Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 04, 2022
CASE NO(S).: OLT-21-001014
PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended,
Applicant: Keep Napanee Great
Instrument Holder: R.W. Tomlinson Limited
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of leave to appeal: Decision to issue an Environmental Compliance Approval issued under Part II.1 of the Environmental Protection Act for one mobile ready-mix concrete batching plant
Reference No.: 2456-BZ7P6H
Property Address/Description: Mobile Facility
Municipality: Various locations across Ontario
OLT Case No.: 21-001014
OLT Case Name: Keep Napanee Great v. Ontario (Environment, Conservation and Parks)
Heard: In writing
APPEARANCES:
Parties
Counsel/Representative*
Keep Napanee Great
Carolyn Archibald*
David Noyes*
Director, Ministry of Environment, Conservation and Parks
Sylvia Davis
R.W. Tomlinson Limited
Harry Dahme
Jessica Boily
DECISION DELIVERED BY WARREN MORRIS AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1This is a motion for costs pursuant to Rule 23 of the Ontario Land Tribunal Rules of Practice and Procedure (the “Rules”).
2The request for costs is being made by R.W. Tomlinson Limited (“Tomlinson”). Tomlinson provides transportation infrastructure and environmental services across Ontario including the operation of the Tomlinson Quarry located in Napanee. In June 2020, Tomlinson applied to the Ministry of the Environment, Conservation and Parks (the “Ministry”) for an Environmental Compliance Approval (the “ECA”) pertaining to a mobile ready-mix cement facility. On June 15, 2021, the Ministry issued the ECA subject to various conditions.
3Keep Napanee Great (the “KNG”), is a non-profit corporation founded in May 2021, for the purpose of preserving and protecting the environment and health/welfare of the residents of Greater Napanee. On July 2, 2021 (and revised July 9, 2021), KNG filed an Application for Leave to Appeal the ECA (the “Leave Application”), pursuant to section 38 of the Environmental Bill Rights (the “EBR”).
4The Leave Application was a written process. KNG filed the Leave Application and approximately a week later, filed a revised Leave Application after receiving general procedural direction from the Tribunal’s administrative staff. KNG was not represented by legal counsel, whereas both Tomlinson and the Ministry did have legal representation. Both Tomlinson and the Ministry filed a response to the Leave Application. KNG filed two reply documents – one in response to Tomlinson and one in response to the Ministry. Immediately, following the two replies, there was a series of correspondence, which began with letters of objection to the replies from both Tomlinson and the Ministry. Tomlinson and the Ministry claimed that the replies were improper in that it introduced new evidence and issues. KNG followed with a letter countering the objections to its reply and further elaboration on the original replies. A further objection letter came from Tomlinson.
5KNG was unsuccessful in the Leave Application, as per decision of this Tribunal dated September 21, 2021 (“Tribunal Decision”). In the “Preliminary Issues” section of the Tribunal Decision, the Tribunal addressed the issue of whether KNG’s reply submissions were proper and admissible. As set out after several paragraphs of reasoning in the Tribunal Decision, the Tribunal found that the majority of KNG’s reply submissions were improper, and the Tribunal would only consider the proper reply submissions relating directly to the response materials and the issues in the Leave Application.
6Shortly after the Tribunal issued its decision, Tomlinson satisfied Rule 23.1 by notifying the Tribunal and the Responding Party of its intent to make a motion for costs. The Ministry took no position on this motion. The motion is required to be considered and disposed of in writing (Rule 24.2).
7As directed by the Tribunal, pursuant to Rule 23.4(b), Tomlinson filed motion materials consisting of i) submissions setting out the reasons for the amount requested, ii) an estimate of extra preparation caused by the conduct of KNG, iii) copies of supporting invoices for expenses; and iv) an affidavit supporting the validity of the costs claim. Tomlinson seeks $32,251.91 ($27,778.83 in legal fees plus $4,464.07 in expert fees) in costs. In summary, the grounds for Tomlinson’s claim for costs are that KNG’s conduct, both in bringing the Leave Application and throughout the process, was unreasonable and made in bad faith. More specifically, Tomlinson firstly contends that it was forced to address the preliminary issue (admissibility of improper reply submissions) unnecessarily, and secondly that the entire Leave Application was improper and unnecessary since KNG was opposing Tomlinson’s operations generally.
8KNG filed response submissions along with a supporting affidavit. KNG claims that its reply submissions were not unreasonable and that the Leave Application was made in good faith. Even if the Tribunal found differently, KNG states that it would be inappropriate for the Tribunal to award costs in these circumstances. Further, KNG states that the quantum of cost sought is excessive. Finally, KNG requests that the Tribunal exercise its discretion to award $2,000 in costs against Tomlinson, alleging that this costs motion is unreasonable and being made for improper purpose.
9Tomlinson did not file reply submissions.
ISSUES
Was KNG’s conduct during the Leave Application unreasonable, or made in bad faith, and serious enough to warrant the Tribunal exercising its discretion to award costs? And if so, what is the appropriate quantum of cost to be awarded?
By bringing this motion, was Tomlinson’s conduct unreasonable or made in bad faith, and sufficiently serious to warrant the Tribunal exercising its discretion to award costs? And if so, what is the appropriate quantum of cost to be awarded?
EVIDENCE AND SUBMISSIONS
Tomlinson’s Evidence
10Tomlinson’s evidence was made by way of affidavit, sworn November 15, 2021, of Graham Reeder, an associate lawyer at Gowlings WLG (Canada) LLP, the law firm representing Tomlinson.
11Mr. Reeder stated that since the commencement of KNG’s Leave Application, their client incurred nearly $50,000 in legal fees as well as $4,464.07 in disbursements to air and noise experts.
12The remainder of the affidavit makes reference to, and provides screenshots of, various posts from a Facebook page, which he states was no longer publicly accessible. The first Facebook posting titled “Greater Napanee Residents Against the Asphalt Plant” dated September 15, 2021, is focussed on the blasting and traffic complaints process, referring to a blast on September 14, 2021. There is reference to the escalation of unpleasant effects by the addition of an Asphalt Plant and Concrete Batching Plant, and encourages membership, volunteers, advocates and donations to its cause. Another exhibit shows a posting dated July 20, 2021, with an update on KNG’s appeal of the “Portable Concrete Batching Plant” as well as the asphalt plant proposal. The final screenshot exhibit shows a brief exchange between two people with a comment suggesting that the group might consider talking to the Canadian Environmental Law Association (“CELA”). The reply states “…..We are currently in dialogue and they have been supportive.”
Tomlinson’s Submissions
13Tomlinson’s submissions fall into two general categories. First, that KNG’s two reply submissions were unreasonable. And secondly, that KNG’s conduct in bringing the Leave Application at the outset was unreasonable and made in bad faith.
14Tomlinson contends that KNG’s reply submissions were unreasonable for a number of reasons, including: i) KNG disregarded the Tribunal’s instructions advising KNG to not introduce new evidence or issues or repeat information from the previous submissions; ii) KNG submitted two different (but substantially similar) replies, one directed to Tomlinson and one directed to the Ministry; iii) the replies were lengthy – 26 and 31 pages respectively; iv) the replies contained new issues and requested additional conditions for the ECA; v) KNG submitted a further reply (“Second Reply”) responding to Tomlinson and the Ministry’s objection letter; vi) the Second Reply was lengthy – 22 pages with 12 pages of attachments; vii) the Second Reply also contained entirely new material on the merits, including expanding on new technical and legal issues in the first reply; viii) The Tribunal agreed with Tomlinson and the Ministry that KNG’s reply submissions, for the most part, were improper.
15Tomlinson claims that KNG’s commencement of the Leave Application amounts to unreasonable and bad faith conduct. Tomlinson stated that it and the Ministry were wholly successful on the merits, with KNG failing to meet the test for the Leave Application, and the Tribunal finding the Ministry’s decision to issue the ECA to be reasonable.
16Tomlinson’s submissions then focussed on the motive for KNG bringing the Leave Application. It notes that KNG stated purpose, as an organization, is opposition to Tomlinson’s proposed hot asphalt plant in Napanee. KNG was founded in 2021 in response to an application by Tomlinson for rezoning to permit its proposed plant. When the draft ECA for the mobile concrete plant was circulating publicly in 2020 as required by regulation, KNG did not participate as it had not yet been formed.
17Tomlinson contends that KNG used the Leave Application as an attempt to challenge a number of existing approvals Tomlinson holds for other activities and irrelevant concerns about Tomlinson generally, such as: i) discharge from a quarry sump at Tomlinson’s Napanee Quarry (there is an existing approval for stormwater at the property); ii) request for a closure plan in the ECA; iii) reference to zoning by-laws and an inference that approval of a mobile plant being a gateway to permanent plant approval; iv) requests that additional conditions be imposed on the ECA that are totally unrelated to mobile plant operations. Tomlinson submits that forcing it to respond to KNG’s irrelevant allegations amounts to unreasonable conduct.
18Tomlinson claims that a number of KNG postings on social media support its contention that KNG was using the Leave Application in bad faith to improperly further its opposition to the Proposed Hot Asphalt Plant and other existing operations.
19Tomlinson copied and bolded parts of Tribunal Rule 23.9, which provides a non-exhaustive list of examples of what “…unreasonable, frivolous, vexatious or bad faith can include…”. The following was bolded:
b. …changing a position without notice to the parties, or introducing an issue or evidence not previously mentioned…;
c. failing to comply with a procedural order or direction of the Tribunal where the result is undue prejudice or delay;
e. …continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper;
h. knowingly presenting false or misleading evidence;
20Tomlinson acknowledges that the cost rules are not meant to simply be awarded to the successful party. And further, it acknowledges that the statutory scheme in the EBR is meant to encourage public participation in the environmental decision-making process in Ontario. Notwithstanding, citing Baker v. Ontario (Director, Ministry of the Environment), 2009 CarswellOnt 3421, Tomlinson submits there is no bar to awarding costs and that the Tribunal must consider awarding costs in EBR matters under the same framework as it considers other costs applications before it. It is submitted that the Tribunal should apply the 3-part test in Baker, being:
i) First, the Tribunal must determine whether a party has engaged in unreasonable, frivolous, vexatious or bad faith conduct,
ii) if so, the Tribunal then considers whether to exercise its discretion to award costs,
iii) if the Tribunal exercises its discretion to award costs, the Tribunal then exercises further discretion in determining the appropriate amount of the costs award.
KNG’s Evidence
21KNG’s evidence was made by way of affidavit, sworn November 30, 2021, of Casey Wells, a founding member and current president of KNG who was involved in every stage of the Leave Application.
22Ms. Wells stated that KNG was incorporated in May 2021, after the founding members learned about a rezoning proposal that would allow Tomlinson to build a permanent hot asphalt plant in their community. Ms. Wells states that KNG commenced the Leave Application because it believed that Tomlinson’s mobile concrete plant would adversely affect the environment and health of the residents of Greater Napanee.
23The affidavit states that the KNG Board had no lawyers nor did they have any experience with applications or hearings before the Tribunal. KNG did not have sufficient funds to retain a lawyer and KNG was self-represented throughout the Leave Application hearing process before the Tribunal. KNG had applied to CELA for legal representation but the application was unsuccessful.
24Ms. Wells stated that during the period of the Leave Application, KNG did not have the time or money to hire any experts so a KNG Board member drafted the materials herself with other board members reviewing it. There was some communication with a CELA articling student but Ms. Wells states that the students could not give legal advice nor could a CELA lawyer review any of the material related to the Leave Application.
25Ms. Wells’ claims that she and her fellow board members did their best to draft materials and KNG followed the procedural instructions from the Tribunal throughout the process, including meeting all the deadlines set. KNG requested from the Tribunal, and was granted, an extension of a deadline for filing the first reply. Ms. Wells states that KNG submitted its second reply only after receiving permission from the Tribunal.
26Ms. Wells stated that the impact of Tomlinson seeking costs against KNG has been devastating to both herself and KNG. Ms. Wells states that she has been unable to sleep properly due to the extreme stress. Other Board members have informed Ms. Wells of difficulty sleeping due to stress as well. KNG does not have the ability to raise the amount of funds being claimed by Tomlinson and that even a modest award of costs ($3,951 claimed as being Tomlinson’s cost to respond to the replies only) is almost KNG’s entire budget. Without these funds, KNG would not have the funds to retain the experts required to participate in the upcoming public process to Tomlinson’s proposed hot asphalt plant.
KNG’s Submissions
27KNG submits that there is no merit to Tomlinson’s claims for costs as KNG’s conduct during the hearing was reasonable for any litigant, let alone self-represented first-time applicant. Further, the use of the Leave Application was not made in bad faith but rather out of KNG’s genuine interest in the Ministry’s decision to issue the ECA.
28Regarding the reasonableness of the reply material, KNG contends that the Tribunal only found two small items that did not flow from Tomlinson and the Ministry’s response material. In ruling on the rest of the disallowed reply submissions, the Tribunal had to specifically turn its mind to the potential prejudice to the other parties in considering whether to allow the new issues/evidence. KNG contends that the directions given to it by the Tribunal was that its reply “…should not be introducing new evidence or issues (or repeating from your application) but merely responding to the Respondents (sic) submissions.” KNG understood this direction as permitting responses to new issues raised in the respondent submissions. KNG posits that it is not uncommon for a court or tribunal to disregard portions of reply submissions prepared by experienced counsel, and sites various case law in support.
29KNG takes issue with Tomlinson’s characterization of KNG misleading the Tribunal regarding its lack of their legal assistance and/or representation. KNG did have contact with CELA, however, did not receive any legal advice on the substance of its reply submissions.
30KNG disputes the claim that its reply caused significant delay in the hearing. After receiving the Ministry and Tomlinson’s objection to KNG’s reply, the Tribunal exercised it’s procedural discretion by allowing all parties to file additional materials to determine whether the reply was improper. This extended the hearing by approximately two weeks, which KNG contends cannot objectively be described as “significant”.
31KNG contends that Tomlinson’s so-called evidence of KNG’s ulterior motive (Facebook comments by KNG board members) is not evidence of bad faith but rather a self-represented group participating to the best of its ability in an unfamiliar legal proceeding. The fact that KNG opposed other aspects of Tomlinson’s operations in the Napanee area does not mean that its concern over the ECA was not genuine, and there is certainly no prohibition in the EBR from being in opposition to multiple instruments held by the same instrument holder.
32KNG submits that “bad faith” presumes malicious, fraudulent or harmful conduct. KNG does not believe that Tomlinson has provided any evidence that KNG’s conduct even approaches this threshold. KNG believes that Tomlinson’s allegation that KNG’s Leave Application was an abuse of process is actually an attempt by Tomlinson to prevent KNG from exercising its rights in the future.
33In the event that the Tribunal finds that KNG’s conduct was unreasonable or in bad faith, KNG submits that it should nonetheless exercise its discretion against awarding costs for three reasons. First, given its small budget and limited fundraising capacity, a cost award would detrimentally affect KNG’s ability to participate in future public decision-making processes. Secondly, a cost award to censure a self-represented applicant, is inconsistent with the purpose of the EBR. Those purposes include providing a means by which residences of Ontario may participate in the making of environmentally significant decisions by the Government of Ontario as well as increase access to the courts by residents for the protection of the environment. Finally, the quantum sought by Tomlinson is excessive as there is no nexus between the purported misconduct that the $32,000+ in costs claimed.
34Finally, KNG requests that the Tribunal exercise its discretion and award costs in the amount of $2,000 against Tomlinson. KNG alleges that the motion has been brought for improper purposes as it is not a good faith attempt to recoup cost. KNG believes the motion is a tactic intended to intimidate a tiny community group that is opposed to Tomlinson’s project. KNG believes that Tomlinson has a strong interest in deterring further action from the group. Supported by Ms. Wells’ affidavit, KNG argues that Tomlinson’s conduct has already caused extreme stress and sleepless nights, and a “….cost award against KNG would destroy our group”. It is submitted that the mere fact that Tomlinson brought this cost motion has likely had a chilling effect on public participation in environmental decision-making by otherwise interested individuals and small community organizations. KNG claims the motion has further delayed the resolution of this matter and unnecessarily, used the Tribunal resources.
DECISION AND ANALYSIS
The Law
35The Tribunal’s statutory authority to award costs emanate from the Ontario Land Tribunal Act (“OLTA”) and the Tribunal’s Rules of Practice and Procedure, which are consistent with the Statutory Powers Procedure Act.
36Section 20 of OLTA states:
Costs
20 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.
37The OLT Rule pertaining to costs are found under Rule 23. More specifically, Rule 23.9 provides the Tribunal with some guidance on the circumstances in which a costs order may be made. Rule 23.9 states the following:
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. (emphasis added)
38Rule 23.9 sets up a two-stage process for assessing whether a costs order should be made. First, using the non-exhaustive list provided in subsections “a” through “i”, the Tribunal must assess whether the party’s conduct has been unreasonable, frivolous, vexatious or has acted in bad faith. Then, the Tribunal must exercise its discretion in considering the seriousness of the misconduct found. To assist in the exercise of discretion, the Tribunal looks to past decisions of the Tribunal as well as to the court. In this regard, a leading decision is Kimvar Enterprises Inc., Re, 2009 CarswellOnt 666, made by the Ontario Municipal Board, a predecessor board to this Tribunal. In Kimvar, Vice Chair Seaborn makes the distinction between costs awarded at a Tribunal from costs awarded in the courts as she states at paragraph 13:
…unlike the courts, applications for costs are not routine, and cost awards are rare. In short, a successful party appearing before the Board should have no expectation that it will recover its costs. The Board "does not award costs lightly and it does not award costs automatically. In decision after decision, the Board has expressed a sensitivity to the right of appellants to bring matters before this Board" (Westfield Place Inc., Re, [1996] O.M.B.D. No. 1252 (O.M.B.) at p. 19)
39The decision continues at paragraph 14, describing the applicable test:
14 The test for clearly unreasonable conduct that is most often cited in Board decisions is: would a reasonable person, having looked at all of the circumstances of the case, conclude the conduct was not right, the conduct was not fair and that person ought to be obligated to another in some way for that kind of conduct (Midland (Town) Zoning By-law 94-50, Re (1995), 32 O.M.B.R. 4 (O.M.B.); Customized Transportation Ltd. v. Brampton (City), [2002] O.M.B.D. No. 832 (O.M.B.); Barrie Paintball Adventure Club Inc. v. Essa (Township), 2006 CarswellOnt 5296 (O.M.B.)). In considering the appropriate test for unreasonable conduct, Mr. Bell was fair and acknowledged that parties should not enjoy total immunity from cost claims and it is conceivable that in particularly egregious cases awards of costs can be made.
At paragraph 40, the decision continues:
Awards of costs are rare and costs are not intended to be used as indemnification to a successful party. ……
…..the Board takes a cautious approach to cost awards against citizens and strives to accommodate public participation in land use planning decisions. In fact, in the very limited number of cases where awards of costs have been made against citizens, amounts have always been nominal. This is entirely consistent with how the Board has typically proceeded: costs cannot be used as a threat to deter public participation; and costs will only be awarded (whether the parties are commercial entities, ratepayers or citizens) where the conduct complained of is so improper that it cannot be ignored.
Issue #1: Was KNG’s conduct during the Leave Application unreasonable, or made in bad faith, and serious enough to warrant the Tribunal exercising its discretion to award costs?
40In assessing whether KNG’s conduct was unreasonable or made in bad faith, we must look at Rule 23.9, and in particular items (b), (c), (e) and (h), which KNG allegedly contravened.
Rule 23.9 (b): Did KNG change a position without notice to the parties, or introduce an issue or evidence not previously mentioned as per Rule 23.9(b)?
41The Tribunal, at paragraph 24 of its decision, found that two of the twelve issues raised in the reply fall neatly into the category of not flowing from the response material. The remaining allegedly new issues raised in the reply were mentioned by the other parties in their responses, and therefore were not unreasonably raised, although ultimately found to be improper and not admitted. The Tribunal finds that while KNG’s conduct does fit into Rule 23.9 (b) and can be considered unreasonable, in the circumstance it is by no means serious enough to merit an award for costs.
Rule 23.9 (c): Did KNG fail to comply with a procedural order or direction of the Tribunal, where the result is undue prejudice or delay?
42The Tribunal’s directions to KNG stated that “…You should not be introducing new evidence or issues ….” in the reply material. The Tribunal accepts that there was an honest arguable claim that the bulk of the alleged new issues and evidence introduced in reply flowed from the responses. Nonetheless, there were the two issues mentioned in the previous paragraph that lead the Tribunal to find that its directions were not strictly adhered to. In regard to all other aspects of the Leave Application process, KNG successfully complied with the Tribunal’s directions and time limits. The Tribunal does accept the fact that KNG was self-represented and a first-time applicant facing a new and complex legal environment. Nonetheless, parties are obligated to follow the Tribunal’s direction. Given the circumstances, the Tribunal finds that although KNG may have offended Rule 23.9 (c), the degree of the offense was hardly serious enough to warrant a costs award.
Rule 23.9 (e): Did KNG continue to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper?
43After the Tribunal received letters of objection from both the Ministry and Tomlinson regarding the reply material, the Tribunal sought submissions from all the parties in regard to the admissibility of the reply. During those submissions, KNG included additional submissions expanding on issues that were later determined to be inadmissible. Arguably, since the Tribunal eventually determined those issues to be improper, KNG did take steps to introduce further improper submissions. However, at the time the offending “second reply” submissions were made, the Tribunal had yet to determine if they were improper. For this reason, it can hardly be said that KNG’s conduct fitting into Rule 23.9(e), if at all, is serious, and the Tribunal therefore finds costs are not warranted in this regard.
Rule 23.9(h): Did KNG knowingly present false or misleading evidence?
44Based on the affidavit evidence of Ms. Wells and KNG’s motion submissions, the Tribunal is satisfied that KNG did not receive legal advice during the Leave Application. Consequently, the Tribunal finds that KNG did not knowingly present false or misleading evidence in regard to the legal assistance received as alleged by Tomlinson.
Conclusions
45In general, the Tribunal is satisfied that KNG, in its response to this motion, has adequately addressed the concerns raised by Tomlinson, and therefore, the motion cannot succeed.
46The Tribunal acknowledges the difficult situation that Tomlinson found itself in. It had spent significant time, effort and money wading through the regulatory process to successfully obtain an ECA for their mobile concrete unit. It did everything correctly, only then to be faced with the Leave Application that did not appear to have any merit. Responding to the Leave Application had added costs since KNG was not an experienced litigant and misunderstood parts of the legal process. But what added fuel to this dispute was Tomlinson’s interpretation of social media posts that led Tomlinson to believe KNG was in fact receiving legal advice, deceiving the Tribunal, and deliberately prolonging the Leave Application process in an attempt to make gains in a bigger dispute with Tomlinson. If this were all true, Tomlinson may well have been awarded costs. It is important to look at the context. The original Leave Application contained abundant material about the harmful emissions from mobile ready-mix concrete plants. Based on the material provided by KNG, there is no doubt that the mobile plants emit several toxins that pose a serious and substantial risk of harm to both humans and the environment. The concerns of KNG did not come from nowhere. Had the Ministry not placed the appropriate conditions on the ECA, the Leave Application may well have been successful. The Ministry is in place to oversee regulation and the EBR provides the public with some further opportunity of scrutiny, in this potentially harmful industry. Regulation and scrutiny is simply an increasing fact of life in the industry that Tomlinson operates in.
47In conclusion, an award for costs at the Tribunal is not granted to the successful party automatically, and is only granted in more extreme cases of misconduct. The Tribunal finds that KNG’s conduct was not sufficiently unreasonable, nor was there sufficient evidence of bad faith, to warrant an award for cost. The motion is therefore dismissed.
Issue #2: By bringing this motion, was Tomlinson’s conduct unreasonable or made in bad faith, and sufficiently serious to warrant the Tribunal exercising its discretion to award costs? And if so, what is the appropriate quantum of cost to be awarded?
48In order for KNG to be successful in its counter motion for cost, the same legal tests sited above will be applied. Namely, would a reasonable person, having looked at all of the circumstances of the case, conclude the conduct was not right, the conduct was not fair and that this person ought to be obligated to another in some way for that kind of conduct.
49The Tribunal looks to Rule 23.9 to provide guidance as to whether the bringing of this motion fits the examples of unreasonable conduct. The Tribunal is not limited to the conduct outlined in the Rule. KNG is alleging bad faith motives for bringing the motion. Rule 23.9(e) refers to “….taking steps that the Tribunal has determined to be improper”. While the Tribunal has decided to reject Tomlinson’s motion for costs, it has yet to determine whether the motion itself was improper.
50It is apparent that Tomlinson was frustrated by the resources it expended responding to KNG’s Leave Application, particularly when some of KNG’s material was quite voluminous and found to be improper by the Tribunal. However, Tomlinson was not able to provide satisfactory evidence to satisfy the Tribunal that the missteps taken by KNG were sufficiently unreasonable to warrant a cost award. And the evidence fell well short of satisfying the Tribunal that KNG’s Leave Application was made in bad faith. For example, the inferences made by Tomlinson in regard to KNG’s social media postings simply do not stand up to objective scrutiny. Further, the implications of imposing a costs order will have a chilling affect on those considering exercising their rights under the EBR. And the actual detrimental impact on the stress levels to KNP members is quite concerning.
51The Tribunal is cognizant of Tomlinson’s frustration and also recognizes the respective passion of both parties in adversarial matters such as these. There is a tendency to view your adversary in the worst possible light. Nonetheless, we must consider whether Tomlinson ought to have known this motion for costs would be unsuccessful but regardless, chose to proceed with the motion to fulfill other bad faith motives. KNG’s submissions, in this regard, are quite compelling. The Tribunal accepts KNG’s evidence and submissions at face value. The circumstances of this matter are such that the Tribunal is inclined to believe that Tomlinson did not know its motion would be dismissed. It acted based on the information it knew at the time.
52At the time, Tomlinson issued its letter notifying of its intent to make a motion for costs, Tomlinson knew that the Tribunal determined most of KNG’s reply submissions were improper and that it has spent significant resources responding to copious materials and argument that were not focussed on the legal issues at hand. It also was under the mistaken belief that KNG was receiving legal advice during the Leave Application and misleading the Tribunal, in this regard, in order to garner more favourable/lenient treatment from the Tribunal as an unrepresented litigant. It was only upon receiving KNG’s responding motion material that Tomlinson was fully aware that KNG was not misleading the Tribunal. It is of considerable note that Tomlinson did not prepare and file a reply in this motion.
53It is with regard to entire circumstances surrounding the Leave Application and motion that the Tribunal makes its decision. The merits of Tomlinson’s motion for costs are weak and have been rejected by the Tribunal, which leaves open the possibility that the motion itself was unreasonable. However, based on what it knew at the time, the Tribunal cannot find Tomlinson’s conduct to be an abuse of process as alleged. Further, the Tribunal finds that the conduct is not sufficiently unreasonable to warrant an award of costs.
54The Tribunal notes that there is an appearance of bad faith on the part of Tomlinson in that bringing the motion for costs against a community group has the affect of “litigation chill”. However, even if the Tribunal were to award costs, KNG has not provided sufficient evidence to support the quantum claimed. KNG merely made a bold claim for $2,000 without any supporting detail. As such, the counter motion for costs is dismissed.
CONCLUSION
55The Tribunal finds that KNG’s conduct does not warrant an award for costs, and as such, Tomlinson’s motion for costs is hereby dismissed;
56The Tribunal finds that Tomlinson’s conduct in bringing this motion does not warrant an award of costs, and as such, KNG’s counter motion for costs is hereby dismissed.
“Warren Morris”
WARREN MORRIS
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.