Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 19, 2023

CASE NO(S).: OLT-21-001391 (Formerly CRB1824) OLT-21-001393 (Formerly CRB1825)

PROCEEDING COMMENCED UNDER subsection 29(5) of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended

Owner: Solmar (Niagara 2) Inc.

Objector: Two Sisters Resorts Corp.

Subject: Notice of Intention to Designate

Property Address: 200 John Street East

Legal Description: Lot 145 RCP 692 Niagara Except Pt 1 to 9, 30R8436

Municipality: Town of Niagara-on-the-Lake

OLT Case No.: OLT-21-001391

OLT Legacy Case No.: CRB1824

OLT Case Name: Two Sisters Resorts Corp. v. Niagara-on-the-Lake (Town)

PROCEEDING COMMENCED UNDER subsection 29(5) of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended

Owner: Solmar (Niagara 2) Inc.

Objector: Two Sisters Resorts Corp.

Subject: Notice of Intention to Designate

Property Address: 588 Charlotte Street

Legal Description: Lot 156 RCP 692 Niagara; Part Lot 145 RCP 692 Niagara Part 1 to 9, 30R-8436; S/T RO718339, S/T RO413742, T/W RO413742 (PT 13, 30R1792 Except Pt 5, 30R8436)

Municipality: Town of Niagara-on-the-Lake

OLT Case No.: OLT-21-001393

CRB Legacy Case No.: CRB1825

CRB Case Name: Two Sisters Resorts Corp. v. Niagara-on-the-Lake (Town)

Heard: March 4, 2022, in writing for OLT-21-001391 March 7, 2022, in writing for OLT-21-001393

APPEARANCES:

Parties

Counsel

Town of Niagara-on-the-Lake (“Town”)

Nancy Smith Meredith Baker

Two Sisters Resorts Corp. and Solmar (Niagara 2) Inc. (“Owners”)

Thomas A. Richardson Sara J. Premi

Save Our Rand Estate Association (“Association”)

Catherine Lyons

Link to Final Order

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

BACKGROUND TO THE MOTIONS

1There are two motions before the Tribunal, each requesting an order for costs against the Owners; one brought by the Town, and the other by the Association (the “Motions”). This Decision determines both Motions. In doing so, it also addresses jurisdictional issues relating to the ability of the Tribunal to consider requests for costs where the matter has been withdrawn and no hearing on the merits was conducted.

2Briefly, as background, these proceedings under the Ontario Heritage Act were first brought before the Conservation Review Board (“CRB”) in relation to two Notices of Intention to Designate issued by the Town in August of 2018 for one grouping of lands comprised of 144, 176 and 200 John Street East and land at 588 Charlotte Street, identified in the Title of Proceedings, collectively referred to the “Rand Estate Lands”. The Owners filed objections with respect to the Notices on September 14, 2018 (the “Objections”). The Tribunal, as the successor to the CRB, continued carriage of the Objections. In October of 2020, the lands at 144 and 176 John Street East were sold and the Objections were withdrawn leaving the Objections for 200 John Street East and 588 Charlotte Street.

3Concurrently with the CRB proceedings, the Owners were involved in various applications to advance proposals for the development of the Rand Estate Lands, and later the remainder of the Lands. The history of the various applications and related court proceedings is detailed. With respect to these proceedings, in which the Motions are brought, there were pre-hearing conferences, settlement conferences and scheduled hearings, which were adjourned for various reasons, including the illness of witnesses. Eventually the five-day hearing of the Objections was scheduled to commence on December 6, 2021. Five weeks before, in the letter dated November 2, 2021 (“Withdrawal Letter”), the Owners withdrew their Objections.

4A Motion to Strike relating to portions of the Town’s and Association’s scope of evidence and the Issues List was served by the Owners on October 8, 2021. The Motion to Strike was based upon a dispute between the Owners and the Town and Association as to alleged sudden changes to the issues arising from the Town’s (and Association’s) addition of new heritage landscape features forming part of the intended designations, disclosed at some point (or points) in 2021. The Parties have entirely opposed views as to the background to this Motion to Strike, whether it, or alternatively a motion by the Town and Association to change the Issues on the Issues list thought to be required by the Owners, were necessary. They also differ as to the respective reasonableness of the conduct of either side with respect to the Motion to Strike. The Motion to Strike, which was effectively concluded when the Owners withdrew their Objections, figures prominently in the argument of these Motions.

5Also of note is the fact that changes to the Ontario Heritage Act came into effect on July 1, 2021, as it affected the role of the Tribunal as successor to the CRB. There were substantive changes to the manner in which objections to Notices relating to properties with cultural heritage value or interest were to be adjudicated. The Tribunal was, as of that date, no longer to hear Objections under s. 29(5) of the Ontario Heritage Act and report and make recommendations only to Council, which could be implemented or alternatively acted upon. Instead, Objections were, and are, appealed pursuant to s. 29(11) of the Ontario Heritage Act directly to the Tribunal for binding adjudication.

6The Town and Association are fundamentally aligned in their positions on the Motions, their submissions as to the background to the Motions and their submissions as to the nature of the Owners’ conduct, including that relating to the Motion to Strike. Their claims for costs are, however, separate.

THE CLAIMS FOR COSTS

7The Town claims costs payable by the Owners in relation to the proceedings in the amount of $220,744.56, and $26,053.56 for this Motion. The period of time for which costs are claimed is from March 21, 2021 (which was the date the Town and the Association assert that disclosure was made of a Cultural Heritage Landscape map of the Rand Estate), to the date of the withdrawal of the Objections by the Owners on November 3, 2021. The Town has quantified its costs in segments, allowing for alternative calculations should the Tribunal make certain findings as to entitlement.

8The Association claims costs payable by the Owners in relation to the proceedings in the amount of $365,727.50. The period of time for which costs are claimed is the same as that of the Town: from March 21, 2021, to November 3, 2021.

9The total amount of the costs claimed from the Owners for this proceeding is accordingly $612,525.62.

THE WRITTEN MOTION AND MATERIALS

10Due to the way in which these Motions have come before the Tribunal, with no Panel having conducted a hearing of the proceeding and seized of the matter, this Panel Member was assigned to the hearing of the written Motions for Costs by the Chair pursuant to Rule 23. 7 of the Tribunal’s Rules of Practice and Procedure (“Tribunal’s Rules”)

11Under the circumstances, since no Member has the benefit of being directly familiar with the proceedings, having conducted a hearing of the Objections, the approximately 1,400 pages of material before the Tribunal, for the purposes of the two Costs Motions, are extensive. The materials present the background to the proceedings and the conduct of the Owners, as well, for context, the conduct of the Town and Association. Both sides have each provided their evidence as to the background leading to the withdrawal of the Objections, the Motion to Strike with case law supporting their respective positions. Both sides have cast aspersions on the objectives, motivations, strategies, tactics, reasonableness and propriety of the others’ actions, regarding aspects of the obviously acrimonious proceedings.

12Some additional communications relating to the hearing of the Motions were received, but the following represent the core Record before the Tribunal for the purposes of the determination of the two written Motions:

On Behalf of the Town:

1. The Town’s Motion Record for Costs with the Notice of Motion dated December 23, 2021, inclusive of the Affidavit of Louise Sudac sworn December 23, 2021;

2. The Affidavit of Kyle Freeborn sworn January 25, 2022, in support of the Town’s Motion;

3. The Affidavit of Meredith Baker sworn January 26, 2022, in support of the Town’s Motion;

4. Redlined version of the Town’s Bill of Costs with corrections, dated January 21, 2021;

5. The Town’s Reply Motion Record to Owner’s Response to Costs Motion dated March 4, 2022 (as revised on March 7, 2022);

6. Town’s Book of Authorities (filed on March 4 and 7, 2022);

7. Town’s Supplementary Submissions by Email dated March 11, 2022 (to the Evergreen Decision)

On Behalf of the Association:

8. The Association’s Motion for Costs dated December 23, 2021, inclusive of the Affidavit of Dana Anderson sworn December 21, 2021 with the supplementary Affidavit of Dana Anderson sworn January 18, 2022, and the Affidavit of Monique Allen sworn December 22, 2021;

9. The Association’s Reply to Owner’s Response to Costs Motion dated March 4, 2022, including the Affidavit of Rochelle Vasquez sworn March 4, 2022;

10. The Association’s Book of Authorities (December 22, 2021);

11. The Association’s Book of Authorities – Reply (March 4, 2022)

12. Correspondence from counsel for the Association to the Tribunal dated January 26, 2022;

13. The Association’s Supplementary Submission – Re: Evergreen Decision dated March 11, 2022;

On Behalf of the Owners:

14. Correspondence of counsel for the Owners to the Tribunal dated January 5, 2021;

15. The Owners’ Responding Motion Record to the Costs Motions of the Town and the Association dated February 22, 2022, inclusive of the Affidavit of Andrea Mannell, sworn February 22, 2022;

16. The Owners’ Book of Authorities (February 22, 2022); and

17. Correspondence of counsel for the Owners to the Tribunal dated March 7, 2022, together with the Decision of the Tribunal, Evergreen Environmental Inc. v. Oshawa (City), 2022 CanLii 1598 (ON LT)

THE NATURE OF THE CLAIMS AND THE ISSUES

13The Town submits that the conduct of the Owners is deserving of an award of costs as it was unreasonable, frivolous, vexatious, due to the manner in which they failed to act in a timely manner, acted disrespectfully and maligned the character of another party.

14The Town’s submissions as to the Owner’s serious misconduct for the purposes of Rule 29.3 can be summarized into the following components:

1. The Motion To Strike – The timing of bringing this Motion to Strike, and the timing of withdrawing the motion were unreasonable. The bringing of the Motion to Strike was irrational, unreasonable and frivolous, and because it was “instituted without sufficient grounds for the purpose of causing trouble or annoyance”, it was vexatious. The failure to precisely identify which of the landscape features were to be struck in the Motion to Strike was a clearly unreasonable abuse of process;

2. The Timing of the Withdrawal – The Owners failed to act in a timely manner by withdrawing the Objections five weeks before the hearing was to commence, which was clearly unreasonable;

3. Maligning the Town’s Character – The Owner acted disrespectfully and maligned the character of the Town in saying, in the Motion to Strike, that the Town was trying to “clandestinely sweep new issues in the proceedings.” Accusing a public authority of “sneaky” behaviour is very serious when the accusation is completely untrue and is clearly unreasonable, frivolous and vexatious;

4. Abuse of Process – The Owner’s acknowledgement, when withdrawing, that it used the proceedings as a discovery tool to inform and gauge its Planning Act applications is an abuse of process and clearly unreasonable.

15The Association’s submissions as to the Owner’s misconduct for the purposes of Rule 29.3 are consistent with the Town’s submissions but place additional emphasis on certain aspects of the Owners’ conduct. The following components are identified by the Association:

1. A History of Pursuing and Abandoning Appeals – The Owners have demonstrated a history of commencing and then abandoning appeals, presumably for tactical reasons. This represents an abusive pattern of conduct which is clearly unreasonable;

2. The Delay in the Designations has impacted the Rand Estate – The conduct of the Owners in Objecting, and causing delay, resulted in the decline of the heritage resources of the Rand Estate. Property standard concerns and alterations to the property have been raised and acted upon by the Town through enforcement proceedings;

3. The Grounds for Withdrawing the Objections Warrants a Costs Order – The reasons set out by the Owners in the written Withdrawal, which the Association disagrees with in all respects, are “unfounded and unproven allegations” which do not justify their last-minute withdrawal.

4. The Timing of the Withdrawal – Like the Town, the Association submits that the Owners failure to act in a timely manner in withdrawing the Objections was unreasonable. The Association focuses on the amount of written preparation for the hearing proportionate to the time to be spent in the one week hearing and the earlier opportunity the Owners had to understand the Town’s position on the heritage attributes. The timing was egregious and should give rise to extraordinary costs;

5. The Deferral of Matters to a Subsequent Proceeding – The Association takes the position that the Owners’ indication that they will proceed with development applications, make the necessary applications under the Ontario Heritage Act, and pursue binding adjudication on all issues with the Tribunal is an abuse of process.

16Based upon the submissions as to the jurisdiction of the Tribunal as they have been advanced, and the nature of the misconduct identified by the Town and the Association, the Issues in these Motions can accordingly be summarized as follows:

Jurisdiction

1. Has the Association failed to supply the required information necessary to comply with Rule 23.4(c) of the Tribunal’s Rules and does the Tribunal have jurisdiction to consider the Association’s Motion if they have failed.

2. Does the Tribunal have jurisdiction to consider the Motions in light of the fact that the Owners withdrew the Objections and there was no hearing event.

3. Does the Tribunal have jurisdiction to award costs in respect of the expenditures that precede the actual hearing of the Objections or just those of a hearing.

4. Specifically, as to the Conservation Review Board, does the Ontario Heritage Act permit the CRB/Tribunal to consider Costs upon a Withdrawal permitted by s. 29(15).

5. Is the Association an “Intervenor” and therefore impacted by the general rule that an intervenor is not entitled to request costs, nor liable for costs, absent the application of any exceptions to that general rule.

Entitlement and Quantification

6. Did the Owners fail to act in a timely manner in withdrawing the Objections, and if so, was it clearly unreasonable misconduct. Is the misconduct so egregious as to call for extraordinary costs.

7. Were the reasons for withdrawing the Objections, as communicated by the Owner, based upon unfounded and unproven allegations which do not justify their last-minute withdrawal and if so do such reasons clearly constitute circumstances identified in Rule 23.9 which give rise to a discretionary order of costs.

8. Did the Owners fail to act in a timely manner in bringing the Motion to Strike and if untimely, is it clearly unreasonable misconduct and an abuse of process.

9. If the Owners failed to act in a timely manner in bringing or withdrawing the Motion to Strike, or withdrawing the Objections, are such actions part of a history of commencing and abandoning appeals that is itself an abuse of process and clearly unreasonable.

10. Did the Owners malign the character of the Town and act disrespectfully in making statements in the course of the proceedings which were untrue and if so were they serious and clearly unreasonable.

11. Was there an abuse of Process on the part of the Owners because they advanced the Objections and continued the proceedings as a means to secure information to inform and assess its other planning applications.

12. Does any Delay caused by the Objections and the Proceedings which adversely impacted the Rand Estate represent misconduct on the part of the Owners as identified in Rule 23.9 which would give rise to a discretionary order of costs.

13. Is the indication by the Owners, within the withdrawal notice, that they intend to proceed with development applications, make the necessary applications under the Ontario Heritage Act, and pursue binding adjudication on all issues with the Tribunal, an abuse of process that represents clearly unreasonable misconduct on the part of the Owners.

14. If the Town and the Association are entitled to costs, what is the amount that should be awarded.

17These Issues will be addressed generally in the order set out but will be considered within the framework of the various segments of analysis under the appropriate headings.

ISSUE 1 - FAILURE OF THE TOWN AND ASSOCIATION TO COMPLY WITH RULE 23.4(c)

18Before turning to the larger issues of jurisdiction, the Tribunal will first address the Owners’ submissions with respect to non-compliance with Rule 23.4(c) as it itemizes the information to be supplied to the Tribunal. The Owners’ included, in their Response to the Motions, the objection that the Town and the Association had failed to comply with the requirements of the Tribunal’s Rules as to the necessary materials to be filed in support of a request for costs and that the Tribunal was thus without jurisdiction to consider the requests for costs.

19The Tribunal has considered the whole of the material filed by both the Town and the Association, including the corrections made to the Bill of Costs and the additional material provided.

20The Tribunal cannot agree with the Owners’ argument that the Tribunal is without “jurisdiction” to consider the merits of a motion for costs if there were some material deficiencies in the documents and information provided under Rule 23. The failure to provide the necessary information may ultimately affect the ability of the Tribunal to exercise its discretion to award costs, and in that regard may represent a deficiency, but it does not bar the Tribunal from receiving or considering a request for costs.

21In that respect the Tribunal has considered the decision of Roach v. Oro-Medonte (Twp.), 2021 CanLII 61063 (ON LT) and does not find that it binds the Tribunal as the Owner argues. In that case the Applicant failed to provide notification within the 30 days, did not identify against whom costs were sought, and failed to provide the information necessary to quantify the costs. This significant non-compliance with the Rule resulted in the Tribunal being unable to exercise its discretion and consider the criteria in Rule 23.9.

22The Tribunal in this case can consider whether it will exercise its discretion to award costs to either requesting Parties on the basis and sufficiency of what has been provided to the Tribunal in support of the request for costs. There is no bar to either party by reason of non-compliance. This determination of the Tribunal is consistent with the directives provided by the Tribunal on January 6, 2021, where it refused to dismiss the Motions as requested by the Owners due to the failure to provide Rule 23.4(c) information.

ISSUES 2, 3, AND 4 - JURISDICTION OF THE TRIBUNAL TO AWARD COSTS

The Parties Respective Positions on the Authority of the Tribunal to Award Costs

23The Parties have made submissions relating to the jurisdiction of the Tribunal to consider awards of costs where the objection or appeal has been withdrawn before a hearing. Relatedly, there is the question of the ability to award costs in the proceeding that precede the actual final hearing of an objection or appeal. In addressing this, the Owner has also directed the Tribunal’s attention to s. 29(15) of the Ontario Heritage Act.

24The Owners advance several arguments on the Tribunal’s authority to award costs:

1. Citing the Tribunal’s decision in Dale Inc. v. Toronto (City), 2020 LNONPAT 728 (“Dale”) the Tribunal has no ability to consider the conduct of a party prior to a hearing. The submissions raise the question as to whether the Tribunal has jurisdiction to consider costs upon the withdrawal of appeals or objections where there has been no hearing;

2. The Tribunal specifically has no further jurisdiction to consider costs in a CRB proceeding if there is no longer a dispute regarding cultural heritage value or interest, such as when an objector withdraws its objection. The Owners rely upon the CRB Decision, Vogel v. Collingwood (Town), 2019 CanLII 96151 (ON CONRB), 2019 CanLII 89275 (ON CONRB), (“Vogel”);

3. Further, s. 29(15) of the Ontario Heritage Act, is unique in expressly providing for the withdrawal of an objection prior to a hearing. There is no precedent where the CRB awarded costs upon the exercise of the right of withdrawal of an objection under s. 29 (15);

4. The Association, as an “intervenor”, is not entitled to seek costs. This submission is based upon the “general rule” addressed by the Supreme Court of Canada in Canadian Union of Postal Works v. Her Majesty in Right of Canada, 2017 ONSC 6503 (“CUPE”) that interveners are neither liable for nor entitled to costs, a general rule that is subject to numerous exceptions as they might apply to liability or entitlement;

25The position of the Town and the Association is that:

1. The Tribunal is not barred from considering costs in the event of a withdrawal of an appeal based upon the sections relating to costs in the Statutory Powers Procedure Act (“SPPA”) and the Ontario Land Tribunal Act (“OLT Act”), and prior decisions of the Tribunal such as Whitby (Town) Official Plan Amendment No. 53 (Re), [2005 O.M.B.D. No. 681 (“Whitby”). The Tribunal’s decision in Dale is distinguishable. The legislation expressly empowers the Tribunal to make awards of costs in a proceeding, and not just a hearing, and the Tribunal’s Rules enacted under the legislation operate to permit a claim for costs in the event of a withdrawal;

2. The Vogel case, to the contrary, expressly allows the CRB, as a “tribunal”, to control its processes and make awards of costs in the proceeding;

3. Section 29(15) of the Ontario Heritage Act, although providing for the withdrawal of an objection prior to a hearing, does not prevent the consideration of costs, just as sections in the Planning Act which provide for the withdrawal of appeals without reasons, do not prevent claims for costs;

4. The Association is not an intervenor under the civil procedural rules. The Association has instead been granted party status by the Tribunal under its governing Rules and is entitled to seek costs under Rule 23.1. The Courts analysis in “CUPE” does not apply and even so, there are exceptions where costs have been properly awarded to intervenors that would here apply.

Analysis - The Tribunal’s Jurisdiction to Award Costs upon a Withdrawal and Without a Hearing Event and to Consider Costs Preceding a Hearing Event

26It is the Tribunal’s conclusion that it 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.

27The Ontario Municipal Board (“Board”), as the predecessor of the Tribunal provided a nine-point analysis in Whitby which included confirmation that “The practice of the Board has been to address and adjudicate on a request for costs even when there has been a withdrawal of the appeal”. Although the various decisions referred to by the Board in argument were not referenced in the Whitby decision, it concluded that most cases involved situations where the Board awarded costs after the withdrawal of an appeal.

28The Tribunal has considered the Dale decision and does not consider the Tribunal’s comment regarding “activity well prior to the hearing” to mean that the Tribunal is barred from considering costs in a proceeding that precede the hearing event or is without jurisdiction in the absence of a final hearing event. To the contrary, in paragraph 15 of that decision, the Tribunal noted (emphasis added):

The primary standard with respect to judging a costs request, as is implicit in the wording of Rule 23, is the nature of the conduct which occurred in the Tribunal hearing room and in connection with procedural matters leading up to the hearing itself.

29As also noted by the Tribunal in Dale, background can be helpful in understanding events that occur during a hearing and the Tribunal was, in that case, pointedly “weeding out” what occurred at the “local level” or “along the way” before the proceeding begins with the Tribunal. The Tribunal is indeed restricted to matters relating to costs which are incidental to the proceeding and is not vested with the authority to consider costs incidental to what has occurred before the proceeding is before the Tribunal. Conduct external to the proceeding may be relevant to the exercise of the discretion but is not to be considered in quantifying costs.

30It is the view of the Tribunal that the general, non-case-specific, analysis of the Board in Whitby is as sound and persuasive now as it was then provided, but the assurance of an updated analysis may be warranted given that the Tribunal’s home statute is now different, and the Tribunal’s Rules have been revised.

31The SPPA provides, in s. 23 and 25.0.1(a), that the Tribunal has the authority to control its own procedures and practices and to make rules to that end. Section 17, with respect to the Tribunal’s authority to order costs, and make rules relating to costs, provides as follows (emphasis added):

Costs

17.1 (1) Subject to subsection (2), a tribunal may, in the circumstances set out in rules made under subsection (4), order a party to pay all or part of another party’s costs in a proceeding. 2006, c. 19, Sched. B, s. 21 (2).

Exception

(2) A tribunal shall not make an order to pay costs under this section unless,

(a) the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith; and

(b) the tribunal has made rules under subsection (4). 2006, c. 19, Sched. B, s. 21 (2).

Amount of costs

(3) The amount of the costs ordered under this section shall be determined in accordance with the rules made under subsection (4). 2006, c. 19, Sched. B, s. 21 (2).

Rules

(4) A tribunal may make rules with respect to,

(a) the ordering of costs;

(b) the circumstances in which costs may be ordered; and

(c) the amount of costs or the manner in which the amount of costs is to be determined.

32The Tribunal’s home statute, the OLT Act, also provides for orders for costs and it is noted that the wording is identical to the wording in s. 97(1) of the Ontario Municipal Board Act cited by the Board in Whitby. The section reads (emphasis added):

Costs

20. 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.

33There is, by virtue of the usage of the terms in the OLT Act and the definitions in the SPPA, a clear distinction between a proceeding and a hearing. A “proceeding” and a “hearing” are not defined in the OLT Act. These terms are however defined in the SPPA and differentiate between a “proceeding” and a “hearing”. Section 32 of the SPPA confirms that in the absence of a provision in the OLT Act which applies despite the SPPA, the provisions of the SPPA prevail. Section 12(3) of the OLT Act provides that the regulations and the Tribunal’s Rules prevail over “any provisions of that Act with which they conflict”. Accordingly, as there is no such conflict, the following simple distinction between a “hearing” and a “proceeding” in the SPPA definitions governs:

“hearing” means a hearing in any proceeding;

“proceeding” means a proceeding to which this Act applies;

34It must be assumed that the clear use of the wording “incidental to any proceeding” in the OLT Act, as opposed to “incidental to a hearing”, which would limit the authority to award costs only to a hearing, is deliberate. As noted by the Town in its submissions, the OLT Act, while not defining the two terms, does distinctly reference both “hearings” and “proceedings” in numerous sections. As an example, s. 19(1) provides that the Tribunal may dismiss a “proceeding” without a “hearing”. This section alone reinforces the point made in the Whitby analysis that a consideration of costs in a proceeding does not require the holding of a hearing event as a pre-requisite to the request.

35This distinction between a hearing and a proceeding is carried over into the Tribunal’s Rules. A “proceeding” means “any matter, procedure, appeal, referral or application before the Tribunal” whereas a “hearing event” is a distinct procedure which includes a motion, case management conference, or hearing.

36Accordingly, as s. 20 of the OLT Act definitively grants the Tribunal the authority to order costs “incidental to a proceeding” the Tribunal must conclude that a request for costs can be made, and considered, by the Tribunal for any part of a proceeding whether a hearing has taken place or not.

37Made under the authority of the legislation, Rule 23.8 of the Tribunal’s Rules is, in the Tribunal’s view, the final ultimate indicator that the Tribunal may consider the conduct of a party regardless of whether a hearing has been conducted, and in relation to the proceeding as a whole, and not just the hearing. It states as follows (emphasis added): “23.8 Period Eligible for Costs Order The Tribunal may make a costs award for conduct at any time during a proceeding.”

38Costs may thus be considered with respect to any aspect of a proceeding that is placed before the Tribunal, but logically will not include any steps or activity such as public consultation, or application processes, which precede the point at which the proceeding is formally before the Tribunal, and it has accepted adjudicative authority over the matter.

39This approach, limiting the consideration of the conduct of a party to conduct after the filing of a notice of appeal or objection, and recognizing that the conduct of a party occurring before a proceeding is before the Tribunal through the filing of an Appeal or Objection, does not fall within the criteria set out in Rule 23.9, was squarely addressed by the Tribunal in Evergreen Environmental Inc. v. Oshawa (City), supra page 8, submitted by the Owners. (The manner in which facts and circumstances outside the parameters of the proceeding may be of relevance in considering whether to exercise the Tribunal’s discretion is addressed later in this Decision.)

40Rule 23.1 of the Tribunal’s Rules does make reference to the fact that a “party may ask for an award of costs “at the end of a hearing event” but that first sentence is in the context of “who” may request an order for costs and what is required relative to the request being made before a decision is rendered. The Tribunal interprets the Rule, consistent with the OLT Act, as speaking to the timing of the request and who may make the request and not indicating that the conduct of a hearing event is a pre-requisite to a request for costs or that costs incidental to the entirety of the proceeding, which precede the hearing, may not otherwise be requested. To the contrary, since the Tribunal has control over the whole of its proceedings, and as Rule 23.8 provides, it has the ability to consider any request for costs over all procedural aspects in a proceeding to, and including, the point that the proceeding is determined on its merits, withdrawn or dismissed. Further, Rule 23.3 also contemplates that a request for costs may be made before the end of a hearing event, and clearly anticipates the consideration of costs prior to, or in the absence of, a hearing event having been conducted.

41Finally, the Tribunal would highlight that aspect of the issue addressed by the Tribunal in Whitby which speaks to fairness. The withdrawal of an objection or appeal well-along in a proceeding before a final hearing on the merits, or even in the middle of a hearing event should not, in fairness, bar a party from requesting costs, if appropriate. 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 such actions and misconduct preceding the 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.

Considerations Specific to the Conservation Review Board and s. 29(15) of the Ontario Heritage Act

42The Tribunal has considered the submissions of the Parties as to whether the fact that this proceeding was a matter before the CRB impacts the authority of the Tribunal to consider costs or impacts the discretion of the Tribunal or quantification costs if deemed appropriate.

43Dealing only with the jurisdictional issue, the Tribunal cannot conclude that, because this proceeding arises from Objections of the Owners under the Ontario Heritage Act to the Notices of Intention to Designate, it has no authority to consider costs.

44While section 29(15) does indeed provide for the ability to withdraw an objection, the Tribunal must agree with the Town that this is not unique. Neither, in the Tribunal’s view, does the existence of the provision allowing for the withdrawal of the objection itself act as a bar to request costs. The Ontario Heritage Act is otherwise silent as to the cost consequences of a withdrawal and makes no reference to any insulated protection from a request for costs. The analysis set out with respect to the OLT Act, the SPPA and the Tribunal’s Rules applies in all respects.

45The Tribunal has considered the submissions of the Owners, that the Vogel decision stands for the proposition that where the objector exercises the right to withdraw, there is no longer a dispute and therefore no further jurisdiction to hear the matter of costs. In the Tribunal’s view, this would seem akin to reliance upon the doctrine of functus officio which, in its view, is inapplicable to such circumstances. First, the concept of functus officio applies to bar a trier of fact from revisiting a decision on the proceeding where the merits have been finally determined and the trier of fact is divested of jurisdiction over the matter already decided. That is not the case where there has been a withdrawal. Second, while there may no longer be a dispute before the Tribunal to decide if the Objection is withdrawn, the proceeding up to the point of the withdrawal was nevertheless before the Tribunal, over which it had jurisdiction and the discretion to grant costs relates to the proceeding, inclusive or exclusive of a hearing on the merits. To suggest that the Tribunal is divested of jurisdiction to award costs after an appeal is withdrawn would logically require that the Tribunal also consider itself divested of jurisdiction to consider an award of costs after making a final order, as the matter would similarly no longer be before it. This would clearly be incorrect given that the Rules contemplate that a request for costs can be made thirty days after a written decision is issued.

46As well, as the Town correctly points out, in Vogel, the Tribunal specifically directed the parties to provide written submissions as to whether costs should be assessed, and the decision cannot be taken to mean that the Tribunal is without jurisdiction to award costs after a withdrawal.

Summary

47Upon the analysis provided, the Tribunal accordingly finds that the Tribunal has the authority to consider, and the Town and the Association have the ability to request, costs payable by the Owners in relation to the proceeding to the point of the withdrawal of the Objections.

48It remains to decide, upon the criteria set out in Rule 23.9 and the issue, and upon the case law, whether it is appropriate to exercise its discretion and order costs against the Owners. If the Tribunal finds that the Owners’ conduct, or course of conduct, is unreasonable, frivolous or vexatious, and that the seriousness of the misconduct warrants an exercise of its discretion, it will remain to quantify the award in light of the requests made by each of the two requestors.

ISSUE 5 - THE ASSOCIATION AS AN “INTERVENOR”

49Before dealing with the merits of the claims for costs identified in the issues lists, there is the remaining issue raised by the Owners regarding the status of the Association as an intervenor.

50The Tribunal does not consider that the Association can be considered an intervenor in this proceeding that was initially before the Conservation Review Board. That Board, and this Tribunal as the successor, has within its procedural processes, adopted an approach to the granting of party status. This is clearly distinguishable from the process of permitting a person or entity to be an intervenor in a proceeding between two or more other litigants. Rule 8 of the Tribunal’s Rules, when read in its entirety, makes clear the circumstances in which a requestor will be granted party status, the role and obligation of a person granted party status, and those limitations that may apply.

51This includes Rule 8.1(f) which provides explicitly that the right to “participate fully in the proceeding” means that the added Party may “claim costs or be subject to a costs award when ordered by the Tribunal”.

52Accordingly, the Association has the ability to claim costs, as a party, against the Owners and the Tribunal rejects those arguments set out in paragraphs 138 to 144 of the Owners’ Notice of Motion, save and except to the extent that they might be relevant to the Tribunal’s discretion to award costs or the quantification of costs.

IS AN ORDER OF COSTS WARRANTED?

53The basis for the Tribunal’s jurisdiction to consider awards of costs in circumstances of a withdrawal under the OLT Act and the SSPA has been summarized above. The question remains as to whether the Tribunal’s discretion to award costs should be exercised.

54Rule 23.9 of the Tribunal’s Rules provides the threshold for any award of costs which relates directly to the conduct or course of conduct of the party in the proceeding. A non-exhaustive list of the types of “clearly unreasonable, frivolous, vexatious or bad faith conduct” which may give rise to a costs order is provided as guidance. The Rule provides that the existence of such examples of conduct will not necessarily obligate the Tribunal to exercise its discretion and the Tribunal will consider the seriousness of the misconduct.

55Rules 23.9 and 23. 10 of the Tribunal’s Rules provide as follows:

RULE 23

COSTS

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.

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

56The Rules which previously governed the CRB, though worded differently, and not utilizing the references to “unreasonable, frivolous, or vexatious” contained in the SPPA, were consistent with Rule 23.9, in focusing upon the conduct of the party. An overview of the guidance and general principles that have developed in the Tribunal’s jurisprudence may assist the Tribunal in determining how Rule 23.9 will be considered and applied in requests for costs. The submissions of the parties in these Motions have identified some of them. They include the following:

(a) An award of costs by the Tribunal is not routine, is not made lightly, and instead may be considered exceptional. Unlike the Courts, costs do not follow the cause, and costs are not automatically awarded simply because the party filed an appeal that was unsuccessful. The successful party should accordingly have no expectation that he, she, or it will recover its costs of the proceeding.

(b) The absolute requirement for an award of costs is that the party against whom the request is made, must have demonstrated conduct or a course of conduct of a party in the proceeding that has been “unreasonable, frivolous or vexatious” or the party has acted in bad faith. Absent such conduct, there can be no award of cost.

(c) In the event of a finding of such conduct, the award of costs is not assured and remains discretionary. The final wording of Rule 23.9 makes clear that the seriousness of the misconduct will be considered.

(d) An objective test must be applied when examining the conduct of the responding party to a motion for costs which is essentially a “reasonable person” test. The Tribunal must consider whether a reasonable person, looking at all of the circumstances, the conduct or course of conduct of the party proven at the hearing, and the person’s familiarity with the Tribunal’s procedures, would conclude that the totality of the party’s conduct was not “right” or “fair”, such that the party should be obligated to compensate the requesting party for that kind of conduct.

(e) In applying an objective test of a reasonable person, 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.

(f) 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 public interest impact of a costs award is a relevant factor for the Tribunal to consider in exercising its discretion. This is especially the case where an appeal clearly gives rises to matters of broader public interest that go well beyond the limited interests of the party or appellant.

(g) Despite the exceptional nature of a costs award, the approach of the Tribunal nevertheless recognizes that parties must also be held accountable for their conduct if it is clearly unreasonable, frivolous, vexatious or in bad faith that it is deserving of an order compensating a party impacted by such conduct. There is no total immunity from cost claims.

(h) Something which is unreasonable is irrational, not in accordance with good sense, or foolish, whether intentionally or unintentionally.

(i) Frivolous conduct is conduct characterized as conduct demonstrating a lack of seriousness, and unacceptable conduct that is intentionally “silly” or also “foolish”.

(j) Vexatious conduct is conduct characterized as conduct which is instituted without sufficient grounds deliberately for the purpose of causing trouble or annoyance to another party or “nasty”.

(k) An examination of motivation and intent for conduct may be required with respect to conduct during a proceeding. A question that can be asked is: what was the real motivation, the driving force, the endgame relating to the conduct of the party from whom, or from which, costs are pursued and is there a lack of legitimacy of purpose underpinning the actions of the party that causes the conduct to be insincere or disingenuous?

57The framework for costs in Rule 23 of the Tribunal’s Rules does not include a provision similar to Rule 23.05 of the Ontario Rules of Civil Procedure, which expressly provides the opportunity for a defendant to seek costs against a plaintiff when the plaintiff discontinues an action, or similar to Rule 23.06 which provides that where a defendant withdraws a defence to the action, the defendant is deemed to be in default and thus may be liable for costs if claimed by the Plaintiff in the action.

58That framework does not exist in the Tribunal’s procedures because the Tribunal has a presumption that neither party in a proceeding is entitled to costs unless the criteria in Rule 23.9 relating to misconduct have been met.

ISSUES 6 and 7 – TIMING OF WITHDRAWING THE OBJECTIONS (AND MOTION TO STRIKE) AND THE REASONS FOR WITHDRAWING THE OBJECTIONS

Withdrawing at the “Doorstep of the Hearing”

59The Tribunal accepts the submission of the Owners that in considering the substantial factual and documentary evidence submitted by the Town and the Association in support of their Motions, and their respective submissions, the primary basis for the requests for costs really is centered on the timing of the Owners’ withdrawal of the Objections at what the Tribunal would describe as the “doorstep of the hearing room”, and with it, the Motion to Strike. As the Town submitted: “Waiting to withdraw the Objections until all hearing preparation was essentially complete is unreasonable and serious misconduct”. As the Association put it: “Having dragged [the Association] and the Town through a three-year process in multiple forums in respect of the heritage matters related to the Subject Lands, the Objectors’ withdrawal effectively confirms that this will simply be put off to a different venue.”

60The pointed conceptual question to be considered in these Motions for Costs is whether the very act of withdrawing an appeal or objection on the eve of the final merit hearing itself merits a serious consideration by the Tribunal of awarding costs against the withdrawing party. The submissions of the Town and Association as to the late timing of the withdrawal, and time wasted in preparing for the hearing, on their face, do present as logical and compelling in the exercise of the Tribunal’s discretion to award costs under Rule 23.9. In response, the submissions of the Owners speak to the reasonableness of their position in the proceeding, their right to challenge the Notice to Designate, and the reasonableness of the reasons and timing of the withdrawal.

61Does a litigant’s conduct, in withdrawing an objection or appeal very late in a planning or heritage related proceeding – in this case only five weeks before the hearing – represent prima facie misconduct worthy of the hard scrutiny of the Tribunal? In the Tribunal’s view, in order to answer that question, it is first necessary to consider the underlying context of the Tribunal’s administrative functions in planning and heritage matters, such as this proceeding, which, in turn, has guided the Tribunal’s approach to the framework in which costs are considered under the Tribunal’s Rules.

The Nature of this Proceeding in Heritage and Planning

62This proceeding relates to Objections filed by the Owners under the Ontario Heritage Act pursuant to s. 29(5) of the legislation as it then was. It is understood that the purpose of the Ontario Heritage Act is to identify and then conserve, protect and preserve cultural heritage and archaeological features and resources in the Province for the benefit of all Ontarians and the public at large. The Provincial Policy Statement and the Planning Act strengthen and enhance the objectives of the heritage legislation through polices that direct heritage resources to be conserved and require that all planning decisions be consistent with such policies. There is a clear public interest in the protection of Ontario’s enriched and varied built and natural heritage landscapes and features across the Province which are conserved for the benefit of the Province’s residents. This public interest in such heritage protection transcends that of the owners of the lands upon which such heritage features are located.

63The Owner’s Objections arise within the “identification” phases of the processes regulated in the legislation which provide for the various means by which heritage features are identified by a municipality. In this case, the Notices of Intention to Designate were issued by the Town in response to development applications filed by the Owners relating to the Rand Estate Lands including a subdivision. The facts of this case are a simple demonstration that planning and development on lands are impacted by the identification of heritage attributes, and conversely that the Provincial and public interest in protecting, preserving and conserving heritage resources may be prompted by, and interrelated to, development.

64A Notice of Intention to Designate heritage attributes on the private property of an owner, which ultimately may lead to a binding and effective identification of heritage attributes, represents a not insignificant change to the property rights of an owner. The imposed designations do not directly restrict or limit the use of the property, but it does impose limitations on changes to the property and any desire to alter or demolish lands, fixtures and improvements, which are otherwise not imposed upon property owners without such controls imposed by the Ontario Heritage Act. There are repercussions for owners who fail to comply with such designations and obligations for those who seek the necessary permissions to develop the land they own. When the owner of a property has plans for commercial or residential development, the designations obviously impact any application under the Planning Act required to permit development of the lands.

The Tribunal’s Administrative Function and Public Interest Mandate

65The Tribunal’s administrative function in considering these Objections reflect the balancing exercise that must be undertaken. There must be recognition of both the public and private interests arising in planning matters and planning related proceedings such as the Ontario Heritage Act, and the rights of both private landowners and public members to advance and protect such respective interests. Rights of appeal or objection are clearly provided in the legislation and afforded to interested parties, including the owners of land affected by planning decisions. Under the Ontario Heritage Act, as it was when these Objections were placed before the CRB, the administrative function of the Tribunal was to conduct a hearing, consider the evidence, and under s. 29(12), provide information, make findings of fact and make recommendations in the form of a Report to the Town’s Council as to whether or not the designations should be made.

66This Tribunal and the Courts have, on many occasions, recognized that in exercising its jurisdiction in a proceeding such as this, the function is administrative in nature where the decision (or in this case recommendations) to be made transcend the interests of the parties to the proceeding and extend to larger considerations of administrative policy which affect the public and the Province as a whole. When the Tribunal exercises its function in such a manner there is no “lis” between two parties in the sense that there is no private cause of action or contest between parties that must be decided in the manner of a court proceeding. While the evidence and submissions of the immediate parties to the proceeding will certainly be considered and are important, the decision to be made may be impacted by larger considerations of public policy. Such is the nature of the Tribunal’s administrative function and consideration of the larger public interest in proceedings such as this one.

How Tribunal Administrative Function and Public Interest Proceedings Inform the Approach to Costs

67The approach of the Tribunal to the matter of costs has traditionally fallen into line with this framework. The Tribunal has never taken a stringent “winner and loser” approach to the adjudication of appeals or objections under planning, heritage, environmental or other related legislation that governs development in Ontario where its consideration of public policy is also at play. Not surprisingly, this non-adversarial approach, distinct from the type of disputes between parties found in a civil court proceeding, is similarly applied to the matter of costs. The Tribunal’s framework for the discretionary consideration of costs also avoids a “winner and loser”, “costs in the cause”, approach to awards of costs. The general principles set out in paragraph 56 above reflect this.

68Rule 23.9, when read as a whole, demonstrates that the threshold for discretionary awards of costs is high, and the incidence of cost awards are rare. The criteria to be considered expressly does not include the success or failure of the party. The Tribunal’s Rules have always focused solely upon the conduct of a party in a proceeding rather than the ultimate result or outcome of the proceeding. Whether, and to what extent, a future amendment to s. 20 of the OLT Act which may stipulate that the Tribunal’s authority to fix costs includes the power to order an unsuccessful party to pay a successful party’s costs, will impact the Tribunal’s Rules on costs remains to be considered and determined by the Tribunal in light of the Tribunal’s unaltered administrative function and the continuing public interest in planning decisions.

69That a party, municipality or appellant, has ultimately “lost” upon the rendering of the Decision by the Tribunal matters not at all in the absence of misconduct under Rule 23.9 of the Tribunal’s Rules.

The High Threshold for Costs and the Withdrawal of an Objection or Appeal

70It logically follows that if the objector or appellant to a proceeding withdraws the objection or appeal shortly before, or even during, a hearing on the merits, (which in this case results in the municipality’s intended heritage or planning decision being unchallenged) ultimately, the end result is the same.

71In such circumstances, the outcome for the objector or appellant is such that the position advanced in their objection does not prevail. There is no “loss” for the objector/appellant, nor is their a “win” for the municipality. This situation should not prima facie expose the objector or appellant to the possibility of an award of costs, any more than an adverse decision upon the hearing of the merits prima facie exposes any party to costs. To assume that a withdrawal of an objection or appeal gives rise to an exposure to costs would not be consistent with the costs approach of the Tribunal following a hearing on the merits. The fact that the party in whose favour a Decision has been rendered has expended significant time and expense to the point of the favourable Decision is not relevant. For consistency, the same approach must apply to the case of a withdrawal.

72The primary objection advanced by the Town and the Association is the timing of the withdrawal and they take the greatest of exception to the fact that the Owners waited until the “eleventh hour” to withdraw the Objections, when the Town and Association submit that they had already expended significant time and expense. For the reasons indicated, the withdrawal of the appeal or objection immediately prior to the determination of the proceeding on its merits by the Tribunal is not itself misconduct sufficient to require the exercise of the Tribunal’s discretion to award costs, no more than a “win” after the conduct of a full hearing itself represents misconduct warranting the consideration of a cost award. The fact that the Town and the Association have expended significant time and expense to get to the point of the withdrawal is, in and of itself, also not relevant.

73This is not to say that such circumstances (either a withdrawal by the objector/appellant, or a favourable outcome for the municipality or an added party aligned with the municipality), might not still give rise to the exercise of the Tribunal’s discretion. If the party’s conduct is examined and that conduct can be objectively considered to be unreasonable, frivolous, vexatious, or in bad faith and the timing of the withdrawal (or taking the proceeding through to a final decision) is demonstrative of conduct requiring the exercise of discretion, then costs may be ordered based upon such misconduct. On the specific facts of a case, it could, for example, be demonstrated that a party has taken a proceeding through to a withdrawal or a complete hearing and has: been unreasonably obstructive in the proceeding; failed to communicate with the Tribunal or the parties; failed to produce witnesses or tender evidence; failed to adequately prepare for a hearing; unduly delayed the proceeding; or demonstrated other types of serious misconduct referred to in Rule 23.9. The focus however is upon the conduct, not the withdrawal.

74In summary, it is the view of the Tribunal that the act of withdrawal of the Owners’ Objections, in and of itself, does not represent objectional conduct that falls within the parameters of the threshold and criteria set out in Rule 29.3 of the Tribunal’s Rules. Given 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 the objection.

75The question thus remains: is the timing of the Owners’ withdrawal, relative to their overall conduct, or the expressed reasons for the withdrawal in the Withdrawal Letter, sufficient to meet or exceed the Tribunal’s threshold for the awarding of costs?

Do the Timing of Withdrawing the Objections and the Stated Reasons for Withdrawing the Objections Represent Misconduct?

76The evidence and submissions provided by the Town and the Association in support of their requests for costs against the Owners, and the rather significant quantum of costs sought of over $612,000, requires the Tribunal to step back and objectively examine the adjudicative subject matter and framework in which such costs are being requested.

77For the reasons that follow, the Tribunal is not persuaded by the Town nor the Association that the conduct of the Owners, in relation to the withdrawal of the Objections or the stated reasons for doing so, warrants the exercise of the Tribunal’s discretion to award costs.

78As the Tribunal has considered the whole of the evidence provided by the Town and the Association, it must objectively conclude that both have been errant in their characterization of the Owners, and themselves, within the proceeding. In many respects the submissions of the Town and the Association as to costs have adopted a civil litigation viewpoint akin to a proceeding before the Courts resting very much upon an assumption that they have emerged as the “winners”, with their time “wasted” in the proceeding. The Town’s evidence and submissions belie an authoritative assertion that ultimately their Notices of Intent to Designate the heritage features were absolute and correct. This is misplaced as the Owners had the legislated right to exercise their objections to the intended designations. The Association, as noted in their materials, and, in particular, their public webpage pronouncements following the withdrawal, demonstrate the clear attitude: “we won”. This adversarial approach, and winner vs loser, is at odds with the Tribunal’s approach to costs.

79Both sides on these Motions point to the conduct of the other(s) in support of their respective positions as to whether the Owners are liable for costs. It is only the conduct, or misconduct, of the Owners that determines whether the Tribunal will exercise its discretion, but that conduct must be examined in the context of the entirety of the proceeding. This context, of necessity, requires the Tribunal to reasonably consider the conduct of all parties and the whole of the background of the litigation leading up to the end of the proceeding. In other words, while it is only the conduct of the party from whom costs are sought that must be scrutinized under the standard of reasonableness, that scrutiny, applying an objective test of reasonableness, requires an understanding of the conduct of all of parties to the proceeding who took opposed positions to the party who has been called to task for their conduct.

80It is clear to the Tribunal, when considering the whole of the evidence, that the acrimony and subjectively critical and negative assessments of the other side’s conduct and positions on the issues in the proceeding extended to each one of the parties throughout the course of the proceeding. There are many examples throughout the materials that point to the entrenched and committed position being taken by the Town and the Association, as well as the Owner, including:

• the acerbic tone and vitriol utilized by all three of the parties within the submissions and evidence in these motions to describe the conduct of the opposed party or parties;

• the Association’s article “Benny Marotta folds his tent on CRB” published after the Withdrawal which perceived that Owners as “dragging [the Town] through years of a now-abandoned CRB challenge”, dismissive of the possibility that there was a bona fide motivation for the Owners’ exercising their right to object to the Designations;

• the Association’s second article which followed the withdrawal of the Objections “Rand subdivision concept announced by SORE” in which the Association passes judgment on the Owners’ proposed subdivision on the Rand Estate Lands (referred to in the Withdrawal Letter) as “utterly atrocious”. The article discloses that the Association has predetermined its intent to continue to challenge the Owners’ development plans, which include a presumption that the Association will utilize its team of experts to determine what form of residential development would be feasible on lands which they do not own, but which may possess heritage attributes;

• the Association’s prior publication of confidential information regarding settlement discussions, and argument of the merits of the case in the public forum, the impropriety of which was noted by the CRB, and further evidencing an unwavering stance on the issues in the proceeding;

• the Town’s election to withhold formal disclosure of pre-hearing information relating to the heritage attributes through its experts as communicated in June of 2021. The evidence indicates that the Town delayed in proactively providing notice to the Owners counsel of the publication of heritage attribute mapping of the Rand Estate, dated January 21, 2021, uploaded to a website on March 21, 2021, but only informing the Owners on June 21, 2021;

• the Town’s failure to appreciate that its disclosure of the all-important particulars of exactly what landscape features the Town sought to protect under the Notices may not have been as forthright and timely as they believed. This ultimately led to one of the more contentious factual disputes that would have been before the Tribunal on the Motion to Strike;

• the Owners’ steadfast position that it only required the particulars of the heritage attributes and locations, and the impact this adversarial position would have on the issues, again, leading to the Motion to Strike.

81In these Motions, the Tribunal is not required, nor can, ultimately determine the merits of the Motion to Strike which was abandoned before it was decided. The respective and diametrically opposed position of the parties on these matters do not have to be adjudicated here. However, a fulsome review of the opposing evidence on the machinations of the proceeding as it wound its way through the pre-hearing disclosure, the matter of adjournments, the exchange of the mapping information, the arguments regarding the Motion to Strike and the detailed chronology of events reviewed by each of the three parties demonstrates to the Tribunal that the Owners’ conduct was not unreasonable, vexatious, or inappropriate as the Town and the Association argue. Applying the objective reasonable standard, there is nothing that would lead a reasonable person to conclude that the totality of the Owners’ conduct in the proceeding was remarkably unreasonable, unfair or such that it is deserved to compensate the Town or the Association with costs.

82From this, the Tribunal concludes that there was nothing unreasonable or inappropriate in the conduct of the Owners that would lead it to conclude that there was some objectively inappropriate misconduct on their part as to the timing of the delivery of the Withdrawal Letter.

83Reviewing the whole of the background leading to the withdrawal of the Objections, the Tribunal certainly cannot conclude that the Owners were unduly delaying the proceeding or disingenuous in their advancing of the proceeding and preparing all materials for the merit hearing. The Tribunal’s finds that the Owners’ evidence as to their genuine approach in the Objections to understanding the nature of the heritage designations vis-à-vis their plans for development is persuasive. That the hearing was initially scheduled for July, and that the parties anticipated that the hearing would occur then, and prepared accordingly, speaks to the fact that the eventual withdrawal in November, and the timing of that withdrawal was not intentionally orchestrated by the Owners to cause unnecessary preparation by the Town or the Association. The majority, if not all, of the preparatory work for the conduct of the merit hearing was or should, in the Tribunal’s view, have been done by the summer of 2021, such that the later withdrawal of the Objections in November, five full weeks before the hearing, did not represent an untimely decision.

84In the Tribunal’s view, the Owners were: responding in a timely fashion to all filing requirements and preparing fully for the hearing; responding and cooperating in the adjournments that were necessary due to circumstances beyond the control of the parties; consistently advancing their position as to the necessity of putting the subject matter of the Motion to Strike before the Tribunal (if not dealt with by Motion of the Town and Association to vary the Issues List); and communicating in a timely fashion on most, if not all, substantial matters relating to the proceeding.

The Reasons for the Withdrawal and the Withdrawal Letter

85The Tribunal has considered the Owners’ explanations for the withdrawal and the timing of the Withdrawal Letter. The evidence and submissions presented by the Owners on these Motions identify a “convergence of several genuine factors” in late October of 2021 which led the Owners to decide to reconsider the merits of continuing with their Objections and to withdraw. The Owners assert that they have acted reasonably and in good faith at every stage of the proceeding based upon genuine concerns as to the lack of specificity as to what landscape features the Town sought to protect under the Ontario Heritage Act.

86The Tribunal finds that the circumstances giving rise to the Owners’ decision to withdraw, within the context of the overall chronology of events and the concurrent conduct of the Town and the Association, as set out in the Withdrawal Letter, are not unreasonable.

87More specifically the Tribunal is unable to agree with the submissions of the Association and the Town that the Owners’ frank disclosure that it would be moving forward to advance its application for the proposed subdivision is unreasonable in and of itself. It was clear that this proceeding arose in the context of planned development applications on the Rand Estate Lands and the Owners’ assertion that it was objecting to the Notices in this proceeding with a view to assessing and facilitating its planned development.

88The amendments to the Ontario Heritage Act on July 1, 2021, was an external event beyond the anticipation or planning of any of the parties, which presents as a reasonable factor for the Owners to consider. In the Tribunal’s view, the Owners’ statement, in the Withdrawal Letter, that they would file the necessary applications under the Ontario Heritage Act for their revised Subdivision Application and have access to a binding decision from the Tribunal, as permitted by the legislative changes effective as of July 1, 2021, is not, in the Tribunal’s view, evidence of devious or unreasonable circumventing of this proceeding, but rather the practicality of moving forward with all Parties having access to the adjudicative processes available to them under the legislation and the Tribunal’s Rules.

89That the Owners would reconsider their position, as plainly communicated in the Withdrawal letter, withdraw the appeal and move forward to secure planning approvals for the revised Subdivision (taking into account the mapped attributes) does not strike the Tribunal as being offensive misconduct or unreasonable as the Association and the Town would submit. As the chronology of events unfolded, the Owners’ expressed plans in moving forward, as described in the Withdrawal letter, are reflective of the kind of fluidity and strategizing that always occurs in the planning and development industry. That the Tribunal may be called upon to adjudicate any aspects of future proposed applications, as they may now occur in the context of such designations of cultural heritage attributes, is not perceived by the Tribunal as “postponing” the issue to another venue. The Tribunal can and will be nimble and responsive to the consideration of the merits of any proposed development in the future, if it is required to adjudicate any future disputes that cannot be resolved by the parties. This does not, itself, fall within the category of misconduct identified in Rule 23.9.

Summary – Issues 6 and 7

90In summary, the act of withdrawing the Objections does not represent misconduct. The timing of the withdrawal is itself not indicative of misconduct and the Tribunal accepts that the reasons for the withdrawal are reasonable, legitimate and not an abuse of process in the context of the Owners’ plans for the Rand Estate Lands and their right to advance applications and file such appeals as they deem appropriate to determine the planning or heritage merits of the proposed development The Owners’ conduct in the advancement of their position in the proceeding was not unreasonable nor an abuse of process. Both sides were entrenched in their respective positions. The fact that the Owners were doubtful that the Town would do anything other than proceed with its intended designation, regardless of the Tribunal’s recommendations is not objectionable, unreasonable, or reflective of an abuse of process. When viewed through an objective lens, the steadfast positions of the Town and the Association, as revealed in all of the Motions material, certainly demonstrates that the Owners’ perception was not unfounded. In the context of the whole of the proceeding, a reasonable person, when viewing the withdrawal, the timing of the withdrawal, and the content of the Withdrawal Letter, would not conclude that the Owner’s conduct was not right, or that it would not be fair to deny the Town and the Association recovery of their costs as claimed.

ISSUE 8 - TIMING OF BRINGING THE MOTION TO STRIKE

91A good portion of the materials filed by, and submissions of, the Town and the Association relate to the Owners’ Motion to Strike. It is their position that the Owners’ conduct in relation to the Strike Motion is particularly objectionable because there was absolutely no basis for the Motion to Strike, because the Town was not adding new issues, including the evaluation of other landscape features that are not surviving elements of the Dunington-Grubb landscape. As a given, it is the position of the Town and Association that the Owners’ Motion to Strike itself, and the timing of the Motion, represents irrational, unreasonable, frivolous and vexatious conduct on the part of the Owners.

92The Tribunal, of course, is without guidance as to the merits of the Motion to Strike since the respective versions of events on the subject matter of the Motion were never considered or decided by the Tribunal. As a result, the Tribunal must consider the diametrically opposed versions of what happened and the propriety and reasonableness of each side’s conduct in respect of the Town’s and the Association’s disclosure of additional landscape features that were outside the bounds of the Issues List that had been in place early in the litigation. This determines whether the Owners’ Motion to Strike was reasonable under the circumstances.

93Issue No. 1 of the Issues List raises the question of whether the Heritage attributes of 200 John Street East were correctly described and specifically was focused on what the “surviving elements of the Dunington-Grubb landscape” were that the Town wished to protect, and whether they were Heritage Attributes. There were no identified landscape related attributes or issues in relation to 588 Charlotte Street. The question is whether the Town and the Association were, by the summer and late fall of 2021, advancing other features and expanding the issues list?

94In carefully reviewing all of the affidavit evidence and exhibits, it is far from clear to the Tribunal that the Owners’ conduct in taking exception to the disclosure of the information relating to the relevant landscape features to be protected, and relatedly the issues for adjudication, was entirely without basis. Despite the absolute perspective of the Town and the Association as to the unreasonableness of the Owners’ advocated position, the whole of the materials raises the likelihood that all of the parties had developed contentious and adversarial positions on whether there had been fair and timely disclosure, by the Town, of the heritage and landscape features that were being advanced beyond that contained in the Notice. The verbal communications by Ms. Smith in June of 2021, and the exhibits to Ms. Mannell’s Affidavit, indicate that the Town was acknowledging that there were other heritage attributes and landscape features to be advanced. Ms. Premi, on behalf of the Owners, communicated concerns regarding this addition of further heritage features beyond that which existed when the Issues List was first formulated. Ms. Smith, on behalf of the Town responded by saying the Town was not changing the scope of the attributes or the issues. The parties acknowledged that this might have to be argued.

95As to the timing of the Motion to Strike, it does not appear to the Tribunal that the context and chronology of the events giving rise to the Owner’s concerns about the Town’s disclosure and introduction of additional heritage and landscape features were unreasonable. The Owners argue that the Town and the Association were not forthright in distributing the rather significant information in the CHL Map dated January 21, 2021, directly to the Owners, or made public through posting on the web site earlier than March 21, 2021. The Town has provided no explanation in these Motions as to why the Owners were not alerted to the CHL Map until June 21, 2021.

96In the Town’s Reply materials, they assert that a map setting out the specifics of a cultural heritage landscape map and locating the “Dunington-Grubb heritage attributes” was provided to the Owners on a without prejudice basis as early as July of 2020. They submit that the Owners were the ones that failed to consent to the release of the without prejudice information and that the Town’s position did not change “in any material way” and only with “minor changes” after July 2020.

97On behalf of the Town, Ms. Smith explained, in her email of June 21, 2021, as to why the attributes list would be held back from formal disclosure, in the context of the Procedural Order disclosure exchange dates. There were changes made to the list of attributes. Counsel for the City took a formalized approach to the release of the information relating to the features and delayed. The total content of that attributes list was most certainly directly connected to the Issues in the Issues List and therefore potentially, if expanding the Issues List, created a procedural problem from the perspective of the Owners.

98In the Tribunal’s view, the Owners may not be misplaced in their submission that if the Town and the Association were indeed to expand the parameters of the heritage attributes to be protected, and thus the issues, the onus under the Procedural Order would lie with them to seek leave to vary. When that did not happen, regardless of the merits of the respective position of the parties on the whole issue, the Owners took action and brought the Motion to Strike.

99It is not for the Tribunal, on these Motions for Costs, to wade through the plethora of facts, information, submissions, arguments and exhibits to sort out who would likely have won the Motion to Strike. The need for such a determination has come and gone. The focus of the Tribunal’s attention, regarding the Motion to Strike, is upon the question of whether the actions of the Owners meet the threshold of impropriety as defined in s. 23.9 of the Tribunal’s Rules, regardless of who might have held the high ground on the outcome of the Motion to Strike. There is no shortage of details, facts, documents, communications, opinions, aspects of advocacy and events in the materials files by all three of the Parties to demonstrate to the Tribunal that there was a contentious procedural matter arising with a bitterly fought CRA proceeding, where each of the parties was (and remain) entrenched as to their perceptions of the other side’s disingenuous and obstinate position. In the Tribunal’s view, the evidence in this Motion does not demonstrate that the Owners’ position or actions in bringing the Motion to Strike was, or is, itself deserving of an award of costs.

100Despite the extensive arguments of the Town and the Association on this point, it is the Tribunal’s finding that the Owners’ adversarial position on the subject of the Motion to Strike, its decision to bring the Motion, and the timing of the Motion collectively do not approach the threshold of clearly unreasonable, frivolous, vexatious or bad faith conduct. The Owners have persuaded the Tribunal that there was some merit in its tactical decision to raise the matter of the perceived “eleventh hour” adding of issues and, as Mr. Waverman opined, the identification of additional “landscape features that are not surviving elements of the Dunington-Grubb landscape.”

101The only lingering question of the Tribunal relates to the question of why the Owners delayed in moving forward with the Motion, in light of their evidence that during the summer of 2021, a “pause” occurred in the litigation. During this time, the Owners evidence is that they were finally able to garner some understanding of what the Town considered to be the “surviving elements of the Dunington-Grubb landscape” which assisted the Owners in accommodating heritage in the development of their proposed subdivision plan. They began to revise the subdivision plan, but concurrently there was still disagreement between the heritage experts, so the plan was still to move forward to a hearing. From the Owner’s perspective, they also still took the position that the disclosure on June 28, 2021, as to the heritage landscape issues, represented an expansion of the issues that needed to be addressed in a Motion. This raises the question of why the Owners would wait until October 8 to serve the Motion?

102The converse of that, from the opposed positions of the parties, is to question what difference it made in the work required by the Town and the Association to move forward towards a hearing. All the parties were presumably ready for the hearing as of the first week of July, as the hearing was scheduled to commence on July 19, 2021. All work to prepare for a hearing would presumably have been completed by then. Once the hearing was moved to December, what unreasonable prejudice or impact arose for the Town and the Association in preparing for the Motion in mid-October, instead of during the “pause” in August or September? The time spent, and expenditures made, in relation to preparation for the hearing represent the vast bulk of the claim for costs, and not the portion of the Claims for Costs related to preparation for the Motion between October 8 and November 2, 2021.

103When the Motion was brought, it was still over two months before the start of the hearing, so, in the Tribunal’s view, while the timing relative to the disclosure at the end of June was arguably three months afterwards, it was still reasonably brought well ahead of the start of the hearing. The Owner’s explanations from its perspective are not disingenuous or remarkable as inappropriate, unreasonable, frivolous and far from vexatious. While the Motion could indeed have been brought earlier, equally so, neither was it unreasonably delayed relative to the start of the hearing.

ISSUE 9 – HISTORY OF COMMENCING AND ABANDONING APPEALS

104Despite the efforts of the Association and the Town to portray the Owners as overly litigious, with a history of commencing and abandoning Appeals, the Tribunal is not satisfied that the Owners’ conduct demonstrates such an abuse of process.

105The Tribunal and the Courts have previously considered the matter of costs sought from a “chronic litigator” and have demonstrated the kinds of things that might be considered in deciding whether an appellant’s conduct in multiple proceedings represents an improper pattern of behaviour. While the Association and the Town are not referring to the Owners as chronic litigators, they are requesting that the Tribunal consider an abusive pattern of conduct or “course of conduct”.

106An abusive pattern of conduct would be one where a party was prosecuting various overlapping or related proceedings in a coordinated manner, each clearly without merit, frivolous, vexatious, or in bad faith, amounting to a “course of conduct” demonstrating an abuse of the Tribunal’s (or the Court’s) time and resources. The Tribunal is required to consider the Owners’ conduct in this proceeding, and not other proceedings, and for the Tribunal to consider the Owners’ conduct in external Tribunal or court proceedings, such as those identified by the Association and the Town, the Tribunal must see some evidence of connectivity between this proceeding and misconduct relating to such a course of conduct in this, and the other proceedings.

107The Tribunal does not feel that the Owners’ conduct in advancing, and losing, the court challenge to the validity of the by-law, relative to this proceeding, within the context of all the other proceedings, merits censure by the Tribunal in the form of costs. The Owners’ right to advance that court application is evident. The Owners’ lack of success in that proceeding, and any matter of costs relating to that outcome, or the Owners’ conduct (if relevant) was considered by the Court and costs were awarded in that proceeding. It is not a matter before this Tribunal. There is no evidence to persuade the Tribunal that the withdrawn Objections under the Ontario Heritage Act represented misconduct just because that separate proceeding was advanced in the Court, or vice versa.

108The Association and the Town also ask the Tribunal to consider the Owners’ applications and appeals relating to a proposed hotel and conference centre on a different section of the Rand Estate Lands which were withdrawn. Those “proceedings” are not the proceedings in which the requests for costs have been made, and, in the Tribunal’s view, are fully independent of, and separate from, this proceeding as it relates to the remainder of the Rand Estate Lands and the proposed subdivision. In the Tribunal’s view, these proceedings are not reflective of an “abusive pattern of conduct”. There is no evidence that the Objections made by the Owners, as of right, in response to the Notices of Intention to Designate were somehow coordinated with the other planning applications for unreasonable, frivolous or vexatious reasons or in bad faith. To the contrary, as indicated in this Decisions, concurrent proceedings, in relation to the planning and development of the Rand Estate Lands necessitated different applications and objections. This, itself, in the Tribunal’s view, speaks to the bona fide reasons for the separate proceedings and not to an abusive course of conduct.

ISSUE 10 – STATEMENTS MALIGNING AND DISRESPECTFUL OF THE TOWN

109The Tribunal has, in this Decision, provided its findings as to the respective entrenched and adversarial positions arising in this proceeding and the planning proposals at play in the background and being advanced by the Owners. It is clear to the Tribunal that the respective positions of the parties gave rise to the types of posturing, positioning and advocacy that is not uncommon when litigation or administrative proceedings are, by virtue of the subject matter, the players and personalities, somewhat “heated”.

110In this atmosphere things will be said regarding the position of the opposing party. Such statements must be considered objectively. In this case the Tribunal does not consider that those statements made by the Owners regarding the Town represent a form of maligning or disrespect that has “crossed the line” such that the Owners must be called upon the compensate the Town. This is not misconduct.

111A municipal entity, whose enacted decisions arise from the forum of municipal politics, and those municipal elected officials who make those decisions, must surely expect that their decisions and their actions will be under the critical eye and comment of those who disagree – particularly those landowners who exercise their statutory right to challenge those decisions. The comments expressed in the Withdrawal were part of that process. Moreso, comments or statements made in the course of judicial or quasi-judicial proceedings are advanced within an advocacy process that sometimes results in passionate oratory and incidents of fervent and earnest submissions regarding another party.

112A single comment, made in isolation, will seldom be considered so offensive and unfair as to give rise to misconduct and for such a statement to be considered disrespectful will be rare. Disrespect will more commonly be closely scrutinized when it represents disrespect for the Tribunal and the Tribunal’s proceedings. Similarly, a single statement made regarding another party within a proceeding should not be considered to represent an unreasonable and vexatious malignity of a party’s character unless it is subjected to an objective unbiased standard of reasonableness.

113Those statements referred to by the Town in support of their Motion for Costs do not represent disrespect or the maligning of the Town’s “character”. Not surprisingly, the Town and it’s representatives may, in this case, be lacking objectivity in assessing the impropriety of the identified statement. In the Tribunal’s view, it is difficult to identify exactly what the “character” of a municipal corporate entity is, as opposed to the character of an individual, that might be maligned by statements. Whatever that might be, the statements identified in the Town’s material as inappropriate, are, in the Tribunal’s view, well below the threshold of unreasonable conduct to be considered by the Tribunal under Rule 23.9.

114Pointedly the Town asserts that the Owners’ statement in the materials filed in the Motion to Strike, suggesting that the Town “tried to clandestinely sweep new issues into the proceedings” was essentially the subject matter of that Motion. The Town took exception that the Owners made submissions that the Town was attempting to alter the issues through the expansion of the landscape features in a manner that was not direct. The Town described this as “underhanded and sneaky”. The Owners did not.

115There is, in the Tribunal’s view, no merit to this aspect of the Costs Motions and those statements that would have been made regarding the Town, or the Association, were inconsequential and do not represent the kind of misconduct within the parameters of Rule 23.9(g).

ISSUE 11 – ABUSE OF PROCESS – OBJECTIONS ADVANCED TO ACCESS INFORMATION

116The Tribunal has considered and rejects the submissions of the Town and the Association that the statement of the Owners, at the time of withdrawal, that they had made and would make use of the information in the proceeding to inform and assess its planning applications amounts to an abuse of process and misconduct warranting an award of costs.

117Objectively considering the whole of the evidence, with the rather significant time, money and effort devoted to the Objections by the Owners over the course of three years of litigation, the Tribunal cannot conclude that they were primarily motivated by the opportunity to secure information such that this information-gathering process was, as the Town states, the “real reason” for the Objections. There is no real evidence that the Objections were not bona fides responses to the Notice of Intention to Designate and to the contrary the Motion Materials indicate that the Owners were genuine in their challenges to the Intentions to Designate, including the lack of specificity as to what constituted the “surviving elements of the Dunington-Grubb landscape”. The Tribunal finds that this assertion as to the “real reason” for these proceedings, on the part of the Town and the Association, is pure conjecture and an overstatement.

118The Town’s Motion identifies the second last paragraph of the Withdrawal Letter as evidencing the offending conduct of the Owners. In the Tribunal’s view, when this paragraph in the Withdrawal Letter is read in the context of the whole of the background explanation for the withdrawal, it cannot be taken as demonstrative of an abuse of process. Instead, the Tribunal considers the Withdrawal Letter to be a frank explanation as to the Owners’ strategy and course of action moving forward, in light of the reality of the legislative changes in the Ontario Heritage Act relating to designations, and the Owner’s stated intent to amend its subdivision plan based upon its “greater understanding of the Town’s position on heritage attributes as it affects the subdivision.”

119While it is understandable that the Town and the Association may not appreciate the Owners’ ultimate disclosure that it intends to proactively utilize the information gleaned from the Objections proceeding, it cannot be forgotten that the Town will have had the opportunity to then deal with the designations of the heritage attributes. Pursuant to s. 29(6) of the Ontario Heritage Act, the designations will have been finalized by the withdrawal of the Objections and, as the Town acknowledges, the Town can “proceed with passing the designation by-laws for the Back of the Rand Estate as it resolved to do back in August 2018.” Any proposed development will be advanced in that context and require the necessary applications under the Ontario Heritage Act and the Planning Act which will bring into play those provincial policies that speak to cultural heritage.

120In light of the findings in Issues 6 and 7 above, and upon the Tribunal’s review and consideration of the Withdrawal Letter within the context of the proceedings, the Owner’s stated intention to learn from the proceedings and move forward with a revised Plan of Subdivision was, and is, not an abuse of process.

ISSUE 12 – DELAY OF OBJECTIONS WITH ADVERSE IMPACT ON RAND ESTATE

121In the absence of any evidence of a demonstrated intent on the part of the Owners to advance the objections solely for the purposes of delaying the designation of the heritage features, the Tribunal does not find that the Owners’ conduct warrants an award of costs. In the Tribunal’s assessment of the whole of the proceeding there is no evidence of intentional delay and demonstrated misconduct indicative of such things as a failure to act in a timely manner, the obstruction of the proceedings, a failure to attend to hearing events or comply with Tribunal directives, unnecessary delays caused solely by the Owners, or a course of conduct resulting in obvious delays.

122To the contrary, the Tribunal is persuaded by the evidence and submissions of the Owners that they acted promptly, reasonably, and in a forthright manner when the matter of the necessary adjournments arose. There was consent amongst the parties as to the necessity of rescheduling the hearing to December 2021. The parties cooperated with respect to pre-hearing filings and the Owners complied fully in filing all required materials for the hearing. The Owners were consistent in advancing their position that the Motion to Strike, or alternatively a motion to expand the issues list, was required.

123It is the Tribunal’s finding that there was no delay that existed due solely to the Owners’ misconduct. The ordinary time that it takes for a proceeding to move forward to determination or closure is not, under Rule 23.9, recognized as falling within the criteria of clearly unreasonable, frivolous, vexatious conduct or bad faith conduct.

124The Tribunal has reviewed the impacts which the Association has identified as being caused by the general delay arising during the time that the proceeding was before the Tribunal, such as the decline of the heritage resources or matters relating to alleged infractions of property standards order. Property standard enforcement are not within the jurisdiction of the Tribunal, nor do they fall within the parameters of the conduct identified under Rule 23. As well, such imparts are not impacts that in any way representative of misconduct or a course of misconduct on the part of the Owners “during the proceeding”.

125Accordingly, the overall delay in the ultimate passage of the by-law implementing the designations does not warrant the exercise of the Tribunal’s discretion to award costs.

ISSUE 13 – OWNERS’ DISCLOSURE OF INTENT TO PROCEED ALTERNATIVELY TO ADVANCE DEVELOPMENT APPLICATION

126For the reasons set out in Issues 6, 7 and 11, the Tribunal does not consider the Owners’ stated strategy, on a go-forward basis, with respect to its development plans for the Subdivision and the use of the information logically gleaned during this proceeding to represent unreasonable misconduct on the part of the Owners. This proceeding, under s. 29(5) of the Ontario Heritage Act, as indicated by the Tribunal, arose as the Owners exercised their statutory right to object to the Town’s Notices of Intent to Designate. This proceeding occurred in the context of the planning and development of the Rand Estate Lands, which is very obviously the case, given that the Town’s Notices arose directly in response to, and following, the development applications filed by the Owners.

127In the Tribunal’s view, the Owners’ disclosure of its intentions, and to make any required applications under the Ontario Heritage Act, which they may have a right to make, does not represent unreasonable misconduct. These intended new applications will represent as-of-right options available to them, as the owners of lands to be developed, and if an appeal is filed then the Town and possibly the Tribunal will be required to consider the merits of the application(s) as they may be filed or appealed.

ISSUE 14 – QUANTIFICATION OF COSTS

128In light of the ultimate disposition of the Motions for Costs, it is unnecessary to address the final Issue of quantifying costs.

DISPOSITION

129The Tribunal has determined that it has the jurisdiction to receive and determine the requests for costs brought by the Town and Association arising from the withdrawal of the Objections of the Owners before the Tribunal as the successor to the CRB.

130Notwithstanding the jurisdiction of the Tribunal to consider an award of costs in a proceeding, whether the proceeding is ended as a result of the withdrawal of the objection or appeal by an owner or applicant, the Tribunal will only exercise its discretionary powers to award costs in rare circumstances. The withdrawal of an objection or an appeal by a party does not, prima facie, give rise to a presumption that the Tribunal may exercise its discretion in the absence of misconduct. The Tribunal will only consider exercising its discretion where it is persuaded that the party against whom costs are sought has demonstrated misconduct that is clearly unreasonable, frivolous, vexatious or in bad faith under Rule 23.9 of the Tribunal’s Rules.

131For the reasons provided, the Tribunal will not exercise its discretion under Rule 23.9 and the Town’s Motion for a costs order payable by the Owners is dismissed.

132For the reasons provided, the Tribunal will not exercise its discretion under Rule 23.9 and the Association’s Motion for a costs order payable by the Owners is also dismissed.

ORDER

133The Motion brought by the Town of Niagara-On-The-Lake dated December 23, 2021, seeking costs payable by Solmar (Niagara 2) Inc. and Two Sisters Resorts Corp, in the proceeding and for this Motion, is hereby dismissed

134The Motion brought by Save Our Rand Estate Association dated December 23, 2021, seeking costs payable by Solmar (Niagara 2) Inc. and Two Sisters Resorts Corp, in the proceeding, 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.