Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 30, 2023

CASE NO(S).: OLT-21-001529

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Hajar Properties Inc.

Subject: Minor Variance

Property Address/Description: 1081 Riverside Drive

Variance from By-law: Z-1

Municipality: City of London

Municipal File No.: A.117/21

OLT Case No.: OLT-21-001529

OLT Lead Case No.: OLT-21-001529

OLT Case Name: Hajar Properties Inc v. London (City)

PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Hajar Properties Inc.

Request for: Request for an Order Awarding Costs

Costs sought against: The Corporation of the City of London

Heard: in writing

APPEARANCES:

Parties Hajar Properties Inc.

Counsel Paula Lombardi

Parties The Corporation of the City of London

Counsel Aynsley Hovius Christina McCreery

DECISION DELIVERED BY BITA M. RAJAEE AND S. MANN AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The following Decision and Order arises from a Written Motion for costs pursuant to Rule 23 of the Ontario Land Tribunal Rules of Practice and Procedure (“Rules”). The Motion follows the Tribunal’s April 24, 2023 Decision (“Tribunal’s Decision”) to grant an appeal by Hajar Properties Inc. (“Moving Party”) against the decision by the Committee of Adjustment (“COA”) of the City of London to refuse a minor variance application (“MVA”) pertaining to a property located at 1081 Riverside Drive in the City (“Subject Property”). The purpose of the MVA was to permit the retention of the driveway located at the front of the Subject Property (“Riverside Driveway”). At the Hearing, the Corporation of the City of London (“Responding Party”) took an opposing position to the MVA, defending the COA’s refusal.

2The following materials were before the Tribunal for consideration:

a. Motion Record of the Moving Party (“Motion Record”), which included a Notice of Motion and an Affidavit sworn on June 21, 2023 by Sam Hajar (owner of the Subject Property and director of the Moving Party); and

b. Response to the Motion Record by the Responding Party (“Response to Motion Record”), which included an Affidavit sworn on July 7, 2023 by Hailee Verhoeven and Factum of the Responding Party.

3No Reply material was filed with the Tribunal.

RELIEF SOUGHT BY THE PARTIES

4The Moving Party seeks the following relief against the Responding Party:

a. An Order that the Responding Party pay costs in the amount of $20,084.76 (“Costs”) inclusive of the Harmonized Sales Tax (“HST”) to the Moving Party, representing its legal costs and consulting costs associated with the Video Hearing held on June 8 and July 28, 2022 and written submissions of August 5, 2022 (“Hearing”) on a full indemnity basis;

b. Costs of the Motion; and,

c. Such further and other relief as the Tribunal may deem just.

5The Responding Party, along with seeking that the Moving Party’s Motion be dismissed, seeks costs of having to respond to this Motion, in the amount of “$4,373.00 + HST.”

STATUTORY FRAMEWORK

6The Tribunal’s statutory authority to award costs can be found in s. 20 of the Ontario Land Tribunal Act, S.O. 2021, c. 4, Sched. 6 (“OLTA”) and Rule 23 of the Rules, which are consistent with the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”). Section 20 of the OLTA states:

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.

7Rule 23.9 sets out the circumstances under which costs may be awarded, as well as a non-exhaustive and illustrative list of the type(s) of conduct which might attract such an award. In the interest of brevity, the most relevant portions of the Rule for the purposes of the present Motion are reproduced below, italicized where emphasis has been added by the Panel:

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 and bad faith conduct can include, but is not limited to…

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…

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

8Rule 23.10 states:

The Tribunal may deny or grant the application for costs or award a different amount and fix the costs of and incidental to a proceeding and direct payment be made by a certain date by order.

MOVING PARTY’S POSITION

9As explained by the Moving Party in the Motion Record, it had incurred total costs in the amount of $30,991.82 as a result of having to proceed with this appeal, consisting of: $18,728.76 Legal fees; $1,356.00 Consulting fees and attendance of the traffic engineer experts at the Hearing; $400 Tribunal’s Appeal Fee; $8,507.06 MVA Fees; and $2,000 Consulting fees. For the purpose of the Costs Motion, the Moving Party seeks $20,084.76, representing the Legal fees ($18,728.76) and the Consulting Fee for the Hearing ($1,356.00).

10The Moving Party’s basis for this request was as follows:

The Responding Party unnecessarily extended the Hearing in maintaining the COA’s denial.

According to the Moving Party, during the period leading up to and at the Hearing, the Responding Party maintained the position that the Riverside Driveway be removed from the Subject Property, despite knowing that it had no basis upon which to make such a request. The Moving Party submitted that the Responding Party did the following:

• In 2019, the Moving Party had submitted an application for a Zoning By-law Amendment (“2019 ZBA”) to recognize the existing converted third unit located within the existing building. No additions or exterior renovations were requested or occurred. The sole purpose of the ZBA was to recognize the existing conditions of the Subject Property. The Responding Party granted the 2019 ZBA, but arbitrarily and without any jurisdiction, required that the Moving Party enter into a site plan agreement with the City as part of the 2019 ZBA approval.

• The site plan submitted identified the Riverside Driveway in addition to two new parking spaces situated off of Hyde Park Road. Following the submission of the site plan, and as part of the consultation process, the City inappropriately requested that the Riverside Driveway be closed as a condition of site plan approval. Subsequently, the Responding Party confirmed that a site plan was not required in the circumstances. However, despite this, the Responding Party’s Development Services Branch proceeded to request that the Riverside Driveway be removed. The Responding Party was aware that there was no authority upon which it could rely to require the Riverside Driveway to be removed, as the Subject Property was not subject to site plan approval, but continued to do so absent any legislative or policy basis upon which to make this request.

• To work cooperatively and collaboratively with the Responding Party, the Moving Party submitted the MVA to seek the ability to continue use of the Riverside Driveway, which was denied by the COA. In defending this denial, the Responding Party:

o Failed to acknowledge that the City’s Zoning By-law (“ZBL”), Policy 953, requires three parking spots to accommodate the residential intensification that was approved by the City as part of the ZBA that was granted by the City for the Subject Property (paragraph 32 of the Tribunal’s Decision);

o Disregarded that the ZBL allows for front yard driveways in exceptional circumstances subject to conforming with the provisions of section 4.19(7) of the ZBL that relate to surface and drainage requirements, and that such requirements are met by the Riverside Driveway (paragraph 35 of the Tribunal’s Decision);

o Failed to take into consideration that section 7.4 of the ZBL, relating to the site-specific zoning provisions applied to the Subject Property, as set out in the R3-2(14) Zone (and approved as a result of the 2019 ZBA), does not prohibit the use of the Riverside Driveway nor does it require or mention the removal of the Riverside Driveway (paragraphs 36 and 37 of the Tribunal’s Decision); and

o Ignored the fact that the Riverside Driveway has been a long standing use in the area for more than 35 years, despite being aware of this, as confirmed in the City Staff Planning Reports (“Staff Reports”) submitted in relation to the ZBA and MVA.

The Responding Party failed to bring forward an appropriately qualified expert witness.

In support of its position, the Responding Party presented a land use planner as its planning witness who was a pre-candidate member of the Ontario Professional Planners Institute, who had not yet received, nor was eligible for, the Registered Professional Planner designation, and had only worked for the City for a matter of months. The Tribunal did not qualify the Responding Party’s witness to provide expert land use planning evidence on the basis of her “limited experience.” Moreover, the witness was not the author of the Staff Report in relation to the MVA.

As such, according to the Moving Party, the Responding Party failed and/or neglected to put forward the appropriate witnesses in support of its decision, and namely did not put forward those who had authored the Staff Reports and who reviewed and provided comments on the MVA for the Subject Property. According to the Moving Party, the City acted unreasonably as it had a choice and intentionally did not bring forward the author of the Staff Reports, either on the ZBA or the MVA, as it relates to the Subject Property, to provide expert planning opinion evidence, and more importantly, to defend the decision to refuse the MVA. The Responding Party knew or ought to have known that the evidence put forward was inadequate or insufficient to support the COA’s denial.

The Responding Party took an untenable position before the Tribunal.

According to the Moving Party, the Responding Party:

• Disregarded that the 2019 ZBA (which authorized the triplex use of the Subject Property) was not before the Tribunal and it was only the MVA that was being considered, and attempted to apply the policy framework that applied to the 2019 ZBA to the MVA, despite the site-specific 2019 ZBA being previously approved several years earlier and it not being before the Tribunal (paragraph 32 of the Tribunal’s Decision);

• Disregarded that the Riverside Driveway had been in existence, unchanged, for more than 35 years and was already “imbedded in the character of the neighourhood” (paragraph 31 of the Tribunal’s Decision);

• Neglected to acknowledge that this MVA was not a proposal for new development (paragraph 31 of the Decision), and that in fact, there had been no construction or renovations undertaken on the Subject Property, either to the Riverside Driveway or the dwelling units since the Moving Party purchased the Subject Property on or around July 13, 2018;

• Ignored the existing precedent in the surrounding neighbourhood demonstrating that similar circumstances have been permitted throughout the area (paragraph 35 of the Decision);

• Did not take into consideration that the Riverside Driveway has existed in its location for more than 35 years without “any disruption, notices, complaints, or accidents” and its use was deemed to conform with the City’s ZBL provisions under s. 24(4) of the Planning Act (paragraph 38 of the Tribunal’s Decision);

• Failed to demonstrate that the existence of the Riverside Driveway was inconsistent with the City’s ZBL as a whole or the site-specific 2019 ZBL applicable to the Subject Property (paragraph 39 of the Tribunal’s Decision);

• Failed to demonstrate that the Riverside Driveway was not desirable for the Subject Property, the neighbourhood, or the community (paragraph 44 of the Tribunal’s Decision); and

• Failed to demonstrate any negative impacts caused by the Riverside Driveway (paragraph 51 of the Tribunal’s Decision) and failed to demonstrate that the existence of the Riverside Driveway caused “substantial detriment, hazard or annoyance” as required by the City’s policies, specifically Policy 1662 of the London Official Plan.

11In short, the Moving Party submitted that it seeks the Costs that it incurred as a direct result of having to proceed with an appeal when the Responding Party should know, or ought to have known, that the Riverside Driveway existed for more than 35 years and was deemed to conform to the ZBL under the provisions of section 24(4) of the Planning Act. The position put forward by the Responding Party resulted in the Moving Party having to retain legal counsel and an expert traffic consultant, and incur the costs associated with having to appeal the Responding Party’s untenable position taken on the MVA. The Responding Party’s actions in bringing forward planning experts that it knew, or ought to have known, could not be qualified, and raising issues that were not at issue in the Hearing (including but not limited to the interpretation of the site-specific 2019 ZBL) resulted in the Moving Party having to incur the costs associated with legal counsel and a traffic expert.

RESPONDING PARTY’S POSITION

12The Responding Party position, as outlined in the Responding Motion Record, was as follows:

The Moving Party’s motion materials are wholly insufficient to result in a costs award.

According to the Responding Party, the Moving Party’s Motion materials are significantly deficient and fail to meet the minimum requirements prescribed under the Rules to allow the Tribunal to properly consider an award of costs. The Appellant failed to put forward any evidence to establish that the conduct of the Responding Party has met the standard of clearly unreasonable, frivolous, vexatious or bad faith behavior outlined in Rule 23.9 to warrant a costs award. The awarding of costs is rare because the threshold to establish misconduct is high. Yet, there is no attempt by the Moving Party in the Motion materials to apply the prescribed test to the Responding Party’s conduct in this proceeding. There are no grounds pleaded in the materials on which the Tribunal can rely for a costs award.

Second, the Moving Party’s claim for costs generally describe grounds that deal with the substantive matter, not conduct that would attract costs. For example, in the Notice of Motion, all of the “grounds” for the Motion are arguments that were made at the Hearing and that resulted in the Moving Party’s success. Re-arguing the merits of the case is not helpful to the Tribunal in determining whether an award of costs is substantiated. The Moving Party relies generally on the same grounds that were presented at the Hearing, and fails to provide any analysis to distinguish costs that can be attributed to the alleged misconduct from those regularly incurred in a contested hearing. Moreover, the allegation that the Hearing was unduly extended by an unstated amount of time because of the Responding Party is unsupported by evidence establishing how that time would be calculated. The Responding Party relied on the case of Southside Construction Management Limited v. London (City), 2020 CanLII 63972 (ON LPAT) (“Southside Case”), at paragraph 8, for the proposition that, without this evidence, any award of costs will require the Tribunal to speculate the appropriate apportionment.

Third, the Moving Party makes no attempt to identify the quantum of costs that reflect extra preparation or hearing time caused by the conduct alleged to have attracted costs. It is clear on the face of the Rules that the Tribunal needs this information to consider an award, and this has not been provided. The Moving Party simply claims the legal fees and traffic expert fees of the Hearing. The statements contained in the Affidavit of Sam Hajar are insufficient to meet the clear requirements of Rule 23.4(c)(ii). The Responding Party relied on Bruns v. Muskoka Lakes (Township), 2004 CarswellOnt 5324 (“Bruns Case”), where the Ontario Municipal Board (“OMB”), this Tribunal’s predecessor, rejected an affiant’s statement, referencing an attached bill of costs, as insufficient to meet the requirements of an equivalent provision to Rule 23.4(c)(iii). The OMB in the Bruns Case also clarifies the significance of providing invoices and presenting clear evidence of the costs incurred when claiming a large costs award on a substantial indemnity basis. The onus is on the Moving Party to put its best foot forward and provide clear evidence of the costs incurred. The Motion Record here does not meet this standard.

Further, the Responding Party submitted that the requirements of Rule 23.4(c) are mandatory and unambiguous. Thus, a finding that these requirements have not been met by the Motion Record should appropriately result in a presumptive determination that the amount of costs claimed cannot be verified from the evidence. The Responding Party relied on the Bruns Case, at paragraph 30, where the OMB determined that even if a finding of unreasonable conduct warranting costs was made, the Board could only award costs on a nominal basis due to the deficiencies in the Motion materials.

The Responding Party’s conduct does not warrant a costs award.

The Responding Party submitted that the onus is on the Moving Party to establish improper conduct that warrants an award of costs. Each application for costs requires a thorough assessment of conduct in the proceeding. Ultimately, the Rules provide the Tribunal with the discretion to award costs based on the seriousness of the conduct alleged.

The Responding Party took the position that the evidence relied upon by the Moving Party in support of this Costs Motion is woefully inadequate to meet the standard of clearly unreasonable conduct. Rather, the Responding Party submitted, its conduct in this proceeding does not approach the threshold of clearly unreasonable, frivolous, vexatious, or bad faith to warrant an award of costs. The Responding Party and its representatives acted reasonably, and in accordance with the legislated mandate, at all material times in this proceeding. The evidence of the Responding Party was focused on the traffic issue, the crux of the Hearing, and responded directly to the four tests of a minor variance. The Responding Party’s witnesses at the Hearing, while unsuccessful, acted in a thoroughly professional manner and unquestionably in good faith.

The Moving Party’s choice to pursue the Riverside Driveway resulted in the costs incurred.

The Responding Party submitted that the suggestion that the Moving Party did not need a MVA, but applied only to be “cooperative,” is illogical. The 2019 ZBA was approved on the basis of three parking spots at the side and rear of the property. If those three spots had been maintained as originally proposed, there would have been no zoning compliance issue. It was the desire of the Moving Party to designate the Riverside Driveway as a designated parking spot that necessitated the need for further zoning permissions. The Moving Party is employed as a Municipal Law Enforcement Officer in the Planning and Economic Development department at the City of London and was previously employed as a Business & Zoning Co-ordinator in the same Department and would, therefore, be expected to be intimately familiar with the operation of the ZBL and processes associated with same. Zoning compliance is required to obtain a Residential Rental Unit License (“RRUL”). The Subject Property does not currently have a RRUL and requires one. It can be directly inferred that the reason a MVA was submitted was to ensure zoning compliance, without which a RRUL would not issue. If the Moving Party believed that zoning compliance could be achieved in another way (such as resulting from a legal non-conforming situation), then it was open to the Moving Party to explore those options. The Moving Party chose to submit a MVA, and, as such, there are costs that should be anticipated to potentially follow that process.

Additionally, the Responding Party submitted, contrary to the suggestion by the Moving Party that it was coerced into a site plan agreement, the site plan submission was incomplete, and no agreement would be required for this type of approval. Further, by way of Tribunal Order in the London Plan proceeding before the Tribunal (OLT-22-002286 (Formerly PL170100)), converted dwellings were no longer subject to site plan approval as of October 13, 2020. This was communicated to the Moving Party in a timely manner.

The Responding Party submitted that accepting the Moving Party’s characterization of the conduct alleged prior to the proceedings would require the Tribunal to determine that multiple levels of decision-makers within the City conspired to frustrate the Moving Party’s objectives in relation to this development. The Moving Party is sophisticated with respect to understanding zoning and zoning compliance and ought to have been aware that seeking a Planning Act approval may reasonably incur costs.

The Responding Party’s witnesses were reasonable in the circumstances.

Although the City was wholly unsuccessful at the Hearing, a failure to call a compelling case does not equate to an award of costs. The Moving Party submits that it was the City’s calling of a relatively new planner that increased the length of the Hearing, but this argument is flawed for three reasons:

a. The Moving Party called three witnesses, in excess of the Responding Party’s two;

b. There is no requirement to call a qualified witness, and in fact, the Moving Party also did not call a professional planner or any planning witness; and,

c. A minor variance hearing is the appropriate complexity and risk for a junior planner to get experience.

In Shanae Management Inc v Kitchener (City), 2022 CarswellOnt 18771 (OLT), at paragraph 20, the Tribunal considered whether failure to support a position with expert evidence was captured in Rule 23.9(e) (“failing to present evidence”), and determined that expert evidence is not mandatory. The Tribunal refused to award costs, noting that the Appellant had approached the proceedings with “seriousness,” including timely submission of materials, participation in and conducting of cross-examinations on Affidavits, and retaining Counsel to assist with arguing the Motion.

In this subject case, the Tribunal made no finding in the April 24, 2023 Decision of an unreasonable position being advanced by the Responding Party or by any of the Responding Party’s witnesses, nor did it comment on any failure to present evidence. The Tribunal’s Decision simply prefers the evidence of the Moving Party. The Moving Party’s reward for proffering favourable evidence is the resultant approval by the Tribunal and does not simply translate into an award of costs.

The Moving Party relies on the fact that the Responding Party chose to call a junior planner instead of the author of the MVA Staff Report, or the Manager that submitted the MVA Staff Report. In response, the Responding Party stated that, firstly, the author of the Staff Report was no longer employed by the City at the time of the Hearing. Secondly, a minor variance hearing is an opportunity for a newer planner to obtain hearing experience, especially when the day to day role of that planner is writing minor variance reports and processing minor variance applications. As submitted by the Responding Party, it is absurd to suggest that, had the City called a “more qualified” Manager, the Moving Party’s chance of success at the Hearing would have decreased, and there would then not have been a claim for costs. The Moving Party has not explained or quantified how the calling of the junior planner resulted in additional time or delay, rising to the standard of clearly unreasonable.

Costs against a public authority are rare.

The Responding Party relied on Calloway REIT v. Halton (Regional Municipality), 2017 CarswellOnt 1807, at paragraph 24, for the proposition that costs are rare, but costs against a public authority are even rarer. The public interest impact of a costs award is an imperative factor when considering a costs award against a public body. Moreover, as outlined in SmartCentres Inc. v. Toronto (City), 2011 CarswellOnt 4977, at paragraphs 54 and 58, costs award should not be punitive in nature but should balance both the private right and the public interest.

13Relying on the reasons outlined above, the Responding Party requested that this Motion be dismissed, with costs fixed and payable to the Responding Party.

14In support of seeking its costs for this Motion, the Responding Party submitted that it was required to fully defend and respond to a request for costs, even when the costs request is entirely deficient on its face. It was an extremely inefficient use of taxpayer money to respond to a request for costs when the Moving Party had not produced a request that met the threshold of the Rules. This type of conduct, by the Moving Party, is consistent with Rule 23.9(d): “Failing to prepare adequately for hearing events.” A failure to prepare costs materials that apply the legislative test or rely on the Rules requires extra time to respond to because the Responding Party had to anticipate the grounds on which the submissions were attached, despite the fact that the onus is on a Moving Party to properly plead the grounds on which it relies. As such, the Responding Party incurred a cost of $4,373.00 + HST to respond to the costs Motion, which costs would have otherwise not been incurred at all but for the unreasonable request for costs in a routine Hearing.

ANALYSIS AND FINDINGS

15Costs are rarely awarded in Tribunal proceedings. They do not automatically follow success at a hearing, nor do they automatically follow a finding that there is no merit in an appeal. The decision to award or deny costs ultimately turns on the particular facts of each case. In order to attract such an award, a party’s conduct must be found to have been unreasonable, frivolous, vexatious, or in bad faith, and Rule 23.9 makes it clear that, even in circumstances where the conduct of a party is found to be so and falls within the list of examples provided, the decision to award or deny costs remains discretionary. The accepted test for determining whether costs are warranted, as set out in Midland (Town) Zoning By-law 94-50, Re, 1995 CarswellOnt 5227 (a case provided by the Responding Party in its Factum), is whether a reasonable person, having looked at all the circumstances of the case, would conclude that the conduct of a party was not fair and they should be obligated to another in some way for such conduct.

16For the reasons that follow, the Tribunal finds an award of costs against the Responding Party is not warranted.

17The Tribunal agrees with the Responding Party that the Moving Party’s claim for costs describes grounds that deal with the substantive matter, and not conduct that would attract costs. For example, the Responding Party providing factual planning testimony instead of expert testimony was an argument that resulted in the success of the appeal. Likewise, the Responding Party taking the position that a minor variance is required notwithstanding an existing use is another argument that resulted in the success of the appeal. These are examples of re-iterations of the arguments made at the appeal that resulted in the Moving Party’s success. The Moving Party did not clarify how the conduct of the Responding Party met the high threshold outlined in Rule 23. Costs awards from the Tribunal against a public authority are extremely rare and are based on substantive evidentiary records. The Tribunal finds that the Moving Party has not identified adequate statutory grounds on which a costs award can rely, and it is not up to the Tribunal to infer the grounds on which the Moving Party seeks to rely.

18The Tribunal also agrees with the Responding Party that the Moving Party’s argument that the witness put forth by the Responding Party was not appropriate is not sufficient to attract or warrant a cost award. As long as a Party is responding to issues raised at a Hearing, it can do so in whatever manner that it deems best and most appropriate. The Moving Party may have chosen a different land use planning expert witness, or none at all in fact, as was the case here. Indeed, for public proceedings at the Tribunal to remain accessible, it is important to maintain the principle that Parties can present their case without the need to rely on an expert. However, the Responding Party did bring a qualified witness to address the particular issues raised in this Hearing, especially traffic concerns, which was the crux of the proceeding (and where both Parties relied on an expert).

19As such, contrary to the Moving Party’s claim, there is no evidence that the Responding Party failed to present evidence (Rule 23.9(e)). The failure of a party to call an expert witness is not demonstrative of misconduct warranting costs, as the Moving Party argues. “Failing to provide evidence” is indeed one of the examples set out in subparagraph “e” of Rule 23.9, but this failure must be determined to be improper, and unreasonable or in bad faith and the seriousness of this failure is specific to the facts of each case. In this instance, as the Responding Party pointed out, the crux of the dispute was a traffic engineering issue, evidenced by the fact that both Parties called an expert in traffic engineering. Neither Party called an expert in land use planning. Both Parties had lay witnesses speak to planning issues. There is no evidence before the Tribunal that would persuade it that the conduct of the Responding Party in advocating their position on all such transportation or engineering issues, without an expert land use planning witness, was frivolous or unreasonable.

20Additionally, the Moving Party made a number of similar arguments at the Hearing, for which it was afforded the successful result of having the Responding Party’s witness not qualified as an expert. This alone is the substantive result of the arguments made by the Moving Party. Costs at the Tribunal do not follow the cause and are not awarded simply for a successful result. Moreover, it is important to note that the Moving Party presented more witnesses than the Responding Party, and any additional time required for the Hearing was attributed to both Parties jointly.

21The Tribunal awards costs only in cases where it can be demonstrated that the actions of a party were clearly unreasonable, rising to the level that a reasonable person would exclaim “that’s not right, that’s not fair.” The Tribunal agrees that, in this instance, while the Responding Party was wholly unsuccessful at the Hearing, a failure to call a compelling case does not equate to an award of costs. Significantly, in the Motion Record, the Moving Party did not point to any conduct by the Responding Party that would constitute vexatious or unreasonable behaviour in the course of the Hearing. As the Responding Party pointed out, by relying on the case of Connelly v. Guelph (City), 2018 CarswellOnt 21869, at paragraph 17: “The onus is on the Moving Parties to demonstrate improper conduct and why costs should be awarded.” In this case, however, the Tribunal finds that the Moving Party’s materials do not link the alleged conduct to any of the grounds in Rule 23.9. There is no evidence of any discourtesy or lack of respect for the Tribunal’s processes or egregious failing or reprehensible conduct on the part of Counsel for the Responding Party, its witnesses, or the advocacy of the Responding Party within the Hearing.

22With respect to the conduct of the Responding Party prior to the Hearing, in accordance with Rule 23.8: “The Tribunal may make a costs award for conduct at any time during a proceeding.” In accordance with Rule 5.1, a proceeding is “initiated by filing an application, appeal or referral directly with the Tribunal…” The Moving Party submitted that the Responding Party should not have requested the removal of the Riverside Driveway in the first place, subsequent to the 2019 ZBA that was granted, recognizing the triplex use of the dwelling on the Subject Property. Moreover, the Moving Party submitted that the Responding Party’s actions in requesting the removal of the Riverside Driveway was without support from legislation or jurisdiction. However, as outlined in the Rules, none of these actions, which all preceded the proceedings, are under the purview of the Tribunal. As such, they cannot be taken into consideration in determining an award for costs.

23Regardless, even if they were to be taken into consideration, the Tribunal agrees with the Responding Party, and finds that: the Responding Party took steps as required in light of the changing plans before it (for example, the change in the site plan from when the 2019 ZBA was submitted to when the MVA was submitted); the Moving Party had the option to proceed on the basis of the ZBA alone and made the independent choice to submit a MVA (rather than doing so to be collaborative with the Responding Party); and Mr. Hajar, the director of the Moving Party, due to his employment, would reasonably be aware of all the options available to him, and could have proceeded otherwise if he had a less costly or efficient method available to him other than the MVA. The Moving Party would have had to attend the Tribunal for a Hearing regardless, as this appeal arose from a denial by the COA. The Responding Party made the ultimate decision to defend the denial by the COA. This was entirely within its rights to do. However, as to whether the Moving Party would have had to attend a Hearing, it was not determined by the actions of the Responding Party but rather by the COA’s denial. As such, there is no indication, even if the Tribunal could consider it, of behaviour prior to the proceedings that could meet the high threshold of Rule 23.

24With respect to quantum, as the Responding Party pointed out in its Factum, and the Tribunal agrees: “For a costs award of this quantum, there is an extreme lack of evidentiary basis supporting the Appellant’s Reasons for Request.” As further explained in the Southside Case, provided by the City, at paragraph 8: “An award of costs consists of both (a) determining that a ground for an award of costs has been substantiated, and (b) evidence and analysis provided to apportion costs specifically to the misconduct alleged to attract a costs award.” In the Motion Record, there is no evidence to apportion costs for extra preparation of Hearing time caused by the conduct alleged to have attracted costs. To order costs, the Tribunal requires an affidavit confirming that the costs were properly incurred, and the amount or estimate of extra preparation or Hearing time caused by the conduct alleged to have attracted costs. No such information or explanation of the link to the alleged pattern of conduct warranting costs has been provided, and as such, the materials are insufficient on which to make an award. The Moving Party did not provide an analysis to distinguish costs that can be attributed to the alleged misconduct from those regularly incurred in a contested hearing. Without evidence to establish how the Responding party unduly caused the Hearing to be extended, the Tribunal would be required to speculate an appropriate apportionment, which it cannot do so.

25Applying the objective test of the reasonable person to the evidence and submissions, the Tribunal cannot conclude that the totality of the Responding Party’s conduct in this proceeding was not “right” or not “fair” such that the Moving Party should be compensated in any manner. It is the Tribunal’s view that the Moving Party’s position on this Motion is that it should be compensated with costs because it was successful, and this focus upon the outcome has never been the approach of the Tribunal. While the frustration of the Moving Party in having to appeal the COA’s denial in this instance is understandable, Rule 23.9 and the Tribunal’s extensive jurisprudence on costs must require temperance of those frustrations when deciding whether a costs motion is prudent.

26In summary, the Tribunal finds that there was nothing unreasonable, frivolous, or in bad faith in regard to the conduct of the Responding Party in the whole of the Hearing in relation to the advocacy of its planning issues or engineering and transportation issues, nor any of the issues which governed the Hearing. The Moving Party’s participation in the Hearing was, in all respects, required to support the Tribunal’s approval of the minor variances. The fact that the Moving Party’s role in the proceeding necessitated a response to the Responding Party does not give rise to an obligation to reimburse the Moving Party for any portion of its expenses in the absence of any demonstrated clearly unreasonable, frivolous, vexatious, or bad faith misconduct.

27The Tribunal finds that an award of costs against the Responding Party is not warranted. The request for costs by the Moving Party as advanced in the Motion Record is accordingly denied.

Costs of the Motion

28Both sides sought their costs of bringing forth this Motion, with the Responding Party specifying that it sought $4,373.00 + HST. The Moving Party did not indicate an amount.

29For the reasons that follow, the Tribunal finds an award of costs of this Motion against the Moving Party is warranted, in the amount of $2,000 + HST.

30This Tribunal and its predecessors have consistently approached requests for costs delicately so as not to have a “chilling effect”, dissuading appellants from bringing matters before it. However, parties are expected to approach Tribunal proceedings with seriousness and, in so doing, are expected to familiarize themselves with applicable legislation and policies, the Tribunal’s Rules and their own procedural and substantive responsibilities, including introducing relevant evidence to advance their position at a hearing. While it is not mandatory to lead expert evidence at a hearing, the expectation is that some reliable and objective evidence to substantiate the appeal will be led in order to assist the Tribunal in deciding upon the matters before it.

31In this costs Motion, the Responding Party prepared quite fulsome materials, addressing a number of relevant factors, and providing numerous cases in support of its position, outlined in an accompanying Factum. The Moving Party not only did not provide a Factum but did not file Reply material to address the many points raised in the Response to the Motion Record. While a Factum or Reply are not required, the Tribunal is persuaded by the Responding Party’s submissions that the Moving Party’s Motion Record in support of this Motion were deficient. Though the Moving Party seemed to be aware of the high threshold for the awarding of costs, outlined in Rule 23, the Motion Record simply reiterated the substantive facts of the case and what occurred at the Hearing. Ultimately, the Motion Record seems to outline the position that the Moving Party should be awarded costs for the simple fact of having to proceed with this Hearing (though it would have had to regardless as the COA had denied the MVA) and then having won it. As outlined by the Responding Party: “This type of conduct is consistent with Rule 23.9(d): Failing to prepare adequately for hearing events” (the hearing event being the costs Motion). What makes this more egregious, warranting a costs award, is that this Motion was brought by the Moving Party itself.

32In awarding costs for the Motion, the Tribunal refers to the case of Kimvar Enterprises Inc. Re (2009), 2009 CarswellOnt 666, provided by the Responding Party, which outlines the test as: “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…” In this case, a reasonable person, reading the materials before the Tribunal in this Motion, would conclude that it was not fair, based on the conduct of the Responding Party, for the Motion to have been brought, and most importantly, for it to have been brought in such a manner where the Responding Party was put in a position of having to address an overarching amount of arguments in light of the deficiencies in the Motion Record. The fact that the Moving Party failed to attribute the Responding Party’s actions to the test outlined in the Rules or to file a Reply leads the Tribunal to assume that the Moving Party may have been aware, or ought to have been aware, that its Motion would be unsuccessful.

33Having considered all the circumstances of the case, the Tribunal is of the view that the Moving Party’s conduct was not fair and it should be obligated, to the Responding Party, for a portion of the legal costs unnecessarily incurred to defend the costs Motion.

34Although, in this case, the Tribunal has seen fit to exercise its discretion pursuant to Rule 23.10 to reduce the quantum of costs payable, it should be noted that in no way is this reduction based upon any arguments advanced by the Moving Party in response, as no Reply was filed. Rather, the decision to do so is based upon the fact that there is no evidence before the Tribunal that the Moving Party brought and sustained this Motion in bad faith, or that it did so solely for the purpose of increasing the costs to the Responding Party. The Tribunal is not in a position to consider awarding legal costs on a full-indemnity basis as requested by the Responding Party. However, the Tribunal will exercise its discretion for the reasons indicated above and will award costs in the amount of $2,000.00 + HST against the Moving Party.

ORDER

35THE TRIBUNAL ORDERS THAT the request for costs brought by the Moving Party, Hajar Properties Inc., against the Responding Party, the Corporation of the City of London, is denied and the Motion is dismissed.

36THE TRIBUNAL FURTHER ORDERS THAT the request for costs of the Motion brought by the Responding Party, the Corporation of the City of London, against the Moving Party, Hajar Properties Inc., is granted, as follows:

a. Hajar Properties Inc. shall pay to the Corporation of the City of London, the total sum of $2,000.00 + HST within ninety (90) days of the date of the issuance of this Order; and

b. In accordance with Rule 23.11 of the Tribunal’s Rules of Practice and Procedure, any unpaid amount not paid to the Corporation of the City of London within 90 days from the date of issuance of this Order shall bear interest at the rate of 6.0%, calculated from that date of issuance of this Order.

“Bita M. Rajaee”

BITA M. RAJAEE MEMBER

“S. Mann”

S. MANN MEMBER

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.