Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 02, 2023
CASE NO(S).: OLT-22-003399
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Milski Inc.
Subject: Minor Variance
Description: To permit the development of a six-storey, 50-unit apartment building
Reference Number: D13-07-2022
Property Address: 16 Ormond Street South
Municipality/UT: Thorold/Niagara
OLT Case No.: OLT-22-003399
OLT Lead Case No.: OLT-22-003399
OLT Case Name: Milski Inc. v. Thorold (City)
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Robert Di Lallo
Request for: Request for an Order Awarding Costs
Costs sought against: City of Thorold and Tim O’Hare
Heard: July 27, 2023 by written motion
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Milski Inc. (the “Applicant” or the “Appellant”) | Robert Di Lallo* |
| Tim O’Hare | Self-represented |
| City of Thorold (the “City”) | Sara J. Premi* and Patrick Mahoney* |
DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL
Link to Order
BACKGROUND
1The Appellant was successful in its appeal and filed a written motion for costs against the City and Tim O’Hare who both opposed a minor variance application at a hearing before the Tribunal. The appeal dealt with the Committee of Adjustment’s (“Committee”) failure to make a timely decision regarding a minor variance application that was designed to permit the development of a six-storey, 40-unit apartment building on the property municipally known as 16 Ormond Street South (“Subject Property”).
2This motion for costs is under Rule 23 of the Tribunal’s Rules of Practice and Procedure (“Rules”). An order for costs is discretionary and can only be granted by the Tribunal if it finds that the limited circumstances stipulated by Rule 23.9 apply. This Rule limits the Tribunal in using its discretion to award costs to circumstances where the conduct of a party has been unacceptable as defined below:
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. …..
3To summarize the Rule conceptually:
- The Tribunal always has the discretion regarding whether to order costs; and,
- To qualify for an order for costs, the Appellant must show that the City and Mr. O’Hare’s conduct or course of conduct has been unreasonable, frivolous, or vexatious or they have acted in bad faith. (collectively “Objectionable Conduct”).
4There were many arguments advanced in the written motion materials both for and against the motion for costs. Rather than reviewing all the arguments, the Tribunal finds that most arguments in favour of the motion for costs are not compelling and are not worthy of extensive review. The following arguments advanced in favour of a motion for costs merit review by the Tribunal.
A. THE CITY IS RESPONSIBLE FOR THE COMMITTEE’S DECISION TO DELAY THE APPLICATION
5The Applicant argued that it was forced into an appeal by Committee’s decision to delay addressing the minor variance application for two months to allow for further review and study of the parking proposed for the development. Counsel for the Applicant argues that somehow the City should be held responsible for the Committee’s decision and the delay in the decision constitutes Objectionable Conduct that should attract the sanction of costs. The Tribunal finds that there is no merit in the Appellant’s argument and prefers the position advanced by the City on this issue. There is no evidence before the Tribunal that the Committee’s decision was unreasonable, frivolous, vexatious or made in bad faith. The Committee is not a party to these proceedings. The Committee is an independent decision maker and the City cannot be held responsible for the Committee’s decision, which in any case does not constitute Objectionable Conduct by the City.
B. ADVANCING A WEAK CASE
6The Appellant identifies various quotations from the Tribunal’s decision as a basis for advancing the argument that the City and Mr. O’Hare put forward a frivolous and vexatious case. The Tribunal finds that the Appellant’s argument, on this issue, is very weak and prefers the position advanced by the City and Mr. O’Hare. The Appellant was successful in its Appeal since its arguments were stronger than those of the Appellant. The quotations from the decision simply identify the weaknesses in the City’s case.
7The Tribunal finds that Counsel for the City presented her case clearly and professionally. The interpretation advanced by both the City’s planning witness and counsel for the City had a basis sourced in the applicable Official Plans and the Zoning By-law, that were unclear. Counsel for the City and Mr. O’Hare advanced arguments that were weaker than those of the Appellant. The fact that the City lost the appeal is not a basis for awarding costs and does not mean that the City’s case was frivolous. The Tribunal finds that there is no compelling evidence of unreasonable, bad faith, frivolous or vexatious conduct on the part of the City or Mr. O’Hare.
C. DELAYS CAUSED BY LATE MATERIAL FILING AND CONDUCT OF THE CITY’S COUNSEL
8Counsel for the Applicant advances the argument that costs should be awarded due to tardy filing of the book of documents and witness outline by the Applicant, and the challenges that it created for the Tribunal and the hearing. The Tribunal has little sympathy for this argument. Counsel for the City rightly pointed out that there was a good reason for the tardy filings. She was on bereavement leave and only received late notice of the hearing date for the appeal due to City staffing changes. Counsel for the City did request that the Applicant consent to an adjournment which would not have been unreasonable under the circumstances. The Applicant’s counsel was very uncompromising regarding the requested adjournment and the Parties proceeded with the hearing as scheduled. The Tribunal is not prepared to award costs due the difficulties occasioned by the delayed filing of materials and associated hearing delays and finds that the Applicant’s uncompromising stance to the adjournment request did not assist matters. The Tribunal finds that there was justification for the delays and additional work caused for the Tribunal and they do not amount to Objectionable Conduct under the Rule.
9Although the argument was not advanced by the City or Mr. O’Hare, the Tribunal notes that Counsel for the Applicant routinely went over the allotted time for his cross-examinations and needed to be reminded on several occasions that he had made his point regarding the testimony of the witnesses. The Tribunal takes notice of the fact that the conduct of Counsel for the Appellant did not assist in expediting the hearing.
D. REQUEST FOR COSTS AGAINST MR. O’HARE
10The Tribunal finds that the specific arguments presented for a costs order against Mr. O’Hare are without merit. Basically, the Appellant argues that Mr. O’Hare delayed the hearing by presenting his case and should be sanctioned for the change in Mr. Bedford’s testimony, such that it was inconsistent with his written report filed with the Tribunal. Mr. O’Hare was self-represented and the Tribunal acknowledges that he made significant efforts to understand the Tribunal proceedings, was well prepared, cooperated and presented his case professionally and did not extend the hearing unduly. Mr. O’Hare cannot be faulted with the change in Mr. Bedford’s planning opinion which changed to be consistent with that presented by the City’s planning witness since he has no control over it. An expert witness is perfectly entitled to change his views after considering the opinion of another witness and certainly, a party cannot be held accountable for the opinion of an expert witness. Mr. Bedford‘s planning opinion, as an expert opinion, is by virtue of the Rules required to be independent and not influenced by the views of his client.
11In any case, Mr. Bedford’s change in professional opinion does not amount to Objectionable Conduct as defined by the Rules as it was not the conduct of a party to the proceeding but the opinion of a witness.
12In summary, the Appellant has not convinced the Tribunal that the conduct or course of conduct of the City or Mr. O’Hare was unreasonable, frivolous or vexatious or in bad faith and it is not prepared to exercise its discretion to award costs.
ORDER
13THE TRIBUNAL ORDERS that the application for costs is denied and no costs are awarded.
“A. Cornacchia”
A. Cornacchia MEMBER
Ontario Land Tribunal Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.