Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 09, 2022

CASE NO(S).: PL180151

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

Appellant: Larry and Vicki Roocroft

Subject: By-law No. ZA-30-17/2018-002

Municipality: Township of North Kawartha

OLT Case No.: PL180151

OLT File No.: PL180151

OLT Case Name: Larry and Susan Conlin v. North Kawartha (Township)

Heard: In writing

APPEARANCES:

Parties Larry and Susan Conlin (“Applicants”)

Counsel John Ewart

DECISION DELIVERED BY david l. lanthier AND ORDER OF THE TRIBUNAL

1The Appellants, Larry and Vicki Roocroft, appealed the January 16, 2018 decision of Council for the Township of North Kawartha approving the Applicant’s requested Zoning By-law No. 2018-002 (“ZBLA”) amending the Township’s Zoning By-law No. 26-2013. The ZBLA was to permit a new recreational dwelling on the Applicant’s lot located on Chandos Lake.

2The Decision of the Tribunal was issued on January 10, 2020, dismissing the Appeal.

3Following the receipt of its issued Decision, the Tribunal received a request from the Applicants in this matter (the “Request”) on February 6, 2020, within the time frame required under Rule 23 of the Tribunal’s Rules of Practice and Procedure (“Rules”). Due to an inadvertent administrative oversight at the Tribunal, that Request was not previously considered until the recent follow-up inquiry from the Applicants’ counsel.

4The Panel Member who conducted the hearing, as the Member seized pursuant to Rule 23.7 of the Rules, has now considered the information supporting information provided in the Request by the Applicants, as well as the file, the manner in which the hearing was conducted and the Decision issued on January 10, 2020.

5For reasons provided below, the Tribunal has determined that the Applicants cannot, on a prima facie basis, satisfy the criteria under Rule 23.9 and accordingly it will not direct a Motion in writing, or otherwise, pursuant to Rule 23.2. It is unnecessary for the Tribunal to receive a Response from the Appellants in this instance.

6All of the findings in the Decision of the Tribunal were in favour of the Applicants, and certain of the grounds for the Appeal, as discussed in paragraph [14] of the Decision could not support the Appeal, and represented only generalized concerns and apprehensions. There were, nevertheless, some limited focused grounds of the Appeal that, on their face, represented apparent planning-related grounds which challenged the sufficiency of the Environmental Impact Study that had been completed and raised concerns regarding a wetland and species at risk, albeit without supporting expert environmental, biology or planning evidence.

7As the Tribunal has noted on prior occasions, the presentation of expert evidence in support of an Appeal is not mandatory and an Appellant or Party has the right to advance an Appeal without calling such evidence. That may be relevant as a factor within the one indicia of misconduct in Rule 23.9(e) in “failing to present evidence”, but it must be considered in the whole of the circumstances and the general stringent approach towards granting an award of costs under Rule 23. At the hearing, significant non-expert evidence was also not introduced by the Appellants, but the Applicant’s witnesses were cross-examined, and earnest submissions were made in support of the Appeal by the Appellants’ representative.

8The Tribunal is unable to conclude that the conduct of the Appellants, in advancing their position on the merits in the hearing, approaches the type of exceptional, flagrant or egregious behavior on the part of the Municipality described in Rule 23.9 of the Rules that would attract an award of costs. The Tribunal acknowledges that in this case, the Appellants failed to adduce “hard” evidence in support of the Appeal, and may have neglected to make inquiries to agencies that would have better informed them, which might arguably approach inclusion within the rubric of Rule 23.9(f). However, objectively, the Tribunal is unable to consider that the conduct of the Appellants in advancing the Appeal, without a fulsome appreciation for the level of preparedness necessary to support the issues they have raised at the hearing, approaches the necessary threshold of unreasonable, frivolous, vexatious or bad faith conduct. In the Tribunal’s view, the Appellants orderly and measured conduct before, or at the hearing, did not represent any manner of serious misconduct, as set out in Rule 23.9. Further, the absence of merit to an Appellant’s appeal, as argued by the Applicants in support of this request for costs, may indeed be the basis for the dismissal of an Appeal but quite explicitly, under the Tribunal’s practices, the absence of merit is not, in and of itself, a basis for an award of costs under Rule 23.9 where costs do not assumptively “follow the cause” but rather, may only be awarded if unreasonable, frivolous, vexatious or bad faith conduct has been demonstrated.

9Accordingly, the Request of the Applicants is denied, and the Tribunal’s file will remain closed.

10This is the disposition of the Applicants’ Request for Costs pursuant to Rule 23.4 of the Tribunal’s Rules.

“David L. Lanthier”

david l. lanthier

VICE-CHAIR

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.