Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 06, 2022
CASE NO(S).: PL210121
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Kristine Woodruff
Subject: Application to amend Zoning By-law No. 8626-10 - Refusal of Application by The Corporation of the City of Woodstock
Existing Zoning: Residential Zone 1 (R1)
Proposed Zoning: Residential Zone 2 (R2)
Purpose: To facilitate the conversion of an existing single detached dwelling to a converted dwelling, containing two residential units
Property Address/Description: 919 Sloane Street
Municipality: City of Woodstock
Municipality File No.: ZN-8-20-22
OLT Case No.: PL210121
OLT File No.: PL210121
OLT Case Name: Woodruff v. Woodstock (City)
Heard: December 17, 2021 by video hearing
APPEARANCES:
Parties
Counsel
Kristine Woodruff Sarah Gage
Alex Ciccone
City of Woodstock
Derek Truelove
DECISION DELIVERED BY T. PREVEDEL AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Kristine Woodruff and Sarah Gage jointly own an existing single detached dwelling at 919 Sloane Street (“the subject property”) in the City of Woodstock (“City”). The legal description of the subject property is Lot 50, Plan 616.
2On September 11, 2020, Ms. Woodruff (the “Applicant/Appellant”) applied to rezone the subject property from Residential Zone (R1) to Residential Zone (R2) to facilitate the conversion of their property to a converted dwelling house with two units.
3The City refused an application for a Zoning By-law Amendment (“ZBLA”) filed by the Appellants at a Council meeting dated January 14, 2021, resulting in the matter before the Tribunal as an appeal under s. 34(11) of the Planning Act.
The Hearing
4The Hearing took place on November 15, 2021 by video conference. It was originally scheduled for two days but was completed in one day. The conduct of the Hearing was governed by a Procedural Order issued on July 9, 2021 confirming the Parties.
5The Tribunal qualified two expert witnesses in the field of land use planning: Andrea Hächler (summonsed) on behalf of the Appellant and Mark L. Dorfman on behalf of the City. Ms. Hächler is a Senior Planner with the County and was the author of the staff report which recommended approval of the application. Both witnesses are professional planners with extensive experience in the municipal field.
6Ms. Gage, a co-owner of the subject property and a Party to the proceeding, also provided evidence on behalf of the Appellant.
7As the evidence was presented over the course of the Hearing, it became evident that the primary issue was the concern expressed by City Council that the proposal “did not fit with the neighbourhood”.
8However, based on the evidence before it, the Tribunal found that the proposed ZBLA to zone the subject property as R2 represents good planning and was in the public interest, and ordered that the Appeal be allowed.
Appellants’ Request for Costs
9The Appellants, Kristine Woodruff and Sarah Gage, seek to recover $11,365.83, which is 100% of the costs they incurred in the hearing for this matter. This request was submitted as a written Motion on December 17, 2021. It was respectfully submitted that this is one of the very rare instances for which it is appropriate for the Tribunal to order costs on a full indemnity basis
10The bill of costs was supported by an Affidavit of the Appellant’s legal counsel supporting the fees and disbursements incurred.
11The Appellants made reference to Rule 23.9 of the Ontario Land Tribunal Rules of Practice and Procedure, and respectfully requested that the Tribunal order costs against the City as the “conduct of the Party was unreasonable, frivolous or vexatious or if the Party acted in bad faith.”
Response from City
12Mr. Truelove, on behalf of the City of Woodstock, in his response dated December 22. 2021, respectfully requested that the request for costs be denied.
13He stated that Council received submissions from the Applicants, comments from the public, the planning report from County of Oxford staff and subsequently discussed and considered the application. Based on all of the above, Council made the decision to refuse the Applicant’s request for a rezoning.
14He further stated that it is not unusual, and it is certainly within Council’s discretion to refuse a rezoning application. There is no obligation for a municipality to agree with a planning report.
15Mr. Trulove opined that there is no obligation for the City to call the County of Oxford’s Planner as a witness. There are numerous cases at Ontario Land Tribunal (“OLT”) Hearings where the municipality does not call the municipal planner and instead calls an independent planner as a witness. This is not an unusual occurrence and certainly not something that would contravene Rule 23.9 of the OLT’s Rules of Practice and Procedure.
16He further opined that the City’s conduct in the Appeal assisted in moving the matter forward in a timely manner both in advance of and at the Hearing. Specifically, the City compiled and circulated the Document Brief in advance of the hearing and also worked with opposing counsel to agree on a form of the ZBLA (in the event they were successful).
Disposition
17The Tribunal has the authority to fix costs incidental to any proceedings under the provisions of the Ontario Land Tribunal Act (the OLT Act”), Section 20.
18The OLT Rules of Practice and Procedure sets out, in Section 23.9, that the Tribunal may only order costs against a Party if the conduct or course of conduct of a Party has been unreasonable, frivolous or vexatious or if the Party has acted in bad faith.
19The Tribunal does not award costs either routinely or lightly. Award of costs are not routine to a successful Party. Appellants are expected to bear their costs of an appeal before the Tribunal, including the costs of legal representation and planning evidence necessary to sustain their appeal. The Tribunal is obligated to test the claim for costs against the behaviour during the proceeding of the Party against whom costs are sought.
20In this particular case, the City chose to defend its Council decision and respond to the appeal with legal representation and a planning witness. The Tribunal finds that a municipality is and should be permitted to defend its decision in the ordinary course without being subject to a costs sanction.
21The Tribunal agrees that the OLT’s Costs Rules are not intended to punish an unsuccessful party, but rather are reserved for very specific circumstances when a party’s conduct or behaviour in the proceeding is of such seriousness that it requires admonishment from the Tribunal.
22In this instance, the Tribunal ruled to allow the Appeal. However, the Tribunal does not find that the conduct of the City was unreasonable, frivolous or vexatious or that the City acted in bad faith.
ORDER
23Having reviewed the Appellants’ request for costs and the City’s response, and in consideration of the above, the Tribunal is not prepared to exercise its discretion to award costs in this matter and hereby denies the request to award costs as set out in the Motion.
“T. Prevedel”
T. PREVEDEL
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.