Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 22, 2023
CASE NO(S).: OLT-21-001340
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Rock Island Management Inc.
Subject: Application to amend Zoning By-law No. 1-2014 - Refusal or neglect of Town of Kingsville to make a decision
Existing Zoning: Agriculture
Proposed Zoning: Agriculture - Exception 85
Purpose: To permit conversion of the subject lands from single-family residential dwellings to worker housing.
Property Address/Description: 2037 Peterson Lane
Municipality: Town of Kingsville
Municipal File No.: ZBA/14/21
OLT Case No.: OLT-21-001340
OLT Lead Case No.: OLT-21-001340
OLT Case Number: Rock Island Management Inc. v. Kingsville (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Rock Island Management Inc.
Subject: Application to amend Zoning By-law No. 1-2014 - Refusal or neglect of Town of Kingsville to make a decision
Existing Zoning: Agriculture
Proposed Zoning: Agriculture - Exception 85
Purpose: To permit conversion of the subject lands from single-family residential dwellings to worker housing.
Property Address/Description: 1566 Road 3 East
Municipality: Town of Kingsville
Municipal File No.: ZBA/15/21
OLT Case No.: OLT-21-001341
OLT Lead Case No.: OLT-21-001340
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Rock Island Management Inc.
Subject: Application to amend Zoning By-law No. 1-2014 - Refusal or neglect of Town of Kingsville to make a decision
Existing Zoning: Agriculture
Proposed Zoning: Agriculture - Exception 85
Purpose: To permit conversion of the subject lands from single-family residential dwellings to worker housing.
Property Address/Description: 1557 Road 3 East
Municipality: Town of Kingsville
Municipal File No.: ZBA/16/21
OLT Case No.: OLT-21-001342
OLT Lead Case No.: OLT-21-001340
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Rock Island Management Inc.
Request for: An Order Awarding Costs
Costs sought against: Town of Kingsville
Heard: In writing
APPEARANCES:
Parties
Counsel
Rock Island Management Inc.
Edwin Hooker
(“Appellant” or “Rock Island Management”)
Town of Kingsville
Susan Hirota
(“Town”)
DECISION DELIVERED BY S. BOBKA AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is a motion for costs to be heard in writing pursuant to Rule 23.2 of the Ontario Land Tribunal’s (“Tribunal” or “OLT”) Rules of Practice and Procedure (“Rules”). The motion follows the September 26, 2022 Decision of this Member, which approved a settlement proposal brought forward on consent by the Parties.
2The Tribunal had the benefit of reviewing the following written materials with regard to the costs motion:
Rock Island Management’s Notice of Motion and the Affidavit of Richard Colasanti (President of Rock Island Management);
The Town’s Response to the Motion, including the Affidavits of Richard Wyma (Director of Community and Development Services for the Town) and George Robinson (Manager of Planning for the Town), as well as Caselaw;
Rock Island Management’s Factum in Reply, including Caselaw.
STATUTORY FRAMEWORK
3The Tribunal’s statutory authority to award costs can be found in s. 20 of the Ontario Land Tribunal Act (“OLTA”) and s. 23 of the Rules, which are consistent with the Statutory Powers Procedure Act (“SPPA”). Section 20 of the OLTA states:
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.
4Rule 23.9 sets out the circumstances under which costs may be awarded:
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. … The Tribunal is not bound to order costs when any of these examples occur as the Tribunal will consider the seriousness of the misconduct.
APPELLANT’S POSITION
5The Appellant is seeking an order of the Tribunal to award costs of $13,857.68, in addition to costs of the motion, from the Town. The Appellant’s grounds are as follows:
Up until the eve of a Case Management Conference, the Town “acted in bad faith and in a manner which is unreasonable, frivolous and/or vexatious within the meaning of Rule 23.9”;
The impugned conduct by the Town included:
i. failure to respect a previous LPAT decision (PL200027) approving rezoning applications at locations indistinguishable from the properties subject of this application;
ii. engaging in “people zoning” by the passage and renewal of an Interim Control By-law (“ICBL”) after the subject applications were deemed complete in order to further/bolster its position at the Tribunal;
iii. calling for the abolition of the Tribunal while awaiting the Hearing in an attempt to deprive the Appellant of a full and fair hearing and to prejudice the outcome of the hearing; and,
iv. refusing to issue reasons for its failure to pass the applications, undue delay in providing an Issues List (“IL”) and providing an IL that “relied upon and inflamed the Town’s impugned conduct”.
RESPONSE FROM THE TOWN
6The Town submits that Tribunal awards of costs are not routine and should not be expected by a successful party. It also notes that there are few examples in which the Tribunal has awarded costs against a municipality.
7The Town submits that its implementation of an ICBL in order to “conduct a ‘Temporary Farm Worker Housing Study’ and to consider Official Plan and Zoning By-law amendments represents good planning” and should not justify an award of costs. It goes on to say that the Study and the ICBL were in the public interest, a consideration that has been previously taken into account by the Tribunal when determining whether to award costs.
8The Town notes that the Appellant was not singularly targeted by the enactment of the ICBL, which applied to all lands within the Town, nor did the Appellant appeal the extension of the ICBL.
9The Town suggests that as the non-decision of the requested Zoning By-law Amendments (“ZBAs”) occurred before the filing of the Notice of Appeal, it is not conduct that the Tribunal can consider regarding a costs award.
10The Town submits that the provision of the draft IL in May 2022 was well in advance of the hearing scheduled for October 2022 and did not cause any undue delay or prejudice as alleged by the Appellant.
11The Town denies that Council was required to respect the previous decision of the LPAT Case No. PL200027 as each proceeding before the Tribunal is a “unique ‘stand alone’ event … [and] do not create binding jurisprudence” (Ferguson v. Little, 2001 CarswellOnt 5277, 43 O.M.B.R. 182 at para. 11). It submits that it was reasonable to pause approval on additional ZBA applications to convert from single-family dwellings to temporary farm worker housing with the ICBL while commissioning the study and seeking public input.
12The Town submits that its Council’s motion regarding the dissolution of the OLT was not a response to the Appeals and it is within the rights of its Council to express an opinion on a matter of public interest. It further submits that no prejudice was suffered by the Appellant as a result of the motion.
13Finally, the Town submits that after considering the results of the study, public consultation, and recommendations from the Town’s Administration as well as input/feedback from the Ontario Human Rights Commission (“OHRC”), the Town “reassessed its position”, agreeing to the settlement of the Appeals, which was reached on consent (between September 13-23, 2022). This meant that the Appellant did not have to incur the additional expenses associated with a three-day hearing. Additionally, the Town highlights that the Tribunal allows Parties to re-evaluate their position throughout the proceedings.
ANALYSIS AND FINDINGS
14Costs are not regularly awarded in Tribunal proceedings. Per Rule 23.9, even if it did consider the conduct of the Town to be unreasonable, frivolous, vexatious or in bad faith, the Tribunal is not bound to order costs.
15For the following reasons, the Tribunal is not persuaded that the conduct of the Town should be considered unreasonable, frivolous, vexatious or in bad faith:
Council has the right to defer decisions on planning applications and also has the right to enact an ICBL. The ICBL impacted all properties in the Town, not just the Subject Property. Council also has the right to not make a decision on an application.
Regarding the previous LPAT Decision, Council is entitled to consider each planning application on the merits specific to that particular application. The Tribunal prefers the position of the Town. The LPAT Decision may be referenced for context but does not create binding jurisprudence.
Council’s motion to abolish the OLT has no bearing on the proceedings or appeals and it is within a Council’s right to comment on issues of public interest.
The Town’s provision of the IL in May 2022 was sufficiently in advance of the scheduled October 2022 Hearing date.
It is noted that the Town ensured that Mr. Robinson (Director of Planning for the Town) was in attendance at the Settlement Hearing without summons and that the Appellant did not incur the costs of a planner during that Hearing.
Regarding the Appellant’s claim that the Town engaged in “people zoning,” the Tribunal does not find the evidence presented by the Appellant to be sufficient to arrive at this conclusion. The Tribunal finds it was reasonable to study the issue of Temporary Farm Workers Housing, as a planning issue of public interest with impacts on the available housing stock.
16The Tribunal notes as well that it is rare for the Tribunal to award costs against a municipality. The Tribunal and its predecessors have recognized that the public interest can be served by the participation of a municipality in an appeal. While this does not prevent the Tribunal from awarding costs against a municipality, the public interest has been a consideration. In this case, the Tribunal finds that there was a public interest served by the ICBL (as it allowed for the Study) and the Study itself, and that the conduct of the Town does not rise to the level of unreasonable, frivolous, vexatious or in bad faith.
17In addition, as submitted by the Appellant, the test that the Tribunal must consider on this motion is:
…would a reasonable person, having looked at all of the circumstances of the case, the conduct or course of conduct of a party proven at the hearing, and the extent of his or her familiarity with the Board’s procedure, exclaim “that’s not right; that’s not fair; that person ought to be obligated to another in some way for that kind of conduct.
Ajax (Town) v Pickering (City) 2018 CanLII 89434 at para 17. (Case No. PL150145)
18Upon consideration of the Town’s conduct in this proceeding and based on a careful review of the materials submitted by the Parties, the Tribunal is not persuaded that a reasonable person would find the conduct of the Town to be “not right” or “not fair” in this instance.
19The Tribunal finds that an award of costs against the Town is not warranted.
ORDER
20THE TRIBUNAL ORDERS that the application for costs is denied and no costs are awarded.
“S. Bobka”
S. BOBKA
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.