Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 20, 2023

CASE NO(S).: OLT-22-002230 (Formerly PL210294)

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

Applicant: Fred Clifford

Appellant: Keith Beecroft

Subject: Zoning By-law Amendment

Description: To permit reduced road frontage for severed parcel

Property Address: Concession 1, Part Lot 11, County Road 38, Dummer Ward

Municipality/UT: Douro-Dummer/Peterborough

Municipal File No.: R-02-21

OLT Case No.: OLT-22-002230

OLT Lead Case No.: OLT-22-002230

Legacy Case No.: PL210294

OLT Case Name: Beecroft v. Douro-Dummer (Township)

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

Request by: Fred Earl Clifford

Request for: Request for an Order Awarding Costs

Costs sought against: Keith Beecroft

Heard: March 3, 2022, in writing

APPEARANCES:

Parties

Counsel

Fred Earl Clifford (“Applicant”)

Kathleen Kinch Jenna Khoury-Hanna

Keith Beecroft (“Appellant”)

Kerri Malcolm

Link to Final Order

DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL

BACKGROUND

1This Decision determines a motion brought by the Applicant requesting that the Tribunal exercise its discretion to award costs payable by the Appellant in this proceeding (the “Motion”).

2Following a written request for costs from the Applicant pursuant to Rule 23.1 of the Tribunal’s Rules of Practice and Procedure (“Rules”) and the directives of the Tribunal dated December 3, 2021, in accordance with Rule 23.4, the Applicant served and filed his Motion dated January 5, 2022.

3The Tribunal thereafter received the Appellant’s Responding Motion Record. No Reply was filed. The Township has elected not to participate in the Motion.

4The Applicant originally received consent to sever his parcel of land in the Township of Douro-Dummer, which was conditional upon his obtaining additional approval for a Zoning By-law Amendment (“ZBLA”) to recognize the reduced frontage for both the retained and severed parcels. The Appellant did not appeal the approval of the severance.

5Under the ZBLA, an Environmental Conservation Zone was to remain as is, on the severed parcel. Zoning By-law Amendment 2021-24 was passed by Township Council on April 6, 2021, approving a special district to the zone to allow for the reduced frontage set back for the severed parcel and the new lot size and frontage dimension for the retained parcel.

6The Appellant then filed his appeal. There was no Case Management Conference conducted by the Tribunal. The Appeal was scheduled as a one-day hearing on September 1, 2021. The Applicant filed the necessary Request for Party Status and, in expectation of such request being granted, his counsel filed witness statements and other materials in preparation for the scheduled hearing.

7On August 20, 2021, the Appellant withdrew his Appeal.

THE APPLICANT’S COSTS CLAIM AND POSITION

8The Applicant seeks an award of costs. In the alternative, if costs are not awarded, the Applicant “seeks commentary in the reasons deciding this motion to the effect that nothing in this Tribunal’s Rules estops him from proceeding with a claim in the courts.”

9The Applicant’s Motion for Costs is supported by his own Affidavit sworn December 23, 2021, containing limited information and documentation to support the quantum of costs requested. The Notice of Motion does not request a specific amount, but in the absence of any information as to the exact amount claimed, whether partial indemnity or otherwise, from the affidavit evidence it would appear that the Applicant is claiming full, or substantial, indemnity costs.

10The Applicant’s Affidavit indicates that he incurred approximately $22,754.90 in costs for the purposes of responding to the Appeal. This is composed of $5,203.94 to Clark Consulting Services in relation to planning services provided and the sum of $2,825.00 paid to GHD Limited which is for services rendered as “Additional Work letter and preparation for LPAT”. The Applicant also paid a total of $4,917.20 for legal services inclusive of HST. The Applicant’s total costs, which he indicates were directly related to the Appeal, were $12,946.14. No invoices, dockets or Bill of Costs were provided to support the amount claimed as paid for legal fees and disbursements akin to the information usually provided to support a claim for legal costs. The invoices from Clark Consulting Services and GHD Limited provide general block amounts but do not provide any breakdown for the invoices. There is no reason for the Tribunal to doubt that all of the invoices were paid as rendered. It is the absence of supporting information and detail for those invoices that is noted.

11In addition to this amount the Applicant also requests recovery of the costs he was required to pay to the Township for invoices they received from D.M. Wills Associates Limited ($3,579.41) and LLF Lawyers LLP ($4,979.35) as well as a cash-in-lieu payment of $1,250 in relation to the consent application. The total amount is $9,808.76. The Applicant claims these additional amounts based upon a “Planning Application Costs Acknowledgement Form” which requires the Applicant to reimburse the Township for all planning, engineering and legal costs related to the processing of the Application as well as all costs incurred by the Township associated with any Appeal to the Tribunal with respect to the Application.

12The materials submitted by the Applicant include a covering letter from the Township requesting payment but unfortunately excludes the invoices referred to in the correspondence. Again, no docketing or breakdown of legal costs paid for the Township’s legal expenses is provided to support this portion of the costs claimed. This makes it difficult to know what portion of the expenses actually relate to this proceeding. The cash-in-lieu payment of $1,250.00 relating to the Conditional Consent Decision would appear to be wholly unrelated to the proceeding before the Tribunal.

13The Applicant submits that he must have some avenue to recover the significant costs incurred and wasted by an unmeritorious appeal and that the Appellant’s conduct warrants an award of costs pursuant to Rule 23.9 of the Tribunal’s Rules. The bases upon which the Applicant seeks costs from the Appellant are three-fold:

1. The Appeal failed to disclose any apparent land use planning grounds in relation to the ZBLA and instead raised concerns relating to conditions to the consent which was not appealed;
2. After filing the Appeal, on August 10, 2021, the Appellant sent an email to the Tribunal, copied to the Applicant, the Township and the Applicant’s planner indicating that the Appellant and a few of the neighbours would be interested in purchasing the Applicant’s remaining lands. The Applicant takes the position that this inquiry appeared to him to be indicative of a “tactical effort to pressure him into selling the land to [the Appellant], and that the appeal was therefore undertaken in bad faith”.
3. The Appellant filed no materials to support his Appeal, indicated only that he would be calling neighbours as witnesses and then abandoned the Appeal after receiving all of the materials filed by the Applicant and the Township in preparation for the hearing. This, the Applicant argues, indicates that the Appellant recognized that his Appeal had no merit.

THE APPELLANT’S RESPONSE TO THE MOTION

14The Appellant retained counsel to respond to the Motion and a Response Motion Record dated January 19, 2022 was filed. The Response is supported by the Affidavit of the Appellant sworn January 19, 2022, with six exhibits.

15The position of the Appellant is that, without the benefit of legal counsel at the time, he reasonably acted in good faith in: attending to the public meeting; filing the Appeal upon receiving the notice from the Township, with legitimate concerns regarding the ZBLA; offering to purchase the Applicant’s property, in consultation with his neighbours; and withdrawing the Appeal prior to the hearing after receiving a communication from the Applicant’s counsel which he understood to be an offer that would mean that he would not be liable for costs if the Appeal was withdrawn.

16The Appellant’s evidence is that, having no knowledge of how the Tribunal approached cost awards, he was fearful of the potential financial repercussions from proceeding to the hearing. As a result, although he believed that the Appeal had merit, on the understanding that the matter of costs would be concluded if he withdrew the appeal, he provided notice to that effect and considered the matter at an end.

17Upon these facts, the Appellant submits that his conduct does not fall within the parameters of the conduct identified in Rule 23.9 of the Tribunal’s Rules.

18In his submissions to the Tribunal, the Appellant also makes a number of submissions relating to the ability of the Applicant to claim costs and/or the jurisdiction of the Tribunal to consider the request for costs, addresses the quantum claimed, and challenges the sufficiency of the Applicant’s documentation filed in support of the Motion. They can be distilled to the following arguments:

(a) As no hearing event had occurred the Tribunal is without jurisdiction to consider the request for costs under Rule 23.1 of the Tribunal’s Rules.

(b) The Applicant had filed a Request for Party status, but not was not granted status, as no hearing had commenced. Accordingly, the Applicant is without standing to request costs under the Tribunal’s Rules.

(c) The Applicant’s materials filed in support of the Motion do not include the requisite materials identified in Rule 23.4 of the Tribunal’s Rules. There are no details, dockets/bill of costs with respect to the time incurred by lawyers or experts, and, with respect to the amounts paid to the Township, no invoices for the amounts claimed. Generally, the documentation fails to identify those costs that were incurred directly or necessarily in preparation for the hearing of the Appeal.

(d) The Appellant is not a party to the Agreement between the Applicant and the Township whereby the Applicant agreed to reimburse the Township for costs relating to the Application and Appeal. It would accordingly be improper for the Tribunal to award amount payable for costs payable by a party who has not filed materials nor participated in the proceeding.

(e) The quantum of costs is excessive and amounts to full indemnity costs. Such a significant award, or even substantial indemnity costs, are unwarranted based on the Tribunal’s approach to cost awards.

(f) Finally, the Applicant’s request for alternative “commentary” is opposed. The Tribunal has sole jurisdiction to determine costs in this matter and no such direction should be provided that the Applicant may proceed to claim costs in the Courts, if unsuccessful before the Tribunal.

ANALYSIS AND DISPOSITION OF THE MOTION

19For the reasons that follow, this is not an appropriate case for an award of costs against the Appellant, and neither is it appropriate for the Tribunal to provide the alternative commentary or directions sought by the Applicant.

The Governing Rule 23.9 and Approach of the Tribunal on Costs

20Rule 23.9 has been correctly identified by both parties as the governing Rule providing guidance as to the circumstances in which the Tribunal may consider an award of costs in a proceeding before it. The Tribunal must be satisfied that the party against whom costs are sought has demonstrated conduct or a course of conduct that has been: (a) unreasonable; (b) frivolous; (c) vexatious; or (d) in bad faith. The Rule provides nine extending, non-limited, examples of clearly unreasonable, frivolous, vexatious or bad faith conduct and provides pointedly that the Tribunal is not bound to order costs even when the identified examples occur because the Tribunal will consider the seriousness of the misconduct.

21The Appellant has correctly referenced the Tribunal’s approach to limiting awards of costs in its proceedings in a manner that is markedly different from that of the Court. The following represents a condensed summary of some of the Tribunal’s guiding considerations and principles that have developed over time and relevant in this Motion:

• Costs do not “follow the cause” and are not presumptively payable by an unsuccessful party to a “winner”. An award of costs by the Tribunal is not routine, is not made lightly, and instead may be considered exceptional. The successful party should accordingly have no expectation that he, she, or it will recover costs of the proceeding.
• Awards of costs are not routine, are considered exceptional, and may only be considered where there has been misconduct rising to the high threshold established in Rule 23.9.
• An objective “reasonable person” test is applied leading to a conclusion that the totality of the party’s conduct was not “right” or not “fair”, such that the party should be obligated to compensate the requesting party for that kind of conduct.
• The seriousness of the misconduct, and its impact upon the ability of the Tribunal to ensure a fair and efficient hearing or its impact upon other parties such as the party requesting the costs, is to be considered.
• The approach of the Tribunal is to ensure that litigants are not dissuaded from exercising their right of appeal for fear of costs and historically has demonstrated a sensitivity to the right of appellants to bring matters before this Tribunal.
• The Tribunal’s recognition of its public interest mandate in the consideration of costs was explained with clarity in the decision of Kimvar Enterprises Inc., Re, 2009 Carswell 666, referenced in the Appellant’s submissions. Vice-Chair Seaborn indicated that the public interest impact of a costs award, the “chilling effect” an award of costs may have and its deterrence of public participation in planning processes, is a relevant factor to consider and made reference to the message that the former Board and this Tribunal has “consistently communicated with respect to costs”. This statement in paragraph 40 of the Kimvar decision bears repeating:

Awards of costs are rare and costs are not intended to be used as indemnification to a successful party. The Board has made cost awards in cases where the dispute is between commercial entities and in limited circumstances, between government and business. These awards are unusual, far from routine, each turn on their specific facts. The Board … takes a cautious approach to cost awards against citizens and strives to accommodate public participation in land use planning decisions. In fact, in the very limited number of cases where awards of costs have been made against citizens, amounts have always been nominal. This is entirely consistent with how the Board has typically proceeded: costs cannot be used as a threat to deter public participation; and costs will only be awarded (whether the parties are commercial entities, ratepayers or citizens) where the conduct complained of is so improper that it cannot be ignored.

• If the Tribunal is to exercise its discretion, costs are rarely recoverable on a substantial indemnity or full indemnity basis. For the Tribunal to consider such an elevated scale of costs, the conduct of the paying party must be found to be conduct characterised as truly egregious, reprehensible, outrageous or scandalous and beyond the type of misconduct identified in Rule 23.9.

22This summary is by no means exhaustive as to the general principles, factors and guidance that have come from the Tribunal, but is helpful in the determination of this Motion.

The Tribunal’s Jurisdiction to Award Costs – Appeal Withdrawn and No Hearing

23The Tribunal can deal rather succinctly with the submission of the Appellant that the Tribunal does not have jurisdiction to consider a request for costs where the Appeal has been withdrawn and there has been no hearing.

24This issue was considered at length in a recent decision of this Panel Member. The Ontario Land Tribunal Act, the Statutory Power and Procedure Act, and the Tribunal’s Rules, cumulatively establish that the Tribunal does have the authority to consider a request for costs where the proceeding before the Tribunal has been withdrawn before a hearing of the merits. The wording of the legislation and the Rules reference the power of the Tribunal to make an award of costs for conduct “at any time during a proceeding” and are not limited only to that of a hearing, nor is the conduct of a hearing a threshold requirement for an award of costs to be considered.

25Premised upon the public interest mandate of the Tribunal, and its broad approach to considerations of public interest in all planning and planning related proceedings, there are public policy reasons for the Tribunal having discretionary authority to award costs in the case of the withdrawal of an appeal. Closing the door to such requests for costs in advance of, or during, a final hearing event would mean that parties would simply withdraw their appeal at any time to avoid costs consequences. This cannot be a process condoned by the Tribunal. Closing the door to such requests could lead to an abuse of process where appeals would be launched and then withdrawn as a tactic to avoid accountability for misconduct to the point of withdrawal. From another perspective, denying a party the right to request costs in the event of the withdrawal of an objection or appeal in the course of a proceeding may deny a party an aspect of procedural fairness within that proceeding if the other party has demonstrated conduct set out in Rule 23.9 worthy of a costs order.

The Applicant is Not Yet a Party

26As to the Appellant’s submission that the Applicant has no standing to request, costs because he was not granted party status, the Tribunal recognizes that Rule 23.1 provides that “Only a party may ask for an award of costs….”. This wording does initially create something of a conundrum, but the difficulty arises because the Rule does not differentiate between those more complex proceedings with lengthier hearings which are fully case managed, and those less complicated proceedings with hearings of one to four days which are not case managed. In the latter there is no preliminary CMC hearing even where Party status requests are decided before moving forward in the proceeding. That is the case here. Practically, as this Appeal unfolded, the Applicant made the formal request for party status, but the request would only have been addressed by the Tribunal at the opening of merit hearing, since the Tribunal’s resources do not provide for case management in such instances. Through no “fault” of the Applicant, the Party status request could not be dealt with.

27Although an applicant is technically not a statutory party to an appeal under s. 34(19) of the Planning Act, it is seldom, if ever, the case that the applicant is not granted party status almost as a presumptive right. Logically, as an applicant will have initiated the zoning by-law amendment under appeal, it is the applicant that will be in the obvious position to provide evidence as to the planning purpose and merits of the instrument passed by Council, as well as the volume of planning and technical evidence usually submitted in support of the Application. Under Rule 8.2, it is almost a given that an applicant’s “…presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding” and accordingly is usually granted party status at the first hearing event.

28An applicant will almost routinely prepare for, and attend, a merit hearing fully expecting that at the hearing de novo, it will be the applicant that will be called upon to persuade the Tribunal that the ZBLA is consistent with the Provincial Policy Statement, conforms with any Provincial plans and relevant Official Plan, has regard for matters of Provincial Interest and represents good planning in the public interest – all of which are required under the Planning Act. To deny the applicant in a proceeding standing to request costs in circumstances such as this Motion, on a technical interpretation of Rule 23.1, in a non-case managed proceeding would result in prejudice and represent an unfair, and in the view of the Panel, an unintended adverse consequence of the wording of the Rule, which does not distinguish between those proceedings which are case managed and those that are not. This cannot be the intended meaning and purpose of Rule 23.1

29In this case, with the Request for Party Status remaining undetermined and still before the Tribunal, it would be appropriate to resolve the technical matter of the Applicant’s standing using the discretionary power of the Tribunal under Rule 8.2 to grant the Applicant party status for the purposes of this Motion and the proceeding to the point of the withdrawal of the Appeal. Granting party status to an applicant in these circumstances prevents the type of prejudice and procedural unfairness arising in a proceeding that, at the election of the Tribunal, has not been subject to a Case Management Conference where the Applicant’s Request for Party Status would ordinarily be considered and routinely granted.

30For the purposes of this proceeding and Motion, the Applicant is accordingly granted party status.

The Conduct of the Appellant

31Notwithstanding the status of the Applicant to request costs, it is the Tribunal’s conclusion that the Appellant’s conduct in this instance does not fall within the type of misconduct identified in Rule 23. 9, which might allow the Tribunal to exercise its discretion to award costs to the Applicant.

32The Tribunal has reviewed the Municipal Record and the Notice of Appeal. Unrepresented by legal counsel, the Appellant made oral submissions at the public meeting and his Appeal, on its face, discloses apparent land use planning grounds for the Appeal relating to matters of consistency and conformity, and raising concerns as to the piecemeal fashion that matters of planning were being addressed. The Appellant obviously did not appeal the approved consent, where the threshold question of whether a plan of subdivision is necessary, or whether the application is premature, might have been considered. A Motion to Dismiss was not brought by the Applicant to test its assertions in this Motion, that the Appellant’s Appeal was without any apparent land use planning grounds “upon which the Tribunal could allow all or part of the appeal”. For the purposes of this Motion, whether the Appeal would have survived scrutiny at a Motion to Dismiss pursuant to s. 34(25) of the Planning Act or at a hearing of the merits is unknown, but the Tribunal cannot agree with the Applicant’s submission that it was without substance, frivolous or launched in bad faith.

33The Tribunal has considered the affidavit evidence of both the Applicant and the Appellant. The Applicant’s suggestions of ulterior bad faith motives in relation to the Appeal and the Appellant’s inquiry about purchasing the subject lands are pure conjecture. The Tribunal finds the Appellant’s explanations as to his actions in bringing the Appeal and making the inquiry regarding the possible sale of the lands to himself and the neighbours to be reasonable, forthright and credible. The tenor of the email making the inquiry about the possibility of a purchase (Paragraph 12 and Exhibit C to Mr. Clifford’s Affidavit) does not carry the taint of such ulterior motive, or threat of pressure, as asserted by the Applicant. To the contrary, the inquiry is respectful and cordial, based upon discussions with neighbours and simply asks the Applicant to “Please let us know if this is an option, and something that you would be open to discussing” and thanks him for his consideration.

34Moreover, it is the Tribunal’s finding that the Appellant’s evidence on the matter of the Appeal and the inquiry about a purchase of the lands rings true. Mr. Beecroft indicates that he filed his Appeal after receiving the notice from the Township advising him of that option, honestly believing that there was an error in the passing of the ZBLA. Several of his neighbours shared the concerns and were listed as the intended witnesses. The Appellant deposes that following the filing of the Appeal it had occurred to him that purchasing the Applicant’s property might be one means of addressing the concerns he had regarding the perceived error in the passing of the ZBLA and he spoke with neighbours and made the offer in good faith. Mr. Beecroft’s affidavit evidence is that he did not intend to deceive or coerce the Applicant and instead was trying to resolve the issue by “simply presenting the opportunity in order to gauge if there was any interest.”

35The Tribunal is satisfied that there was no bad faith or unreasonable conduct on the part of the Appellant in filing the Appeal nor in exploring the option of acquiring the Applicant’s property.

The “Offer” from Applicant’s Counsel and the Withdrawal of the Appeal

36The Tribunal finds that the Appellant’s explanations for his conduct in withdrawing the Appeal and his reasoning and motivations for acting as he did demonstrate reasonable and responsive conduct, based upon the email received from the Applicant’s counsel.

37It is worthwhile to reproduce the entirety of the email sent to the Appellant by Applicant’s counsel. The email dated August 19, 2021, 12 days before the hearing, and two days before the Appellant’s written materials were required, was as follows (emphasis added):

I am counsel for Mr. Clifford. As you are aware Mr. Clifford is seeking party status at the hearing scheduled for September 1, 2021 before the OLT. You have now received our witness statements, legal argument and the witness statement provided by Mr. Lanctot today. I must emphasize that you have brought an appeal without foundation. I am writing to give you the opportunity in advance of the hearing to formally abandon your appeal, as it is without merit. Please advise as soon as possible if you intend to proceed or not.

I reserve the right to bring this email to the attention of the Tribunal in support of an argument that you should pay costs to my client in relation to the hearing if it proceeds.

38The Appellant, as indicated above, was unfamiliar with the Tribunal’s approach to costs, understood the statement in counsel’s email to mean that if the appeal was not abandoned before the hearing the Applicant would likely pursue costs in relation to the hearing if it proceeded. Worried about the “potential financial repercussions”, the Appellant accepted what he perceived as an offer in the email: that by withdrawing the appeal, there would be no claim for, or liability for, costs. Though he believed the appeal had merit, the Appellant made the decision to avoid the possibility of exposing himself to costs.

39In the Tribunal’s view the Appellant’s conduct, in interpreting the email as an offer, was well-justified. The Tribunal considers the wording of the email to be plainly similar to the manner in which an offer to settle is ordinarily worded in a litigation proceeding. The offer is the opportunity given to the Appellant to formally abandon the appeal. The consequences of failing to accept the offer and withdraw the appeal, is exposure to an order for costs payable by the Appellant to the Applicant. Reasonably, the Appellant could assume that there would thus be no claim for costs if he accepted the offer and withdrew the appeal. In the Tribunal’s view, the Appellant’s understanding of the email was reasonable and he accordingly communicated with the Tribunal and the Applicant that the Appeal was withdrawn.

40To be clear, the Tribunal is not making any finding with respect to the existence or terms of an offer, or the acceptance of an offer that would impact entitlement or quantum of costs. Rather, the Tribunal finds that the communication from Applicant’s counsel credibly resulted in a very reasonable response and conduct on the part of the Appellant, as he then withdrew the Appeal, irrespective of the merits of the Appeal. In response to the email, the Appellant acted reasonably and in good faith, to withdraw the Appeal.

41When taken as a whole, the Tribunal cannot agree with the evidence or submissions of the Applicant alleging bad faith conduct or unreasonable conduct of the Appellant in launching an appeal without merit and attempting to pressure the Applicant into a sale of his property. Objectively, applying the reasonable person test, the Tribunal cannot find that any aspect of the conduct of the Appellant, would represent unreasonable or bad faith conduct warranting the exercise of the Tribunal’s discretion to award costs. The Tribunal finds the Appellant’s account of his own conduct to be credible, and accepts that he had a genuine intention of pursuing the appeal because he believed the ZBLA was a mistake, and that the appeal was not commenced with any intent to deceive in order to gain some advantage or to simply cause trouble and annoyance to the Applicant.

42As such, no order of costs is warranted.

The Withdrawal of the Appeal

43As this Motion was launched following the withdrawal of the Appellant’s Appeal before the commencement of the scheduled hearing, the Tribunal is compelled to briefly address the matter of the withdrawal of an appeal as an event, in and of itself, inviting a request for costs – as occurred in this instance. It is understandable that the Applicant in this case may take exception to the fact that time and money were expended to prepare for the hearing of an appeal that was ultimately withdrawn prior to the scheduled hearing.

44As the Tribunal has indicated in a concurrent decision addressing similar circumstances of a withdrawal of a proceeding “at the doorstep of the hearing room” (albeit with significant factual differences) it is the Tribunal’s view that the withdrawal of an appeal, immediately prior to the determination of the proceeding on its merits by the Tribunal, is not itself misconduct sufficient to attract the Tribunal’s discretion to award costs. Just as the Tribunal does not consider a “win” after the conduct of a full hearing to represent misconduct warranting the consideration of a cost award, neither does the withdrawal of an appeal before the determination of the merits of the Appeal represent misconduct.

45The fact that the Applicant may have incurred expenses the point of the withdrawal is, in and of itself, not relevant as it does not relate to the conduct of the Appellant. In the absence of conduct by the Appellant that can be objectively considered to be unreasonable, frivolous, vexatious, or in bad faith and evidence that the timing of the withdrawal, or taking the proceeding through to a withdrawal, is demonstrative of conduct requiring the exercise of discretion, an award of costs should not be presumed because of the withdrawal of the Appeal immediately prior to the scheduled hearing. There could, for example, be circumstances where the Appellant was being unreasonably obstructive or delaying the proceeding, failing to communicate with the Tribunal or the parties, failing to adequately prepare for a hearing, or demonstrating other types of serious misconduct referred to in Rule 23.9 before the Appeal is withdrawn. The focus is upon whether there is objectionable misconduct on the part of the Appellant in the conduct of the Appeal proceeding and not the withdrawal of the Appeal itself.

46Given the public interest mandate of the Tribunal, and its very different approach to its proceedings, distinguishable from civil litigation between parties in the Courts, there is no presumption of entitlement to request costs for time “wasted” in a proceeding when there is a withdrawal of an appeal.

The Quantum of Costs Requested and the Sufficiency of the Applicant’s Motion Materials.

47As the Tribunal has found that the Applicant has failed to demonstrate that the Appellant has conducted himself in the manner identified in Rule 23.9, which would permit the Tribunal to exercise its discretion and award costs, it is unnecessary to address the matter of quantum.

48The Tribunal would however indicate that there are indeed deficiencies in the materials provided by the Applicant in support of the request for costs, as noted by the Appellant. The Motion fails to specify the amount requested and the reasons requested and provides only the amounts paid to legal counsel, experts and the Township. In that respect no supporting Bill of Costs docketing time spent has been provided which would permit the Tribunal to assess whether and how the legal costs or professional services relate to the proceeding, as opposed to the applications or other severance/development related work. The invoicing referred to in the Township’s correspondence is notably omitted and on its face the letter indicates that at least a portion of the amount paid is unrelated to the proceeding before the Tribunal.

49As a general observation, it is incumbent upon parties requesting costs from the Tribunal to thoroughly support the request with documentation and information detailing the manner in which costs are incurred. It should be considered no different from an assessment of costs. Parties who provide global amounts paid in relation to the litigation must also recognize that the “scale” of costs that might be considered by the Tribunal requires such a breakdown of information. Requesting full indemnity costs, which is what has been advanced by the Applicant in this instance, is something not routinely awarded by the Court, and even less so by the Tribunal.

50The ability of the Tribunal to decide an amount that is appropriate for costs relative and proportionate to the amounts claimed in a cost motion becomes difficult or impossible in the absence of details relating to such things as: time dockets and time spent in relation to preparation or hearing time; when services were provided; succinct docketing explanations for services rendered; hourly rates; and itemized invoices distinguishing between professional services, disbursements and HST. Much of this information was omitted by the Applicant in this Motion and all this information represents the mandatory material identified in Rule 23.4 of the Tribunal’s Rules.

The Request for Commentary from the Tribunal

51The Tribunal has the jurisdiction and power to determine costs “of and incidental to any proceeding….in accordance with the Rules” pursuant to s. 20 of the Ontario Land Tribunal Act. This is consistent with section 17.1 and the definitions in the Statutory Power and Procedures Act. The Rules enacted by the Tribunal address the matter of costs in accordance with the legislation.

52The Tribunal, having the authority to consider an award of costs under its home statute, the Statutory Power and Procedures Act, and the Rules enacted pursuant to that legislation, has, in this Decision, considered and finally determined the Motion brought by the Applicant for costs in relation to the proceeding that was before it, up to the date of the withdrawal of the Appeal.

53No further commentary beyond this is warranted or appropriate. It would be beyond the mandate of the Tribunal, and ill placed, for it to determine the authority of a Court, following this Decision and Order, to subsequently consider a claim by the Applicant for the amounts claimed, considered and dismissed in this Motion.

Summary of Disposition

54The Tribunal, having granted the Applicant Party Status for the purpose of this Motion, and the proceeding to the date of the Withdrawal, has the jurisdiction to consider the request for costs in the Applicant’s Motion.

55Notwithstanding that jurisdiction, the Tribunal does not find that the Appellant’s conduct falls within the parameters of the type of misconduct warranting the exercise of its discretion and no award of costs is made in this proceeding.

56If the Tribunal had exercised and considered an award of costs, the materials provided to quantify the costs are deficient in that they do not comply with Rule 23.4.

57It is not appropriate for the Tribunal to provide the “commentary” requested by the Applicant as alternative relief.

ORDER

58The Motion brought by the Applicant, Fredrick Earl Clifford, dated January 5, 2022, seeking costs payable by the Appellant, Keith Beecroft, in the proceeding, and the alternative request for commentary, is hereby dismissed

“David L. Lanthier”

DAVID L. LANTHIER

VICE-CHAIR

Ontario Land Tribunal

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

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