Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 05, 2023

CASE NO(S).: OLT-22-002355

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

Appellant: Brian Ross Applicant: Harry Patrinos Owner: St. Demetrios Greek Orthodox Church Subject: Zoning By-law Description: To permit the development of a 46-unit, six-storey apartment building Reference Number: BL 12-2022 Property Address: 1299-1331 Murphy Road (1299-1331 Murphy Road) Municipality/UT: Sarnia/Lambton OLT Case No.: OLT-22-002355 OLT Lead Case No.: OLT-22-002355 OLT Case Name: Ross v. Sarnia (City)

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c.P. 13, as amended.

Subject: Proposed Official Plan Amendment Reference Number: OPA 35 Property Address: 1299-1331 Murphy Road Municipality/UT: Sarnia/Lambton OLT Case No.: OLT-22-003851 OLT Lead Case No.: OLT-22-002355

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

Request by: Harry Patrinos (on behalf of St. Demetrios Greek Orthodox Church) Request for: Request for an Order Awarding Costs Costs sought against: Brian Ross

Heard: In writing

APPEARANCES:

Parties	Counsel*/Representative
Harry Patrinos	Paula Lombardi*
Brian Ross	Ray M. Daniels

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

INTRODUCTION

1The following Decision and Order arises out of 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 September 13, 2022 decision to dismiss an appeal by Brian Ross (“Appellant”) against the County of Lambton (“County”) and City of Sarnia’s (“City”) approval of an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) to permit the development of a six-storey, 46-unit residential apartment building to provide affordable housing units on the property located at 1299-1331 Murphy Road, in the City.

2The following materials were before the Tribunal for consideration:

a) Notice of Motion, including Affidavit of Andrea Edward, sworn November 16, 2022;

b) Response to Motion, including Affidavit of Brian Ross, sworn December 17, 2022, and Affidavit of Tracy Drysdale, sworn December 17, 2022; and,

c) Reply Motion Record, including Reply Affidavit of Andrea Edward, sworn December 22, 2022.

3Harry Patrinos (the “Moving Party”), on behalf of St. Demetrios Greek Orthodox Church (“St. Demetrios”), seeks the following relief:

a) an Order that Brian Ross (the “Appellant”) pay costs in the amount of $19,232.60 inclusive of the Harmonized Sales Tax (“HST”) to St. Demetrios representing its legal costs paid to Siskinds LLP, on a full indemnity basis at 100 percent (100%), which does not include costs relating to the additional consulting and land use planning fees incurred as a direct result of having to proceed with a hearing of the Appellant’s Appeal;

b) costs of the motion; and,

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

4In its materials, the Moving Party sets out a lengthy list of examples of conduct which, in its view, warrants an Order for costs against the Appellant, including but not limited to:

a) failure to prepare adequately for the two-day hearing by familiarizing himself with the Rules and applicable land use planning legislation/policies; and,

b) failure to present any competing studies/objective evidence and/or expert testimony in support of the appeal and offering nothing more than his own personal opinions and unfounded apprehensions in relation to the proposed development.

5The thrust of the Moving Party’s position is that the Appellant’s conduct was unreasonable, frivolous or vexatious, insofar as he initiated and sustained an appeal without merit and failed to properly prepare for the two-day hearing which, inter alia, resulted in delays to the proposed affordable housing development putting public funding for the project at risk, and required St. Demetrios to incur considerable and unnecessary legal costs to substantiate to the Tribunal that the approval of the proposed development should be upheld.

6In response to the motion, it is conceded that the Appellant “was unfamiliar with the Rules and made mistakes”. However, it is submitted that he was not afforded an opportunity to obtain legal representation, despite his request for an adjournment to seek same, at the outset of the hearing. It is further submitted that the presiding Panel failed to alert him of the possibility of an award of costs against him and, had they done so, it is possible he would have chosen to withdraw his appeal rather than proceed. With respect to the foregoing, the Appellant relies upon the December 17, 2021, decision of Vice-Chair Makuch arising from a Case Management Conference in Velmar Centre Property Limited v. Vaughan (City), 2021 CanLII 135926 (ON LT) (“Velmar”), at which party status was granted to two individuals on the consent of the applicant/appellant, which consent was conditional upon, inter alia, an acknowledgement by those individuals that costs can be awarded by the Tribunal against a party.

7The Panel was asked to consider the foregoing factors “when deciding if this Self-Rep should pay any cost or alternatively if cost is to be paid that it be at $7,000.00 or less inclusive of HST; and, that this cost Motion be assessed pursuant to Rule 58.01 of the Rules of Civil Procedures” (sic).

8The Tribunal notes that the City and the County did not file materials and did not participate in the present motion.

STATUTORY FRAMEWORK

9The Tribunal’s statutory authority to award costs can be found in s. 20 of the Ontario Land Tribunal Act¹ (“OLTA”) and s. 23 of the Rules, which are consistent with the Statutory Powers Procedure Act² (“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.

10Rule 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.

11Rule 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.

ANALYSIS AND FINDINGS

12Costs 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, 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.

13For the reasons that follow, the Tribunal finds an award of costs against the Appellant is warranted. However, in considering the appropriate amount of the award, the Tribunal exercises its discretion, pursuant to Rule 23.10, and fixes the amount of the award at $9,000.00.

14This 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. Although the statutory scheme set out in the Planning Act³ encourages public participation in the decision-making process surrounding land use planning matters in the Province and a Tribunal hearing is indeed a public process, it is not the same as a statutory public meeting or a general information meeting. Appellants and 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.

15In making its September 13, 2022 decision, the presiding Panel found that much of the Appellant’s case, as presented, consisted of unfounded apprehensions and personal views on the proposed development which, while perhaps legitimately held, were not substantiated in any meaningful way with supporting evidence and which were not considered helpful in determining the land use planning issues before it. The Appellant admitted he was not a land use planner or engineer, nor did he consult with any such qualified individuals prior to the hearing and further admitted he was not familiar with the definition of ‘affordable housing’ as set out in the Provincial Policy Statement. He offered no objective studies or other evidence to legitimately challenge the analyses and conclusions within the studies submitted in support of the OPA and ZBA and nothing of significance arose out of his cross-examination of the witnesses called in support of the position taken by the Applicant and the County on any planning matters.

16In contrast, in order to properly defend against the appeal, the Moving Party and the County were required to retain land use planning experts and incur legal costs associated with preparing for the hearing. The Moving Party makes clear that the quantum of costs sought in the present Motion is only representative of legal costs on a full-indemnity basis and does not include any additional costs incurred with respect to land use planning and consulting required to defend the appeal. While it is asserted that the appeal put needed public funding for the proposed development at risk, there is no evidence of this and the Tribunal would note that costs are not intended to compensate for lost opportunities and/or delays caused by the appeal itself.

17With respect to the Appellant’s submissions that the Panel denied his request for an adjournment to seek legal representation and failed to alert him to the possibility of an award of costs against him, the Tribunal would note the following:

18All Parties who appear before the Tribunal, whether or not they are represented by counsel, are required to be adequately prepared for all hearing events and to familiarize themselves with relevant Rules and legislation. The Appellant filed the Appeal on February 11, 2022 and was provided with a Notice of Hearing on June 3, 2022. The hearing took place August 11 and 12, 2022. In the view of the Tribunal, the Appellant had ample time to seek legal representation (which he was able to do swiftly in order to respond to this costs motion) and/or to appropriately familiarize himself with applicable legislation, planning policies and the Tribunal’s Rules, including Rule 17 respecting adjournments, which makes it clear that hearing dates are fixed and last minute adjournments are to be granted only for unavoidable emergencies, such as illness. A request for a last minute adjournment to obtain legal representation is not an emergency and accordingly, the Panel denied the request in accordance with the Rules.

19It is not incumbent upon the Tribunal to warn an appellant or party, prior to proceeding with a hearing that in so doing, they may expose themselves to a costs award. In fact, it would be inappropriate for the Tribunal to adopt such a practise, lest it be perceived as attempting to dissuade a party from advancing an appeal. Again, it is noted that all Parties are expected to be familiar with the Tribunal’s Rules, including Rule 23 with respect to costs. The Tribunal would also note that the Appellant mischaracterizes Velmar (supra), which does not stand for the proposition that the Tribunal should confirm with a party that it is aware of the possibility of costs being awarded against it. In Velmar, it was not the Tribunal, but rather the applicant/appellant who sought an acknowledgement from two prospective added parties to the appeal that, inter alia, they were aware costs could be awarded against them as a condition of the applicant/appellant’s consent to the Tribunal granting the requests for party status.

20The Tribunal acknowledges the Appellant’s lack of experience with hearings on land use planning matters and is cognizant that representing oneself at a hearing can be a daunting task. However, beyond the act of filing the appeal, the Appellant did little else to advance his position and failed to: familiarize himself with applicable legislation, planning policy and the Rules; and to present reliable and objective evidence at the hearing. The Tribunal agrees with the Moving Party that the Appellant’s conduct was unreasonable and frivolous, insofar as he initiated and sustained an appeal without merit and did not approach the proceedings with seriousness. Having considered all the circumstances of the case, the Tribunal is of the view that the Appellant’s conduct was not fair and he should be obligated to the Moving Party for at least a portion of the legal costs unnecessarily incurred to defend the appeal.

21While the Appellant correctly points out that a detailed bill of costs was not submitted by the Moving Party and requests that costs be assessed pursuant to Rule 58.01 of the Rules of Civil Procedure, the Tribunal had before it the sworn Affidavit of Andrea Edward, law clerk, whose evidence is that the amount requested represents the legal costs incurred as a result of the appeal. Rule 23.10 empowers the Tribunal to fix the costs of and incidental to a proceeding and, as such, an assessment pursuant to the Rules of Civil procedure is not necessary.

22Although, in this case, the Tribunal has seen fit to exercise its discretion pursuant Rule 23.10 to reduce the quantum of costs payable, it should be noted that in no way is this reduction based upon the arguments advanced by the Appellant in response to the Motion. Rather, the decision to do so is based upon the fact that there is no evidence before the Tribunal that Mr. Ross brought and sustained his appeal in bad faith or that he did so solely for the purpose of delay or to increase the costs to the Applicant and or the County. In the absence of anything assistive, akin to a proper bill of costs with detailed dockets and background information, the Tribunal is not in a position to consider awarding legal costs on a full-indemnity basis as requested by the Moving Party. It will, however, exercise its discretion for the reasons indicated and will award costs in the fixed amount of $9,000.00.

ORDER

23THE TRIBUNAL ORDERS that:

a) The Appellant shall pay to St. Demetrios Greek Orthodox Church, the total sum of $9,000.00 within ninety (90) days of the date of the issuance of this order.

b) In accordance with Rule 23.11 of the Tribunal’s Rules of Practice and Procedure, any unpaid amount not paid to St. Demetrios Greek Orthodox Church within 90 days from the date of issuance of this order shall bear interest at the rate of 6.0% calculated from that date.

c) No costs are payable in respect of this motion.

“S. Braun”

S. Braun member

“Bita M. Rajaee”

BITA m. Rajaee 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.

Footnotes

1. 1S.O. 2021, c. 4, Sched. 6.
2. 2R.S.O. 1990, c. S. 22, as amended.
3. 3R.S.O. 1990, c. P. 13, as amended.