Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 04, 2023
CASE NO(S).: OLT-22-002251 (Formerly LC170005)
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: 470698 Ontario Ltd.
Respondent: Ministry of Transportation
Subject: Land Compensation
Property Address/Description: 5800 Outer Dr
Municipality: Town of Tecumseh
OLT Case No.: OLT-22-002251
Legacy Case No.: LC170005
OLT File No.: OLT-22-002251
Legacy File No.: LC170005
OLT Case Name: 470698 Ontario Ltd. v. Ontario (Transportation)
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: 470698 Ontario Ltd.
Request for: Motion for Costs
Costs sought against: Ministry of Transportation
Heard: September 29, 2023 by written hearing
APPEARANCES:
| Parties | Counsel/Representative |
|---|---|
| 470698 Ontario Limited | Dante Gatti |
| His Majesty the King in Right of the Province of Ontario as represented by The Ministry of Transportation | Jonathan Sydor |
DECISION DELIVERED BY ASTRID J. CLOS AND ORDER OF THE TRIBUNAL
Link to Final Order
1The Tribunal convened a Written Cost Motion Hearing with respect to a Notice of Motion brought on August 21, 2023, brought by 470698 Ontario Limited (“Claimant”) pursuant to Rule 23 of the Ontario Land Tribunal Rules of Practice and Procedure (“OLT Rules”). The motion follows the Tribunal’s April 21, 2023, decision to dismiss a motion requesting leave to amend the Respondent’s Reply by His Majesty the King in Right of the Province of Ontario as represented by The Ministry of Transportation (“MTO”) to specifically plead the limitation period set out in section 22 of the Expropriations Act, R.S.O. 1990. The Notice of Cost Motion was filed as Exhibit 1.
2MTO, the Respondent, filed the Notice of Response to the Cost Motion with the Tribunal on September 1, 2023, which was marked as Exhibit 2.
3The Claimant did not file a Reply.
BACKGROUND
4There is a lengthy history related to this expropriation matter with the Statement of Claim being filed by the Claimant on March 8, 2017. The Reply by MTO, was filed on May 24, 2017.
5The Effective Date of the Expropriation is August 19, 2010.
LEGISLATIVE FRAMEWORK
6In accordance with s. 17.1 of the Statutory Powers Procedure Act, the Tribunal may order a party to pay all or part of another party’s costs in a proceeding as set out in the OLT Rules. The Tribunal shall not make an order to pay costs under this section unless the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith.
7In accordance with s. 20 of the Ontario Land Tribunal Act, 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.
8Rule 23 of the OLT Rules sets out the period eligible for a costs order and the circumstances in which a costs order may be made:
23.8 Period Eligible for Costs Order
The Tribunal may make a costs award for conduct at any time during a proceeding.
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.
CLAIMANT’S COST MOTION
9Mr. Gatti, Counsel for the Claimant, filed a cost motion seeking:
- An Order that the Respondent (“MTO”) pay the costs of the MTO’s Motion for leave to amend its Reply, which was dismissed, on a substantial indemnity scale, in the amount of $19,779.52.
- Costs of this motion, on a substantial indemnity scale, in the amount of $4,500.00, or such other amount as Respondent’s counsel may submit and the Tribunal should deem appropriate.
10The Claimant filed a Bill of Costs for $19,779.52 together with the motion.
11In support of the cost motion, Mr. Gatti provided the Affidavit of Spencer Farias sworn August 21, 2023, which submits that MTO acted unreasonably, frivolously, vexatiously and in bad faith for the reasons summarized below:
- MTO “never even bothered to produce an affidavit that would even remotely come close to addressing what it would need to address factually, legally, and practically.” [para 38]
- The Tribunal should make a decision that dissuades future expropriating authorities from doing what MTO did. [para 43]
- Based on the materials filed by MTO, they had a minimal chance of success. [para 44]
- That MTO’s motion was an ambush since it waited many years to amend its reply. [para 47]
- MTO has a responsibility to taxpayers and citizens who pay the claims, as well as a no less important responsibility, to treat fairly, responsibly and in good faith those whose lands have been acquired. [para 48]
- MTO provided no explanation for its delay. [para 49]
- MTO effectively threw a “Hail Mary Pass” in the hope that the Tribunal would ignore or forgive its failure to factually, legally and practically address the facts, issues and law including its 11 years of silence. [para 51]
- MTO provided patently inadequate motion materials. [para 52]
RESPONDENT’S RESPONSE TO COST MOTION
12Mr. Sydor, Counsel for MTO, responded that:
… the Respondent submits that this is not a case in which costs ought to be awarded. In the alternative, the costs sought by the Claimant are excessive and ought to be reduced.
… If the Tribunal finds that bringing the motion was somehow unreasonable (which is not admitted by the Respondent) then costs only on a partial indemnity scale would be appropriate. The Respondent submits that costs on a partial indemnity scale for a motion of this nature ought to be $5000.
13In response to the cost motion, Mr. Sydor submitted that “although the Claimant was successful in defeating the motion, the motion itself was not brought in bad faith and the conduct of the Respondent was not unreasonable, frivolous, or vexatious” for the reasons summarized below:
- Given the Rule that states that if an expropriating authority is to rely on the limitation period set out in the Act it needs to be in the Reply, it was reasonable for the Respondent to bring the motion to seek an amendment to specifically plead the limitation period. The law states that leave to make amendments shall be granted unless there is non-compensable prejudice that would result from the amendment. As noted above, the panel did find such prejudice primarily as a result of the delay between the original Reply and the amendment motion. [para 7]
- There was a requirement that the reliance on the limitation period be in the Reply. Once the Respondent became aware that this would be an issue and it should have been in the Reply, it had an obligation to seek the amendment. [para 12]
- While there was a delay in seeking the amendment from the original Reply that formed the basis for the refusal of leave for the amendment, that delay does not automatically also entitle the Claimant to costs. [para 13]
TRIBUNAL ANALYSIS AND FINDINGS
14S. 17.1 of the Statutory Powers Procedure Act, states that the Tribunal shall not make an order to pay costs in a proceeding unless, the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith.
15Costs are not automatically awarded by the Tribunal based on the success of a party at a hearing but may be awarded at the discretion of the Tribunal based on a party’s conduct.
16The Tribunal finds that in this case, while the MTO motion was unsuccessful, that does not equate to the motion being devoid of all merit.
17OLT Rule 23 lists examples of conduct which may cause the Tribunal to award costs and further states that the Tribunal is not bound to order costs when any of these examples occur, as the Tribunal will consider the seriousness of the misconduct.
18The Tribunal considered the conduct of the Respondent through the entire proceeding and finds that said conduct does not meet the threshold required to attract an award of costs.
19While the Respondent was not successful in its motion, MTO has a public interest mandate to ensure that relevant legislation is applied and that taxpayer dollars are appropriately spent. On that basis, the Tribunal does not find that the motion brought by the Respondent was frivolous or vexatious.
20The timing of the Notice of Motion by MTO was such that the Tribunal was able to hear the motion and dispense with the matter prior to the commencement of the Merit Hearing. The MTO Motion did not cause or result in any delay of the proceedings. No evidence of MTO acting in bad faith has been identified by the Tribunal.
21The Tribunal considered whether the conduct or course of conduct of MTO was unreasonable and referenced the established test of whether a reasonable person would find that “it’s not right” and “it’s not fair” and that the person ought to be obligated to another in some way for that kind of conduct. (Midland (Town) Zoning By-law 94-50, ([1995] 32 O.M.B.R. 3) This Member did hear the Motion as part of a Panel and did not identify any unacceptable conduct or evidence of improper motivation by MTO which would lead to the conclusion of unreasonable conduct and be the basis upon which to award costs.
22On the evidence, the Tribunal finds that the conduct of MTO does not meet the high threshold required to attract an award of costs.
ORDER
23THE TRIBUNAL ORDERS that the motion for costs by 470698 Ontario Ltd. is dismissed.
“Astrid J. Clos”
ASTRID CLOS
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.