Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 05, 2023 CASE NO(S).: OLT-21-001472

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

Applicant and Appellant: Michael Mels Subject: Minor Variance Property Address/Description: 35246 Fourth Line Variance from By-law: 2011-14 Municipality: Township of Southwold Municipal File No.: MV 2021-06 OLT Lead Case No.: OLT-21-001472 OLT Case No.: OLT-21-001472 OLT Case Name: Mels v. Southwold (Township)

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

Motion By: Brad and John Fife and Fife Farms Ltd. Purpose of Motion: Request for an Order for cost Heard: Heard in writing due December 14, 2022

APPEARANCES:

Parties Michael Mels Brad and John Fife and Fife Farms Township of Southwold

Counsel/Representative* Self-represented Paula Lombardi* Paula Lombardi*

DECISION DELIVERED BY JATINDER BHULLAR AND P. TOMILIN AND ORDER OF THE TRIBUNAL

MOTION

1Brad and John Fife and Fife Farms (“Fifes”) bring a motion for an award of costs in favour of the Fifes on a partial indemnity basis pursuant to Rule 23 of the OLT Rules of Practice and Procedure (the “Rules”) in the amount of $7,457.96, inclusive of the HST, payable by Michael Mels ("Mels"), pursuant to s. 20 of the Ontario Land Tribunal Act.

2Mels planned to construct a residential dwelling on their property. This request was refused by the Township. The Fifes interest lies in the fact that they have a liquid manure processing operation at their neighbouring property adjoining the Mels. The Fifes had concerns regarding their ability to continue to operate, expand or modify their operations if Mels were to be allowed a sensitive land use, a residential dwelling, violating the Minimum Distance Separation requirements. The Tribunal denied the Appeal by Mels based on the evidence provided by the Fifes and the Township.

3The request for costs arises from the Tribunal’s decision in this matter dated July 13, 2022, dismissing the appeal by Mr. Mels. The Tribunal directed that this Motion be considered and disposed of in writing in accordance with the Tribunal’s direction communicated on November 25, 2022, and the Tribunal’s Rule 23.

4The materials before the Tribunal on this Motion are the following:

a. OLT-21-001472-Motion Record-Request for Costs-Fife-10-NOV-2022, Notice of Motion and associated affidavit(s) of service

b. OLT-21-001472 - Responding Motion Record of the Applicant/Appellant and associated affidavit of service

c. Reply Motion Record-Fife Farms et al-14-DEC-2022 and associated affidavit of service

5The Tribunal’s Rule 23.9 states that the Tribunal may only order costs against a party if the conduct or course of conduct of a party has been unreasonable, frivolous, vexatious or if the party has acted in bad faith. Rule 23.9 also sets out some circumstances where a costs order may be made.

FIFES GROUNDS FOR THE MOTION

6The Fifes submit that the following grounds for such conduct under Rule 23.9 are met in this matter:

Michael Mels nor Jody Campbell took any steps to complete and fulfil their appeal roles and obligations as an Appellant, and ignored the Tribunal’s instructions on the appeal processes provided in Schedules B and C of the Notice (Exhibit “F”), which resulted in their failure to:

a. Obtain and file witness statements in support of the appeal proceeding;

b. Obtain and file any expert witness statements in support of the appeal proceeding;

c. Obtain and file any evidence in support of the appeal proceeding;

d. Summons and or provide any witnesses at the hearing of the appeal.

7Specifically, the Fifes allege that:

a. As a direct result of the Mels Appeal the Fifes were forced to retain legal counsel and several consultants including a Registered Professional Planner and Nutrient Management expert to put forward expert evidence confirming that the proposed minor variance did not meet the four (4) tests set out in the Planning Act, and that the Committee of Adjustment’s Decision should be upheld. The Fifes also sought and were granted a summons for a representative from the Ontario Ministry of Agricultural Food and Rural Affairs to attend at the hearing and describe the importance and purpose of the [Minimum Distance Separation] MDS;

b. Lack of consent to adjournment which was later granted on February 25, 2022 and the Fifes were also granted party status;

c. On behalf of the Fifes, William Pol, MCIP, RPP of Pol Associates, submitted a witness statement providing land use planning evidence supporting the Township’s decision to deny Michael Mels’ Application.

“Refusal of the requested variance is sound land use planning to protect existing agricultural lands prevent the siting of incompatible uses in proximity to one another, and prevent complaints relating to normal farm practices by Fife Farms from a proposed single detached dwelling abutting the Fife Property. Refusal of the minor variance supports and enhances agricultural uses in the Township of Southwold and is in the public interest.”

d. Michael Mels’ filed no documentary witness statements, nor called any witnesses to support the Application.

e. Michael Mels’ did not present any evidence the Application proposing to reduce the MDS was appropriate and supported by the regulatory bodies, including but not limited to the Ontario Ministry of Agriculture Foods and Rural Affairs.

f. Michael Mels at the hearing made opening and closing submissions and cross-examined the Township’s and the Fifes’ witnesses.

g. At no time did Michael Mels between the Committee of Adjustment’s decision, nor subsequent filing of the appeal, nor upon attendance at the Fife Motion, and receipt of the February 25, 2022, Decision and the hearing of his Application on March 23, 2022, seek consultation with any professional planner or legal counsel, and or retain any of these services to support his Application.

h. At no time did Michael Mels request clarification from the Tribunal nor counsel for the Fifes and the Township on the steps required for the appeal. No communications from Michael Mels were received by the Tribunal nor counsel for the Fifes and the Township advising that due to financial hardship he was not able to retain an expert to support his Application.

i. At no time did Jody Campbell, spouse of Michael Mels and co-applicant provide any communications and or evidence throughout the Tribunal proceedings, nor did she appear as a witness to support the Application.

8The Fifes add that they rely on the following:

a. Rules 10 and 23 of the Ontario Land Tribunal Rules of Practice and Procedure; and,

b. Sections 1, 9, 13, 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6.

MICHAEL MELS RESPONSE TO FIFES MOTION

9Mr. Mels uses the following grounds in his response to the Fifes motion:

a. On or about February 25, 2021, the Applicant/Appellant, Michael Mels ("Mels"), purchased the property located at 35246 Fourth Line, Township of Southwold (the "Property).

b. The Property was a vacant lot in which Mels wished to construct a residential single detached dwelling.

c. Prior to purchasing the Property and after, Mels consulted with representatives of the Township regarding the steps required to construct the dwelling.

d. Mels incurred expenses by retaining Land Surveyors to assist with the permit application process.

e. Mels ultimately discovered that he could not construct the dwelling due to the Minimum Distance Separation ("MDS") requirements from the Fifes' abutting farm, which operates a nutrient management pond.

f. The Township advised Mels that he could apply for a Minor Variance with the Township in order to permit the proposed reduced MDS.

g. Prior to filing the Application for a Minor Variance, Mels spoke with and consulted with the Fifes regarding his proposed construction of a residential dwelling and was assured that they did not oppose the construction of same.

h. On July 22, 2021, Mels independently completed and filed an Application for Minor Variance, seeking a setback of 309.7m from the required 528.1m.

i. The Application was originally before the Committee of Adjustment on August 9, 2021.

j. Township Planner, Byran Pearce ("Pearce"), prepared a Planning Report in preparation for the Hearing, recommending that the Committee of Adjustment grant the Minor Variance sought.

k. Comments were received from the Fifes, and the Hearing was deferred in order for Township planning staff to address the comments received from the Fifes.

l. An updated Planning Report was prepared by Pearce, addressing the concerns of the Fifes and, again, recommending that the Committee of Adjustment approve the Minor Variance Application.

m. The Application was before the Committee of Adjustment on September 13, 2021. Mels represented himself and made submissions in support of his Application.

n. Despite the recommendation of Township Staff, the Application was refused by the Committee of Adjustment.

10Mr. Mels further submits the following in terms of his filing and processing of the appeal before the Tribunal:

a. Based upon the Planning Reports and recommendations of Township staff in support of the Minor Variance Application, Mels appealed the Decision of the Committee of Adjustment to the Ontario Land Tribunal ("OLT").

b. Mels independently completed and filed the OLT Appeal form on October 4, 2021.

c. A Hearing was scheduled by the OLT on March 8, 2022.

d. In February 2022, Mels was contacted by counsel for Fife, advising that they would be seeking party status and requesting an adjournment of the Hearing.

e. Mels consulted with the OLT Case Coordinator and was advised that the Hearing would not be rescheduled for many months.

f. Based upon the existing delay in having the matter heard and the potential future delay, Mels did not consent to the adjournment of the Hearing.

g. At the Motion on February 25, 2022, the Fifes were granted party status, and the Hearing was adjourned to March 23, 2022.

h. At the Hearing on March 23, 2022, Mels represented himself due to financial strains and restrictions.

i. Mels prepared for and actively participated in the Hearing to the best of his abilities, as a self-represented party, by making opening and closing submissions and by cross-examining both the Township's and Fifes' witnesses.

j. On July 13, 2022, the OLT issued its Decision, dismissing the Appeal.

k. On August 12, 2022, counsel for the Fifes' submitted a written request for costs and brought the motion herein on November 10, 2022, seeking costs against Mels.

11Mr. Mels relies on the following in his response to the Fifes motion:

a. Section 20 of Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6;

b. Section 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22;

c. Rules 1, 10 and 23 of the Ontario Land Tribunal Rules of Practice and Procedure.

FINDINGS

12The Tribunal has carefully considered the evidence before it as well as the submissions of counsel as well as Mr. Mels who has appeared as self-represented and finds that it would not award against Mr. Mels as sought in the motion for costs by the Fifes.

13The Tribunal is guided in its consideration in large part by Rule 23.9, as follows:

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.

[emphasis added by panel]

14The Tribunal finds that any submissions made by the Fifes for Mr. Mels not consenting to an adjournment prior to the scheduling of a hearing are of no weight in finding against Mr. Mels as he duly acted responsibly and the Tribunal is satisfied that his behaviour does not even minimally rise to a finding in any aspect of clearly unreasonable, frivolous, vexatious or bad faith conduct. Mr. Mels duly acted to protect his interests as a self-represented Applicant/Appellant to see his matter addressed expeditiously.

15Much of the submission and evidence to support their motion, the Fifes depend upon the effort that they made to adequately be represented at the hearing as well to call the appropriate evidence against the possible evidence called by Mr. Mels. The Fifes strongly emphasize Rule 23.9 (e) which relates in part to the presentation of evidence.

16The Tribunal finds that Mr. Mels did not conduct himself in a frivolous, vexatious or bad faith conduct manner. He acted seriously, cooperatively, followed Tribunal direction and appeared to participate to the best of his abilities as a self-represented party. The Tribunal finds that in the context of part of Rule 23.9 (e) Mr. Mels did not act or take steps that the Tribunal found improper during the conduct of the hearing or as determined in the processing of this motion: “…continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper.”

17The bulk of the other submissions and evidence presented by the Fifes in this motion for costs relates to Mr. Mels’ lack of evidence presented as part of the hearing process and/or the testimony received by the Tribunal at the hearing.

18The Tribunal notes that Mr. Mels appeared as self-represented party. The Fifes appeared as an added party with direct interest in the matter. As a self-represented party Mr. Mels determined the best course of action for processing the hearing. He did not call opinion evidence with possible peril that his appeal may not succeed in the face of stronger evidence. The Fifes independently determined their approach to retain counsel and call in opinion evidence which resulted in their incurring expenses. Mr. Mels has simply depended upon the staff reports on the record which supported his position, which formed a possible basis for him to succeed in his appeal. Mr. Mels duly and respectfully participated in all parts of the hearing and spoke as a lay person. The Tribunal does not find that he had unreasonable or zero chances or that there was no argument, evidence, or expectation of success at the hearing of what the Tribunal had to have regard for in making its determination.

19The Fifes in protecting their interest made a case and succeeded and the appeal of Mr. Mels was dismissed. They achieved their objective.

20The Tribunal does not advise parties on what case they need to make, what witnesses they need to call or whether they need to retain counsel. These are discretionary decisions made by the parties under their own and complete control in quantity and quality. Simply postulating that Mr. Mels must employ the same resources as the Fifes is neither a requirement in the Tribunal’s Rules or in any specific direction from the Tribunal in this matter.

21The Tribunal thus finds that Mr. Mels did not conduct himself in a frivolous, vexatious or bad faith manner. Mr. Mels acted as well as any self-represented lay person could and it does not rise to the level of offending Rule 23.9 (e).

22In conclusion, having considered all the motion materials submitted by the parties, the Tribunal finds that Mr. Mels did not violate the requirements of the Tribunal’s Rules or the underlying statute(s) and specifically Rule 23.9 in that Mr. Mels did not conduct himself in a frivolous, vexatious or bad faith manner. The award of any costs as sought by the Fifes against Mr. Mels is not justified.

ORDER

23The Tribunal Orders that the Motion for Costs made by Brad and John Fife and Fife Farms against Michael Mels is denied.

“Jatinder Bhullar”

JATINDER BHULLAR MEMBER

“P. Tomilin”

P. TOMILIN MEMBER

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

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