Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 09, 2023
CASE NO(S).: OLT-21-001658 (Formerly 15-176), OLT-21-001896 (Formerly 20-036)
PROCEEDING COMMENCED UNDER subsections 25(5.1) and 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N. 2
Appellant: See Attachment 1 – Appellant List
Respondent: Niagara Escarpment Commission
Subject of appeal: Refusal of a Development Permit Application to reconstruct 26/27 sideroad from seasonal to year round open road
Reference No.: S/T/2013-2014/9152
Property Address: Lots 25 to 31, Concession 10 & 11
Municipality: Township of Clearview
Upper Tier: County of Simcoe
OLT Legacy Case No.: 15-176
OLT Lead Case No.: OLT-21-001658
OLT Case Name: Urbaniak v. Ontario (Niagara Escarpment Commission)
PROCEEDING COMMENCED UNDER subsections 10(3) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N. 2
Applicant: Township of Clearview
Subject of hearing: Proposed Amendment to the Niagara Escarpment Plan to add policy exceptions to permit infrastructure improvements on Sideroad 26/27
Reference No.: Proposed Niagara Escarpment Plan Amendment No. PS 215 18
Municipality: Township of Clearview
Upper Tier: County of Simcoe
OLT Legacy Case No.: 20-036
OLT Lead Case No.: OLT-21-001896
OLT Case Name: Plan Amendment No. PS 215 18 (Re)
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Wendy Franks and David Stevenson, Blue Mountain Watershed Trust Foundation
Request for: Request for an Order Awarding Costs
Costs sought against: Township of Clearview
Heard: In writing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Township of Clearview (“Township” or “Clearview”) | Harold Elston, Carly Emmett and Sarah Hahn |
| Wendy Franks, David Stevenson (“Moving Parties”) | D. Donnelly |
| Blue Mountain Watershed Trust (“BMWT” or “Trust”) | S. Powell, R. Barabash |
DECISION DELIVERED BY WILLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Ontario Land Tribunal (“OLT” or “Tribunal”) directed that the Moving Parties bring a written motion for costs in light of certain correspondence delivered to the Tribunal, as the question of a costs entitlement cannot be determined by the OLT merely on the basis of the Parties’ letter-writing campaign. A parallel motion was brought by the Trust, as described in paragraph [28] below.
2The underlying matters involved two proceedings initiated by the Township, but which the Township has now withdrawn, as of March 22, 2023: NEHO Appeals - OLT Legacy Case Nos. 15-176 and 20-036. Both Appeals are now known as OLT-21-001658 and OLT-21-001896 respectively. The history of these matters as described by the Moving Parties are set out below in paragraphs [3] to [19].
3On January 31, 2014, the Township submitted the development permit application S/T/2013-2014/9152 (the “Development Permit Application”) to the Niagara Escarpment Commission (“NEC”) requesting permission to reconstruct 26/27 Sideroad from the 10th Concession westerly to Grey County Road 31. On November 27, 2015, the NEC refused the Development Permit Application. At that hearing, the BMWT made submissions that the Class Environmental Assessment (“EA”) was inappropriately classified as Schedule A+, whereas it properly required a Schedule C EA.
4On December 11, 2015, the Township and Walker Aggregates Inc. appealed the NEC decision to refuse the Development Permit Application (“Appeal No. 1”).
5The Tribunal, functioning as as the Niagara Escarpment Hearing Office (“NEHO”), held a Case Management Conference (“CMC”) on March 11, 2016 and established a Procedural Order. As of April 15, 2016, by Procedural Order, a number of dates were set for a number of items, including the finalization of the Issues List and for the exchange of witness statements. On May 18, 2016, another Procedural Order was issued for, among other things, revisions to the deadlines for witness statements, a pre-hearing conference and other matters leading up to the fifteen-day hearing set to commence on November 29, 2016.
6On May 27, 2016, the Moving Party submitted its Witness List with experts in the disciplines of field naturalist inventory, wetland evaluation, ecology, traffic safety, engineering, and planning. Then, on July 4, 2016, the counsel for the Township advised the NEHO and the Parties that the Township’s ecological consultants had discovered that the proposed development would encroach into two areas of previously unidentified wetland. The July 4, 2016 letter advised that while the Township stood by its evaluation of the road, Niagara Escarpment Plan (“NEP”) Policy 2.6.10 clearly prohibits any development on a wetland.
7On July 18, 2016, Donnelly Law wrote to the NEHO to adopt the position of the BMWT that the experts’ meeting must be postponed as the discovery of the wetland required further study before a meaningful conversation between experts would be possible. The discovery of the additional wetlands rendered the Appeal of the Development Permit Application OLT-21-001658 moot, as Clearview required an amendment to the NEP to add site specific policies to allow construction of Side Road 26/27 in wetlands (NEP Part 2.6.2e), in key natural heritage features (NEP Part 2.7.2e) and in Escarpment Natural Areas (Part 2.12.5 NEP). The result of this wetland discovery made the reconstruction of Side Road 26/27 very complicated and expensive. The initial estimate of $500,000 for the expansion was revised by Clearview to approximately $4,000,000.
8On September 8, 2016, a Procedural Order requested by Clearview granted an adjournment of the hearing dates for a period of six months to March 28, 2017. The adjournment was granted to allow the preparation of the closely-related NEP amendment application.
9On October 2, 2017, Clearview advised the NEHO and the Parties that it would be seeking a NEP amendment (the “Plan Amendment") related to the Development Permit Application. As such, the Development Permit Application Appeals before the NEHO were held in abeyance pending the outcome of the Township’s Plan Amendment application. On August 15, 2018, Township counsel emailed the Hearing Officer to advise the Environmental Impact Assessment remained incomplete.
10On May 24, 2019, BMWT published a report that again emphasized that the Class Environmental Assessment (“Class EA”) was improperly proceeding as a Schedule A or A+ when it should be a Schedule C.10 - Schedule A and A+ assessments, which are self-assessments. On March 27, 2020, a CMC was convened by the NEHO regarding the NEC’s refusal of the Development Plan Application. During this CMC, Clearview asked that the Appeal of the Township’s Development Application be heard at the same time as the Plan Amendment application – as they made a request to consolidate the proceedings. This required the NEHO to consider whether it had jurisdiction to direct the NEC to appoint a Hearing Officer.
11On June 30, 2020, following written submissions from the Parties, the NEHO issued a Procedural Order directing that it did not have the jurisdiction to order the NEC to appoint a Hearing Officer. Further, the NEHO held, that should the Plan Amendment be referred by the NEC to the NEHO, the hearing for the referral of the Plan Amendment application and the Appeals of the refusal of the Township’s Development Permit Application would be heard concurrently.
12On February 24, 2021, the NEC held a pre-hearing conference (“PHC”) for NEHO matters OLT-21-001658 and OLT-21-001896 regarding the continuation of the Appeals of the NEC’s refusal to grant the Development Permit Application for the Project, and the proposed amendment to the NEP. At this PHC, the Tribunal scheduled a twenty-eight (28) day hearing for NEHO matters 15-176 and 20-036 (the “Hearing”) for November 8, 2021, to December 17, 2021.
13On August 2, 2021, the Moving Party filed its Witness List with the Tribunal. On September 8, 2021, the Moving Party filed witness statements from the following expert witnesses: Mark Heaton (Ecology); Bob Bowles (Wetland Evaluation); and George McKibbin (Planning). On September 22, 2021, the Moving Party filed the witness statement of Andre Lower (Trans-Plan Traffic Engineering, Traffic).
14On October 26, 2021, the Township requested an adjournment sine die of the Hearing, citing the Ministry of the Environment, Conservation and Park’s (“MECP”) letter to Mayor Doug Measures, dated October 4, 2021, placing the Class EA of the Project at issue. The Township expressed that the Hearing would be “premature” given the MECP’s “last-minute change in position”, and that an adjournment is requested, “without a date, in order to facilitate discussions and receive a clear answer from the Ministry”. On October 27, 2021, the Tribunal granted the adjournment of the Hearing, citing the threshold matter of the Schedule to be assigned to the Project.
15In total, the Township was granted five requests for additional time to provide an update on the Project. The Tribunal also ordered the Township to provide a written update to the Tribunal no later than January 31, 2022. On February 1, 2022, the Township requested the Tribunal adjourn NEHO matters 15-176 and 20-036, and allow the Township an additional three months to provide this update.
16On May 2, 2022, the Township requested a second extension of time to provide an update on the Project, on the grounds that their position had not changed since the adjournment of the matter. On July 5, 2022, the Township wrote the Tribunal requesting a third extension of time, citing the same reason for another extension.
17On September 21, 2022, the Tribunal granted the Township’s request, and set the revised deadline for the Township’s update “by the end of October, 2022”. On November 2, 2022, the Township requested a fourth extension of this deadline, citing the same reason for another extension. On November 10, 2022, the Tribunal granted the Township’s request, with the revised deadline for an update from the Township set for February 3, 2023.
18On December 22, 2022, the MECP determined that the Project is more appropriately classified as “Schedule C”, a change from the Project’s previous classification as “Schedule A+”. On February 3, 2023, the Township requested a fifth extension of time to provide an update on the Project. In their request, the Township acknowledged the MECP’s December 22, 2022, decision to upgrade the Class EA for the Project to “Schedule C”. The concern with the Class EA proceeding under the incorrect Schedule was initially raised on November 27, 2015, in the submissions of BMWT and others.
19On February 3, 2023, the Tribunal granted the Township’s request for additional time, setting the deadline for an update as March 31, 2023. On March 22, 2023, the Township wrote to the Tribunal requesting that its matters be withdrawn. The Tribunal confirmed this withdrawal on March 23, 2023.
20Counsel for the Township does not materially dispute the background overview provided by counsel for the Moving Parties but does take issue with most of the various characterizations of the Township’s conduct made by the Moving Parties and the Trust.
POSITION OF THE MOVING PARTIES AND THE TRUST
21Counsel for the Moving Party submits:
The Applicants’ claim for costs is based upon the unreasonable delay recounted above. Such unreasonable delay was vexatious and has required the Applicants’ to expend considerable resources which ought have been avoided if the appeals had been properly managed.
22The essential response of the Township through its counsel is:
The Ministry of Environment, Conservation and Parks (the “MECP”) acknowledged in writing, on at least two prior occasions in 2019 and 2020, that the proposed works to the Road were appropriately deemed a Schedule A+ project. This MECP acceptance and acknowledgment was relied upon by the Township and was a large factor in the Township deciding to proceed with the Applications and appeal. The withdrawal of the Applications, and therefore this appeal, was in response to the MECP suddenly rescinding its acceptance of the type of environmental assessment required by the Township to support its application for a Development Permit…Not only could the series of changes…[not].. have been anticipated by the Township, but they also happened intermittently, over the course of over ten years.
23Counsel for the Moving Parties correctly notes that The Tribunal is granted jurisdiction to fix costs pursuant to section 20 of the Ontario Land Tribunal Act, which reads:
The Tribunal may, subject to any other Act, fix costs of and incidental to any proceeding, and order a party to the proceeding to pay the costs, in accordance with the rules.
24In the Tribunal’s Rules of Practice and Procedure (the “Rules”), Rule 23.9 governs when costs will be awarded and states:
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.
[above emphasis added]
25The Moving Parties’ counsel relies on Rule 23.9 (d) and also alleges that the totality of the Township’s conduct constitutes frivolous and vexatious conduct, alleging that:
The Township’s conduct of the appeals rose beyond mere unreasonableness. As demonstrated in the chronology above, the Township’s conduct was patently unreasonable in continuing to advance appeals where fatal flaws existed and due diligence was inadequate. It is respectfully submitted that the Township’s insistence on continuing the appeals, requiring numerous and costly adjournments, rose to the level of vexatious behaviour…
As the jurisprudence directs, it is imperative to adopt the view of the “reasonable person” to determine whether the Township’s conduct was vexatious and thus deserving of costs being awarded against it.
[above emphasis added]
26Counsel for the Moving Parties did not point to any conduct that he alleged demonstrated an intent on the part of the Township or its counsel to be ‘vexatious’ or ‘frivolous’ but argues that the circumstances here must lead a ‘reasonable person’ to that conclusion.
27For the most part, the position of the Moving Parties was supported by the Trust, which filed a Factum and brought a parallel motion dated June 19, 2023, seeking similar relief to that claimed by the Moving Parties. The Trust is a not-for-profit environmental organization whose mission is to preserve and enhance the Blue Mountains watershed. Unlike the Moving Parties, however, the Trust seeks an award only in respect of the costs of its experts but not for any legal costs.
28Counsel for the Trust agrees with the position of the Moving Parties and argues that the relevant test for assessing such conduct has been distilled down to the “reasonable person” test. In other words, would a reasonable person looking at all of the circumstances, conclude that the conduct was not right, that the conduct was not fair, and that the person ought to be obligated to another in some way for that kind of conduct.
29The Trust’s counsel contends that:
Municipalities must act in a reasonable and responsible way…the Township’s course of conduct has been unreasonable and caused years of delay. The Response [of the Township] has not reasonably justified such delay (including as a result of the Township’s incomplete environmental impact study and improper classification of the Project under environmental law)… Using the above referenced Tribunal test, the Trust respectfully submits that, to the reasonable person, the actions of the Township in this case were not fair, right or appropriate and are of a serious nature to warrant an order of costs.
[above emphasis added]
30The Trust’s counsel also points out in its Notice of Motion:
(a) …The numerous delays caused by Clearview, including as a result of the incomplete EIS work and improper classification of the Project under the MCEA, were unreasonable and resulted in undue delay. Over the past seven and a half years, adjournments related to the above-noted matters have been at the request of Clearview. Meanwhile, the Trust has met the applicable deadlines and acted with urgency. This has required both significant time and resources from the Trust…;
(b) …Clearview’s failure to properly classify the Project also resulted in a potential violation of law, as the underlying project studies were, in addition to being factually deficient, not completed in full accordance with the proper EAA and MCEA requirements…;
(c) …the delay, and ultimately the withdrawal of Clearview’s development permit appeal and NEP amendment, resulted in the unnecessary expenditure of time and money, as well as increased stress on local community groups and nearby property owners…;
(d) …Had Clearview proceeded with the Project in a prudent and appropriate manner, the potential Tribunal hearing could have been avoided altogether and the Trust and other similar parties would have been able to dedicate their very limited time and resources to other important causes. As a result, it is the Trust’s view that an award of costs is an appropriate remedy in the circumstances…;
(e) …The Trust believes an order of costs against Clearview would act as a deterrent and prevent other municipalities from acting with in same cavalier manner in similar proceedings in the future…
THE TOWNSHIP’S POSITION – INCLUDING ‘FUNCTUS OFFICIO’
31The Township’s counsel, unsurprisingly, rejects the contentions made above by the Moving Parties and by the Trust.
32The Township maintained that the requests for costs are improper and should fail for the following reasons:
(a) The requests are made by parties who asked to be added to the proceedings and whose participation was voluntary.
(b) The requests are made by parties who, at best, played a supporting role in this matter.
(c) The requests are made by parties whose arguments have not been proven and are completely without basis in fact and law.
(d) The requests rely upon an untenable and misleading version of events and an unfair and deeply malicious characterization of the Township’s behaviour.
(e) The Township acted in good faith, in the public interest, and in accordance with decisions of the Tribunal and subsequent agreements.
(f) The Township and its taxpayers should not be penalized for municipal actions to bring a public road up to the minimum maintenance standards.
[above emphasis added]
33In its Response to the Motions, the Township vigorously argues that its conduct throughout was reasonable and did not constitute frivolous or vexatious behaviour. However, the Township also raises additional legal arguments in opposition to the Motions.
34Counsel for the Township notes and relies on the fact that on March 23, 2023, the Tribunal confirmed the withdrawal of the Applications made the day before on March 22, 2023 and informed the Parties that the file was closed. The actual letter from the Tribunal read as follows:
The Tribunal acknowledges receipt of the Township of Clearview’s withdrawal of its development permit application, and application for a Niagara Escarpment Plan Amendment, and the appeal of the Niagara Escarpment Commission’s refusal to approve the Development Permit.
There are no outstanding appeals/applications in this matter, and our file is closed.
Yours truly,
“Euken Lui”
Euken Lui
Acting Registrar
35Based on the Tribunal’s letter referred to in paragraph [34] above, the Township’s counsel contends that:
With the withdrawal of the Applications, the Tribunal no longer has jurisdiction over the Applications, or the parties, and is functus officio
36The Township’s counsel further argues that an applicant/appellant has a right to withdraw an application, and there is no requirement or duty for said party to provide advance notice of its decision nor seek permission from the Tribunal or another party in doing so. Moreover, counsel maintains that:
The Township withdrew the Applications it had submitted to the NEC and that were before the Tribunal… Without active applications, there is no function or purpose for the Tribunal and it therefore has no further force or authority over this matter…the Tribunal’s acknowledgment of the withdrawn Applications and the closing of its file is an administrative step, not a hearing event. No Tribunal member was involved in the process and no Order or Decision was issued… The Tribunal did not have to participate in the “act or process of deciding” and the closing of the Tribunal’s file does not constitute a “decision”.
37In the circumstances described in paragraphs [34] to [36], inclusive, above, the Township’s counsel argues that:
…The Tribunal has no authority to award costs against the Township…[because]… The Moving Parties did not bring a motion for costs within 30 days of a “hearing event” and are not entitled to seek the relief requested…”.
38More specifically, as a matter of law, counsel for the Township contends that:
…With the withdrawal of the Applications, the Tribunal no longer has jurisdiction over the Applications, or the parties, and is functus officio… the Tribunal’s acknowledgment of the withdrawn Applications and the closing of its file is an administrative step, not a hearing event. No Tribunal member was involved in the process and no Order or Decision was issued… The Tribunal did not have to participate in the “act or process of deciding” and the closing of the Tribunal’s file does not constitute a “decision”…
[above emphasis added]
THRESHOLD JURISDICTIONAL ISSUE: ALLEGATION OF ‘FUNCTUS OFFICIO’
39The ‘functus officio’ argument is not one often made to the OLT and, in the Tribunal’s view, is not well-founded in these circumstances. Read carefully, even the key case referred to by the Moving Parties’ counsel to support this contention does not stand for the proposition that the Tribunal has no jurisdiction to consider a motion for costs in this situation. In Doucet-Boudreau v. Nova Scotia 2003 SCC 62, [2003] 3 S.C.R. 3, the Supreme Court of Canada was dealing with significantly different matters than those at issue in this case, namely the retention of jurisdiction by a trial court concerning a granted Charter of Rights and Freedoms remedy. But in relevant passages, the Court described and discussed the functus officio doctrine as follows:
Flinn J.A. for the majority in the Court of Appeal decided that the trial judge, having issued the best efforts order, had no further jurisdiction with respect to the parties and was therefore precluded from retaining jurisdiction to hear reports on its implementation (para. 21). This view is based on a mis-characterization of the reporting portion of the order as somehow separate from and additional to the best efforts injunctions. On the contrary, in our view, the reporting sessions formed an integral part of the remedy fashioned by LeBlanc J. Moreover, the functus doctrine has no application where the trial judge does not purport to alter a final judgment. There was no indication that the retention of jurisdiction included any power to alter the disposition of the case…
A closer examination of the doctrine is helpful. The Oxford Companion to Law (1980), at p. 508, provides the following definition: Functus officio (having performed his function). Used of an agent who has performed his task and exhausted his authority and of an arbitrator or judge to whom further resort is incompetent, his function being exhausted…But how can we know when a judge's function is exhausted? Sopinka J., writing for the majority in Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at p. 860, described the purpose and origin of the doctrine in the following words:
[page 48]
‘The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division…’
It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal (see also Reekie v. Messervey, 1990 CanLII 158 (SCC), [1990] 1 S.C.R. 219, at pp. 222-23). This makes sense: if a court could continually hear applications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launch an appeal. Applying that aspect of the functus doctrine to s. 23(1), we face the question of whether the ordering of progress reports denied the respondents a stable basis from which to appeal…
…In our view, LeBlanc J.'s retention of jurisdiction to hear reports did nothing to undermine the provision of a stable basis for launching an appeal. He did not purport to retain a power to change the decision as to the scope of the s. 23 rights in question, to alter the finding as to their violation, or to modify the original injunctions. The decision, including the best efforts order and the order to appear at reporting sessions, was final and appealable…In any case, the rules of practice in Nova Scotia and other provinces allow courts to vary or add to their orders so as to carry them into operation or even to provide other or further relief than originally granted (Nova Scotia Civil Procedure Rules, Rule 15.08(d) and (e); Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 59.06(2)(c) and (d); Alberta Rules of Court, Alta. Reg. 390/68, Rule 390(1)). This shows that the practice of providing further direction on remedies in support of a decision is known to our courts and does not undermine the availability of appeal. Moreover, the possibility of such proceedings may facilitate the process of putting … orders into operation without requiring resort to contempt proceedings.”
[above emphasis added]
40The above passage from the Supreme Court of Canada in its Doucet-Boudreau decision is germane to this proceeding but, in this Tribunal’s view, does not support the Township’s position. The Tribunal commonly deals with issues of costs even after it issues a Decision on the merits and has the power to do so under both the Ontario Land Tribunal Act, S.O. 2021 (“OLTA”) and under its Rules of Practice and Procedure (“Rules”). Section 13 of OLTA empowers the Tribunal to make its Rules and several sections of those Rules set out provisions concerning the awarding of costs. Rule 25 describes the Tribunal Chair’s review powers which are unimpeded by any prior Tribunal costs award. Similarly, any right to appeal a Tribunal Decision is also not impacted by the fact that a costs order may be made.
41Although not an aspect of the functus officio argument per se, the Township also contends that since no “hearing event” as defined in Rule 1.2 of the Rules, the Moving Parties and the Trust are “out of time” and the Tribunal has therefore no power to award costs under Rule 23. Ultimately, this Tribunal does not need to rule on this argument but disagrees that a hearing event is required in order to ground its jurisdiction to award costs in the circumstances of this case. The Moving Parties and the Trust clearly indicated an intention to seek costs against the Township following its withdrawal and this Motion arose as a result of the Tribunal’s direction. Thus, there was no need for any prior or additional “hearing event”.
42The Tribunal does not find it necessary to review in detail its own past jurisprudence on these points except to cite one relevant passage from the Decision of Vice Chair Lanthier at paragraph [45] of Two Sisters Resorts Corp. v. Niagara-on-the-Lake (Town), 2023 CanLII 56708 (OLT-21-001391):
The Tribunal has considered the submissions of the Owners, that the Vogel decision stands for the proposition that where the objector exercises the right to withdraw, there is no longer a dispute and therefore no further jurisdiction to hear the matter of costs. In the Tribunal’s view, this would seem akin to reliance upon the doctrine of functus officio which, in its view, is inapplicable to such circumstances. First, the concept of functus officio applies to bar a trier of fact from revisiting a decision on the proceeding where the merits have been finally determined and the trier of fact is divested of jurisdiction over the matter already decided. That is not the case where there has been a withdrawal. Second, while there may no longer be a dispute before the Tribunal to decide if the Objection is withdrawn, the proceeding up to the point of the withdrawal was nevertheless before the Tribunal, over which it had jurisdiction and the discretion to grant costs relates to the proceeding, inclusive or exclusive of a hearing on the merits. To suggest that the Tribunal is divested of jurisdiction to award costs after an appeal is withdrawn would logically require that the Tribunal also consider itself divested of jurisdiction to consider an award of costs after making a final order, as the matter would similarly no longer be before it. This would clearly be incorrect given that the Rules contemplate that a request for costs can be made thirty days after a written decision is issued.
[above emphasis added]
POSSIBLE MISTAKEN STEPS TAKEN BY AN APPELLANT DO NOT WARRANT A FINDING OF ‘FRIVOLOUS’ OR ‘VEXATIOUS’ CONDUCT
43The Tribunal notes the vigorous allegations made by both the Moving Parties and the Trust to the effect that, notwithstanding ‘warnings’ from both, the Township proceeded with a course of action that was ultimately incorrect which led to the withdrawal of proceedings. Those Parties argue that this alone justifies a finding that there was frivolous and/or vexatious conduct on the part of the Township. In the Tribunal’s view, it is notable that of all the Appellants under the NEHO proceeding only the Moving Parties and the Trust have sought costs from the Township in this Motion.
44Although the Tribunal understands the frustrations expressed by the Moving Parties and the Trust concerning the outcome of these matters after several years – and their apparent feelings of vindication after the Township withdrew its Appeals – the Tribunal is not convinced that in the totality of the circumstances it can be inferred that the Township therefore necessarily acted unreasonably or otherwise engaged in vexatious or frivolous conduct.
45It is also important to keep in mind that the Tribunal/NEHO has not adjudicated in favour of the positions taken by the Moving Parties and the Trust as to the alleged ‘wrongness’ of the Township’s course of action as characterized by the Moving Parties and the Trust. Moreover, the Township has offered a contrary view and explanation for why it did what it did and why it decided to withdraw its Appeals – and equally vigorously denies all accusations made by the Moving Parties and the Trust.
46Even if it was true that the Township had made certain errors in the way it proceeded throughout the history of this matter – again, which has not been and will not be determined by the Tribunal – this alone does not lead to an inevitable conclusion that the Township’s conduct justifies an award of costs on the basis contended by the Moving Parties and the Trust.
DID THE TOWNSHIP ENGAGE IN ANY OTHER CONDUCT THAT WAS ‘UNREASONABLE’, WHICH WOULD WARRANT AN AWARD OF COSTS UNDER RULE 23.9?
47Rules 23.9 and 23.10 provide as follows:
COSTS
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.
23.10 Powers of Tribunal The Tribunal may deny or grant the application for costs or award a different amount and fix the costs of and incidental to the proceeding and direct payment be made by a certain date by order.
[above emphasis added]
48Vice Chair Lanthier in Two Sisters provided an excellent and helpful summary of the general principles and guidance which can be derived from the Tribunal’s past jurisprudence:
(a) An award of costs by the Tribunal is not routine, is not made lightly, and instead may be considered exceptional. Unlike the Courts, costs do not follow the cause, and costs are not automatically awarded simply because the party filed an appeal that was unsuccessful. The successful party should accordingly have no expectation that he, she, or it will recover its costs of the proceeding.
(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 and remains discretionary. The final wording of Rule 23.9 makes clear that the seriousness of the misconduct will be considered.
(d) 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, the conduct or course of conduct of the party proven at the hearing, and the person’s familiarity with the Tribunal’s procedures, 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.
(e) 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.
(f) The approach of the Tribunal is to ensure that litigants are not dissuaded from exercising their right of appeal for fear of costs and historically has demonstrated a sensitivity to the right of appellants to bring matters before this Tribunal. The public interest impact of a costs award is a relevant factor for the Tribunal to consider in exercising its discretion. This is especially the case where an appeal clearly gives rises to matters of broader public interest that go well beyond the limited interests of the party or appellant.
(g) Despite the exceptional nature of a costs award, the approach of the Tribunal nevertheless recognizes that parties must also be held accountable for their conduct if it 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.
(h) Something which is unreasonable is irrational, not in accordance with good sense, or foolish, whether intentionally or unintentionally.
(i) Frivolous conduct is conduct characterized as conduct demonstrating a lack of seriousness, and unacceptable conduct that is intentionally “silly” or also “foolish”.
(j) Vexatious conduct is conduct characterized as conduct which is instituted without sufficient grounds deliberately for the purpose of causing trouble or annoyance to another party or “nasty”.
(k) An examination of motivation and intent for conduct may be required with respect to conduct during a proceeding. A question that can be asked is: what was the real motivation, the driving force, the endgame relating to the conduct of the party from whom, or from which, costs are pursued and is there a lack of legitimacy of purpose underpinning the actions of the party that causes the conduct to be insincere or disingenuous?”
[above emphasis added]
49In Two Sisters, Vice Chair Lanthier went on to make the following remarks, which are relevant as well in the circumstances of this case:
Rule 23.9, when read as a whole, demonstrates that the threshold for discretionary awards of costs is high, and the incidence of cost awards are rare. The criteria to be considered expressly does not include the success or failure of the party. The Tribunal’s Rules have always focused solely upon the conduct of a party in a proceeding rather than the ultimate result or outcome of the proceeding. Whether, and to what extent, a future amendment to s. 20 of the OLT Act which may stipulate that the Tribunal’s authority to fix costs includes the power to order an unsuccessful party to pay a successful party’s costs, will impact the Tribunal’s Rules on costs remains to be considered and determined by the Tribunal in light of the Tribunal’s unaltered administrative function and the continuing public interest in planning decisions
…That a party, municipality or appellant, has ultimately “lost” upon the rendering of the Decision by the Tribunal matters not at all in the absence of misconduct under Rule 23.9 of the Tribunal’s Rules.
… It logically follows that if the objector or appellant to a proceeding withdraws the objection or appeal shortly before, or even during, a hearing on the merits,.. In such circumstances, the outcome for the objector or appellant is such that the position advanced in their objection does not prevail. There is no “loss” for the objector/appellant, nor is their a “win” for the municipality. This situation should not prima facie expose the objector or appellant to the possibility of an award of costs, any more than an adverse decision upon the hearing of the merits prima facie exposes any party to costs. To assume that a withdrawal of an objection or appeal gives rise to an exposure to costs would not be consistent with the costs approach of the Tribunal following a hearing on the merits. The fact that the party in whose favour a Decision has been rendered has expended significant time and expense to the point of the favourable Decision is not relevant. For consistency, the same approach must apply to the case of a withdrawal…The primary objection advanced by the Town and the Association is the timing of the withdrawal and they take the greatest of exception to the fact that the Owners waited until the “eleventh hour” to withdraw the Objections, when the Town and Association submit that they had already expended significant time and expense. For the reasons indicated, the withdrawal of the appeal or objection immediately prior to the determination of the proceeding on its merits by the Tribunal is not itself misconduct sufficient to require the exercise of the Tribunal’s discretion to award costs, no more than a “win” after the conduct of a full hearing itself represents misconduct warranting the consideration of a cost award. The fact that the Town and the Association have expended significant time and expense to get to the point of the withdrawal is, in and of itself, also not relevant…
… This is not to say that such circumstances (either a withdrawal by the objector/appellant, or a favourable outcome for the municipality or an added party aligned with the municipality), might not still give rise to the exercise of the Tribunal’s discretion. If the party’s conduct is examined and that conduct can be objectively considered to be unreasonable, frivolous, vexatious, or in bad faith and the timing of the withdrawal (or taking the proceeding through to a final decision) is demonstrative of conduct requiring the exercise of discretion, then costs may be ordered based upon such misconduct. On the specific facts of a case, it could, for example, be demonstrated that a party has taken a proceeding through to a withdrawal or a complete hearing and has: been unreasonably obstructive in the proceeding; failed to communicate with the Tribunal or the parties; failed to produce witnesses or tender evidence; failed to adequately prepare for a hearing; unduly delayed the proceeding; or demonstrated other types of serious misconduct referred to in Rule 23.9. The focus however is upon the conduct, not the withdrawal.
[above emphasis added]
50Similar to some of the allegations made in Two Sisters by the party seeking costs, the submissions made here by both the Moving Parties and the Trust “…belie an authoritative assertion...” as to correctness of the contentions of those Parties – i.e. that the Township has by its withdrawal, de facto conceded that it made “an error”, thus amounting to the validation of the positions taken all along by the Moving Parties and the Trust. However, in fact the Tribunal has not considered the evidence and law applicable to those contentions nor has it made any such rulings – nor are such rulings required in this proceeding..
51In any event, after due and careful consideration of the materials and submissions delivered, this Tribunal is simply not persuaded by the arguments made by the Moving Parties or the Trust that the totality of the Township’s conduct, behaviour and course of conduct in this proceeding amounts to objectively unreasonable conduct that meets the high threshold described and discussed above in paragraphs [47], [48], [49] and [50] and that would warrant the exercise of this Tribunal’s discretion to award costs against the Township. The Tribunal is certainly mindful that any such award would be indirectly funded by the Township’s ratepayers but more importantly, agrees with the submissions of counsel for the Township that the Township throughout the rather unfortunate and drawn-out history of this proceeding acted reasonably, without bad faith, did not display discourteous or ‘nasty’ behaviour nor take objectively unreasonable positions that could be characterized as frivolous and vexatious.
ORDER
52THE TRIBUNAL ORDERS THAT:
(a) the motions made by Wendy Franks, David Stevenson and by Blue Mountain Watershed Trust are dismissed; and,
(b) there shall be no award of costs made in respect of these motions.
“William R. Middleton”
WILLIAM R. MIDDLETON
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.
ATTACHMENT 1
LIST OF APPELLANTS, PARTIES AND PARTICIPANTS
| Appellant Name | File No. |
|---|---|
| Eleonore Urbaniak | 15-176 |
| Harry Urbaniak | 15-177 |
| Richard Young | 15-178 (File Closed) |
| Marilyn Young | 15-179 (File Closed) |
| Melksham Holdings Ltd. | 15-180 |
| Alan Sampson | 15-181 (File Closed) |
| Allan Fisher | 15-182 |
| Walker Aggregates Inc. | 15-183 |
| Township of Clearview | 15-184 |
| Parties | File No. |
|---|---|
| Niagara Escarpment Commission | 15-176, 20-036 |
| Blue Mountain Watershed Trust Foundation | 15-176, 20-036 |
| Wendy Franks and David Stevenson | 15-176, 20-036 |
| Walker Aggregates Inc. | 15-176, 20-036 |
| Margaret (Peggy) Hutchison | 20-036 |
| Participant Name | File No. |
|---|---|
| Town of the Blue Mountains | 20-036 |
| Municipality of Grey Highlands | 15-176, 20-036 |
| Doug Dingeldein | 15-176, 20-036 |
| Ray Mueller | 15-176, 20-036 |
| Clearview Community Coalition | 15-176 |
| Mark Bell | 15-176 |