Abbotts v. Blue Mountains (Town), 2023 CanLII 56712

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 20, 2023

CASE NO(S).: OLT-22-002269 (Formerly PL210156)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Tammy Abbotts

Subject: Application to amend Zoning By-law No. 2018-65 - Refusal or neglect of County of Grey to make a decision

Existing Zoning: Residential One (R1-1)

Proposed Zoning: Residential Two (R2)

Purpose: To permit the creation of lots for 22 semi-detached dwellings

Property Address/Description: Lots 35-39, SW Side of Bay Street

Municipality: Town of The Blue Mountains

Municipality File No.: P2832

OLT Case No.: OLT-22-002269

Legacy Case No.: PL210156

OLT Lead Case No.: OLT-22-002269

Legacy Lead Case No.: PL210156

OLT Case Name: Abbotts v. Blue Mountains (Town)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Tammy Abbotts

Subject: Proposed Plan of Subdivision - Failure of County of Grey to make a decision

Purpose: To permit the creation of lots for 22 semi-detached dwellings

Property Address/Description: Lots 35-39, SW Side of Bay Street

Municipality: Town of The Blue Mountains

Municipality File No.: 42T-2019-02

OLT Case No.: OLT-22-002272

Legacy Case No.: PL210152

OLT Lead Case No.: OLT-22-002269

Legacy Lead Case No.: PL210156

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

Request by: Tammy Abbotts

Request for: Request for an Order Awarding Costs

Costs sought against: Harbour West Residents Group

Heard: April 13, 2023 in writing

APPEARANCES:

Parties	Counsel
Tammy Abbotts (“Applicant”)	Al Burton
Harbour West Residents Group Inc. (“Residents Group” or “Group”)	David Donnelly Cameron Cotton-O’Brien (Student-at-law) Monique Gill (Student-at-law) Melanie Le Bouedec (Student-at-law)

Link to Final Order

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

INTRODUCTION – THE APPLICANT’S REQUEST FOR COSTS

1The Applicant submitted a request for costs to the Tribunal and, in accordance with Rule 23.4 (b) of the Tribunal Rules of Practice and Procedure (“Tribunal’s Rules”), the Tribunal directed that the request be heard by way of a written Motion. This Decision determines the Applicant’s motion for costs (“Motion”).

2The Panel Member who presided over the final hearing event in May of 2022, and whose decision is the subject matter of this Motion, would have ordinarily been seized to decide the written Motion. Sadly, Member Prevedel fell ill and passed away subsequent to the hearing. This Panel Member has accordingly been directed by the Chair of the Tribunal to hear and decide the written Motion pursuant to Rule 23.7 of the Tribunal’s Rules.

3The Applicant served and filed her Notice of Motion on April 17, 2023, together with the Affidavit of Al Burton sworn April 17, 2023, and four exhibits and composite exhibits. The Applicant also filed a Notice of Reply to the Response on May 23, 2023, together with the further Affidavit of Al Burton sworn the same date with one exhibit. An expert of the Rules was also provided to the Tribunal.

4The Residents Group served and filed its Motion Record dated May 12, 2023, which included the Notice of Response to Motion and the Affidavit of Monique Gill sworn May 12, 2023, identifying 2 exhibits. The Residents Group also filed a Book of Authorities.

5In addition to the materials filed by the Parties, the Tribunal has reviewed the Decisions issued for the Case Management Conferences (“CMC”) as well as the final Decision and Order of the Tribunal issued on June 10, 2022.

BACKGROUND TO THE PROCEEDING AND THE SETTLEMENT HEARING

6The Applicant originally made applications for a zoning by-law amendment and a plan of subdivision to facilitate a proposed 22-unit subdivision development in the Town of The Blue Mountains (“Town”) in the County of Grey (“County”). When no decisions were rendered, the Applicant filed her Appeals with the Tribunal and was the only Appellant to the proceeding.

7On June 24, 2021, the Applicant, the Town and the County attended to the first CMC. The Residents Group was granted Party status, as was Grey Condo Corporation No. 11. A subsequent CMC conducted on July 22, 2021, and on July 23, 2021, the Decision for that hearing event was issued which appended the Procedural Order to govern the proceeding.

8Of note, in relation to this Motion, is the consideration by the Tribunal of paragraph 5 of the Procedural Order as it added an additional sentence that “If a party has placed an issue on the Issues List and fails to call evidence in support of that issue in the hearing may be subject to an adverse costs award [sic]”. According to the Decision, Applicant’s counsel’s position was that this language was intended to address any undue costs relating to experts that might not otherwise be required. The Panel Member at the CMC noted that if costs were ultimately sought then this issue would be subject to the operation of Rule 23 of the Tribunal’s Rules and commented that the Tribunal’s discretion as to the matter of costs under that Rule would govern notwithstanding paragraph 5 of the Procedural Order.

9A 15-day hearing was eventually scheduled to commence on May 9, 2022. Thereafter the Parties entered into settlement discussions, retained experts based upon the agreed-upon issues list, prepared and exchanged and witness statements, expert reports and documents in preparation for the hearing. The Residents Group has submitted that it participated, responded, and complied with all procedural requirements fully with respect to all aspects of the proceeding leading up to the date of the hearing.

10As a result of a settlement reached between all of the Parties except the Residents Group, a one-day settlement hearing was scheduled for, and commenced on, May 24, 2022, and ultimately extended over the course of three days instead of one. The Decision of the Tribunal for the hearing event, issued on June 10, 2022, confirms that the Residents Group did not consent to the settlement and that within the overall settlement reached between the other Parties there was one issue raised by the Town in regards to the matter of six accessory apartments in the proposed Development to be offered as affordable housing.

11At the hearing, the Tribunal heard from: three expert witnesses called by the Applicant in the areas of land use planning, transportation engineering and civil engineering; one expert planning witness from the County; one expert planning witness called by the Residents Group; and two lay witnesses called by the Town in relation to the affordable housing issue.

12Beyond the overarching issues of consistency, conformity, and other mandated requirements of the Planning Act to be addressed by the Tribunal at the settlement hearing based upon the Issues List and the resolution reached by four of the Parties, the Panel identified the single contentious issue relating to the Town’s requested condition that the Development include six accessory units as affordable housing unit.

13With respect to the position and issues raised in the hearing by the Residents Group (referred to as HWRG in the Decision), the Panel Member indicated the following in paragraphs 32 and 39:

[32] The HWRG have not consented to the settlement agreement and are calling a case which centres around the concerns of the neighbours that the proposed development is not compatible with the existing built form, and does not conform to the Town’s OP.

[39] Despite the settlement agreement amongst the Appellant, Town, County and GCC11, there are twelve (12) issues raised by the HWRG which remain in dispute. HWRG has refused to remove any of these issues and has not called any engineering evidence.

THE APPLICANT’S POSITION AND CLAIM FOR COSTS

14The Applicant requests an order for costs payable by the Residents Group, in relation to the proceeding, to compensate her for the unnecessary costs she incurred in the proceeding in the total amount of $153,858.95 inclusive of HST. She also asks for an order for the costs for this Motion in the amount of $7,893.95 inclusive of HST.

15The submissions, and Affidavit of Mr. Burton, have quantified the costs claimed as follows:

(a) The engineering witnesses have estimated that one-third of their total time and charges invoiced to the Applicant was spent in preparatory work in preparation for the hearing from October 2021 through to March 25, 2022, to respond to transportation and civil engineering issues raised by the Residents Group. The Applicant requests 100% of the total time spent by the engineering witnesses in preparing and attending to the hearing for the total amount of $37,974.21. This represents a total indemnity scale for that portion of those costs. Invoices submitted by the engineers, C.F. Crozier & Associates Inc. for the total amounts invoiced for these periods have been appended to Mr. Burton’s affidavit.

(b) Similarly, the Applicant has quantified the claim for the costs associated with her planner, Ms. Loft, by apportioning one-third of the total amount invoiced for services to the time spent reacting and responding to the Residents Group issues between October 2021 and March 2022. This, the Applicant asserts, is “admittedly a very conservative estimate”. Additionally, the Applicant claims 75% of invoiced services for Ms. Loft from the beginning of April to the hearing in May 2022 which the Applicant submits is the “total time wasted by Ms. Lost on [the Residents Group] issues”. This is the total sum of $36,758.19, inclusive of HST, and again represents full indemnity of this portion of the incurred expense related to planning services. Invoices submitted by the Applicant’s planners, Loft Planning Inc., for the total amounts invoiced for these periods have been appended to Mr. Burton’s affidavit.

(c) As for legal expenses, the Applicant requests the total sum of $93,638.44 inclusive of HST. This amount represents two-thirds (66%) of the actual total time spent in preparation for the hearing and the hearing. For the hearing, this would appear to represent a request for full indemnity recovery for two out of the three days of the hearing and full indemnity costs for 66% of all preparation time charged by her counsel in advance of the hearing. The total amount for legal fees, disbursements and HST requested as payable by the Residents Group is $93,638.44. The Notice of Motion asserts that “the reality is that the time spent by Ms. Abbotts’ counsel dealing with [the Residents Group) issues is much greater than what is being sought”. Invoices submitted by Mr. Burton’s law firm, Thomson, Rogers, for the total amounts invoiced for these periods have been appended to Mr. Burton’s affidavit.

(d) It is unclear how the amount claimed for costs in bringing the costs Motion, in the amount of $7,893.05 inclusive of HST, has been quantified. There is no invoicing, Costs Outline, time dockets or supporting invoicing or disbursement documentation filed in the Motion as required by Rule 23.4 of the Tribunal’s Rules.

16The Panel Member’s addition of the three amounts claimed for the proceeding (exclusive of costs for the Motion) based upon the submissions in paragraphs (l) to (o) of the Notice of Motion, totals $168,370.84. It is unclear as to why this amount is different from the global amount claimed in paragraph (a) of the Notice of Motion.

17The bases of the Applicant’s claim for costs identifies the following as representing the improper conduct on the part of the Residents Group warranting an order for costs:

(a) The hearing lasted two days longer than it should have solely as a result of their intransigence in raising spurious technical objections and refusing to concede issues on the Issues List where no evidence was led by them to support continued argument on these Issues;

(b) They raised three preliminary matters at the hearing which were “hopeless to pursue and did nothing to advance the resolution of the hearing”;

(c) They called no transportation or planning evidence on those issues and “persisted in pursuing meritless and fruitless planning arguments” while the Applicant was required to call the appropriate planning evidence to address these issues;

(d) They resisted attempts to settle without any cogent expert evidence to support their position and considerable time was wasted responding to their “unsupportable” proposals from a technical and engineering perspective; and

(e) Due to the position of the Group at the hearing, in refusing to withdraw issues, the Applicant’s engineers time was fully wasted in dealing with engineering issues they raised and at least 1/3 of Ms. Loft’s time was wasted at the hearing. Similarly, 2/3 of the services rendered by counsel for preparation and attendance to the hearing was wasted, or conversely, only a third of the time would have been required had the Residents Group not challenged the settlement;

18The Applicant submits that this conduct warrants costs because:

(a) There was “clearly frivolous behaviour…in raising meritless technical objections that had no hope of success and only served to waste hearing time and resources”;

(b) The pursuit of “planning evidence that was devoid of substantive merit” was clearly unreasonable and it was inappropriate for the Residents Group to scope its issues “when it was clear that it lacked even a modicum of a real case”. The failure to streamline its case was “wasteful, disrespectful to the parties and the Tribunal and abusive of the Tribunal’s processes”;

(c) Forcing the Applicant to tender transportation and engineering evidence to respond to the Residents Group at the hearing was “clearly unreasonable behaviour” that is “even more egregious and unreasonable in light of the refusal of [the Residents Group] to remove any of the engineering issues from the Issues List in advance of the hearing, despite having listed no engineer on [their] witness list”;

(d) Based upon the cited jurisprudence of the Tribunal, “…where a party has wasted substantial time by pursuing fruitless arguments and failing to call evidence despite placing issues on the Issues List, costs should be awarded…for the frivolous and clearly unreasonable behaviour”;

(e) Paragraph 5 of the Procedural Order “gave fair warning to any party that placed issues on the Issues List and then failed to adduce evidence in support of the issues raised”. This portion of the Procedural Order, the Applicant argues, is designed and intended to ensure a fair hearing for all parties, with unfairness and costs for the Applicant who adhered to these requirements while the Residents Group did not;

(f) “It is grossly unfair to the Applicant/Appellant to have her bear the costs foisted upon her by the unreasonable behaviour of one party”; and

(g) Finally, the Residents Group has no special privilege …”to waste the time and resources of other parties in the determination of an appeal before the Tribunal”. The argument of a “chilling effect” on participation in a hearing is without merit as the conduct of the other added Party, Grey Condo Corporation No. 11 demonstrates that added parties may still participate but not unreasonably, unlike the Residents Group. “To not sanction unreasonable behaviour in the circumstances could encourage future parties in proceedings to engage in conduct that would interfere with the efficient administration of justice at the Tribunal.”

19The Applicant submits that the conduct of the Residents Group, for these reasons, represents unreasonable and frivolous behaviour warranting a costs order representing a full indemnity of her costs associated with the response to their meritless issues and of the time and related expense wasted attending to a hearing that was longer than was required, but for the advancement of planning issues by the Group that was “devoid of substantive merit”.

THE RESPONSE OF THE RESIDENTS GROUP

20The Residents Group submit that their conduct was not unreasonable or frivolous and they participated fully and co-operatively in the process that led to the amended application and the truncated hearing which addressed some of their concerns. The Residents Group acted reasonably, participated in all settlement and pre-hearing meetings, responded promptly in regards to all its obligations under the Procedural Order and cooperated fairly and professionally in the proceeding. They called evidence, cross-examined and conducted themselves in the hearing as an added Party fairly and properly in relation to their concerns that the proposed development was not compatible with the built form and character of the existing neighbourhood and that the proposed road configuration and servicing did not represent good planning and did not conform to the Town’s Official Plan and comprehensive zoning by-law.

21Specifically, the Group advised the Applicant in advance that it was not calling engineering evidence and the strength of its case was thus known to the Applicant and the other Parties before the Hearing. The decision rested with the Applicant as to the sufficiency of the engineering and technical evidence that was required to support its request to the Tribunal for approval of the Development.

22Those preliminary matters identified by the Applicant in the Motion involved a request by the Group, to add two additional issues, which was denied and was addressed summarily at the opening of the hearing, taking no more than a half hour on the first day of the hearing.

23The Residents Group submit that their expert, Mr. Russell, took no more than half a day out of the three days of the hearing, and otherwise the balance of the evidence related to the Applicant’s case to demonstrate that the proposed Development represented good planning in the public interest and should be approved and to the issue raised by the Town regarding the proposed condition for affordable housing.

24The Residents Group rely upon the Tribunal’s jurisprudence and submit that their conduct was neither unreasonable nor frivolous, and that the Applicant’s position in requesting costs is not in line with the approach adopted by the former Board and the Tribunal when considering awards of costs, as set out in Rule 23.9 of the Tribunal’s Rules. From a public policy perspective, it would be inappropriate to award costs against the Residents Association simply because it was unsuccessful and the Group refers to the former Board’s cautious approach to awards of costs in order not to dissuade the public from participating in planning processes, appeals and decisions. Their submissions direct the Tribunal to the manner in which those decisions cited by the Applicant can be distinguished.

ANALYSIS AND DISPOSITION OF THE MOTION

Preliminary and Summary of Disposition

25The Tribunal must make a preliminary observation about the materials filed by both parties in this Motion, and the blurring of the lines that has occurred between submissions and sworn affidavit evidence. Both the Applicant and the Residents Group have, in the written content of the Motion and the Response, which on a written Motion represents the submissions of the Parties, made numerous factual representations regarding the nature and timing of the actions of the parties, and in particular the nature and chronology of events in the course of the proceeding leading to the commencement of the hearing, regarding such things as the timing of communications between the parties, the filing of materials, participation in settlement discussions and the filing of revised plans of subdivision. Most of such factual representations are unfortunately not supported by sworn affidavit evidence.

26More than a matter of mere form, where any Motion is before the Tribunal, Parties are, as a substantive evidentiary requirement, obligated to ensure that factual matters are submitted as evidence on the Motion. Where there may be contentious submissions as to the conduct of a party, or even where the facts are not disputed, they must nevertheless be presented in the form of affidavit evidence.

27Despite the shortcomings in the form and substance of the materials from both Parties, with the benefit of the Decisions, the Tribunal has carefully considered the submissions of the Parties, the evidence that has been filed in support of the Parties’ respective positions and, importantly, the legal framework that guides the exercise of the Tribunal’s discretion to award costs against a party.

28For the reasons and findings set out below, the Tribunal will not exercise its discretion to awards in this instance.

29Of late, there appears to be an increasing number of requests for costs coming before the Tribunal and in many such cases, those requests reflect an errant lack of recognition as to: (a) the lack of relevance of the success or failure of a litigant in a proceeding in the Tribunal’s framework for costs which is instead focused only on the types of clear misconduct set out in Rule 23.9; (b) the rare and extraordinary incidence of the Tribunal’s cautious exercise of its discretion to award costs due to the high threshold that has been adopted; and (c) the manner in which the Tribunal’s approach to costs reflects the Tribunal’s administrative function and accommodates and facilitates public participation in the Provincial planning process over which the Tribunal has jurisdiction.

30The Applicant’s Motion is one such example.

The Tribunal’s Approach to Awards of Costs and the Legal Framework

31The Tribunal is granted the discretionary power to fix and award costs under its home statute, the Ontario Land Tribunal Act, (“OLT Act”) and the Statutory Power and Procedures Act (“SPPA”).

32Section 17.1(2), of the SPPA provides that an award of costs may only be made where the conduct or course of conduct of a party has been “unreasonable, frivolous or vexatious or a party has acted in bad faith” and s. 17.1(4)(b) obligates the Tribunal to identify the circumstances in which costs may be ordered. Section 20 of the OLT Act provides that the Tribunal may fix costs of and incidental to any proceeding in accordance with the Rules.

33Rule 23.9 is the Rule that identifies the circumstances where cost awards may be made, mirrors the wording of the SPPA, and provides guidance as to the circumstances in which the Tribunal may consider an award of costs in a proceeding.

34The Tribunal must be satisfied that the party against whom costs are sought has demonstrated conduct or a course of conduct that has been: (a) unreasonable; (b) frivolous; (c) vexatious; or (d) in bad faith. The Rule provides nine extending, non-limited, examples of clearly unreasonable, frivolous, vexatious or bad faith conduct and provides pointedly that the Tribunal is not bound to order costs even when the identified examples occur because the Tribunal will consider the seriousness of the misconduct.

35This Panel Member has before set out a condensed summary of some of the Tribunal’s guiding considerations and principles that have developed over time within its jurisprudence relevant to a Motion for Costs. They include the following:

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

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

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

The Tribunal’s Objective Consideration of the Conduct of the Residents Group

36Applying the objective test of the reasonable person to the evidence and submissions, the Tribunal cannot conclude that the totality of the Resident Group’s conduct in this proceeding was not “right” or not “fair” such that the Applicant should be compensated in any manner. It is the Tribunal’s view that the Applicant has misstated the position taken by the Group their conduct in the proceeding and her description of the Residents Group conduct in the hearing, and the reasonableness of its advocated position in the hearing and motivation for advancing its position is overreaching.

The Preliminary Matters Raised by the Residents Group In the Hearing

37It is the Tribunal’s finding that the Decision of the Panel Member on the Settlement Hearing, and the discussion and brief treatment of those three limited preliminary matters addressed in paragraphs 11 through 21, do not represent the exceptional “waste of time” suggested by the Applicant. The matters that were raised are not so unfounded or excessively out of place to be characterized as “frivolous conduct”. The Group’s estimate of the minimal time devoted to such matters of less than one-half hour, in the experience of the Tribunal, is quite reasonable and it is noted that the Applicant has not challenged this time-estimate in her Reply. The Tribunal agrees with the Residents Group and finds that these preliminary matters did not result in any significant delay in the hearing nor the expenditure of considerable resources to deal with them. The Panel Member’s succinct and uninvolved rulings reflect this.

The Conduct of the Resident Group in the Proceeding Prior to the Hearing

38Although the costs sought in this Motion relate primarily to the hearing and the immediate preparation for the hearing, the Applicant’s submissions in support of costs relate to circumstances which precede the hearing itself.

39As to the Applicant’s characterization of the Resident Group’s conduct in the proceeding that preceded the hearing, it is the Tribunal’s view that the rhetoric and subjective critical portrayal of the Group’s bona fides in advancing it’s position on the issues as an Added Party reflects a bias on the part of the Applicant that is inextricably connected to the ultimate lack of success of the Group’s advocacy on the issues, and the Applicant’s success in securing the Tribunal’s approval of the proposed development as it was revised in the settlement process. This attitude misapprehends the lack of relevance of the success or failure of a party’s position in a planning matter before the Tribunal.

40It is the Tribunal’s view that the Applicant’s rather evocative descriptions of the Group’s “intransigence”, “meritless and fruitless planning arguments”, “planning evidence devoid of substantive merit” and lack of “even a modicum of a real case” demonstrate a misplaced focus upon the outcome as to the Party’s issues and the settlement hearing. The Tribunal would paraphrase the position of the Applicant in this Motion for Costs as: “You lost. I won. You wasted my time.” Again, this focus upon the outcome has never been the approach of the Tribunal. While the frustrations of an Applicant Developer in having to respond to the intercession of the public and interested residents in the planning and development processes may be understandable, Rule 23.9 and the Tribunal’s extensive jurisprudence on costs must surely require temperance of those frustrations when deciding whether a costs motion is prudent.

41The Tribunal has reviewed the Tribunal’s CMC Decisions issued in this proceeding and, of most importance, the Final Decision giving rise to this Motion and has considered the submissions and evidence on behalf of the Group. The Issues List in the Procedural sets out apparent land use planning grounds and reflect the concerns of the Residents Group regarding such things as compatibility with the existing neighbourhood, roadway positioning and transportation concerns and vegetative and landscape buffers arising from the removal of mature tree cover, giving rise to issues of official plan conformity. The materials note that those members of the Residents Group that were residents to the north of the subject lands would have streets on both sides of their properties on Lakeshore Drive, which represented a legitimate concern for the Group and was addressed by their planning expert.

42It is the Tribunal’s conclusion that the Group was committed to the presentation of planning evidence in its position and carried through with that representation to the Tribunal. It’s assertion on this Motion that they had adequately advised the Applicant and the other parties that they would not be calling engineering experts and that engineering issues would be addressed only in the context of planning policies by the Group’s planning expert Mr. Russell has not been challenged by the Applicant in Reply.

43The Residents Group has, in paragraph 8 of the Response, provided a credible and basic outline of the conduct of a typical residents’ association granted Party status in a development appeal. The aspects of its involvement in the procedures and processes that were leading to a 15-day hearing include: participation in case management; engaging a professional land use planner who participated in meetings; actively putting forward input and alternative proposals in settlement consultations; and complying in all respects with the pre-hearing requirements of the Procedural Order such as a Hearing Plan, a Joint Document Book, an Agreed Statement of Facts, and witness reports/statements. The Residents Group submits that some of their concerns were incorporated into the amendments to the proposed Development within the iterative process that led to the settlement.

44The legitimacy of these elements of the Group’s participation in the processes of the proceeding are not challenged by the Applicant in the Reply and reflect conduct that the Tribunal finds is compliant, reasonable, issue-focused, appropriate, and undertaken in good faith to advance the position of the Residents Group. The fact that such action in the proceeding ultimately did not lead to any alteration of the settlement, and thus some measure of success by the Group, is not of significant relevance in the consideration of costs.

The Conduct of the Residents Group in the Hearing

45With respect to the hearing, there is nothing within the Tribunal’s Decision and Interim Order that would indicate that there was any manner of unreasonable conduct within the hearing. There is no evidence of any discourtesy or lack of respect for the Tribunal’s processes or egregious failing or reprehensible conduct on the part of counsel for the Residents Group, its expert witness, or the advocacy of the Group within the hearing. Of significance is the fact that the Applicant’s Motion is silent with respect to any manner of unreasonable conduct, bad faith, or disingenuous behaviour during the three-day hearing.

46The entirety of the unreasonable conduct and frivolous behaviour identified by the Applicant with respect to the hearing is, as indicated, focused only upon the merits of the Residents Group and the time “wasted” in addressing the issues in the Issues List provided for in the Procedural Order.

47The Applicant submits that two of the three days were devoted to the time spent by the Residents Group to address planning issues identified in absolute terms as having no merit and engineering issues without support from their own expert witness.

48As to the planning issues, for the reasons indicated, the Tribunal does not find that the conduct of the Residents Group in calling its expert planning witness and advocating its position on the planning issues represents misconduct. The Decision of the Tribunal indeed preferred the planning evidence of the Applicant and the Town and for this reason the approval of the development was granted.

49The failure of a party to call an expert witness is not demonstrative of misconduct warranting costs, as the Applicant argues. “Failing to provide evidence” is indeed one of the examples set out in subparagraph “e” of Rule 23.9, but this failure must be determined to be improper, and unreasonable or in bad faith and the seriousness of this failure are specific to the facts of each case. In this instance the Decision of the Tribunal addressed the transportation engineering, roadway and servicing issues. The Applicant (and the Town) were required within the hearing de novo to satisfy the Tribunal as to these matters under the Planning Act. Mr. Russell, on behalf of the Residents Group, appeared to have addressed engineering and transportation matters from the standpoint of land use planning and not on a technical basis. The Residents Group had the opportunity, as a Party granted status, to cross examine and test the veracity of the testimony of the expert witnesses.

50There is no evidence before the Tribunal that would persuade it that the conduct of the Residents Group in advocating their position on all such transportation or engineering issues, without an expert witness, was frivolous or unreasonable. Their conduct in this respect does not, in the Tribunal’s finding, present as disrespectful of the Tribunal or its processes. To the contrary, the Tribunal finds that objectively, the Residents Group participated in the planning approval and decision-making process in a manner expected in such circumstances. Once again, the fact that ultimately the position of the Residents group on any of the engineering or transportation issues did not prevail is irrelevant, because any such lack of success on these issues is in no way connected to, or reflective of unreasonable, frivolous, vexatious, or bad faith conduct within the proceeding or at the hearing.

51The Tribunal has also considered the Applicant’s submissions and evidence as to the relative amount of time she claims was wasted in relation to unmeritorious planning, transportation and engineering issues unsupported by expert witnesses. In this respect the Tribunal is unable to find that the Applicant’s proportionate allocation of time spent is reasonable. There is no question that some additional amount of time was spent in the hearing due to the participation of the Residents Group in the Settlement Hearing in dealing with the planning and engineering evidence. Mr. Russell’s evidence took no more than half a day. The Tribunal agrees with the Residents Group’s submission that the extent to which the evidence from the Applicant’s engineering experts may have been more fulsome than was needed to support the approval of the proposed settlement under the development, knowing in advance that the Group was not calling any expert evidence, was something to be decided by the Applicant.

52The Tribunal cannot accordingly conclude that the presentation of the engineering evidence was wasted in the manner suggested by the Applicant. The Tribunal cannot find that the rather significant time and costs allocated by the Applicant in the Motion material was necessary “only” because of the Residents Group participation in the hearing. Such evidence, as it supported the proposal, would not have been “wasted” even if more extensive than was necessary. More importantly, the circumstances of additional time spent in the hearing, to the extent that it was, does not, in the Tribunal’s view, represent clearly unreasonable or frivolous conduct on the part of the Residents Group.

The Applicant’s Allocation of Time “Wasted” by the Residents Group and the Decision of the Tribunal

53The Tribunal also considers paragraph 33 of the Decision of the Panel Member of some significance in assessing the Applicant’s proportionate breakdown as to the amount of time spent by her witnesses and counsel in the hearing solely relating to the conduct of the Residents Group. Member Prevedel indicated that “The broader issue, and the one which was most contested, was the “last minute” request by the Town to add a condition requesting that the Appellant provide accessible affording housing units”. The evidence of the Applicant’s planning witness and the Town’s lay witnesses, the cross-examination and submissions from the Town, and the Applicant, including argument of the law, on this “most contentious” issue in the proceeding clearly occupied a significant portion of the hearing time. It was addressed by Ms. Loft, the Applicant’s planning witness in the context of Issue 2. Paragraphs 139 to 162 of the Decision are devoted entirely to this issue, unrelated to the issues addressed by the Residents Group.

54The estimate provided by the Residents Group is that the Town’s evidence on the added affordable housing issue took up to a half day of evidence and “a good portion of the Appellant’s and Town’s argument”. This is not challenged by the Applicant in the Reply to the Response to the Motion. Neither does the Applicant’s apportionment of time, or supporting evidence, directly quantify the proportionate amount of time, and docketed time, spent on this “more contentious” issue in the three day hearing.

The Applicant’s Cited Authorities – The Failure to Call Evidence or Withdraw Issues

55The Tribunal has considered the three decisions of the Tribunal cited by the Applicant in support of its submission that the Tribunal has demonstrated a willingness to award costs where a party has wasted substantial time in a hearing by pursuing fruitless arguments and failing to call evidence after placing issues on the Issues List. The three decisions are: Manning Developments Inc. v. Lakeshore (Town), 2022 CanLII 15901 (ON LT) (“Manning”); Queenscorp (Mona Road) Inc. v. Mississauga (City), 2022 CanLII 25748 (ON LT) (“Queenscorp”); and Askander v. Richmond Hill (Town), 2022 CanLII 34916 (ON LT) (“Askander”). Each of these three decisions have been reviewed and distinguished by the Residents Group in the Response to the Motion.

56The factual circumstances of these three decisions are, in the view of the Tribunal, clearly distinguishable and do not broadly apply to the facts in this case. More importantly, these three decisions reflect the fact that the focus of the Tribunal is upon the existence of misconduct within the parameters of Rule 23.9, and not merely the fact that a party called no evidence on an Issue List.

57In the Manning decision, Vice-Chair Taylor considered a request for costs following a successful Motion to Dismiss the Appellant’s appeal and noted the misconduct of the appellant, an experienced land developer, in filing an appeal without planning grounds as a deliberate act designed to delay development, advance its own position in an unrelated servicing dispute with the municipality, and serve its own development interests, through delay, to the detriment of the Applicant’s proposed development. The Tribunal found that the Appellant’s course of conduct was patently unreasonable and vexatious and that costs should be awarded. This is wholly distinguishable from this case where the Tribunal has found the participation of the Residents Group to be reasonably motivated and advanced at the hearing in good faith. The Residents Group in this case also participated in a full hearing and presented evidence and genuinely advocated on all of the issues. This was not the case in Manning.

58In the Queenscorp decision, Vice-Chair Schiller ordered the Region of Peel to pay costs because it had deliberately ignored the requirements of the Procedural Order by failing to file witness statements to respond to issues it had maintained on the Issues List, had subsequently dropped issues from the issues list before the hearing and had called no evidence. The Region then attempted to file affidavit evidence addressing precisely those matters which it should have addressed in a timely and fair manner through compliance with the Procedural Order – by filing witness statement. The Tribunal found that the course of conduct that attracted an award of costs was solely the fact that the Region was deliberate in failing to meet the requirements of the Procedural Order and deliberate in failing to act in a timely and fair fashion. It was this misconduct that gave rise to the costs order and not merely the failure to call evidence on an issues list, as the Applicant suggests.

59These facts, and the conduct of the Region in Queenscrop are wholly different from the conduct of the Residents Group. Of note is the fact that the Tribunal, in the same decision, addressed a request for costs against an added party who was unrepresented and had failed to file a witness statement or call the expert hydrologist she had originally advised she would call, and neglected to provide advance notice that she was dropping issues in the hearing. The Tribunal looked further than these failings and found that she had acted in good faith, had attempted to retain an expert and had made her best efforts to meet the requirements of the Procedural Order. The Tribunal’s focus, in this instance, was upon the existence of clearly unreasonable, frivolous, vexatious or bad faith conduct and the Tribunal concluded there was none. In contrast, in the present case, the Residents Group, in no respect failed to comply with the Procedural Order, called an expert witness, spoke to all issues on the Issues List in a professional manner, and simply did not succeed at the hearing.

60Finally, in the Askander decision the Tribunal addressed multiple instances of unreasonable behaviour and failures to abide by directives and Orders of the Tribunal on the part of one offending Party in a complex planning matter. The decision is replete with examples of the litigant’s unreasonable misconduct: failing to cooperate with both the Tribunal and other parties; refusing to call evidence and ignoring the Procedural Order in numerous respects; refusing to communicate with other parties; bring last-minute motions for the production of documents within the hearing; conducting improper cross-examinations despite directions of the Panel; bringing motions to recuse the Panel after decisions had been made, and numerous other examples. If anything, the Askander decision is an illustrative example of the kinds of misconduct that do warrant the discretion of the Tribunal in awarding costs to compensate other affected parties in litigation and the primary focus upon the conduct of a party and not the result of the hearing. The Decision is not helpful in a case such as this, where a residents’ association is genuinely participating in the processes leading to a planning decision, without such misconduct.

Summary of the Tribunal’s Finding on the Conduct of the Residents Group

61In summary, the Tribunal finds that there was nothing unreasonable, frivolous, or in bad faith in regard to the conduct of the Residents Group in the whole of the hearing in relation to the advocacy of its planning issues or engineering and transportation issues, nor any of the Issues identified on the Issues List form endorsed by the Tribunal and which governed the hearing. The hearing was shortened from 15 days to 3 days. There is no misconduct that would, in any relevant way, be related to the ultimate lack of success of the Group at the conclusion of the hearing. The Tribunal has difficulty, in any event, with the Applicant’s position that fully two of the three days of the hearing were “wasted” on the participation of the Residents Group in relation to the 12 Issues.

62In these circumstances, regardless of the outcome of the final hearing, and the lack of success of the Residents Group at the hearing when addressing the issues identified in the Issues List in the Procedural Order, there was no unreasonable, frivolous, or bad faith conduct exhibited during the proceeding or the hearing. The Residents Group is not obligated to reimburse the Applicant for the purported “waste of time” expended in responding to the planning position and planning issues advanced by them. The Applicant’s participation in the hearing was, in all respects, required to support the proposed development and the Tribunal’s approval of the Plan of Subdivision and Zoning By-law Amendment. The fact that the Applicant’s role in the proceeding necessitated a response to the issues in the approved Issues List as addressed and advocated upon by the Residents Group, does not give rise to an obligation to reimburse the Applicant for any portion of the Applicant’s expenses in the absence of any demonstrated clearly unreasonable, frivolous, vexatious, or bad faith misconduct.

The Tribunals Administrative Function and the Public Interest – the “Chilling Effect”

63Finally, as noted above, it is the view of the Tribunal that the Applicant’s pursuit of costs from the Residents Group, and its submissions as to the circumstances of the Group as an added party residents’ association, ignores the public interest and public policy aspects of the participation of neighbourhood residents and community members through an association such as the Residents Group. The Applicant’s submission that there is “no special privilege of a ratepayers’ group to waste time and resources of other parties in the determination of an appeal before the Tribunal” is misplaced.

64Firstly, that a ratepayers’ group may wish to participate in the planning decision making process, whether successful or not, is a waste of no one’s time in circumstances such as this – neither the Applicant’s time, the municipal authority, nor the Tribunal’s time. The accommodation and participation of the public and the community in the Provincial planning process is legislatively endorsed by the Province through the requirements of both the public consultation processes set out in the Planning Act and the powers of the Tribunal to grant party status in planning and planning related Appeals under that Act, the OLT Act and the Tribunal’s Rules. The facilitation of such participation by individual members of the public and organized resident association reflects the Tribunal’s administrative function to consider not just the interests of the immediate parties to a planning application/appeal, but the public interest at large.

65Experienced developers in the Province are, or should be, attuned to this public interest aspect of all planning appeals before the Tribunal and the expectation that there will be added parties who wish to actively participate in the hearing process. As a basic premise, no amount of an applicant developer’s time allocated to responding to such participation is wasted and this is never the approach of the Tribunal in any proceeding such as this one.

66The Tribunal is sensitive to the impacts that may occur if the community residents and public participation in planning appeals receive the message, through cost awards, that such involvement in planning decisions carries the real risk of cost consequences in the event of an unfavourable result. This “chilling effect” has been aptly addressed in the Kimvar decision referred to earlier in this Decision. In this case the Tribunal finds that an award of costs in this instance, upon the facts and circumstances of the Residents Group’s involvement in this proceeding and this hearing, would be ill-placed as it would represent an acknowledgement that participation in a planning appeal would expose a similarly interested group to an award of costs. This is because, in this instance, there was no clearly unreasonable, frivolous, vexatious or bad faith conduct on the part of the Residents Group.

67This is not to say that a residents’ association or individual that is granted party status may not be liable for costs and all such participants are always expected to conduct themselves in a reasonable fashion, comply with their obligations as a Party under the Tribunal’s Rules, and assist the Tribunal in the effective and complete adjudication of issues in the proceeding. As noted by the former Board in Kimvar, ratepayers or citizens participating in proceedings may be subject to costs “….where the conduct complained of is so improper that it cannot be ignored”.

SUMMARY OF DISPOSITION

68For the reasons set out in this Decision, the Tribunal finds that the conduct, or course of conduct, of the Residents Group in the proceeding and in the hearing does not meet the threshold and parameters of misconduct warranting the exercise of the Tribunal’s discretion to award costs. Neither are costs for this Motion warranted.

69The request for costs by the Applicant as advanced in the Motion is accordingly denied.

ORDER

70The Tribunal orders that the request for costs brought by Tammy Abbotts against the Harbour West Residents Group Inc. is denied and the Motion is 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.