Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 20, 2022

CASE NO(S).: OLT-22-002640 (Formerly PL200490)

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

Appellant: Norman Edward Davidson

Subject: By-law No. 2020-48

Municipality: Township of McKellar

OLT Case No.: OLT-22-002640

Legacy Case No.: PL200490

OLT File No.: OLT-22-002640

Legacy File No.: PL200490

OLT Case Name: Davidson v. McKellar (Township)

Heard: April 10, 2022 as a Motion in writing

APPEARANCES:

Parties

Counsel/Representative*

Thomas Garret McKeag (“Applicant”)

Mark Kemerer*

Norman Edward Davidson (“Appellant”)

Marilyn Sparrow

DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The moving party in this Motion, being the Applicant in this planning Appeal, requests an order for costs (“Request for Costs”) as set out in the Motion Record dated July 28, 2021 payable by the Appellant as the responding party.

2The Applicant had first applied for provisional Consent to sever certain of his lands for the purposes of a conveyance to a neighbour. Provisional Consent was granted by the Parry Sound Area Planning Board subject to conditions, including a condition that the Applicant secure a zoning by-law amendment to permit certain uses on the lands to be severed. There was no appeal of the Consent approval decision.

3The Applicant then applied to the Township of McKellar for a Zoning By-law Amendment (“ZBA”) to rezone his lakefront property allow for a water access lot including a parking area, ramp and dock, which was necessary as a result of the Consent approval. The Township approved the ZBA, which had been supported by planning staff. The Appellant then appealed that decision to the Tribunal.

4There were two hearing events conducted by the Tribunal:

(a) One event was the hearing of a motion brought by the Applicant to dismiss the Appellant’s Appeal (“Motion to Dismiss”). This hearing event also dealt with a motion brought by the Appellant to strike out and expunge the Affidavit of the Planner, John Jackson, filed by the Applicant for the purposes of the Motion to Dismiss (“Motion to Strike”) as well as a Motion by the Appellant for numerous Directions (“Motion for Directions”). The Motion to Dismiss, and the Appellant’s Motion to Strike and Motion for Directions were heard on May 20 and 21, 2021 by Video Hearing;

(b) The other prior hearing event was a hearing to determine a Motion brought by the Township (“Motion to Quash”) at the first Case Management Conference to quash a Summons to Witness which the Appellant had requested to introduce evidence for the purposes of the Motion to Dismiss through a former employee, the former Acting Clerk for the Township. The Motion to Quash was heard first on March 25, 2021, before the Motion to Dismiss.

5The Request for Costs stems from the two decisions of the Tribunal on those two hearing events which are included below in the list of materials before the Tribunal on this Request for Costs.

6The Panel Member who presided over both hearing events, and whose decisions are the subject matter of this Request for Costs, would have ordinarily been seized to consider the Requests for Costs. Unfortunately that Member left the Tribunal on rather short notice. This Panel Member has accordingly been directed by the Chair of the Tribunal to determine the Request for Costs pursuant to Rule 23.7 of the Tribunal’s Rules of Practice and Procedure (“Tribunal’s Rules”).

7The Request for Costs was to be considered in writing and the service and filing of materials was first placed upon the Tribunal’s calendar for assignment on December 20, 2021. However, subsequent to this, counsel for the Applicant submitted a further Decision of the Tribunal as relevant to the Request for Costs on March 25, 2022. This decision related to the second provisional Consent granted to the Applicant which was required due to the lapsing of the first provisional Consent. The circumstances relating to this second Application and approved Consent had already been referred to in the Appellant’s Notice of Response (paragraph 63) filed on the Request for Costs.

8Despite the fact that this additional material was filed following the close of pleadings on the Request for Costs, the Tribunal accepted the additional filing on the basis of arguable relevance as submitted by the Applicant. However, to ensure procedural fairness, the Appellant was provided with the opportunity to file a response submission limited to the identified Decision. This final component of the materials on this Request for Costs was received on April 10, 2022.

9In addition to the materials before the Tribunal in the two hearing events, the following materials were included and received for consideration in the Motion:

1. The Memorandum of Oral Decision and Order of the Tribunal issued on April 6, 2021 with respect to the Township’s Motion to quash heard on March 25, 2021;

2. The Decision and Order of the Tribunal issued on June 29, 2021 with respect to the Motion to Dismiss, and the Respondent’s related motion to strike an affidavit filed for that Motion to Dismiss;

3. The Motion Record of the Applicant, Thomas Garret McKeag dated July 28, 2021 inclusive of the Affidavit of Thomas Garret McKeag sworn July 27, 2021. This includes the clarification email forwarded by counsel for the Applicant of July 28, 2021 confirming that the amount of costs claimed of $53,459.20 is inclusive of the amount of $5,000.00 claimed for costs on the Request for Costs;

4. The Notice of Response to the Motion Record dated November 12, 2021 together with the Affidavit of N. Edward Davidson sworn on the same day;

5. The Applicant’s Reply Notice of Motion dated November 23, 2021;

6. The additional Decision of the Tribunal issued on March 25, 2022 in Case File OLT-21-001321 provided by counsel for the Applicant via email of March 25, 2022;

7. The final responding submissions filed by Marilyn L. Sparrow dated April 10, 2022 responding to the additional Decision forwarded on March 25, 2022.

THE NATURE OF THE REQUEST FOR COSTS AND THE RESPONSE

10The Applicant seeks the sum of $53,459.20 in costs, on a full indemnity basis, which is inclusive of the cost of the planning expert, and the sum of $5,000 for the preparation and submission of materials for this Request for Costs. The Applicant asserts that he was completely successful in the Motion to Dismiss, and that the Appellant focused on matters that were not properly before the Tribunal and advanced procedural motions that were without merit and were also unsuccessful. The Applicant directs the Tribunal, in this Request for Costs, to the content of the Decisions of Tribunal in both Hearing Events. The Applicant submits that the behaviour of the Appellant went beyond merely unreasonable into the realm of the “reprehensible”, with no mitigating factors that would justify only a partial indemnity award of costs. Other aspects of the Applicant’s grounds for the Request for Costs are addressed in the analysis below.

11The Appellant objects, in all respects, to the Request for Costs. Most pertinent aspects of the Appellant’s submissions and arguments as to the issue of costs are addressed in the analysis below. The Appellant advances many arguments including: the Applicant agreed to pay all costs of the Township, and thus increased his own costs through his own actions, and responsibility does not lie with the Appellant for repayment of such sums; legal work relating to the Township’s Motion to Quash was unnecessary as this was the Township’s motion and not the Applicant; the Applicant was not a “statutory party” to the Appeal and therefore his involvement was unnecessary; Mr. John Jackson, as a planner for the Township was retained by the Applicant, and costs associated with Mr. Jackson are payable by the Applicant under his agreement with the Township and thus not the Appellant; delay was the result of the Applicant’s inaction and not the Appellant’s actions, and the second filing fee relates to such delay and not to the Appellant’s conduct in this proceeding; and finally, the filing of Factums arose due to the Applicant’s Motion to Dismiss, would not have otherwise been required, and should not be reimbursed by the Appellant.

12The Appellant, in its Notice of Response revisits a number of aspects of the subject matter already dealt with by the Tribunal on a final basis in its Decision on the Motion to Dismiss, including the admissibility of the Appellant’s planning opinions on various matters and the refusal to qualify the Appellant as an expert witness.

13The Appellant also seeks costs from the Applicant, in relation to responding to the Request for Costs in the sum of $8,000.00.

AWARDS OF COSTS – THE LEGAL FRAMEWORK

14The Tribunal has jurisdiction to make awards of costs under s. 20 of the Ontario Land Tribunal Act, 2021 (“OLTA”) and s. 17.1 of the Statutory Powers Procedure Act (“SPPA”).

15The basis for any Request for Costs to the Tribunal is Rule 23 of the Tribunal’s Rules of Practice and Procedure (the “Tribunal’s Rules” or “Rules”). Rule 23.9 of the Rules provides the threshold for an award of costs which relates directly to the conduct or course of conduct of the party that has been “unreasonable, frivolous or vexatious or if the party has acted in bad faith. A non-exhaustive list of the types of “clearly unreasonable, frivolous, vexatious or bad faith conduct” which may give rise to a costs order is provided as guidance. The Rule reads as follows:

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.

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

16Over time the Tribunal has, in its decisions, provided guidance and general principles as to the manner in which Rule 23.9 will be applied in requests for costs such as this one. Some of the principles that have emerged in the body of case law from the Tribunal, include the following:

(a) The Tribunal’s approach in considering cost awards is different from the Ontario Courts. An award of costs is not routine, and instead may be considered exceptional. Costs do not follow the cause, and costs are not awarded simply because the party filed an appeal that was unsuccessful.

(b) The absolute requirement for an award of costs is that the party against whom the request is made, must have demonstrated conduct or a course of conduct of a party in the proceeding that has been “unreasonable, frivolous or vexatious” or the party has acted in bad faith. Absent such conduct, there can be no award of cost.

(c) In the event of a finding of such conduct, the award of costs is not assured. As the final wording of Rule 23.9 makes clear, the Tribunal is never obligated to make an award of costs if the conduct falls within the examples provided in Rule 23.9 and it will exercise its discretion upon the whole of the information placed before it. In applying an objective test of a reasonable person, the seriousness of the misconduct, and its impact upon the ability of the Tribunal to ensure a fair and efficient hearing, or its impact upon other parties such as the party requesting the costs, is to be considered.

(d) The approach of the Tribunal is to ensure that litigants are not dissuaded from exercising their right of appeal for fear of costs. This may be especially so where an appeal gives rises to matters of broader public interest that go beyond the limited interest of the party or appellant. The existence of a broader public interest arising from the appeal may be more easily discerned where the appellant is a residents’ or ratepayers’ association.

(e) Despite the exceptional nature of a costs award, each case is nevertheless specific and the Tribunal’s Rules, and the approach of the Tribunal, recognize that parties must also be held accountable for their conduct that is clearly unreasonable, frivolous, vexatious or in bad faith that it is deserving of an order compensating a party impacted by such conduct. There is no total immunity from cost claims.

(f) Where a request for costs arises from a favourable decision of the Tribunal on a motion to dismiss due to the finding that there is an absence of apparent land use planning grounds it is the conduct of the Appellant, as a whole, that must be the relevant focus of the Tribunal and not simply the fact that the Appeal was brought and dismissed by Motion. Conduct within the parameters set out in Rule 23.9 must be demonstrated.

(g) There is one clear overlap between the sections of the Planning Act which constitute grounds for the dismissal of an appeal without a hearing (such as s. 34(25)) and the Rule 23.9 of the Tribunal’s Rules that applies to costs and which gives rises to a prima facie basis for a request for costs. The Tribunal may dismiss an appeal if it determines that the appeal “is not made in good faith or is frivolous or vexatious”. That same language is found in Rule 23.9 which provides that the Tribunal may award costs if the conduct or course of conduct of a party has been “frivolous or vexatious” or if the party has acted in bad faith. An appeal that is not made “in good faith” may also be of such a nature as to constitute that of “bad faith” on the part of an appellant. Accordingly, if the Tribunal makes a “frivolous or vexatious” finding, or a finding of bad faith on the part of the appellant in a motion to dismiss, that finding may (but not necessarily will) similarly support a finding of conduct warranting an award of costs. Due to the commonality of the tests, the Appellant may logically find it necessary to persuade the Tribunal why the finding of frivolous, vexatious, or bad faith conduct giving rise to the dismissal of the appeal without a hearing is somehow not also deserving of a remedy for costs upon the same facts.

(h) Arguably there is one other less explicit overlap between the appeal dismissal provisions of the Planning Act and Rule 23.9. An appeal may be dismissed without a hearing if the appeal “is only for the purposes of delay”, and Rule 23.9, items (c) and (d), identify that the unreasonable conduct of a party may include conduct which causes delay.

(i) An objective test must be applied when examining the conduct of the responding party to a motion for costs which is essentially a “reasonable person” test. The Tribunal must consider whether a reasonable person, looking at all of the circumstances, would conclude that the totality of the party’s conduct was not “right” or “fair”, such that the party should be obligated to compensate the requesting party for that kind of conduct.

(k) When examining the conduct of the party, in some cases, the absence of any apparent land use planning grounds may, but not necessarily will, be one of the circumstances relevant and material to the objective test of reasonableness to be applied upon all of the facts. There may be an interplay between the lack of substance to the planning grounds, and the issue of the motivation of the Appellant. The absence of genuine planning grounds may for example, as a matter of common sense, be relevant if the examined conduct of an unsuccessful appellant is alleged to also be vexatious because it was motivated by some other deliberate purpose, such as competition, delay, or personal animosity towards the other party, clearly unrelated to genuine planning grounds.

(l) Finally, the wording of s. 20 of the Ontario Land Tribunal Act is of importance in that it makes clear that the costs to be considered are the costs “…of, and incidental to any proceeding” and are payable by a “party to the proceeding”. The parameters of the conduct of the party to be examined by the Tribunal is thus the conduct of the party in that particular proceeding. “Proceeding” is defined in the Tribunal’s Rules of Practice as any matter, procedure, appeal referral or application before the Tribunal and includes matters which may be initiated by the Tribunal. Extraneous or unrelated conduct, unrelated to the proceeding before the Tribunal, is thus not generally to be considered. As discussed in the analysis below, it is nevertheless possible that facts which relate to the actions or conduct of a party outside of the proceeding may nevertheless be relevant and material in assisting the Tribunal’s in understanding the conduct of the party within the proceeding. As a matter of common sense, such cases may relate to circumstances of misconduct that is vexatious, in bad faith, or which results in undue prejudice or delay.

17The parties both submitted various decisions of the Tribunal, and its predecessors, outlining many of these principles and guidelines, in various iterations and circumstances.

THE DECISIONS OF THE TRIBUNAL GIVING RISE TO THE REQUEST FOR COSTS

18The disposition of this Request for Costs is made after the issuance of the Decisions of the Tribunal. As the Panel Member on this Request for Costs was not the presiding Member for the two hearing events it is necessary to look to the Decision for guidance on the determination of the Request.

19The Tribunal notes the following aspects of the Panel Member’s Decision of April 6, 2021, granting the Township’s Motion to Quash, which are pertinent to the Request for Costs:

1. The Motion to Quash was brought by the Township and not the Applicant. The witness summonsed was the Township’s former employee and the Decision of the Panel sets out the reasons for the Township’s move to quash the summons. The Applicant supported the position of the Township.

2. The Tribunal granted the Motion to Quash primarily upon the grounds advanced by the Township. While the Applicant’s contributions were considered, the submissions of the Applicant on the Motion to Quash repeat much of what was already advanced by the Township and do not appear to have independently prevailed in the Tribunal’s reasons to quash the summons requested by the Appellant.

20The Tribunal notes the following aspects of the Member’s Decision of June 29, 2021, as addressed and supplemented in the materials filed on this Request for Costs:

1. The Appellant himself highlighted, and the Tribunal noted, that he is a professional land use planner with extensive experience in his field. Ms. Sparrow, as the Appellant’s agent and representative, is no longer licensed to practice law but possesses a law degree, has experience in appeals before the Tribunal and is not unfamiliar with the practice of law or matters of advocacy.

2. The Appellant’s Motion for Directions, and Motion to Strike the Affidavit of Mr. Jackson filed by the Applicant on the Motion to Dismiss, took up one of the two days of the hearing time on May 20 and 21, 2021.

3. The Tribunal considered the evidence, and in the Decision made a finding that “raising apprehensions by citing provisions of the PPS or an Official Plan does not constitute a legitimate land use planning ground”. The Tribunal thus determined that the various environmental and wildlife habitat apprehensions of the Appellant did not represent land use planning grounds sufficient under the East Beach principles and further, that there was no authenticity to the reasons in the Appellant’s appeal.

4. The Tribunal very clearly identified the “excessive written material filed” by the Appellant in the proceedings, a substantial portion of which related to “issues outside the Tribunal’s jurisdiction”.

5. The initial Consent Application which had imposed the condition that the subject ZBA be obtained was not before the Tribunal on the Motion to Dismiss. The Appellant had not appealed the granting of the Consent to sever the Applicant’s lands. By the time of the Motion to Dismiss the Consent had lapsed. On this subject, Ms. Sparrow advanced the argument that the application for the ZBA was required as a condition of the Consent, and since the Consent had lapsed, the Applicant could no longer pursue the request for the ZBA because he no longer had lands to which the ZBA applied. Ms. Sparrow again argued later in the hearing that the Motion to Dismiss could not go forward because the Consent had lapsed and was deemed refused. The Tribunal did not agree in either case and accepted Mr. Jackson’s evidence that the lapsing of the Consent did not prevent the Applicant from reapplying for Consent, a somewhat common occurrence, of late, due to the pandemic. The materials now before the Tribunal obviously confirm that the reapplication for Consent was filed and appealed. This is addressed by the Tribunal below.

21The Tribunal notes the following significant points of analysis and findings in the Panel Member’s Decision that led to the dismissal of the Appeal without a hearing:

22First, the Motion to Dismiss was granted first upon the ground set out in s. 34(25)(1)(i) of the Planning Act that the Notice of Appeal did not disclose any apparent land use planning ground. This finding alone was sufficient to support a dismissal under the disjunctive grounds under s. 34(25). However, the Member nevertheless went on to consider the other grounds advanced by the Applicant.

23The Member rejected the Applicant’s submission that the Appellant, and his agent/representative, had persistently and without reasonable grounds, commenced multiple proceedings under the Planning Act that “in their totality, constitute an abuse of process” and that the Appellant argued matters for which no explanations were provided under s. 34(10.0.1) of the Planning Act. This ground for the Motion was expressly rejected by the Panel and the Tribunal found that the Applicant failed to demonstrate such a persistence on the part of the Appellant in commencing multiple proceedings without reasonable grounds.

24The Member did however, in paragraph 87 of the Decision, address the submission of the Applicant that the Appellant had not appealed the prior consent approval and instead waited until the decision on the ZBA to appeal, “in order to cause delay”. The Tribunal acknowledged Ms. Sparrow’s submission that the Appellant was free to appeal what he wished and was “not bound to appeal the Consent decision”. The Tribunal however noted that the Appellant’s actions in appealing the ZBA and not the consent approval must be considered “in the context of the whole proceeding and the pattern of the Appellant’s conduct throughout”.

25The Member then made the following findings at paragraph 88:

88The Tribunal agrees that non-Applicant appeals should not be discouraged when there are legitimate land use planning grounds that will be argued and supported with evidence. However, non-Applicant appeals should not be encouraged when they are brought without sufficient grounds, primarily to cause annoyance to the Applicant and delay. In this case, and in the context of a reasonably simple application for a rezoning to permit a lot addition on a property several kilometres from the Appellant’s cottage, the pattern of conduct of the Appellant, including the excessive written material filed, the raising of issues outside the Tribunal’s jurisdiction, the repeating of issues previously decided or discussed, the bringing of multiple motions that were ultimately dismissed, and the timing of when the issue of the lapsed provisional consent was raised, is indicative of attempts to delay, and a vexatious and frivolous appeal.

Upon the analysis and findings in paragraph 88, the Tribunal, in summary, made express findings that: the Appellant’s Notice of Appeal: (a) did not disclose any apparent land use planning ground; (b) was “not made in good faith or is frivolous or vexatious”; and (c) was “made only for the purpose of delay”.

26In making these findings of frivolous or vexatious conduct, and that the appeal was not made in good faith and for the purpose of delay, the Member did not make a finding that there was an abuse of process on the part of the Appellant or refer to any type of” egregious”, “scandalous” or “outrageous” behaviour.

ISSUES, ANALYSIS AND FINDINGS

Issues:

27As the Tribunal has considered the Decisions in the Appeal and all of the material now before it, the issues for consideration, analysis and disposition can be refined as follows:

1. Tribunal must first determine whether the conduct of the Appellant, as represented by his agent, constitutes the type of misconduct identified in Rule 23.9. This includes the consideration of whether the additional Decision of the Tribunal issued on March 25, 2022, in a related but separate Appeal, is of relevance.

2. If such misconduct is determined to exist the Tribunal must then consider whether the seriousness of the misconduct of the Appellant warrants the exercise of the Tribunal’s discretion to award costs.

3. If costs are awarded the Tribunal must determine the appropriate quantum of costs and whether full indemnity costs, as claimed, are appropriate.

Submissions of the Applicant Which Are Rejected by the Tribunal

28The Tribunal has reviewed the submissions and arguments of the Applicant and while much of those submissions and arguments are persuasive, and accepted by the Tribunal, certain of the Applicant’s other submissions and requests can, at the outset of the analysis, be summarily addressed and set aside as unsupportable:

(a) Cost for the Motion to Quash – The Tribunal must agree with the Appellant’s submission that the portion of the Applicant’s claim for costs related to the Township’s Motion to Quash should be excluded from consideration. The Decision on the Motion to Quash reveals that although the Applicant supported the Motion, the Township’s steps and preparatory work guided this aspect of the litigation at the first CMC. The Tribunal cannot agree with the Appellant’s somewhat inflammatory submission that the Applicant’s involvement in the Motion to Quash was motivated only to increase his cost of legal fees but the Appellant’s phrasing that the Applicant “inserted himself” into the Township’s Motion to Quash, is not entirely incorrect. No costs for the Township’s Motion to Quash are warranted here.

(b) The claim for full or substantial indemnity costs – Upon the whole of the Appellant’s conduct, despite the finding that his conduct, and that of his representative, were frivolous and vexatious, not in good faith and made only for the purposes of delay and is serious enough to warrant an award of costs, the Tribunal is unable to conclude that the quantum of costs should entitle the Applicant to full indemnity costs, as he claims. The civil scales of cost considered by the Ontario Superior Court of Justice seldom reach the height of absolute recovery of all costs expended in a proceeding and the Tribunal’s approach to awards of costs, by comparison, is at a much lower “wavelength” of consideration than the Court. Substantial indemnity costs in Court proceedings are also usually reserved for more serious behaviour and are closely connected to offers to settle. While the Appellant’s conduct was clearly unreasonable, neither is the seriousness of his conduct within the extreme behavioural realm of “egregious, scandalous or outrageous” that might attract a higher range of costs. This Panel Member has addressed this approach in the costs decision rendered in 2684360 Ontario Ltd. v. Kingston (City), 2021 CarswellOnt 2726 LPAT Case No. PL190447, dated 25 February, 2021.

(c) Cost of the second application fee for the lapsed consent – Such a fee, as claimed by the Applicant, is not a cost of this proceeding and therefore not recoverable. Were the Tribunal to conclude that the Appellant’s conduct was one hundred per cent responsible for the necessity of the second Consent application (which it cannot conclude) and that he should pay this additional filing fee, the Tribunal would effectively be compensating the Applicant for costs relating to an entirely different proceeding. This is not within the jurisdiction of the Tribunal, in this Request for Costs, under s. 20 of the Ontario Land Tribunal Act or the Tribunal’s Rules of Practice.

Submissions and Arguments Advanced by the Appellant

29With those initial determinations made by the Tribunal, with respect some of the Applicant’s arguments, the Tribunal will now turn to the Appellant’s submissions.

30The Tribunal has reviewed and considered the many and varied submissions and arguments in the Appellant’s Notice of Response to the Motion Record, and those portions of Mr. Davidson’s Affidavit supportive of those arguments. The Tribunal has also considered the authorities provided by the Appellant. While a few of the Appellant’s evidence, arguments and submissions are relevant and persuasive, the Tribunal finds that most are not. The submissions and arguments of the Appellant which are rejected include (but are not, in any way, limited to) the following:

1. The agreement of the Applicant to cover any legal costs incurred by the Township in relation to the Appeal, inclusive of Mr. Jackson’s involvement, is clearly as between the Applicant and the Township. This is irrelevant to the question of whether the Appellant is liable to the Applicant for costs in relation to the Appellant’s conduct in the proceeding. Mr. Jackson’s involvement and evidence in the Motion to Dismiss, whatever the nature of his retainer or connections to the Township, was appropriate, reasonable and ultimately relevant to the findings of the Tribunal. In the Tribunal’s view, the Appellant’s lengthy and critical arguments as to whether Mr. Jackson was appearing on behalf of the Township, or authorized by the Township to appear, are of no relevance to the determination of the Request for Costs. If the Appellant’s conduct is determined by the Tribunal to warrant an award of costs, it remains for the Tribunal to determine what portion of the Applicant’s expenses, inclusive of Mr. Jackson’s costs, are properly to be compensated by the Appellant.

2. The matter of delay caused by the Appellant, as may be considered under Rule 23.9, is wholly unrelated to any question of delay on the part of the Applicant in satisfying the conditions to the Consent. The issue of delay caused by the Appeal itself and the delay in the implementation of the ZBA, and the conduct of the Appellant in causing delay by pressing an appeal without merit, or drawing out the time spent in the appeal, is what must be examined. The Appellant’s critical analysis of the Applicant’s responsibility for delay, in this case, is disingenuous and unhelpful in examining the delay arising from Appellant’s conduct.

3. It is equally disingenuous of the Appellant to deflect the possibility of exposure to costs by continuing to assert that the Applicant was not a proper statutory party to the Appeal. The circumstances in which the Applicant appeared and responded to an Appeal of a decision on his own application are common and legitimate. The Appellant is misguided in his attack on the legitimacy of the Applicant’s appearance in the Appeal, his right to bring the Motion to Dismiss, or even to have weighed in on the Township’s Motion to Quash the summons. The Applicant has a right to appear as a party in the Appellant’s appeal and as such, the Applicant’s right to bring a Motion to Dismiss is legislated within s. 34(25) of the Planning Act.

4. In the event the Tribunal determines that the Appellant is responsible for a payment of costs under Rule 23.9, it will be based upon the Appellant’s conduct. The Appellant’s lengthy arguments about the appropriateness of Mr. Jackson’s contributions to the evidence in the Motion to Dismiss are immaterial and obfuscate the real issues in this Request for Cost. The circumstances in which Mr. Jackson provided evidence in the Motion to Dismiss is unremarkable, understandable and straight-forward.

Further, the Applicant’s exposure for payment of Mr. Jackson’s costs associated with the Motion to Dismiss is not unusual and is an appropriate category of disbursement considered in an award of costs. This cost to the Applicant in the proceeding may thus reasonably be included as a cost of the proceeding properly to be considered in the Applicant’s Request for Costs. Whether, and how much, of Mr. Jackson’s fees might be recoverable under the award of costs remains to be determined in the discretion of the Tribunal. Generally, the Appellant’s arguments in his Response in relation to the Applicant’s costs in retaining Mr. Jackson as a Planner (paragraphs 67 to 75 of the Notice of Response) are convoluted and without merit. They are also in the extreme as they cast unwarranted aspersions of deception and fabricated schemes on the part of the Applicant’s counsel in relation to Mr. Jackson’s attendance to support the Motion to Dismiss.

5. A sizeable portion of the Appellant’s submissions on the Response to the Request for Costs (paragraphs 43 to 47, pages 6 to 8, of the Notice of Response) and Mr. Davidson’s Affidavit attempts to revisit and reargue, at some considerable length, matters already decided by the Tribunal in its qualification of Mr. Jackson and the Appellant on the hearing of all of the Motions and the Request for Costs. Mr. Davidson’s Affidavit on this Request for Costs, at some length, contains argument on the final findings of the Tribunal which disqualified Mr. Davidson as an expert witness, maintaining his ability to provide objective planning evidence. The issue of qualifying the professional planners was fully addressed and determined in the Tribunal’s Decision and cannot be revisited and reargued by the Appellant in the determination of this Request for Costs. This was clearly decided by the Tribunal at the hearing, and correctly so.

Mr. Davidson asserts that he is aware of his professional responsibilities and argues that he was well able to provide the multiplicity of “professional opinions” he sets out in his Affidavit of November 12, 2021. This misses the point. Mr. Davidson’s expertise and his professed adherence to professional standards were not at issue when it came to deciding his qualification to provide opinion evidence in the Motion to Dismiss. In any hearing, the expert must be, and appear to be, completely independent of the party that has retained the expert and must demonstrate absolute objectivity and impartiality in the analyses and opinions delivered to the Tribunal. Such independence and impartiality was, and is, an impossibility when Mr. Davidson was himself both the expert and the Appellant. The Appellant’s evidence was the only evidence in the hearing. The result: as the Panel clearly determined in its Decision the Appellant’s purported advancement of planning grounds, including those relating to the PPS and environmental matters, was unsupported by any planning evidence, and remained only general personal apprehensions. The Applicant submits, on this Request for Costs, that the Appellant should well have acknowledged this when aggressively advancing this Appeal and that there was an obvious and substantial inability on the part of the Appellant to disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal.

6. The Appellant has made submissions regarding the Tribunal’s directions for the filing of factums and that the Applicant is responsible for this being necessary. The fact that the Tribunal may direct Factums to be prepared served and filed to assist in the hearing of a motion to dismiss does not negate the ability of a moving party to include the costs associated with their preparation, as part of the costs that may be claimed against a party on a motion. The number of pages, volume and complexity of materials filed in any proceeding or motion is relevant to the quantification of costs if awarded.

7. As a means of responding to the Applicant’s submissions as to the Appellant’s unreasonable conduct in advancing the Appeal without merit, and in a vexatious or frivolous manner, the Appellant asserts in his affidavit, and through argument advanced by Ms. Sparrow in the Notice of Response, that he “never shied away from resolving matters amicably” and there was “ample opportunity” for the Applicant to contact him to resolve issues. When reading the whole of the argument advanced by the Appellant’s agent and representative and when examining the entirety of the conduct of the Appellant and his representative, it is the Tribunal’s view that the Appellant’s description of his cooperative mindset is difficult to accept as credible. The tone, approach, rhetoric, and entrenched position vehemently advanced by Ms. Sparrow on behalf of the Appellant, when coupled with the numerous failed procedural tactics to strike Mr. Jackson’s expert affidavit materials, seek directions, challenge the standing of the Applicant in the proceeding, and argue that the Applicant was barred from pursuing the ZBA because of the lapsed consent collectively were, and are, far, far removed from what could be considered to be a conciliatory or amicable mindset on the part of the Appellant. As discussed below, the Appellant’s subsequent involvement in the additional appeal of the same Consent decision that the Appellant did not appeal on the first go-round, is revealing as to the Appellant’s purported “amicable” and conciliatory mindset.

The Tribunal’s Subsequent Consent Appeal Decision of March 25, 2022

31The Applicant, following the receipt of all materials on the Request for Cost, filed a Decision of the Tribunal issued on March 25, 2022 in Tribunal Case no. OLT-21-001321, (“Tribunal’s Subsequent Consent Appeal Decision”) for consideration on the Request for Costs. The Tribunal accepted the submission of this additional material on the basis that this further Decision of the Tribunal was, on its face, material and relevant to the subject matter of this Request for Costs, though what significance it would have, would remain to be determined.

32The Applicant was given the opportunity to provide further submissions in relation to the Decision. What was received from Ms. Sparrow on behalf of the Appellant, went well beyond submissions and was a paragraph-by-paragraph critique of the Tribunal’s Subsequent Consent Appeal Decision, which included a fair amount of material that constituted additional unsworn and inadmissible evidence from both Ms. Sparrow personally and the Appellant, rather than submissions. While the Appellant and Ms. Sparrow have attempted to “explain away” the content of the Tribunal’s Decision, the Decision nevertheless stands.

The Subject of the Spousal Relationship of Ms. Sparrow and the Appellant

33One subject arising from the Tribunal’s Subsequent Consent Appeal Decision is the recognition by the Panel in that decision that the Appellant and Ms. Sparrow are married to one another. In paragraph 64 of the Decision issued on June 29, 2021, the Panel Member made the same finding that “The evidence was that the Appellant and Ms. Sparrow are married to each other…”. The voluminous Response material filed by Ms. Sparrow in response to the Tribunal’s Subsequent Consent Appeal Decision included continued submissions (paragraphs 11 to 14) regarding her status with the Appellant. The Appellant comments on this same subject in paragraph 37 his Affidavit sworn on November 12, 2021 and focuses upon the absence of presented evidence that he and Ms. Sparrow are spouses.

34The fact that the Appellant and Ms. Sparrow are spouses of one another is something that is of marginal relevance in this Request for Costs, but the evidentiary gymnastics in the Appellant’s responding materials on this Request for Costs to side-step this simple point is notable and speaks to the reliability of many aspects of the Appellant’s information. What is notable for the Tribunal is that despite such lengthy coverage of the subject, both Mr. Davidson and Ms. Sparrow have gone to some considerable effort in drafting their material to avoid a simple and frank admission or denial as to whether they are spouses of one another. Again, this is of little formal significance in this Request for Costs, but is of relevance in assessing the conduct of the Appellant, and his representative Ms. Sparrow. In considering the Tribunal’s Subsequent Consent Appeal Decision the fact that Ms. Sparrow and the Appellant have been aligned closely in every aspect of the appeals relating to the Applicant’s Consent application certainly has some bearing in assessing the reasonableness of the conduct of the Appellant, and his agent.

35In considering the whole of the extensive materials before the Tribunal in these appeals, and in this Request for Costs, there is little doubt in the mind of the Tribunal that Ms. Sparrow has an entrenched personal interest in the subject matter of these appeals and motions, far different from an ordinary solicitor and client relationship. The nature of this interest is further highlighted in the Tribunal’s Subsequent Consent Appeal Decision as Ms. Sparrow now again appeared as the representative of the Participant-now-Appellant in that proceeding with her Appellant spouse now serving the role of planning expert in the additional appeal of the Applicant’s reapplication for the lapsed Consent.

36The Tribunal has made the clear finding as to the relationship of Ms. Sparrow to the Applicant in two different decisions. Ms. Sparrow and the Appellant have noticeably refused to refute that finding by stating that we are not spouses, and instead assert its irrelevance in the assessment of their conduct in this Appeal. In the Tribunal’s view the litigious and tactical challenges to factual matters, minor or major is of some significance as it belies the true nature of the conduct of the Appellant, as represented by Ms. Sparrow, and whether they were together advancing appeals that were frivolous, vexatious, and intended to delay the Applicant’s proposed severance.

The Relevance of the Tribunal’s Subsequent Consent Appeal Decision of March 25, 2022

37Bearing in mind that the Request for Costs relates to the conduct of the Appellant in this proceeding, and not to this other appeal before the Tribunal, this Decision of the Tribunal in Case No OLT-21-001321 has limited relevance. Nevertheless, there are a few very basic aspects of this subsequent decision that are indeed germane to the examination of the Appellant’s conduct in this proceeding. They are as follows:

(a) The Tribunal’s Subsequent Consent Appeal Decision of the Tribunal is a decision on a Motion to Dismiss brought by the same Applicant, with respect to a subsequent appeal of the very same Application for Consent granted to the Applicant – i.e. a “replacement” consent for the lapsed Consent that originally generated the need for the ZBA which led to this Appeal.

(b) This is the very same Consent which was, as indicated above, the subject of a strenuous argument/submission, by the Appellant and his agent that the Appellant’s non-appeal of the Consent approval, but subsequent appeal of the ZBA approval needed as a condition to the Consent approval, was not motivated by delay. As the Panel noted in paragraph 86 of the Decision of June 29, 2021, Ms. Sparrow’s submission was that “the Appellant was free to appeal what he wished and was not bound to appeal the Consent decision.”

(c) In this Appeal proceeding giving rise to this Request for costs: The Applicant was Garret McKeag; the Appellant was Norman Davidson; the representative of the Appellant was Marilyn Sparrow; and the Participant was Donald Sneyed.

(d) In the Appeal of the “Replacement Consent” the cast is similar: The Applicant was Garret McKeag; the Appellant was now Donald Sneyed (and his spouse); the representative of the Appellants was again Marilyn Sparrow; and Norman Davidson was “presented as the planning witness” supporting the Appeal.

(e) This appeal by Donald Sneyed was dismissed by the Tribunal upon the motion to dismiss brought by the Applicant.

38When deciding whether the Appellant’s conduct was not in good faith, vexatious, or for the purposes of delay it is impossible for the Tribunal to ignore the involvement of the Appellant, and Ms. Sparrow in this subsequent Appeal of the second Consent approval. It is unnecessary for the Tribunal to consider the reasons or analysis in the Tribunal’s Subsequent Consent Appeal Decision beyond the bare elements of “players” in this subsequent appeal, and the subject matter of the appeal.

39Ms. Sparrow quite clearly submitted there was no ulterior motive in choosing not to appeal the original Consent approval, waiting, and then appealing the ZBA needed as a condition to the Consent. She relied upon the high principle that every person has a right to appeal or not to appeal any decision. And yet, no sooner did the Tribunal dismiss the Appellant’s appeal of the ZBA, than Ms. Sparrow and the Appellant became inextricably involved in an appeal of the approval of the same Consent application.

40The Tribunal has considered paragraph 63 of Ms. Sparrow’s Notice of Response, and the Appeal that referenced that it was formally filed by Mr. and Mrs. Sneyd with respect to the second Consent Approval (Tab 22 of the Appellant’s Case Book). In the submission, Ms. Sparrow attempts to fully disassociate the Appellant from this additional appeal of the re-application and approval of the same provisional Consent for the Applicant’s property. The Panel did not accept this position in Subsequent Consent Appeal Decision. This Panel, in this Request also does not accept this submission. The Appellant’s (and Ms. Sparrow’s) attempt to profess a complete lack of commonality or involvement in the root Consent application that gave rise to the ZBA and the Appellant’s ZBA Appeal is self-serving and is feeble and completely unconvincing.

41As noted in paragraphs 21(3) and 21(4) above, the Panel Member in the Motion to Dismiss found that the Appellant’s election not to appeal the consent approval and instead appeal the ZBA was “one piece in the context of the whole proceeding and the pattern of the Appellant’s conduct throughout” and that the “timing of when the issue of the lapsed provisional consent was raised” was indicative of attempts to delay, and a vexatious and frivolous appeal, and bad faith.

42Those findings of the Tribunal, and the Appellants conduct in the ZBA appeal addressed by the Panel, must now again be examined against the backdrop of the “whole proceeding and the Appellant’s conduct” and the fact that the Appellant, and his represented were actively involved in the appeal of the second Consent Approval which practically yet further delayed the Applicant’s implementation of the severance. The conduct of the Appellant, and his agent, in the subsequent appeal of the second Consent approval is not what is subject to review in this Request for Costs, because it is the conduct in this proceeding that must be examined. However, the nature of the involvement of the Appellant and his agent in this subsequent and related Appeal does assist the Tribunal in examining the conduct of the Appellant and his representative in the ZBA appeal and considering the veracity of their denial that the ZBA appeal was vexatious, in bad faith and delay. The very existence of the same “players” in, the subsequent Appeal of the second Consent approval in Case No OLT-21-001321 is appropriately brought “within the lens” of the Tribunal in assessing the seriousness of the Appellant’s conduct in this Appeal

Issues 1 and 2 – The Misconduct of the Appellant as Represented by Ms. Sparrow

43Upon consideration of the submissions of the parties, the authorities relied upon, all of the evidence and materials now presented, and having regard to the analysis, reasons and findings of the Panel Member Tribunal in both of its Decisions, and with the views and findings of the Tribunal as outlined above, the Tribunal finds, in this Request for Costs, that the Appellant’s conduct, and that of his representative appearing on his behalf, represents misconduct, and a course of misconduct which has been unreasonable, vexatious, demonstrative of bad faith, and motivated by an intent to delay the final determination of the ZBA Appeal, and thus the implementation of the prior Consent approval.

44This ultimate determination of the Tribunal on this Request for Costs is not dependent upon the Subsequent Consent Appeal, in which the Appellant, and Ms. Sparrow had a hand in pursuing before the Tribunal. The Tribunal’s findings as to the misconduct of the Appellant would remain the same regardless of this additional activity. However, objectively, the fact that this Subsequent Additional Appeal was brought, and the Appellant, and the same representative were involved, factually supports the conclusion that the conduct of the Appellant, assisted by Ms. Sparrow, was vexatiously motivated, unreasonable and in bad faith, for the purpose of delay.

45It is the Tribunal’s further view that the nature and seriousness of the misconduct of the Appellant, as represented by Ms. Sparrow, are such that an award of costs should be awarded. As the Tribunal stated in Loris Cecchetto Construction Ltd. v. Greater Sudbury, 2019 CarswellOnt 21163, 13 L.C.R. (2d) 309 LPAT Case No. LC050002, cited by both parties in submissions, the intent of Rule 23.9 is to prevent the abuse of process and ensure the efficient use of hearing time and Tribunal resources. In this case, as there, the Appellant’s conduct is clearly unreasonable and through that unreasonable conduct, has caused the Applicant to incur expenditures that otherwise would not be necessary. It is accordingly appropriate that costs be awarded. Applying the objective test of reasonableness outlined in the decision of Midland (Town) Zoning By-law 94-50 (Re), 1995 CarswellOnt 5227, the Tribunal, having looked at all of the circumstances of the case, and the course of conduct of the Appellant as advocated by his representative, finds that the position in which the Applicant was placed by the conduct of the Appellant would lead to the objective conclusion that “that’s not right, that’s not fair” and therefore the Appellant ought to be obligated to the Applicant in some way for that kind of conduct.

46The Tribunal finds that the Appellant appeared before the Tribunal to advance the ZBA Appeal without disclosing apparent land use planning grounds upon which the Tribunal could allow all or part of the Appeal which the Tribunal found was advanced ‘primarily to cause annoyance to the Applicant and delay”. The Panel Member viewed the ZBA application as “a reasonably simple application for a rezoning to permit a lot addition on a property several kilometres from the Appellant’s cottage”. This itself speaks to the unreasonableness of the Appellant’s conduct when coupled with the motivations found, and now confirmed, to be motivated by a vexatious intent, delay, that was not in good faith.

47So too does the Tribunal find that the aggressive, tactical and obstructive procedural Motions advanced by the Appellant’s representative within the two hearing events are reflective of such bad faith and vexatious conduct. The Tribunal has reviewed carefully the submissions made by Ms. Sparrow on the Appellant’s behalf and the Affidavit filed by the Appellant to support those submissions. All of the Motions were dismissed. These Motions had the intent of delaying the proceeding or obstructing the conduct of the hearing by the Applicant and were without any merit. In some case, the submissions made by the Appellant’s representative were inappropriately personal in nature by ascribing deception or manipulation on the part of the Applicant or his counsel, often vitriolic in tone, and obfuscating the nature of the proceedings that resulted in the final Decisions of the Tribunal. Ms. Sparrow, although no longer licensed under the Law Society Act, possess a robust legal background according to her own submissions, and the Appellant, with his planning background was experienced in planning advocacy and litigation. They were not laypersons unfamiliar with litigation before the Tribunal or planning law. The seriousness and propriety of their misconduct and procedural maneuverings in the Motions have been assessed with that in mind.

Issue 3 – The Quantum of Costs

48It remains to determine the amount to be payable as costs.

49As indicated, steps taken with respect to the Township’s Motion to Quash do not warrant a payment of costs. The full indemnity or even substantial indemnity scales of costs requested by the Applicant with respect to all other costs is unsupportable despite the misconduct of the Appellant. The submissions of the parties, in the Tribunal’s view, are clearly reflective of some measure of personal animosity between the parties (fueled no doubt by this litigation), some manner of municipal political back-story the nature of which cannot be discerned, and the Appellant’s vexatious motivation aimed at delay, and in bad faith. It does not however extend to the extreme end of the spectrum of seriously offensive conduct of a scandalous outrageous or egregious nature, nor reprehensible as the Applicant submits.

50In determining the seriousness of the misconduct, and its impact upon the Applicant, and the Tribunal’s adjudicative processes and resources, the Tribunal must exercise its discretion based upon an objective consideration of the misconduct within the whole of the proceeding.

51The misconduct of the Appellant, in many cases reflected by his agent’s representation, was indeed unfair to the Applicant, improper, and unreasonable. Within the hearing events, and the submissions on this Request for Costs, the Appellant has, in some respects, refused to accord proper deference to the decisions and findings of the Tribunal. In the case of the Motions, the Appellant’s approach was obstructive, tactical, overly persistent despite directions and findings of the Tribunal, and in some cases, fully out of touch with the facts, the matters that were properly within the jurisdiction of the Tribunal, or the protocols, procedures and legal framework of the Tribunal.

52The Tribunal agrees with the submissions of the Applicant that the Appellant as a planner, and Ms. Sparrow, with her legal background were experienced and knowledgeable about proceedings before the Tribunal. In the Tribunal’s view Ms. Sparrow as a former practicing member of the Bar, and Mr. Davidson as a Planner, indeed “knew, or should have known, better” to use the colloquial expression in respect of many aspects of the Appeal.

53The Tribunal will exercise its discretion and assesses the costs payable by the Appellant to the Applicant as a contribution to his expenses in incurred in this proceeding in the total amount of $18,500.00 comprised of: the sum of $11,500.00 for the Motion to Dismiss, the hearing events and the proceedings generally; the amount of $5,000.00 as a contribution to the planning fees for Mr. Jackson; and the amount of $2,000.00 for the preparation of materials for this Request for Costs.

54The Tribunal does not find that the Appellant is entitled to any payment of costs from the Applicant with respect to this Request for Costs.

ORDER

55The Applicant’s Request for Costs is allowed in part and the Appellant shall pay to the Applicant the total sum of Eighteen Thousand, Five Hundred Dollars ($18,500.00) forthwith upon the payment of this Order and in any event not later than twenty-one (21) days from the date of this Order.

56In accordance with Rule 23.11 of the Tribunal’s Rules of Practice and Procedure, the amount payable under this Order shall bear interest at the rate of 1.75% per annum, calculated from a date twenty-one (21) days following the date of this Order.

“David L. Lanthier”

DAVID L. LANTHIER

VICE-CHAIR

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.