Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 01, 2023
CASE NO(S).: OLT-21-001782
PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant: Ed and Pat Wyrwas Appellant: Ron Duffy Appellant: Sylvia Burden Subject: Zoning By-law Description: To update lot area data in the zoning by-law Reference Number: BL 2021-34 Property Address: Part of the annulled portion of Hyman Township Municipality/UT: Nairn and Hyman OLT Case No: OLT-21-001782 OLT Case Name: Burden, Duffy, et al., v. Nairn and Hyman (Twp.)
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Agnew Lake Property Group Request for: Request for an Order Awarding Costs Costs sought against: Sylvia Burden, Ron A. Duffy, Ed and Pat Wyrwas
Heard: in writing
APPEARANCES:
| Parties | Representative/Counsel* |
|---|---|
| Ron Duffy | self-represented |
| Sylvia Burden | self-represented |
| Ed and Pat Wyrwas | self-represented |
| Agnew Lake Property Group | Leighton T. Roslyn* |
DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1On October 28, 2022, the Tribunal heard a motion to dismiss brought by the Agnew Lake Property Group (“Property Group”) regarding appeals brought by Ron Duffy, Sylvia Burden and Ed and Pat Wyrwas in relation to the passage of Zoning By-law No. 2021-34 (“Zoning By-law Amendment”) by the Township of Nairn and Hyman relating to lands located at Parts 1 to 11, Plan 53R-20718, in Part of the Annulled Portion of Hyman Township (“subject properties”).
2On February 17, 2023, the Tribunal granted the motion and dismissed the appeals.
3The Property Group has now filed a request for costs. The Tribunal directed the Property Group to file written submissions to support its request and directed the Appellants to postpone their responses until further direction is provided by the Tribunal.
4For the reasons that follow, the Tribunal directs that the Appellants do not need to file responses and it denies the Property Group’s request for costs.
THE PROPERTY GROUP’S SUBMISSIONS
5The Property Group seeks its costs from the Appellants in the amount of $27,215.37 on a joint and several liability basis. It submits that the Appellants engaged in conduct that was unreasonable, frivolous and vexatious.
6The Property Group argues that the Zoning By-law Amendment focused exclusively on making adjustments to minimum lot area sizes, which, it submits, was not addressed in the appeals. It submits that none of the Appellants’ Notices of Appeal disclosed land use planning grounds upon which the Tribunal could allow all or any part of the appeals.
7The Property Group submits that at a Case Management Conference (“CMC”), held in August 2022, the Tribunal identified shortcomings in the appeals, but the Appellants proceeded anyway, resulting in unnecessary costs incurred by the Group. It submits that the Appellants failed to properly prepare for or properly respond to the Property Group’s motion to dismiss despite recommendations from the Tribunal that the Appellants work together. It submits that, in the materials that the Appellants did file, some of the Appellants maligned the character of a member of the Property Group and its expert by alleging conflicts of interest. It submits that the appeals “were wholly without merit from the inception and so unreasonable, frivolous and vexatious and in bad faith” that the Appellants should pay costs on a full indemnity basis.
ANALYSIS AND FINDINGS
8Under s. 17.1 of the Statutory Power and Procedures Act (“SPPA”), the Tribunal has the authority to award costs for frivolous, vexatious or unreasonable conduct exhibited during a proceeding or for actions taken by a party that were in bad faith during a proceeding. Under s. 20 of the Ontario Land Tribunal Act (“OLT Act”), the Tribunal may fix the costs of and incidental to any proceeding, and order a party to the proceeding to pay the costs in accordance with the Tribunal’s Rules of Practice and Procedure (“Tribunal’s Rules”).
9Rule 23.9 of the Tribunal’s Rules identifies examples of circumstances in which cost awards may be awarded. The list is not exhaustive. The examples that it provides includes circumstances where there is:
- a lack of co-operation with other parties;
- a failure to comply with a procedural order or direction of the Tribunal where the result is undue prejudice or delay;
- the continual raising of issues, asking of questions or taking of steps that the Tribunal has determined to be improper;
- a failure to make reasonable efforts to combine submissions with parties of similar interest; or,
- actions that disrespect or malign the character of another party.
10In the present proceeding, the Tribunal finds that the Appellants exhibited none of these types of conduct. The Tribunal rarely orders costs, and, when it does, does so only in extraordinary circumstances where a party has exhibited conduct that is frivolous, vexatious, or unreasonable during the course of a proceeding or where the party has acted in bad faith during the course of the proceeding. In the present case, the Appellants had genuine concerns and took steps to have them addressed. Unfortunately for them, their appeals were found to lack any apparent land use planning grounds and it was found that they had no reasonable prospect of success. As a result, their appeals were dismissed. Although they were not successful in their appeals, based on the Tribunal’s practice this is not of significant relevance in the consideration of costs.
11There is no evidence before the Tribunal of a lack of co-operation or a failure to comply with a procedural order or direction of the Tribunal that resulted in undue prejudice or delay. In the Tribunal’s Decision arising from the CMC, it questioned whether the Appellants’ issues properly addressed the Zoning By-law Amendment and whether the Tribunal had jurisdiction to address those issues. As a result, it suggested that a motion be brought to address the validity of the appeals. This was done and the appeals were dismissed. The Appellant’s responses to the Tribunal’s comments in these regards do not constitute actions warranting an award of costs.
12As reflected in its Decision arising from the CMC, the Tribunal encouraged the Parties at the CMC to meet in an effort to better understand the process and address the issues. It also suggested to the Appellants that it would be prudent for them to receive professional advice with respect to their appeals. These were suggestions of the Tribunal and the question of whether or not Parties were able to follow them is not a ground for a request for costs.
13At the motion to dismiss, the Appellants made efforts not to be repetitive and they conducted themselves in a civil and efficient manner. Civility is an important aspect of conduct before the Tribunal. The Appellants made allegations of conflicts of interest concerning members of the Property Group and its expert; however, the Tribunal finds that, in the present circumstances, this did not amount to the Appellants acting disrespectfully or maligning the character of another party. The credibility of witnesses could have been relevant if the appeals had merit. Moreover, the persons in question were not parties.
14It is a party’s conduct during the course of the proceedings which is the main focus of the Tribunal when determining a request for costs. In its submissions, the Property Group argues that that the appeals “were wholly without merit from the inception and so unreasonable, frivolous and vexatious and in bad faith” that the Appellants should pay costs on a full indemnity basis. Again, the main focus of the Tribunal when determining whether an award of costs is warranted is not on the merits or success of the appeals or on whether the appeals themselves are unreasonable, frivolous or vexatious or filed in bad faith. Although these factors may be relevant, they are not the actual proper grounds for costs. They are more pertinent in regard to a motion to dismiss.
Conclusions
15The Tribunal finds that the Appellants’ conduct in these proceedings does not warrant the exercise of the Tribunal’s discretion to award costs.
ORDER
16The Tribunal orders that the Agnew Lake Property Group’s request for costs is denied.
“Hugh S. Wilkins”
HUGH S. WILKINS VICE-CHAIR
Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.