant and/or site-specific basis.

19The Tribunal has noted, in its decision on Phase 1, the unreasonable conduct of NEC during the first Hearing. NEC had presented much evidence that did not conform to the directions of the Tribunal as to the parameters of the Phase 1 issues, and repeatedly refused to follow the Tribunal’s directions on this question. Other counsel noted the lack of cooperation from this Party. The City emphasized NEC’s “total lack of cooperation and compromise leading up to and within this proceeding”.

20The Phase 2 Hearing was held over 12 days in July 2021. The final Decision issued on December 15, 2021. The Phase 2 Hearing was to have four sub-phases, as determined earlier by the Tribunal in its Decision of June 24, 2021:

• 2A: TSMJC’s issues specific to the southeast quadrant of the KDA;

• 2B: NEC’s issues for its site in the northeast quadrant;

• 2C: the Greenway system; and

• 2D: DiPede’s site-specific issues in the northwest quadrant.

21NEC had initially raised 50 issues. For sub-phase 2B, NEC’s site-specific issues required that the City prepare evidence in many areas, including planning, transportation, parking and urban design. NEC announced on July 19, 2021, only moments before opening its case in the sub-phase 2B hearing, that it would not be calling any evidence, and that the Parties should proceed to closing arguments for this segment. NEC had, however, already provided notice that it would call several witnesses for the 2B hearing, and had filed written evidence from those witnesses. It had also summonsed the City’s Planning Commissioner, Kelvin Kwan, to give evidence. NEC made this last-minute announcement that it would provide no evidence on its multiple issues without any advance notice to the Parties or to the Tribunal, despite the fact that sub-phase 2B was to be expressly devoted to NEC’s site and/or quadrant-specific issues. The City’s and other Parties’ witnesses had already prepared extensive written and oral testimony responding to NEC issues.

22NEC’s counsel took the same inappropriate approach during the sub-phase 2C hearing, refusing to notify other counsel and the Tribunal whether it intended to call witnesses in sub-phase 2C, Greenway issues, despite the Tribunal’s direction that it do so. The City has stated that, in complete disregard for the Tribunal’s direction, NEC responded that it had no obligation to advise the other parties or the Tribunal whether it intended to call witnesses in the sub-phase 2C hearing. Again, moments before it was slated to begin its evidence, NEC’s counsel announced that he would not call any witnesses in sub-phase 2C at all. This meant that a significant portion of the City’s evidence, both written and oral, for sub-phase 2C was ultimately determined to be unnecessary.

23Despite calling no witnesses on its own issues, counsel for NEC “engaged in a wide-ranging and lengthy cross-examination of the City’s witnesses”. After numerous warnings and cautions, the Tribunal was obliged to limit and ultimately terminate NEC’s cross-examination of the City’s witnesses. Cumulatively, the cross-examination by NEC’s counsel was unduly repetitious, often beyond the scope of the witnesses’ expertise, irrelevant, and contained repeated unsupportable accusations that the witnesses were misleading the Tribunal.

24Perhaps the most egregious of NEC’s conduct, highlighted by the City in its motion materials, was its numerous frivolous motions throughout the Phase 2 Hearing, with limited or no notice, to which the City and the other Parties were forced to respond at considerable expense. These included many repeated requests for the Tribunal Panel to recuse itself, even though this matter had been ruled on and refused by the Panel several times, and also by the Tribunal Chair, following an NEC Request for Review pursuant to Rule 25 of the Tribunal’s Rules and s. 23 of the Ontario Land Tribunal Act (“OLTA”). There were also repeated requests by NEC for the Phase 2 Hearing to be held in hybrid format, even though this had also been denied by the Tribunal. The City has submitted that NEC’s sudden decision to introduce no evidence on its own issues, without any prior notice to the other Parties or the Tribunal, was patently unreasonable and vexatious.

25Mr. Kehar provided an itemized chart of the hearing time claimed as wasted as a direct result of NEC’s conduct that warrants costs, especially during the Phase 2 Hearing. For every hour of wasted hearing time that resulted from NEC’s conduct, the City’s lawyers and experts were forced to spend three hours in preparation. This estimate was determined by a review of the invoices submitted by various external experts and lawyers for the City, as set out in the Kehar Affidavit. Time wasted included:

(a) The City’s lawyers having to prepare arguments in response to NEC’s frivolous motions during the Phase 2 Hearing;

(b) City witnesses having to prepare witness statements that addressed NEC’s 50 stated issues, and then reply to each of NEC’s witness statements. NEC ultimately failed to call these witnesses to provide this evidence in Phase 2 at all.

(c) Time spent by the City’s lawyer and witnesses to prepare the City’s visual evidence in response to NEC’s issues.

(d) The City’s witnesses and lawyers spending numerous hours preparing for examination-in-chief to respond to NEC’s issues, and for cross-examination of NEC’s witnesses who were not called.

26All could have been avoided had NEC adhered to the Tribunal’s various Orders and directions.

27The Tribunal would note that it made mention of the cooperation of all other Parties in paragraph 206 of its Decision, even at the end of Phase 1.

206All Parties with the exception of the YRA, Mr. Askander and NEC supported the revised Secondary Plan, Zoning By-law and amendments to Part 1 OP by the end of the Hearing. These include the public Parties, the Region of York and the TRCA, and almost all the other landowner Parties. Yonge MCD Inc., Dogliola Developments Inc. and 10870 Yonge Street Limited (referred to as Longo’s) settled with the City and presented evidence for clarification and interpretation only. TSMJC settled some issues and deferred its issues of greater density and others to Phase 2.

Motion No. 2 – Dogliola Developments Inc.

28Mr. Kagan filed a motion seeking costs for his client Dogliola on January 19, 2022, supported by his affidavit. He noted the Tribunal’s direction in paras. 129-131 of its December 15, 2021 Decision, that any such requests be by written motion. Relief sought by Dogliola was:

1. An Order directing North Elgin Centre Inc. (“NEC”) to pay to Dogliola Developments Inc. costs fixed in the amount of $9,645.68, inclusive of HST, which costs Dogliola unnecessarily incurred in the Phase 1 Tribunal hearing during July 2020 and September 2020 as a result of NEC’s conduct;

2. An Order directing NEC to pay to costs fixed in the amount of $3,616, inclusive of HST, being the costs incurred by Dogliola in preparing the within costs motion.

3. Interest on the above-noted costs pursuant to Rule 23.11 of the OLT Rules.

29Mr. Kagan noted that Dogliola is seeking costs against NEC only with respect to the Phase 1 Hearing. Dogliola had extremely limited involvement in the Phase 2 Hearing, which accordingly does not warrant a request for costs for its involvement in that phase. Dogliola took no position in the Phase 2 Hearing for NEC lands in the northeast quadrant. Its attendance in Phase 2 was only to ensure that NEC did not attempt to change the KDA Secondary Plan or the ZBL as they applied to the Dogliola lands in the western portion of the KDA.

30Mr. Kagan has further pointed out that, to reduce duplication of the various motion materials, certain Parties, including Dogliola, have cooperated in their preparation. Thus Dogliola’s motion materials are brief, relative to the volume of materials filed by the City. Dogliola nevertheless has relied on the City’s motion materials, as well as those of Yonge MCD and TSMJC.

31For the reasons provided in his affidavit, the amount of $9,645.68 sought by Dogliola in its Motion for costs represents only a partial indemnity scale of costs. The actual time spent dealing with NEC’s conduct was more than double this. Accordingly, Dogliola’s quantum of costs requested has already been substantially discounted. There is no juristic reason to discount it further, Mr. Kagan stated.

32Mr. Kagan pointed out that both in the documents NEC filed for Phase 1 and in its conduct throughout the Phase 1 Hearing, NEC showed a complete lack of respect for the many Tribunal rulings distinguishing Phase 1 and Phase 2 issues. This conduct included:

a. Filing Witness Statements which failed to respect this distinction, and then refusing to revise or redact those documents in accordance with Tribunal directions.

b. Conducting overly lengthy cross-examination of witnesses on issues properly part of Phase 2, but which NEC insisted on dealing with in Phase 1, despite repeated direction from the Tribunal not to do so.

c. Causing Dogliola to have to attend portions of the Phase 1 Hearing than would have been unnecessary if NEC has respected the distinction between Phase 1 and Phase 2 issues, and if it had not covered ground during cross-examination that had already been covered. This additional attendance in Phase 1 was required by Dogliola as a purely defensive measure. This was to ensure that NEC did not take a position or examine a witness in a manner which sought to negatively modify the KDA Secondary Plan and/or the KDA ZBL as it applied to the Dogliola lands.

33Mr. Kagan notes that NEC’s Reply to the Motions for Costs sets out many allegations about other Parties and the Tribunal Panel. However, it does not provide any basis for these allegations.

34Mr. Kagan also submits that it is noteworthy that multiple Parties have sought costs against NEC. These include other developers (Yonge MCD and TSMJC), the City and, (surprisingly in his view) the YRA. As the Tribunal’s record shows, the YRA was consistently adverse in interest to the positions advanced by the City, Dogliola, Yonge MCD and TSMJC. YRA had taken the position that excess development was being planned through the KDA Secondary Plan and the KDA ZBL. The fact that various Parties from the public sector, private sector and the local residents, all believe that NEC’s conduct justifies an award of costs in this case, is very telling. It may be unprecedented. He has submitted that the reason why such a diverse group of Parties all take similar positions against NEC is because the conduct of NEC so clearly meets the tests in Rule 23.9 of the Rules, and warrants an award of costs.

35Dogliola submits that it was conservative in the calculation of the quantum sought. It has limited the request to the clearest examples of the time spent (frankly wasted) during the Phase 1 Hearing as a result of NEC’s conduct. As detailed in the chart attached to the Affidavit of Mr. Kagan, this amounted to 10 hours and 40 minutes of wasted time in the hearing room and during business hours, which does not include any additional time outside of the time spent dealing with the NEC’s improper hearing conduct. For every hour wasted in the hearing itself, at least as much time was spent dealing with those matters outside of the hearing room. Mr. Kagan also relies on the “wasted time” calculations contained in Attachments F and G to Mr. Kehar’s Affidavit, while emphasizing that the actual time spend dealing with NEC’s conduct was more than double this. This included conversations with other legal counsel (NEC included), as well as the time required to prepare for the next hearing day following NEC’s inappropriate conduct. Thus, the time “wasted” represents no more than 50% of the actual time spent on the matter. Accordingly, as mentioned, such an award would be less than even a partial indemnity scale of costs and is very conservative.

36As seen in Mr. Kagan’s affidavit, Dogliola incurred legal fees in the total amount of $9,645.68 ($8,536.00 plus $1,109.68 in HST) during only the Phase 1 hearing days, due to NEC’s improper conduct. Dogliola also incurred legal fees in the amount of $3,616 ($3,200 plus $416 in HST) to prepare the Costs Motion. Accordingly, Dogliola seeks a total of $13,261.68 in costs as against NEC.

Motion No. 3 – TSMJC Properties Inc.

37TSMJC also seeks costs from NEC. As with Dogliola, TSMJC has relied on the City’s motion materials, as well as those of Dogliola and Yonge MCD. TSMJC has noted that the Tribunal issued its Decision for Phase 1 on February 26, 2021 and the Phase 2 Decision on December 15, 2021. Pursuant to paras. 129-131 of the latter, the Parties could file any request for costs in writing following the Phase 2 Hearing. The Phase 2 Decision ultimately approved the KDA Secondary Plan and the KDA ZBL, all as amended. The Appeals by NEC to the Secondary Plan and ZBL were dismissed, as were all other Appeals, following settlements. TMSJC noted its intention to seek costs against NEC on March 26, 2021, in accordance with Rule 23.1.

38The Costs Motion filed by TSMJC was supported by the Affidavit of Mr. Ruddick, the co-counsel on the Appeals. He has stated that TSMJC’s request for costs represents the legal and consulting fees incurred by TSMJC as a direct result of the conduct of NEC and its legal counsel during Phase 1 and 2 of the Hearing of the Appeals (para. 2). The grounds for this request were:

Throughout the hearing NEC, through its counsel Jeffrey Streisfield, acted in a manner that was uncooperative, disruptive and disrespectful to the Tribunal. NEC repeatedly attempted to revisit issues that the Tribunal had ruled were outside the scope of the Phase 1 hearing and to ask questions of witnesses that the Tribunal determined were improper. This conduct was unreasonable, frivolous, vexatious, and unnecessarily added to the length of the hearing.

39Specific to TSMJC’s objections in its Motion is the following:

In Sub-Phase 2A, NEC engaged in unnecessarily lengthy and unhelpful cross-examination of TSMJC witnesses, despite NEC not calling any evidence in opposition to the settlement reached between TSMJC and the City. Furthermore, NEC acknowledged in its closing argument for Sub-Phase 2A that it did not object to the approvals being sought. (para. 43).

40In its Reply materials, TSMJC submitted that NEC had not meaningfully responded to the submissions has made by TSMJC. Specifically, NEC did not deny that it engaged in the conduct that TSMJC argues should attract an award of costs, did not take issue with the amount of time that TSMJC estimates was wasted as a result of NEC’s conduct, nor disputed the quantum of costs claimed by TSMJC. At most, NEC merely asserts, at para. 33 of its submission, that Mr. Ruddick’s Affidavit “contains material errors, (is) one sided and nothing short of bias”. Mr. Ruddick argues that this assertion by NEC is completely unsubstantiated.

41To TSMJC, there is no defense of NEC’s, or its counsel’s, conduct.

42TSMJC computed the wasted time resulting from NEC’s actions and conduct as approximately 10 hours 45 minutes of hearing time in Phase 1, and 24 hours of hearing time in Phase 2 (para. 45).

43It seeks the following relief:

TSMJC seeks recovery of legal and consulting costs incurred by TSMJC, payable by NEC, in the amount of $36,371.88 for the unnecessary hearing attendance incurred by TSMJC as a result of NEC’s unreasonable, frivolous and/or vexatious conduct during both Phase 1 and 2 of the proceeding. It has been conservative with the amount of costs claimed. As NEC and all other parties are aware, there were multiple meetings and/or conference calls outside of hearing time and/or normal office hours between counsel, in an attempt to deal with the conduct and requests of NEC. This request for costs only deals with time wasted and costs incurred during the course of the Hearing itself.

In the alternative, an Order of the Tribunal for recovery of legal and consulting costs incurred by TSMJC, payable by NEC, in such lesser amount as the Tribunal deems appropriate.

TSMJC also seeks recovery of legal costs incurred by TSMJC in connection with the preparation of this Motion, payable by NEC.

44As well, it seeks an Order nunc pro tunc, requiring that the records in this written request for costs be maintained as confidential, and be returned to counsel for TSMJC or destroyed following the decision of the Tribunal.

Motion No. 4 – Yonge MCD Inc.

45Mr. Harrington, counsel for Yonge MCD., filed its Notice of Motion for Costs against NEC on January 19, 2022, supported by an affidavit of his co-counsel, Patricia Foran. Ms. Foran appeared mainly in Phase 1 and Mr. Harrington in Phase 2.

46Yonge MCD requests the following relief in its Motion, notice of which was served on March 26, 2022, respecting NEC’s conduct in Phase 1 of the Hearings:

1. An Order of the Tribunal for costs in the amount of $13,623.85 against NEC for its conduct, as described herein, during the course of the proceedings.

2. An Order of the Tribunal for costs in the amount of $7,028.60 against NEC for costs incurred by Yonge MCD to bring its Motion for Costs.

47Similar conduct was observed by this Party. This was:

The within request for costs is made as a direct result of the actions taken by NEC and the behaviour of NEC’s lawyer (Mr. Jeffrey Streisfield) throughout both phases of the hearing. These actions and behaviour involved the following unreasonable, vexatious and bad faith conduct:

(a) attempting to pursue issues that were specifically directed to not form part of the Phase 1 proceeding;

(b) failing to comply with directions provided by the Tribunal both before and during Phases 1 and 2 of the hearing;

(c) continuing to deal with issues and asking questions that the Tribunal determined to be improper;

(d) engaging in a course of conduct that extended the expected timeframe of the hearing;

(e) repeatedly acting disrespectfully to the Tribunal panel; and

(f) showing a general lack of co-operation with the parties to the proceeding.

48Particulars set out by Yonge MCD were: “Stubborn or willful ignorance” – exhibited whenever NEC repeated an assertion or pressed a cross-examination question that the Panel had determined was inappropriate or improper. This included repeated requests by Mr. Streisfield for the Panel’s recusal; requests for transcripts/video recordings; and the fact that Mr. Streisfield was repeatedly being told by the Panel to stop asking the same questions during the cross-examination of witnesses. This improper conduct also extends to NEC’s unwillingness to abide by the phasing approved by the Tribunal for the conduct of the proceeding, or to recognize prior approvals for the Yonge MCD lands. On multiple occasions, Parties were served with NEC motions for adjournment and/or recusal without regard for the Tribunal’s Rules. Mr. Harrington stated that NEC’s repetition of this behaviour stemmed from NEC’s (a) refusal to accept the Tribunal’s rulings and (b) mistaken belief that each procedural direction that NEC disagreed with gave rise to the need for another motion for adjournment or recusal.

49In his Response to the Reply, Mr. Harrington stated:

Unless otherwise stated herein...Yonge MCD in no way accepts or agrees with the statements, claims, allegations or accusations put forward by NEC in its responding submissions. Rather Yonge MCD submits that much of the response filed by NEC is irrelevant, and to reply to each claim advanced by NEC would needlessly add to the wasted costs already incurred by Yonge MCD as a result of NEC’s conduct throughout these proceedings.

50At para. 5 of NEC’s Response, NEC stated that the Parties who are seeking costs against it have improperly failed to acknowledge that the hearing was “unfair” to NEC. Yonge MCD does not agree that the hearing was unfair to NEC, or that a reasonable person would conclude that the hearing was unfair to NEC. NEC asserts that its conduct was a response to its perception that there was some unfairness in the proceedings. Yonge MCD does not agree with this assertion and does not accept this as an excuse for NEC’s unreasonable behaviour.

51Yonge MCD asserted that NEC engaged in a course of conduct that was intended to keep the other private landowners engaged in these proceedings in an effort to put settlement pressure on the public authorities.

52As to the details, Mr. Harrington emphasized that the claims included in the Affidavit of Ms. Foran are largely limited to actual hearing time spent, as opposed to the additional time incurred outside of the hearing “discussing, strategizing, reacting and/or preparing for the unreasonable, vexatious and bad faith conduct of NEC.” The costs sought thus represent only a portion of the overall costs that Yonge MCD incurred that are directly attributable to NEC.

53Mr. Harrington has submitted that the list of conduct under Rule 23.9 is illustrative and non-exhaustive. In Dale Inc. and Dale II Inc. v. Toronto (City) 2020 CarswellOnt 14450, 6 M.P.L.R (6th) 147 (“Dale”) at para. 10, the Tribunal noted that Tribunal jurisprudence suggests that the list in Rule 23.9 can be further amplified by including the following behaviours:

• stubborn or willful ignorance;

• persistent disrespect exhibited in the course of the hearing;

• failures to abide by Tribunal orders and directions during and/or prior to the hearing;

• using the appeal process for ulterior self-serving motives;

• maintaining unsupportable positions in the face of cautions from the Tribunal to cease that course of action; …

54Mr. Harrington submits that this list is disjunctive. Costs may be awarded when a party demonstrates only one type of these behaviours.

Motion No. 5 – Yonge Bernard Residents Association

55The relief requested by the YRA in their Motion of January 19, 2022 is:

1. an Order that North Elgin Properties Inc. pay substantial indemnity costs to Yonge Bernard Residents Association in the amount of $7,684.00 including HST for the Phase 1 Hearing;

2. an Order that NEC pay substantial indemnity costs to Yonge Bernard Residents Association in the amount of $18,249.50 including HST for the Phase 2 Hearing;

3. pre-judgment and post-judgment interest in accordance with Rule 23.11 and section 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended; and

4. The costs of this Motion in the amount of $5,000.

56The Motion explained the reasons that the Residents’ group, though mostly unsuccessful in the results, are now requesting its costs from NEC. Respecting Phase 1:

It is noteworthy that all other landowner appellants limited their cross-examination and evidence due to their clear common interest with the City. NEC’s tactics in the hearing seemed to be intentionally dilatory, perhaps to force concessions from the City on issues unrelated to Phase One, and it should pay costs as a result. NEC’s conduct was also prejudicial to the extent that it took focus away from the proper issues for consideration in Phase One.

The YRA is a residents’ group with all of its funding donated by residents. They had no potential for financial gain from the hearing, win or lose. While the YRA expected to be involved in the hearing and pay for its own costs, it could not have reasonably expected the hearing to be extended by constant re-argument of the same issues already determined by the Tribunal, or evidence on issues clearly deferred to Phase Two.

In contrast, no matter what the outcome of the various cost motions, the evidence in the hearings was that NEC remains the owner of valuable land in the KDA with class A tenants such as Tim Hortons and McDonalds. Despite NEC’s lack of success in the hearings, the result of the hearings significantly increases the future development potential of its lands. NEC had nothing to lose and that may well explain its conduct.

Neither could the YRA have reasonably expected a landowner to conduct sweeping and lengthy cross-examinations of witnesses whose evidence supported the higher densities and heights that the same landowner wanted for its own property.

Indeed, the NEC cross-examination of City witnesses was more than double that of the YRA.

The YRA’s request for costs is limited to the extra time spent in the hearing due to the unreasonable, frivolous and vexatious tactics of NEC. The total extra time spent in Phase 1 due to NEC’s unreasonable, frivolous and vexatious conduct is 13.6 hours. YRA seeks substantial indemnity costs at $500 per hour for 13.6 hours at $6,800 plus $884 HST for a total of $7,684.00.

57The YRA had notified the Parties that it would not participate actively in Part 2 of the hearing but would continue to attend to monitor two issues of interest: the holding provision, and the densities approved in Phase 1. It also withdrew explicitly from Phase 2A of the hearing. NEC introduced no evidence to deal with the holding provision, or even to advise what changes to the holding provisions it was seeking, if any. If NEC had given notice that it would take no position on the holding provisions, then the YRA could have sat out the entirety of the Phase 2 Hearing. By failing to do so, NEC acted in a manner that attracts a cost award pursuant to Rule 23.9 (h) of the Tribunal Rules.

58Mr. Cherniak for YRA has submitted that during Phase 2, Mr. Streisfield spent significant time challenging the witnesses. He often repeated questions, argued with witnesses, insulted them and ignored the rulings of the Tribunal (which is supported by the Affidavit of Ashley Urson). When the City transportation witnesses were on the stand, Mr. Streisfield asked about the Regional stoplight. When the Regional transportation planner was on the stand, Mr. Streisfield asked about a crosswalk on a City road. “When transportation witnesses were giving evidence, he asked planning questions. When a planner was giving evidence, he asked transportation questions. He also asked planning questions of the urban design witness”.

59Additional comments made by Mr. Cherniak are as follows:

NEC did not merely refuse to cooperate with other parties. NEC actively worked to mislead other parties and the Tribunal as to its intentions, waste hearing time, argue with and insult the Tribunal, disrespect witnesses and bring the administration of justice into disrepute with repeated accusations of bias by the Tribunal. The most egregious actions by NEC took place after its counsel had already made a public apology to the Tribunal for NEC’s conduct earlier in Phase One. NEC’s actions were scandalous and outrageous, and they warrant substantial indemnity costs.

60In its Reply, the YRA has stated that in paras. 10 to 23 of its Response, NEC attempts to justify the time it spent in the Phase 2 Hearing. YRA is seeking its costs of the entire Phase 2 Hearing because NEC’s unreasonable, vexatious and frivolous conduct forced YRA to participate in the Phase 2 Hearing unnecessarily. The specifics of NEC’s Motion on July 12, 2021 have no bearing on, and do not respond to, YRA’s submissions. YRA seeks costs from NEC in part because NEC’s cross-examinations were too long, overly broad, frivolous and vexatious. NEC did not respond to those submissions but, instead, seemed to assert a right to unlimited cross-examination.

61On the issue of summons issued, Mr. Cherniak stressed that Patrick Lee, Director of Policy and Planning of the City, had been summoned originally by the YRA, and not NEC. NEC did not participate in the summons, nor provide an outline of his anticipated evidence. NEC then attempted to raise new issues with Mr. Lee after YRA concluded its examination. These were unrelated to Mr. Lee’s evidence and the outline provided by YRA. NEC provided no authority to support its claim to do so. Mr. Cherniak has submitted that NEC could have raised its objections, lost those motions, and then proceeded with the hearing in the normal course. This would have been sufficient to protect NEC’s rights on appeal. Instead, NEC’s conduct seems to have been intended to lengthen the hearing and provoke the Panel. Such actions are improper, and a party that conducts itself in that manner should be subject to a cost award against it.

62In sum, Mr. Cherniak argued that NEC’s conduct was sufficiently dilatory, argumentative and vexatious that it seemed to be willful intransigence, worthy not only of costs, but substantial indemnity costs.

FINDINGS AND DECISION

63As mentioned, during the Phase 2 Hearing, the City and several other Parties advised the Tribunal that they intended to seek costs against NEC in relation to its conduct during the Phase 2 Hearing as well as for Phase 1. The Phase 2 Decision and Order of December 15, 2021 dismissed NEC’s Appeal in its entirety. In this Decision, the Tribunal also made note of NEC’s unreasonable conduct in the Phase 2 Hearing, as it had for Phase 1.

64The Tribunal had instructed the Parties at the end of the Phase 2 Decision that if any Party wished to make a motion for costs, it should be brought in writing in accordance with the Tribunal Rules. Rule 10 of the Rules, for Motions, states:

10.1 Notice of Motion – A motion brought before the commencement of a hearing event shall be made by notice of motion.

10.2 Date for Motion – A moving party shall obtain from the assigned administrative staff a motion date if the motion is to be heard in person or by electronic hearing. A person may request, or the Tribunal may order, that the motion be heard in person or by electronic hearing.

10.3 Motion in Writing – A party bringing a motion before the commencement of a hearing event may request a motion be held in writing, or the Tribunal may make its own determination that the motion be held in writing, in which case the Tribunal will notify the moving party and all other parties. The moving party shall serve a notice of written motion within 15 days of receipt of this notice. Parties wishing to respond to a written motion shall serve a response within 7 days of the date of the moving party’s notice of written motion. A moving party may reply to a response within 3 days of the date of the written response.

10.4 Content of Motion Material – The notice of motion to be heard in person, electronically, or in writing shall:

a. state the day, time and location of the hearing of the motion;

b. state the precise relief sought;

c. state the grounds to be argued, including a reference to any statutory provision or Rule to be relied on;

d. list the documentary evidence to be used at the hearing of the motion;

e. be accompanied by an affidavit setting out a brief and clear statement of the facts upon which the moving party will rely; and

f. state the names and addresses of the responding parties or their representatives and all persons to whom the notice of motion is to be given.

10.5 Service of the Notice of Motion – A notice of motion and all supporting material, as set out in Rule 10.4, shall be served at least 15 days before the date of the motion to be held in person or by electronic hearing unless the Tribunal orders otherwise. A notice of motion shall be served on all parties, on any other person as directed by the Tribunal, and on the Registrar. An affidavit of service shall be filed with the Tribunal prior to or at the hearing of the motion.

10.6 The Notice of Response to Motion – A responding party shall serve a notice of response that:

a. states the response to be made, including a reference to any statutory provision or Rule to be relied on;

b. lists the documentary evidence to be used at the hearing of the motion; and

c. includes an affidavit setting out a brief and clear statement of the facts upon which the responding party will rely.

10.7 Service of the Notice of Response to Motion – The notice of response to motion and all supporting material as set out in Rule 10.6 shall be served no later than 7 days before the date of the motion to be held in person or by electronic hearing unless the Tribunal orders otherwise. The notice of response shall be served on all parties, on any other person as directed by the Tribunal, and on the Registrar. An affidavit of service shall be filed with the Tribunal prior to or at the hearing of the motion.

10.8 Reply Submission – A moving party may serve a reply submission, 3 days prior to the commencement of the hearing of the motion.

10.9 Oral Submissions – All the parties to a motion which is heard in person or by electronic hearing may make oral submissions.

10.10 Motions Made at Hearing Events – A motion may be made at an in person or electronic hearing event with leave of and in accordance with any procedures ordered by the presiding Tribunal Member…

65Of particular note is that most of these subrules refer to Motions made before the hearing event, and/or made orally (10.1, 10.2, 10.3, 10.5, 10.7, 10.8, 10.9, and 10.10). They also specify how responses may be made, and permit replies to responses. The Parties here have adapted these procedures to their written Motions.

66On January 31, 2022, following all the Motions by other Parties, NEC filed a document entitled “Submissions of the Appellant, NEC on costs of the Phase 1 and 2 hearings & NEC Reply Submissions to the City of Richmond Hill, Yonge MCD, Dogliola, TSMJC and YBA motions for costs”. In Replies to this Response, the City, Dogliola, TSMJC and YRA filed additional materials, all on February 10, 2022. Mr. Streisfield filed a further email on February 10, 2022 acknowledging their receipt, further denying all claims and repeating earlier allegations, but providing no costs details.

67It can be seen from their Motions that many of the Parties seeking costs from NEC cite similar conduct as grounds for an award of costs in their favour. As an example, and by way of summation, these are the grounds cited in TSMJC’s Motion:

Generally, the grounds relied upon by TSMJC...are as follows:

a. By Order of the Tribunal dated June 29, 2020 NEC was fully aware of the scope and subject matter of the issues to be addressed independently in each phase of the hearing. However, in spite of this clear direction NEC refused to scope its issues in the Phase 1 Hearing, and repeatedly raised Issues in Phase 1 through its submissions and cross examination that were to be specifically dealt with in Phase 2.

b. Despite raising Issues to be addressed in Phase 2, without prior warning, NEC failed to call any witnesses to provide any evidence to the Tribunal relevant to the issues it raised in subphase 2B resulting in a substantial amount of wasted hearing time.

c. NEC repeatedly ignored procedural directions and rulings by the Tribunal and brought many Motions or requests of the Tribunal seeking relief previously denied on multiple occasions.

d. NEC’s counsel engaged in cross examination of witnesses that was frequently repetitive or dealt with issues that were either not relevant to that phase or subphase of the hearing or the expertise of the witness in question.

e. NEC frequently acted in a manner that was disrespectful of the Tribunal’s process, rulings, and other counsel.

(Motion filed January 19, 2022, at para. 23.)

68Mr. Kehar for the City elaborated on NEC’s conduct conducive to a cost award. The Tribunal agrees with his observations and summation.

Refusal to Call Evidence

69The Tribunal first identifies NEC’s failure to call any evidence at all in Phase 2. Had the other Parties and the Tribunal known that NEC did not intend to call evidence, the City and the other Parties would not have had to bring much of their evidence-in-chief to respond to NEC’s stated issues. Counsel for the City made repeated requests for NEC to confirm whether it intended to call evidence during sub-phase 2C of the Hearing. NEC refused to answer. In the end, at least three hearing days were affected, and more planned hearing time was missed later.

70NEC’s refusal to notify the other Parties of its intention not to call evidence was in direct contravention of para. 20 of the Tribunal’s Procedural Order for the Phase 2 Hearing (June 24, 2021). This included: “A party who provides a witness’ written evidence to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.”

71As this Tribunal has often noted, directives contained in Procedural Orders issued by the Tribunal are not mere suggestions, but directives that require compliance for the orderly and cost-effective conduct of hearings before it. This recalcitrance demonstrated by NEC forced all participating counsel, especially, the Tribunal notes, counsel for the Toronto and Region Conservation Authority (“TRCA”), to spend many hours in preparation to cross-examine NEC’s intended witnesses. As Mr. Kehar stated, whether NEC counsel’s behaviour was deliberate in delaying the proceedings and forcing the City to incur unnecessary expense does not matter. It had this effect for all of the Parties, and was entirely unreasonable. While an appellant is entitled to make its case in cross-examination alone, in a hearing of this nature where procedural orders and hearing plans were in place, such a sudden change in plans to the financial detriment of the other Parties is unacceptable. The Tribunal so finds.

Repetition of Request to Record Hearing

72There were several requests by NEC at different points during Phase 2 for the hearing to be recorded, even though the Tribunal had ruled that such recording would not be permitted, as is usual in Tribunal proceedings (see Rule 22.5). The request did not fulfil the conditions in the Rule and was not necessary in the public interest as in Phase 1, as Phase 2 was to deal with site-specific matters only. The City’s Reply to NEC’s Response refers to NEC’s invitation to the Tribunal to “review the videos from … Phase 1 … (as a double check, more like a reality check) for …the unfairness of the hearing process”. Mr. Kehar emphasized that during the Phase 1 Hearing, the Panel had ruled that the YouTube recordings that had provided information to the public in the dual hearing format were not to be used as a transcript. Nor were they part of the evidentiary record. The Tribunal confirms that the video recordings from the Phase 1 Hearing are not part of the evidentiary record.

Production of Documents

73NEC made informal motions to require the production of certain materials from City witnesses that had not been previously requested by NEC, as the Rules require. These motions were brought at the last minute during NEC’s cross-examination of the witnesses. This too appeared to the City and others to be a tactic to delay the hearing.

Motions to be in Writing

74After NEC had brought several motions orally, or at the last minute, the City requested, and the Tribunal granted, an order that any further motions by NEC be brought in writing only, on 5 days’ Notice. NEC did not comply with this direction and continued to bring motions informally with little to no notice.

Improper Cross-Examination

75As noted previously, during Phase 2 Hearing NEC conducted many improper cross-examinations. Counsel for NEC consistently asked repetitive questions which had already been answered, and asked questions of witnesses that he knew or ought to have known were not within their area of expertise. The City repeatedly objected to this improper questioning, calling it a tactic to “run out the clock”. The Tribunal ruled against NEC’s counsel in these attempts. It concludes that the control of the hearing process represents the proper supervision by the Tribunal of its proceedings, and is not in any way “unfair” to counsel or NEC.

Renewed Motion to Recuse

76As mentioned by the City, NEC improperly used its January 31, 2022 Response to Costs Motions against it to attempt to bring or renew other motions. These included yet a further request for an order that the Panel recuse itself, already refused many times by the Panel (as the Hearing Panel must determine any bias claim) and also by the Tribunal Chair on a review request. The final Decision and Order issued May 10, 2021 on this issue with full reasons, and this finding was reasserted in the Order of December 15, 2021.

77In renewing his recusal motion once again in his materials of January 31, 2022, Mr. Streisfield claimed that the Chair uttered the term “bull…, and that Ms. Burton claimed not to have heard this”. This was, he asserted, contrary to the Tribunal Rules of Conduct. While not excusing any perceived lapse in the dignity of Tribunal proceedings, by way of response the Tribunal has merely to repeat TSMJC’s submission:

NEC acted disrespectfully to the Tribunal on more than one occasion, by engaging in yelling and dismissive comments. [Rule 23.9(g)] (para. 51).

78As stated in the May 10, 2021 Decision:

39Of special note is the formal apology made by Mr. Streisfield to the Tribunal and the other Parties for his conduct. This was captured in full on the YouTube recording, to which he made frequent reference in his Motions. However, his conduct did not change in the second sitting of Phase 1 Hearing. He consistently disregarded procedural directions from the Tribunal.

79As experienced counsel, Ms. Streisfield is presumably aware of the applicable Rules of Professional Conduct of the Law Society of Ontario. While the Tribunal does not make determinations of whether counsel, appearing before it, has complied with those Rules of Professional Conduct, it nevertheless is mindful of those dictates of Professional Conduct that require a lawyer to carry on the practice of law with integrity, encourage respect for the administration of justice, be courteous, civil and act in good faith to the Tribunal; as such Rules may inform the Panel’s determination of whether counsel has acted disrespectfully or flagrantly disregarded procedural requirements in the Procedural Order. Such unprofessional conduct may fall squarely within the circumstances identified as unreasonable, and deserving of costs, under the examples set out in subparagraphs (b), (c), (e), and (g) of Rule 23.9 of the Tribunal Rules.

80The Tribunal agrees with the City that there is no evidence, persuasive allegations or fresh basis for a recusal motion, and critically, there was no further actual recusal motion. Mr. Streisfield stated that his objection, in this further instance, was to the “utterance event”. “Uttering” one word in a very lengthy hearing, no matter how objectionable to the listener, does not a recusal make. This further request for recusal, raised yet again at this juncture of the proceeding, is misplaced and without merit, as were the requests for recusal brought before. What is more relevant to the Tribunal in these Motions for Costs against NEC, are those many incidents of Mr. Streisfield’s disrespectful conduct towards the Panel, and the Tribunal, and flagrant disregard for the procedural directives given by the Tribunal, which tried the patience of the Panel time and again.

Jurisdiction for Cost Awards

81This Panel is properly seized of the Costs Motions pursuant to Rule 23.7. There are no NEC costs claims against the City or any other Parties for the Tribunal to consider or adjourn. While its Response to Motion was entitled “Submission of the Appellant, NEC on cost of the Phase 1 and 2 Hearings & NEC reply submissions…” (January 31, 2022), there were no specifics of a cost request provided.

82As well, at para. 46b of NEC Response to Motion, it requests an order that “NEC’s outstanding claim for costs against the City, and its supports, be adjourned sine die, to be heard and determined by a different and impartial OLT panel.” NEC had not given notice that it would be seeking costs against any party following Phase 1 or following the issuance of the Phase 1 Decision. This is despite Rule 23.1 requiring notice 30 days after the Phase 1 Decision. Following Phase 2, NEC indicated in its closing submissions that it would be seeking costs against the City and other Parties related to the Phase 2 Hearing. It also indicated that it would be seeking costs or damages against counsel for the City and those for other Parties personally, without providing any particulars. Such particulars have never been submitted.

83Pursuant to Rule 23.6(c), any notice of motion seeking costs had to be filed by January 19, 2022, 35 days after the issuance of the Phase 2 Decision and Order. NEC filed no proper motion and is now out of time to do so.

84More importantly in the Tribunal’s view, as argued by the Parties, NEC’s Response to Motion does not deny the conduct relied upon by the City and others in the Costs Motions. Nor does it take issue with the Parties’ accounting of the lost hearing time and other costs caused by NEC’s conduct. NEC’s Response (para. 33) alleges that Mr. Kehar’s Affidavit contains “materials errors, are one sided, and nothing short of bias”, but provides no particulars or evidence to support this allegation. As Mr. Kehar argued, NEC merely retorts that regard must not be had to its conduct, but to the conduct of other Parties, their counsel, or the Panel. It offered no responding evidence, nor formal cost motions. If NEC’s email message of February 10, 2022 purported, in any way, to refute any claim by other Parties, the Tribunal agrees with Mr. Kagan’s statement on February 11, 2022 that Mr. Streisfield had no further right of Reply under the Rules.

85The Tribunal finds that it does not suffice as a response or reply merely to state that a file has been created in a court. Unless and until reversed by a court, the Tribunal Decisions stand.

86NEC did not deny that its conduct warrants a cost award, nor does it dispute the City’s or other Parties’ accounting of the lost hearing time and other costs that resulted from its conduct. NEC is instead raising extraneous factors as a defense. The City states that there is no evidence to suggest that any other Party engaged in conduct that merits costs, or that the Panel engaged in conduct that warrants a recusal. Thus it explicitly denies NEC’s allegations of unfairness in both hearing phases. The Tribunal agrees.

Other Matters Raised by NEC

87The Tribunal will set out and rule on several issues raised by NEC, for clarity’s sake.

Valid Procedural Order for Phase 2

88The Decision issued June 24, 2021 (as corrected on June 25), brought into effect the Procedural Order for the Phase 2 Hearing. Any NEC application for leave to appeal did not seek a stay of this Order, nor was an order made by any court to stay the Procedural Order. It therefore governed Phase 2.

Without Prejudice Clauses

89NEC alleges the Panel conducted “a hearing in breach of the without prejudice clauses (intended for NEC’s benefit)”, found in the Tribunal’s earlier decisions (para. 28k). NEC again provides no particulars regarding the alleged breach, nor any evidence to support this allegation. As many of the Parties responding here affirmed, there was no such breach. In fact, most are mystified by this statement.

“Tribunal aligned itself with the City throughout”

90Justifiable rulings in favour of the City and other Parties do not amount to an alignment with any of them.

No Notice of the Motions to Quash Summons

91NEC claims a breach of procedural fairness in the Tribunal’s quashing of two summons to witness, without notice to NEC, on the morning the desired witnesses were to testify. The Tribunal normally does permit counter-argument on formal Motions. However, in this case, it had previously explained to counsel for NEC why it had refused to issue the summons he had requested. They were to compel the attendance and testimony of senior executives of the City and the TRCA. This refusal was, and is, the Tribunal’s usual procedure, since it is an accepted principle that top executives of an organization often have no knowledge of specific files in question. Mr. Streisfield presented no counter-argument to the Tribunal to convince it otherwise before the summons were issued.

92Under Rule 13.1, summons to witness are only for the purposes of (i) giving relevant and admissible evidence…and (ii) producing any relevant and admissible documents. Mr. Streisfield did not provide any indication of satisfaction of this requirement at any time. The issuance of the summons for John Mackenzie of TRCA and Mr. Kwan were finally agreed only to satisfy his persistent requests for them. The Tribunal now concludes that it erred in issuing them. The Tribunal continues to find that these executives would not have been able to present relevant evidence, given their senior positions, despite there being no opportunity for Mr. Streisfield to question or cross-examine them. Attempting to challenge the validity of an employee’s affidavit, as he did here, does not change the fact that the Tribunal followed its usual practice in concluding that the top executives would have no knowledge of specific matters in the Appeals. Mr. Streisfield presented no evidence to the contrary, either in asking for the summons or on the day selected for their testimony. There was no breach of any duty of fairness here. The hearing was certainly not “tainted” as he claimed.

Time Limit on Cross-examination

93Where any party takes an inordinate amount of time in mostly irrelevant cross-examination, that is, the classic “fishing expedition” or delaying tactic, the Tribunal is entitled to exercise its power under Rule 22.3 to control the time. This is in fairness to the other Parties. This is especially true when orders to cease and move on are completely and consistently disregarded. In this virtual hearing, a five-second mute of the sound was utilized by way of enforcement to maintain control of the hearing, as no verbal direction would suffice. This short length was all that was available to the Panel at the time. It is notable that the platform used for remote hearings now includes a permanent mute function, permitting greater control to the Panel if needed, as it was in this hearing.

Redaction of Witness Statements

94This too is a common order made by the Tribunal, so that it receives only relevant evidence. Here the City Council had accepted revisions to the planning documents only a short time in advance of the Phase 1 Hearing. The City then requested that NEC make redactions to amend its Witness Statements to address the new versions of the documents. NEC refused to comply. Thus the Tribunal permitted the City to make the redactions so that it would have the latest proposals before it in evidence. There is nothing new or the least bit prejudicial in this common procedure.

Request to Record Hearing

95After the Phase 2A Hearing began, NEC requested that it be recorded via the YouTube Channel, as in Phase 1. Both this request, and one for a court reporter, were denied. Rule 22.5 prohibits recordings of a proceeding unless the Panel authorizes it. The continuous viewing via YouTube of Phase 1 had been authorized as a means of attendance for the many persons interested in the KDA-wide issues. The Tribunal refused any recording of the site-specific Phase 2 Hearing, in accordance with its usual practice. Despite this, the City stated that, at times, it appeared to counsel and to several of the other Parties that NEC was indeed recording the proceeding. In fact, Mr. Streisfield stated in para. 28 (l) of his submissions: “(and we know who was watching)”, implying that some unauthorized recording was occurring. NEC refused to confirm this unauthorized recording on the record, despite direction from the Tribunal to do so. NEC’s request to have a verbatim reporter prepare a transcript was made only part way through Phase 2, many days following commencement of sub-phase 2B. Rule 22 applied, and the consent of the Panel was required. The Tribunal ruled, based on others’ submissions, that permitting a recording of only part of the proceeding would result in prejudice to the other Parties. There is clear authority to make this determination.

Should Costs be Awarded Here?

96It is important to note that (as the City stated) at the time Phase 1 commenced, all the landowner Parties within the KDA except NEC had consented to the Tribunal’s approval of the planning instruments provided in evidence. This heightens the contrarian conduct of counsel for NEC in Phase 1, especially since his attempted interventions in raising Phase 2 issues were always overruled.

97In the recent case of Manning Developments Inc. v Lakeshore (Town) (Tribunal File No. PL210076) (March 2, 2022) (unreported) (“Manning Developments”), the Tribunal set out the circumstances where a costs award is appropriate (paras. 36 – 41):

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 common 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)…

98In the present case, the City requested the following relief:

1. An Order that NEC pay $95,060.12 for the unnecessary preparation and hearing costs incurred by the City because of NEC’s unreasonable, frivolous, and/or vexatious behaviour during both phases of the Hearing;

2. An Order that NEC pay $6,610.50 to the City for the costs of bringing this motion.

3. Interest on the above-noted costs pursuant to Rule 23.11 of the OLT Rules.

Authority to Award Costs

99The Tribunal’s authority to award costs is found in s. 20 of OLTA. This states that “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.” Section 17.1 of the Statutory Powers Procedures Act further provides that the Tribunal may make Rules regarding the ordering of costs, and order that a party reimburse another party for its costs.

100The Tribunal has made such Rules setting out the circumstances in which costs may be ordered, and the manner in which costs are determined. Rule 23 of the Tribunal Rules states, among other things:

23.1 Who May Request an Order for Costs – Only a party may ask for an award of costs at the end of a hearing event. If the request for costs is not made before the Tribunal renders its decision at the end of the hearing event, the party must notify the Tribunal and the party from whom costs are sought within 30 days after the written decision is issued that the party will be seeking costs, against whom the costs are sought, and an indication of the approximate amount of costs being sought.

23.8 Period Eligible for Costs Order – The Tribunal may make a costs award for conduct at any time during a proceeding.

23.9 Circumstances in Which Costs Order May be Made – 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 or 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 a mediation, settlement conference or of a decision of the Tribunal in the hearing of the merits.

101The Tribunal is not bound to order costs when any of these examples occur, as the Tribunal will consider the seriousness of the misconduct.

102As Mr. Harrington for Yonge MCD argued, in deciding a costs request, the Tribunal has traditionally used a test for “clearly unreasonable conduct” in order to assess a party’s actions. This test has been described as follows:

...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 Tribunal’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.

(See Pauze v. Midland (Town) (1995), 32 O.M.B.R. 4 and Dale, supra, at para. 24.)

103In the very recent Tribunal decision in Queenscorp (Mona Road) Inc. v Mississauga (City) (Tribunal File No. PL170371), (March 31, 2022) (unreported), Vice Chair Schiller awarded costs against the municipality for failing to follow the governing Procedural Order respecting issues and procedures. The Tribunal found that the municipality’s conduct “was deliberate in failing to meet the requirements of the Procedural Order and deliberate in failing to act in a timely and fair fashion.” Paragraph 47 of the Decision reinforced the mandatory nature of the Procedural Order:

The Procedural Order is not a suggestion. It is an Order. It is designed and intended to ensure a fair hearing for all Parties. Disregarding the requirements of the Procedural Order contributes to an inherent unfairness, and costs, for those Parties who adhere to these requirements. The Tribunal is not persuaded that an experienced party with experienced Counsel should be able to disregard the clear requirements of the Procedural Order with no notice to parties opposite and no request for leave of the Tribunal to do so. (emphasis added)

104It is critical to note in this present matter that the Tribunal had authorized the impugned redaction of Phase 1 witness statements. It considered this to be essential for efficient conduct of the Hearing. It did not “ignore” the governing Procedural Order in doing so, as NEC claimed.

Conclusions on the Degree of Unauthorized Conduct Exhibited by NEC

105As discussed in the Manning Developments Decision above, “clearly unreasonable” conduct is not synonymous with “reprehensible”, “scandalous” or “outrageous”. The Tribunal has recognized a hierarchy of conduct which may trigger awards of costs in various amounts. Partial costs (on a partial indemnity basis) might be awarded for conduct that was “clearly unreasonable”, but if the conduct became “reprehensible”, “scandalous” or “outrageous”, then the Tribunal could consider costs at substantial or full indemnity basis (see: Hanover County Fair Plaza v. Hanover (Town), 2006 CarswellOnt 1468 at para. 8, and Richcraft Group of Companies v. Ottawa (City), [2012] O.M.B.D No. 840 at para. 34).

106Here the Tribunal finds that all the conduct alleged in virtually all of the Motions for costs by the Parties falls within the circumstances in which costs may be ordered, as set out in Rule 23.9. It fully warrants costs in favour of the Parties (other than NEC) at either the substantial or full indemnity scale. As Mr. Kagan stated in his Affidavit (see above):

…it is Dogliola’s respectful submission that costs are clearly warranted in this case based on the following criteria:

a. NEC’s course of conduct has been unreasonable [Rule 23.9 opening language]

b. NEC has failed co-operate with other parties in making for an efficient hearing by failing to respect the distinction between Phase 1 and Phase 2 hearing issues and insisting on advancing Phase 2 issues during Phase 1 of the hearing. [Rule 23.9(b)]

c. NEC has failed, repeatedly, to comply with a procedural order(s) or direction(s) of the Tribunal which has resulted in undue prejudice and delay to Dogliola (and other parties). [Rule 23.9(b)]

d. NEC continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper [Rule 23.9(e)]; and

e. NEC acting disrespectfully to the Tribunal on more than one occasion. [Rule 23.9(g)]

107The objectives of Rule 23 are to encourage responsible conduct and discourage unreasonable procedure in all proceedings before the Tribunal. Under Rule 23.8, the Tribunal may make a costs award for conduct at any time during a proceeding. In addition, Rule 23.10 provides that 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. Rule 23.11 provides that awards of costs may bear interest in the same manner as those made under s. 129 of the Courts of Justice Act.

108The Tribunal finds that the Appellants have provided a great deal of compelling submissions and evidence of frivolous, vexatious and unreasonable conduct by counsel for NEC in both phases of this Hearing. This falls within the language of Rule 23.9: “unreasonable, frivolous or vexatious or if the party has acted in bad faith.” The examples provided, with which the Tribunal concurs, are clearly in breach of clauses (b), (c), (d), (e) and (g) of Rule 23.9. Both the Phase 1 and Phase 2 Decisions included findings of unreasonable and even egregious conduct by NEC and its counsel. The Decision of February 26, 2021 for Phase 1 had stated:

213The Tribunal has little to add to these comments and observations. They were put forward in stronger language at times by many counsel during the hearing as well. The Tribunal was required to make many rulings against NEC. Cooperation with all parties and the Tribunal is expected in all proceedings before it.

214The Tribunal expects appellants will attempt to scope their issues to focus on the relevant matters in dispute. This is the very purpose of case management to organize the disputed issues in a hearing. The NEC had every opportunity to scope their issues to their lands. Instead they persisted in maintaining KDA-wide appeals on a broad range of subjects, impacting landowners who had no interest in carrying forward this NEC dispute with the municipality. NEC’s attempts to frustrate the efforts of other landowners to settle with the City served to prolong this proceeding. The City points out in their written submissions how NEC approached this appeal in a very different manner from any other landowner impacted by the KDA-wide policies.”

109And again in its Decision of June 24, 2021, the Tribunal cited examples:

11The Tribunal notes the City’s comments concerning NEC’s proposed alterations to the issues list. In its view, many NEC issues are (as required) site- and/or quadrant specific to the northeast quadrant. However, some stray into the territory of KDA-wide or other-quadrant questions. Some were deleted by the City as inappropriate to be addressed in the phase 2 Hearing. The Tribunal agrees, but also that this does not preclude the City, or any other party, from taking issue with any of NEC’s issues during the Phase 2 Hearing.

12One of these issues is NEC’s continuing concern about the location of the Bernard Bus Terminal in the southeast quadrant. It is not in the northeast where NEC is located. Nevertheless, Mr. Streisfield argued that its future location is important to the entire KDA. All the other Parties and the City pointed out that the Tribunal had addressed this issue in Paragraphs 191 and 192 of its Decision on Phase 1 (February 26, 2021). Mr. Kehar said that the City had attempted to have a meeting of experts on this matter, but had received no response from NEC. The Tribunal agrees that the question of the location of the BBT cannot form part of this Hearing at all, especially since it is ultimately within the Region of York’s control. Ms. Ogenmefun for the Region pointed out that there had in fact been a Regional Transit Planner providing evidence in the Phase 1 hearing, and that this issue could have been clarified then. It will not be considered as an issue in the Phase 2 Hearing.

13Any attempted NEC changes to the Issues List are rejected in general, for the reasons expressed by the City. The Tribunal agrees with its comments, as did all the other Parties.

Costs at What Level?

110Mr. Harrington cited cases where the Tribunal recognized a hierarchy of conduct which may trigger awards of costs in various amounts. Partial costs (on a partial indemnity basis) might be awarded for conduct that was “clearly unreasonable”. If the conduct became “reprehensible”, “scandalous” or “outrageous”, then the Tribunal could consider costs at substantial or full indemnity basis. Both the Hanover and Richcraft cases (supra) support this view.

111In sum, the Tribunal had to consider NEC counsel’s conduct, and thus that of the Appellant NEC itself, in the context of its Appeal. Its Appeal was conducted essentially by continuing attacks on Party settlements reached with the Municipality. In the end result, the Tribunal can only surmise with the City that its Appeal may have been launched just for this purpose. From its conduct, NEC was deliberately trying to hold up approval of the Secondary Plan as long as it could, making it more difficult for the City to implement their Official Plan, its purposes and objectives. This is somewhat different from a case where the Tribunal is considering an applicant/appellant’s conduct following a completed application, full evidence and cooperation with other parties. NEC’s conduct of seeming obfuscation and delay looks even worse in this light.

112In his submission following the cost motions, Mr. Streisfield in essence acknowledged his unacceptable conduct, giving the reason that he felt the hearing was “unfair”. This conclusion must have followed soon after the first ruling against him, since his conduct was objectionable virtually from the start.

113Also noteworthy is that the Tribunal considered that Mr. Streisfield took his physical position in the hearing room (just below the Hearing Panel and preventing access to that seat by other counsel) in order to carry out these delaying and intimidation tactics. He appeared to try to control the Hearing knowing, as counsel have surmised, that he could not win on the merits, and therefore continuous interruptions would not disadvantage his case. As someone suggested, it seemed he planned it from the first.

114Based on the evidence and submissions before it, the Tribunal finds that the other Appellants requesting costs have demonstrated that NEC’s conduct clearly warrants an order of costs in favour of each of those claimants requesting them. Because the Tribunal finds that the conduct frequently became “reprehensible” and “outrageous”, and occasionally “scandalous”, it will award costs to all claimants against NEC on a full indemnity basis, if so requested.

115As pointed out by some Parties such as Dogliola, their claims have already been discounted. Thus the full amounts they have actually claimed will be awarded.

Cost Claims for the Hearings and for Motion Preparation

Party	Costs (incl. HST)	Motion Costs
City of Richmond Hill (2 Phases)	$95,060.12	$6,610.50
Dogliola Developments Inc. (1 Phase)	$9,645.68	$3,616.00
Yonge Bernard Residents Association (2 Phases)	$25,933.50	$5,000.00
Yonge MCD Inc. (2 Phases)	$13,623.85	$7,028.60
TSMJC Properties Inc. (2 Phases)	$36,371.88

The total for these awards of costs is:

Party	Total
City of Richmond Hill	$101,670.62
Dogliola Developments Inc.	$13,262.18
Yonge Bernard Residents Association	$30,933.50
Yonge MCD Inc.	$20,652.45
TSMJC Properties Inc.	$36,371.88
Total	$202,890.63

116NEC’s responding materials are nothing more than an attempt to obfuscate, deflect and raise unsubstantiated allegations, seemingly to distract from its conduct at the Phase 1 and 2 Hearings. In doing so, NEC provides a clear reflection and illustration of precisely the behaviour for which Yonge MCD and four other Parties have sought a sanction in the form of an award of costs.

117Notably, NEC has not denied that it exhibited the conduct or behaved in a manner warranting an award of costs. It did not challenge the calculations of wasted time, nor the quantum of costs provided in the supporting materials. It has not meaningfully responded to the central issues raised by Yonge MCD and others with respect to its unreasonable, frivolous, vexatious and bad faith conduct. At the end of the day and based upon its own observations and assessment of the conduct of NEC and its counsel, whether challenged or not by NEC, the Tribunal is of the very definite view that NEC’s conduct was indeed unreasonable, frivolous, vexatious and in bad faith.

118The Tribunal notes the request of TSMJC for an Order nunc pro tunc, requiring that the records in its written request for costs be maintained as confidential and be returned to counsel for TSMJC or destroyed following this Decision. All materials filed are a matter of public record unless ruled confidential in advance of their filing. Thus the Tribunal is unable to accede to this request, and dismisses this portion of the Motion.

ORDER

119The Tribunal orders as follows:

1. The Tribunal fixes the costs to the City of Richmond Hill at $101,670.62 on an all-inclusive basis, as above, to be paid by North Elgin Centre Inc. within 120 days from the issuance date of this Decision.

2. The Tribunal fixes the costs to Dogliola Developments Inc. at $13,262.18 on an all-inclusive basis, to be paid by North Elgin Centre Inc. within 120 days from the issuance date of this Decision.

3. The Tribunal fixes the costs to Yonge Bernard Residents Association at $30,933.50 on an all-inclusive basis, to be paid by North Elgin Centre Inc. within 120 days from the issuance date of this Decision.

4. The Tribunal fixes the costs to Yonge MCD Inc. at $20,652.45 on an all-inclusive basis, to be paid by North Elgin Centre Inc. within 120 days from the issuance date of this Decision.

5. The Tribunal fixes the costs to TSMJC Properties Inc. at $36,371.88 on an all-inclusive basis, to be paid by North Elgin Centre Inc. within 120 days from the issuance date of this Decision.

6. The Tribunal orders that post judgment interest shall be payable on the costs ordered from the date payment is due, in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990. c. C.43, as amended.

7. The Tribunal orders that any cost submissions or requests in North Elgin Centre Inc. so-called “Reply” submissions dated January 31, 2022 are denied.

8. TSMJC’s request for an Order nunc pro tunc, that the records in TSMJC written request for costs be maintained as confidential and be returned to counsel for TSMJC or destroyed following this Decision is hereby dismissed.

“G. Burton”

G. burton Vice-chair

“D.S. Colbourne”

D.S. colbourne 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.