Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 25, 2023

CASE NO(S).: OLT-22-003984

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Emmett Flynn

Appellant: Martin Dixon

Subject: Consent – Conditions of provisional consent

Description: To permit creation of one new residential lot.

Reference Number: B27-22-SL

Property Address: 24 Highland Drive

Municipality/UT: Brant

OLT Case No: OLT-22-003984

OLT Lead Case No: OLT-22-003984

OLT Case Name: Flynn v. Brant (County)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Subject: Consent – Conditions of provisional consent

Description: To permit creation of one new residential lot.

Reference Number: B28-22-SL

Property Address: 24 Highland Drive

Municipality/UT: Brant

OLT Case No: OLT-22-003985

OLT Lead Case No: OLT-22-003984

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

Subject: Minor Variance

Description: To permit creation of one new residential lot.

Reference Number: A12-22-SL

Property Address: 24 Highland Drive

Municipality/UT: Brant

OLT Case No: OLT-22-003986

OLT Lead Case No: OLT-22-003984

IN THE MATTER OF subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, as amended, and Rule 10 of the Tribunal’s Rules of Practice and Procedure

Request by: Martin Dixon

Request for: Motion for Costs

Heard: May 3, 2023 by Written Hearing

APPEARANCES:

Parties

Counsel

Martin Dixon & Fish Hill Road Investments Inc.

Courtney Boyd

Emmett Flynn

Michael Jaeger

DECISION DELIVERED BY C. HARDY AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal arises out of a written motion for costs following Emmett Flynn’s (“Appellant”) withdrawal of his appeals on January 16, 2023. The appeals were scheduled for a two-day hearing commencing on January 26, 2023.

2Martin Dixon & Fish Hill Road Investments Inc. (“Applicant”) applied to the County of Brant (“County”) for a Consent and Minor Variances (“Applications”) related to its property municipally known as 24 & 26 Highland Drive, in the County of Brant (“Subject Property”). On May 19, 2022, the County Committee of Adjustment (“COA”) approved the Applications subject to conditions, which it required to be satisfied by May 19, 2024.

3The Appellant owns the property abutting the Subject Property municipally known as 28 Highland Drive. The Appellant appealed the decision of the COA on June 9, 2022.

4The Tribunal notes that the County did not file materials and did not participate in either the appeals or in the present motion.

5The following materials were before the Tribunal for consideration:

• Notice of Motion of the Applicant, including Affidavit of Martin Dixon, sworn March 22, 2023 (Exhibit 1);
• Responding Motion Record of the Respondent/Appellant Emmett Flynn, including Affidavit of Emmett Flynn, sworn April 6, 2023 (Exhibit 2);
• Reply Record on Behalf of the Applicants (Exhibit 3).

6The Applicant seeks the following relief from the Tribunal:

• An Order for costs of the Appeal against the Appellant, Emmett Flynn, in the amount of $18,183.89;
• In the alternative, costs to be fixed by the Tribunal, and
• Such further and other relief as counsel may advise and the Tribunal may permit.

STATUTORY FRAMEWORK

7The Tribunal’s statutory authority to award costs is set out in s. 20 of the Ontario Land Tribunal Act S.O. 2021, c. 4, Sched. 6 (“OLTA”) and is consistent with the Statutory Powers Procedure Act R.S.O. 1990, c. S. 22, as amended. Section 20 of the OLTA sets out the following:

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.

8Rule 23.09 of the Tribunal’s Rules of Practice and Procedure (“Rules”) limits the Tribunal’s discretion and provides the following guidance:

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.

9Rule 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.

GROUNDS FOR COSTS

10The Applicant argued that the Appellant did not file the appeals in good faith, rather the appeals were filed to cause delay and as such the Appellant’s conduct was frivolous and vexatious. The Applicant pointed the Tribunal to the following conduct in support of its claim for costs:

• Delay by the Appellant
• Failure to Cooperate by the Appellant
• Inconsistent Position of the Appellant
• Manner of Withdrawal

11The Applicant submitted that the hearing of the appeals was scheduled to begin on January 26, 2023 and the Parties were directed to submit hearing materials, including witness statements, by January 16, 2023. The Appellant notified the Tribunal of his withdrawal of the appeals at 4:43 p.m. on January 16, 2023 noting that the withdrawal was on a without costs basis.

12The thrust of the Applicant’s position is that the Appellant was uncooperative and unresponsive from the time of filing the appeals to the date of withdrawal. In its materials, the Applicant sets out a number of examples of conduct which it argues warrants an award of costs against the Appellant, including but not limited to:

• Limited availability of nine (9) days in a three (3) month period in response to the Tribunal’s inquiry regarding hearing dates, with no explanation provided in response to the Tribunal’s inquiry regarding limited availability;
• Purporting to bring expert evidence forward at the hearing and subsequently advising the Applicant one (1) month prior to the hearing that no expert would be proffered;
• One month prior to the hearing raising new concerns related to boundaries of the Subject Property; and
• Withdrawing the appeals seventeen (17) minutes prior to the deadline to submit hearing materials to the Tribunal and after the Applicant had served its hearing materials. The Applicant noted that on January 5, 2023 the Appellant responded to the Tribunal confirming the date for submission of hearing materials.

13In its materials, the Applicant argues that it was required to fully respond to the appeals for two reasons: firstly, as owner of the Subject Property, it would be directly impacted by the outcome of the appeals and secondly, the County did not participate in nor respond to the appeals. The Applicant incurred costs to retain experts in planning and engineering which it argues were required to properly respond to the issues raised in the Appellant’s Appeal Form.

14The Applicant relies upon the Ontario Municipal Board’s decision in Kimvar Enterprises Inc. v. Innisfil (Town) [2009] O.M.B.D. No. 33 (“Kimvar”) which distinguished between the administrative practice of awarding costs from that of civil courts. In the administrative regime, the award of costs is not routine, however, the Board went on to state that “…parties must be accountable for their conduct and if that conduct or course of conduct has been unreasonable, frivolous or vexatious, or if the party has acted in bad faith, then the Board may order costs.” In Kimvar, the Board acknowledged the often cited “reasonable person” test which questions “…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…”

15The Applicant argues that it has satisfied the test for an award of costs against the Appellant. The Applicant submits that the Appellant’s conduct was unreasonable as he had very limited availability, failed to cooperate, was inconsistent in his position and his intention to call experts and failed to withdraw his appeals in a timely manner. The Applicant further argues that the Appellant’s conduct was unfair and intended to delay the Applicant’s development and as such, the appeals were frivolous and were not brought in good faith.

APPELLANT RESPONSE

16The Appellant denies that his conduct was unreasonable, unfair or that the appeals were launched in bad faith. The Appellant further argues that he appealed the Applications as a concerned homeowner and raised appeal grounds that were genuine issues within the Tribunal’s jurisdiction to adjudicate. He maintains that despite withdrawing his appeals, he continues to have genuine concerns about the Applicant’s development.

17In his materials, the Appellant explains that his limited availability was due to his planned vacation and his Counsel’s busy schedule, both of which were explained to the Tribunal and the Applicant via email correspondence in September 2023.

18The Appellant denies that he was uncooperative and submitted that he was unable to retain a planning expert on short notice. He argued that expert evidence is not mandatory, and his intent was to proceed to the hearing without an expert and rely upon his Counsel’s cross examination of the Applicant’s experts.

19The Appellant submitted that after conferring with other homeowners in the neighbourhood of the Subject Property, he concluded that his appeals would be futile as some of these homeowners expressed interest in pursuing similar applications as those that were the subject of this appeal. The Appellant explained that subsequent to speaking with neighbours, he withdrew the appeals with the intent of saving the Parties the costs associated with attending a two (2) day hearing event.

20In his materials, the Appellant provided detailed submissions regarding the quantum of the costs sought by the Applicant. The Appellant argued that the fees sought relating to the Applicant’s planner include services that pre-date the appeals, which are not properly claimed. Further, the invoice of the Applicant’s planner lacks the detail required to determine whether the time and expense claimed related to new tasks undertaken for appeal preparation or were related to work which would have been done in any event to prepare for the Committee of Adjustment meeting. For example, the Appellant argues that the affidavit of the planner contained in the Notice of Motion of the Applicant mirrors, with some minor edits, the Planning Justification Report dated February 22, 2022, which was prepared for the Committee of Adjustment meeting. The Appellant concedes that some time would have been spent by the planner to prepare and edit the affidavit for the appeals. However, the affidavit was essentially an edited copy of the Planning Justification Report. The Appellant argues that in total the planner may have devoted 7-10 hours on hearing preparation and not the 51 hours which were claimed on one of the submitted invoices.

21The Appellant raises similar arguments with respect to the invoice of the engineer retained by the Applicant. The Appellant argues that there is a lack of detail provided to support the costs claimed. For example, one line in the invoice refers to “Design and Drafting” and the Appellant argues that they are unaware of any reports or drawings being prepared by the engineer in preparation for the appeals.

22The Appellant relies upon the Tribunal decision in Manning Developments Inc. v. Lakeshore (Town) 2022 CanLII 15901 (“Manning”) which repeated the reasonable person test and noted that the meaning to attribute to “frivolous”, “vexatious” and “unreasonable” refers to specific types of inappropriate conduct or courses of conduct. It submits that the Applicant has not provided evidence to the Tribunal demonstrating conduct exhibited by the Appellant that rises to this level. The Appellant further relies upon the Tribunal’s distinction between partial and substantial indemnity costs in Manning. In that case, the Tribunal confirmed that ordinary “unreasonable” conduct may justify an award of partial indemnity costs while reprehensible or scandalous conduct may warrant substantial indemnity costs. The Appellant argues that neither unreasonable nor reprehensible conduct was exhibited by the Appellant and no award of costs should be granted.

APPLICANT REPLY

23The Reply of the Applicant was brief and succinct. The Applicant disagrees with the Appellant’s arguments and maintains that the Appellant exhibited a course of conduct that was indicative of the frivolous and vexatious nature of the appeals.

24The Applicant argued that the Appellant’s withdrawal 10 days prior to the hearing date saved the Parties only the cost of attendance at the hearing itself. All of the preparation required for a hearing, including witness statements and disclosure, had been completed and the related expenses incurred.

25The Applicant responded to the Appellant’s detailed cost critique arguing that no competing evidence or cost estimates were provided by the Appellant to demonstrate that the time spent by the Applicant’s experts was unreasonable.

ANALYSIS AND FINDINGS

26As a starting point, costs are rarely awarded in Tribunal proceedings and are dependent upon the facts in each particular case. In order to attract an award of costs, the Tribunal must find that the conduct of a party has been unreasonable, frivolous, vexatious or in bad faith (emphasis added). The type of conduct is disjunctive, and Rule 23.9 makes it clear that the decision to award costs is discretionary.

27The Parties agree that the accepted test to be applied is the reasonable person test set out in paragraph 14 above. In applying this test, the question before the Tribunal in this Motion is would a reasonable person view the actions of the Appellant not fair or not right and should the Appellant be obligated to the Applicant in some way for their conduct?

28For the reasons that follow, the Tribunal finds that an award of costs against the Appellant is warranted. However, in considering the appropriate quantum, the Tribunal will exercise its discretion pursuant to Rule 23.10 and fix the amount at $5,000.00.

29Regarding the Appellant’s availability, the Tribunal does attempt to accommodate the schedules of Parties and their Counsel where possible. However, Parties are expected to be prepared to attend a hearing at any time following the filing of an appeal and the provision of notice. The Tribunal’s schedule dictates the setting of hearing dates, not the vacation and work schedules of Parties and Counsel. However, the Tribunal finds that the limited availability of the Appellant does not amount to unreasonable or vexatious conduct and did not unduly delay the scheduling of the hearing of the appeals.

30The Tribunal notes that its process is more formal than a public meeting and there is an expectation on parties to approach Tribunal proceedings in a meaningful way. Parties are expected to operate in a cooperative and efficient manner in all respects relating to the proceedings.

31The Tribunal acknowledges that the withdrawal by the Appellant did provide enough notice to ensure that all individuals involved in the appeal had knowledge that the hearing was not taking place. This reflects some effort made by the Appellant to not unnecessarily waste further time and resources which would be expended on the hearing days.

32Despite this effort, the Tribunal finds that the Appellant’s conduct was unfair and frivolous. On January 5, 2023, the Appellant responded to an inquiry of the Tribunal confirming January 16, 2023, as the deadline for submission of materials. At no time prior to January 16, 2023, did the Appellant make it known that he intended to withdraw the appeals. In meeting the submission deadline of January 16, 2023, Counsel and experts retained by the Applicant had expended time and money on preparation, consultation and compilation of the documents required for the hearing. The Applicant’s materials had already been filed in accordance with the deadline when the Appellant notified the Tribunal that he wished to withdraw his appeals. The Appellant submitted and the Tribunal accepts that on January 5, 2023, the Appellant fully intended to proceed with the appeals. However, the withdrawal of the appeals 17 minutes prior to the deadline to submit materials was unfair and frivolous and amounts to conduct that the Appellant must be accountable for.

33The Tribunal further finds that raising new concerns one month prior to the hearing was unfair to the Applicant. Whether the concerns would have been heard by the presiding Member is not relevant. What is relevant is that the Applicant was required to respond to the new concerns in order to properly prepare in the event that the new concerns were raised and heard at the hearing.

34With respect to the quantum of costs claimed, the Applicant seeks the amount of $18,183.89 which it claims represents the legal and expert fees incurred by the Applicant in preparation for the appeals. The Appellant submits that the costs are not itemized with enough detail to determine which costs can properly be attributed to appeal preparation and which would have been incurred in any event in preparation for the Committee of Adjustment meeting.

35The Tribunal agrees with the Appellant that the costs provided by the Applicant lack detailed dockets and background information. For example, it is unclear from the materials why the Applicant’s planner devoted a total of 59.5 hours of time for hearing preparation given that the same planner had already prepared a detailed Planning Report in preparation for the Committee of Adjustment meeting. The Tribunal recognizes that the planner would have devoted some additional time to assist Counsel and prepare an affidavit for the Tribunal hearing, but it is unclear from the materials exactly how much time this amounted to. In critiquing the costs claimed, the Appellant did not provide the Tribunal with evidence demonstrating what would amount to reasonable costs incurred.

36In terms of scale, the Tribunal finds that costs on a full or substantial indemnity basis is not appropriate. While finding that the conduct of the Appellant was unreasonable, the conduct was not egregious and as such, the Tribunal will award costs on a partial indemnity scale.

37In terms of quantum, the Tribunal will exercise its discretion pursuant to Rule 23.10 and fix the costs at $5,000.00. The Tribunal finds that the amount claimed by the Applicant was based on costs that went beyond those related to appeal preparation. The result is the Tribunal’s best efforts to estimate the total fixed costs related to appeal preparation.

38The Tribunal agrees with the Appellant that costs awards must be approached with care to avoid a “chilling effect”, and notes that the Tribunal and its predecessors have consistently been mindful of this. The Tribunal has a duty to avoid discouraging appeals by legitimately concerned citizens. The Tribunal finds that the amount awarded in this case serves a compensatory purpose while not discouraging potential parties who act reasonably by contributing to proceedings in a meaningful way and avoid causing other parties to incur unnecessary costs.

ORDER

39THE TRIBUNAL ORDERS that the application for costs is granted in part and directs Emmett Flynn to pay Martin Dixon & Fish Hill Road Investments Inc. a costs award in the amount of $5,000.00. The costs award is to be paid within 90 days of the issuance of this Order and is subject to interest calculated in accordance with s. 129 of the Courts of Justice Act R.S.O. 1990, c. C.43, as amended.

40No costs are payable in respect of this motion.

“C. Hardy”

c. hardy

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.