Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 11, 2023
CASE NO(S).: OLT-21-001962
PROCEEDING COMMENCED UNDER section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant: Steve Maynard
Owner: Mississippi Mills
Subject: Proposed Official Plan Amendment
Description: Official plan amendment to expand the settlement area boundary of Almonte
Reference Number: OPA 11
Property Address: All lands governed by OPA 11
Municipality/UT: Mississippi Mills/Lanark
OLT Case No: OLT-21-001962
OLT Lead Case No: OLT-21-001962
OLT Case Name: Hodges v. Lanark (County.)
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Municipality of Mississippi Mills and the County of Lanark
Request for: Request for an Order Awarding Costs
Costs sought against: Steven Maynard
Heard: August 18, 2023 in writing
APPEARANCES:
Parties
Counsel/Representative*
Municipality of Mississippi Mills
Tony Fleming
County of Lanark
Greg Meeds
Steven Maynard
Self-Represented*
DECISION DELIVERED BY DAVID BROWN AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal is a Motion brought jointly by the Municipality of Mississippi Mills (“Municipality”) and the County of Lanark (“County”)(collectively the “Moving Parties”) seeking an Order awarding costs payable to the Municipality and the County from Steven Maynard (“Appellant”). The request is made pursuant to s. 20 of the Ontario Land Tribunal Act, 2021 (“OLT Act”) and Rule 23 of the Tribunal’s Rules of Practice and Procedure (the “Rules”).
2The Appellant filed two concurrent Appeals concerning the County’s approval of Official Plan Amendment No. 11 and the County’s approval of the Municipality’s approval of Official Plan Amendment No.22 to the Municipality’s Official Plan (the “OPAs”), The OPAs will facilitate the expansion of the urban settlement area boundary in the Hamlet of Almonte.
3The Municipality and the County brought a Motion before the Tribunal on May 17, 2022, requesting the Tribunal to dismiss the Appeals pursuant to s. 17(45) of the Planning Act and seeking costs against the Appellant. The Tribunal considered the Motion on May 17, 2022, and dismissed the Appeal for the reasons set out in its Order issued on June 17, 2022 (the “Makuch Decision”). No determination in respect to costs was made at that time and the Parties were directed that any request for a costs award is to be made in accordance with the Rules.
4Pursuant to Rule 23, the Moving Parties filed a Notice of Motion seeking an award of costs against the Appellant.
5The materials before the Tribunal for this Motion consist of the following:
a) The Motion Record of the Moving Parties dated September 1, 2022, including the Affidavit of Mercedes Johnson, sworn August 31, 2022, and the Affidavit of Julie Stewart, sworn August 30, 2022;
b) The Appellant’s Response to Costs Motion dated September 19, 2022 (the “Response”); and
c) The Reply of the Moving Parties dated September 29, 2022.
6The Moving Parties seek an award of costs pursuant to Rule 23.9 against the Appellant as it is their contention that his conduct in bringing the appeal warrants such an award.
7Rule 23.9 states:
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 or 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.
8The Municipality is seeking a cost award in the amount $21,209.28 on a full indemnity basis and the County is seeking a cost award in the amount of $12,824.40 on a full indemnity basis.
9The Tribunal notes that Rule 23.7 states:
The Tribunal Member who conducted the hearing event on the merits shall make the decision on the request for costs. If that Member is, for any reason, unable to hear or deal with the request, the Chair will direct another Member of the Tribunal to hear the motion.
10The hearing event on the merits of this appeal was conducted by Vice-Chair Makuch on June 17, 2022. Vice-Chair Makuch passed away on December 7, 2022. The Chair of the Tribunal has assigned the Motion to this Member as provided for in Rule 23.7.
THE GROUNDS FOR THE MOTION
11On November 8, 2021, Mr. Maynard filed Appeals against the County and Municipality’s approval of the OPAs. The Municipality and the County filed a Motion with the Tribunal requesting that the Appeals be dismissed. The Motion was considered by the Tribunal on May 17, 2022, and the Appeal was dismissed.
12In the Makuch Decision, Vice-Chair Makuch set out his findings as follows:
Par. 22 … Mr. Maynard’s appeals are not made in good faith and are frivolous and vexatious and are the latest in a series of frivolous, vexatious and meritless appeals brought for no legitimate land use planning purpose.
Par. 28 …Mr. Maynard has no apparent direct interest in any of the affected lands and has confirmed to the Tribunal that he does not intend to provide expert evidence to substantiate his appeals.
Par. 29 …Mr. Maynard’s appeals have all the hallmarks of a vexatious appeal intended to cause trouble and annoyance to the County and Municipality. In the absence of anticipated evidence that can sustain a challenge to the numerous studies and professional opinions in support of the amendments, Mr. Maynard’s appeals are a frivolous waste of the Tribunal and Moving Parties’ resources. These appeals are the latest in a series of Tribunal proceedings persistently commenced by Mr. Maynard without reasonable grounds, which therefore constitute an abuse of process.
Par. 30 …the Maynard appeals do not disclose any apparent land use planning grounds upon which the amendments could be refused and have no reasonable prospect of success.
13The Moving Parties submit that the Tribunal found that the Appeals were frivolous and vexatious and not brought in good faith. These findings support an award of costs, as bringing the proceeding itself constituted conduct that was frivolous, vexatious, and undertaken in bad faith.
14Further, the Moving Parties contend that the Appellant failed to present any evidence in response to the Motion to Dismiss and confirmed to the Tribunal that he did not intend to present any evidence should the matter proceed to a hearing. It is the contention of the Moving Parties that commencing an appeal with no planning merit and with no intent to advance evidence in support of the appeal is conduct that warrants an award of costs pursuant to Rule 23.9(e).
15As noted in the Makuch Decision, the Appeals were the latest in a series of frivolous, vexatious, and meritless appeals and legal proceedings brought by the Appellant. The Affidavit of Mercedes Johnson, sworn on August 31, 2022, attached to the Notice of Motion, includes a copy of the Affidavit of Ken Kelly filed in support of the previous Motion filed with the Tribunal seeking costs. The Affidavit of Mr. Kelly details the history of the Appellant’s conduct.
16Mr. Kelly’s Affidavit sets out that the current Appeal is the Appellant’s eighth appeal of planning decisions by the Municipality in the past three years. He continues advising that four of those appeals were administratively dismissed as the Appellant did not submit the required filing fee. The fifth appeal was to be conducted in writing, at the request of the Appellant, but was dismissed after the Appellant failed to file any evidence or written submissions in support of his appeal. The remaining two Appeals proceeded to a hearing under Tribunal Case No. PL180769 (“PL180769”) and Tribunal Case No. PL210127 (“PL210127”).
17The Tribunal dismissed PL210127 in its Order issued October 28, 2021, and a Motion seeking costs was subsequently filed with the Tribunal. The Tribunal considered the Motion for Costs arising from PL210127 and issued an Order February 16, 2022, granting the cost award against the Appellant (the “Andrews Costs Decision”). In the Andrews Costs Order, the Tribunal found that the Appeal was, “clearly vexatious”, unreasonable, and frivolous. In paragraph 36 of the Andrews Costs Decision, Member Andrews states:
The Tribunal finds such attitude, intent and behaviour to be reprehensible and dangerous, not only prejudicing the Town's resources and efforts to deal with planning matters efficiently and effectively at a local level, but it also prejudices the Tribunal’s abilities and duties to deal with the meritorious matters (bumped down the Tribunal’s schedule in order to deal with the Appellant’s matters) in an efficient and timely manner. This conduct is clearly vexatious and warrants sanctions to not only compensate the prejudice parties, but also to discourage such conduct by the Appellant and or any other person who considers engaging in such practices.
18It is the Moving Parties submission that the Appellant’s conduct rises to the level of “reprehensible, scandalous or outrageous”. This Appeal represents another frivolous, vexatious, and bad faith proceeding brought against the Municipality despite recently being warned and sanctioned with a costs award by the Tribunal for conduct of this nature.
19The Tribunal was directed by the Tribunal’s decision in Gilchrist v Central Manitoulin (Mun.), 2021 CanLII 77605 (ON LT) at paragraph 13, where Member Ng sets out:
…Partial costs (costs on a partial indemnity basis) might be awarded for conduct that was “clearly unreasonable”; but if the conduct went beyond “unreasonable” and became (in terminology originated in the courts) “reprehensible, scandalous, or outrageous”, then the Board could consider costs at a higher “substantial” or “full indemnity” basis.
20The Moving Parties submit that the Appellant’s conduct goes beyond “unreasonable” and warrants an award of costs on a full indemnity basis.
21The Moving Parties submit that the conduct of the Appellant has resulted in significant costs to the Municipality and the County. Section 20 of the OLT Act 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 costs, in accordance with the rules.
22The Affidavit of Ms. Johnson included an accounting of the costs incurred by the Municipality, in respect to this matter, totalling $21,209.28.
23The Notice of Motion also included an Affidavit of Julie Stewart, sworn on August 31, 2022, attesting to the costs incurred by the County, in respect to this matter, which totalled $12,824.40.
MAYNARD RESPONSE
24The Response outlines the impact of a head injury he sustained on July 25, 2018. He claims that the head injury has resulted in permanent impairments to his brain function impacting his memory and recollection abilities.
25The Appellant summarized that the Moving Parties have described his conduct as rising to the level of reprehensible, scandalous, or outrageous. He also summarized the Tribunal’s findings that the Appeal was found to be frivolous, vexatious, not in good faith, and unreasonable.
26The Appellant referred to the Tribunal’s decision in Davidson v McKellar (Township), 2022 CanLII 42285 (ON LT) at paragraph 28(b), wherein the Tribunal made the following determinations:
…The civil scales of cost considered by the Ontario Superior Court of Justice seldom reach the height of absolute recovery of all costs expended in a proceeding and the Tribunal’s approach to awards of costs, by comparison, is at a much lower “wavelength” of consideration than the Court. Substantial indemnity costs in Court proceedings are also usually reserved for more serious behaviour and are closely connected to offers to settle. While the Appellant’s conduct was clearly unreasonable, neither is the seriousness of his conduct within the extreme behavioural realm of “egregious, scandalous or outrageous” that might attract a higher range of costs…
27The Appellant submitted that the quantum of costs is a conclusion to be made by the Tribunal after all factors are considered, including if the seriousness of his conduct is “within the extreme behavioural realm of “egregious, scandalous or outrageous” that might attract a higher range of costs.”
28The Appellant acknowledged in the Andrews Costs Decision that the Tribunal found his “attitude, intent and behaviour to be reprehensible and dangerous” and his conduct to be “clearly vexatious.” He contended that notwithstanding these findings, the Tribunal capped the costs award at $10,000.00.
29The Appellant submitted that notwithstanding the findings in the Makuch Decision, the Tribunal did not find his conduct rose to the level of reprehensible, scandalous or outrageous.
30The Appellant recommended that should the Tribunal determine that costs are to be awarded, an award of partial indemnity would be appropriate in consideration of:
i. His legal experience is in Small Claims Court, Provincial Offences Court and before the Human Rights Tribunal of Ontario;
ii. He has relatively little experience before the Tribunal and with his memory issues he has difficulty recalling the Tribunal’s Rules; and
iii. As a result of his accident-related disabilities, he has difficulties stating his case.
ANALYSIS AND FINDINGS
31The Tribunal has considered the Response and submissions contained therein in response to the Motion filed by the Appellant. The Appellant requested the Tribunal consider the impact of his brain injury on his behaviour when considering its decision. The Appellant has provided the Tribunal with no evidence to substantiate his injury nor the impact that it may have on his ability to participate in this or previous proceedings.
32Further, the Tribunal, having reviewed the Makuch Decision and the Andrews Costs Decision, notes that there is no indication that the Appellant provided the Tribunal with any evidence of his injury or the limitations resulting from the injury at either of those proceedings.
33The Tribunal notes that since 2019, the year following when the Appellant advised he sustained his injury, the Appellant has filed eight appeals to the Tribunal or its predecessor. Further, having reviewed the Affidavit from Mr. Kelly, the Tribunal notes that the Appellant has pursued a number of the Tribunal’s rulings through the Provincial Court system and one matter to the Supreme Court of Canada. The Appellant’s claims of lack of familiarity with the Tribunal process is not borne out by his behaviour. The Appellant claims to possess legal experience in other forums that the Tribunal finds would be transferrable to a Tribunal proceeding and the claim of lack of familiarity does not excuse his lack of preparation in respect to presenting evidence in support of his position. Both the Andrews Costs Decision and the Makuch Decision reference the lack of preparedness and the failure to present evidence or the lack of intention to present evidence in the respective appeals.
34In the Andrews Costs Decision, the Member Andrews found that the Appeal was, “clearly vexatious”, unreasonable, and frivolous. The Andrews Costs Decision found that the Appellant, Mr. Maynard;
had no apparent interest in the matter;
did not present evidence at the hearing;
did not cite law, precedent, or studies to support his position;
eliminated a number of issues without notice to the parties during the hearing;
conducted a cross-examination that “consisted largely of his own statements insofar as he disagreed with the Applicant’s expert’s professional opinion”; and
made no opening statement and made only very limited closing submissions.
35Paragraphs 40 and 41 of the Andrews Costs Decision are set out below:
40In further exercising its discretion, the Tribunal has elected to cap the costs award at a sum total of $10,000.00. While the Tribunal finds that this falls well short of the relief that could have been ordered against the Appellant considering his conduct, it finds that it is appropriate when balanced against the Tribunal’s duty to avoid discouraging appeals by legitimately concerned citizens which are conducted in good faith.
41Put another way, the Tribunal finds that the amount awarded should be sufficient to deter clearly meritless appeals / serve compensatory purposes, while it is not so severe as to discourage a potential party who:
Demonstrably believes in the merits of their position;
Is prepared to contribute to the proceedings in a meaningful way;
Acts reasonably to avoid causing unnecessary costs to the other parties; and
Does not demonstrate a pattern of nuisance litigation against another party.
36As set out above, the Andrews Costs Decision capped the costs award in an amount that the Tribunal determined to be “sufficient to deter clearly meritless appeals and serve compensatory purposes.”
37The relevance of the Andrews Costs Decision to the Tribunal’s consideration of this matter is that the Andrews Costs Decision was issued February 16, 2022. The Appellant filed the Notice of Appeal in this matter on November 8, 2021, prior to the issuance of the Andrews Costs Decision. The hearing in respect of this matter was conducted on May 17, 2022, three months after the Andrews Costs Decision was issued.
38Notwithstanding the timing of the issuance of the Andrews Costs Decision, the Appellant chose to continue with this Appeal. The Appellant would have received the Andrews Costs Decision and had ample time to consider the implications and directions provided therein and determined to continue to pursue his Appeal of this matter. The Tribunal finds that the capped cost award did not deter the Appellant from pursuing the clearly meritless appeals. The Tribunal finds that the Appellant continued his pattern of pursuing clearly vexatious, unreasonable, and frivolous appeals before the Tribunal.
39The Makuch Decision, in paragraph 32, found that the Appeal is “the latest in a series of frivolous, vexatious and meritless appeals brought for no legitimate land use planning purpose.” In paragraph 29, Vice-Chair Makuch finds that “Mr. Maynard’s appeals have all the hallmarks of a vexatious appeal intended to cause trouble and annoyance to the County and Municipality.” Vice-Chair Makuch further finds that:
Mr. Maynard’s appeals are a frivolous waste of the Tribunal and Moving Parties’ resources. These appeals are the latest in a series of Tribunal proceedings persistently commenced by Mr. Maynard without reasonable grounds, which therefore constitute an abuse of process.
40The Appellant, in spite of being sanctioned by the Tribunal, continues to exhibit a disregard for the Tribunal and the appeal process.
41The Tribunal reviewed the Affidavit of Mr. Kelly and the notes that there are over 20 decisions arising from the numerous actions commenced by the Appellant before the Tribunal, the Superior Court of Justice, the Ontario Court of Appeal, and the Supreme Court of Canada. Having reviewed the decisions in connection with the Appellant’s numerous appeals and subsequent legal actions, the Tribunal notes that the Appellant has not been successful in any of the many challenges he has initiated. The Tribunal notes that there is a common thread throughout the decisions describing the Appellant’s motive as frivolous and vexatious behaviour and this has resulted in numerous costs awards.
42In consideration of the persistent conduct of the Appellant, the Tribunal reviewed the Ontario Municipal Board decision Bromont Homes Inc. v. Kawartha Lakes (City), 2016 CarswellOnt 19691 and notes at paragraph 10 where the Board found:
"Substantial or Full Indemnity" being awarded when conduct is "reprehensible, scandalous or outrageous". The term "reprehensible" has been interpreted broadly and includes conduct which is scandalous, outrageous or constitutes misbehaviour including milder forms of misconduct deserving of reproof or rebuke.
43The Tribunal finds the facts and evidence documenting the consistently frivolous and vexatious appeals filed by the Appellant demonstrate a pattern of behaviour that must be discouraged. The actions of the Appellant can be defined as reprehensible and outrageous. The behaviour has wasted valuable time and resources at the Municipality, the County, and the Tribunal. This behaviour can not to be tolerated as it takes the Tribunal away from considering serious appeals filed in good faith by appellants that have legitimate grounds for their appeals.
44The Makuch Decision accurately sums up the conduct of the Appellant when it found the Appeals “have all the hallmarks of a vexatious appeal intended to cause trouble and annoyance to the County and Municipality.”
45Further in consideration of a full indemnity award, the Tribunal reviewed 719299 Ontario Inc. v. London (City) Committee of Adjustment, 2006 CarswellOnt 1995 [2006] O.M.B.D. No. 398 where the Board found at paragraph 23,
The Board finds that in this case the Appellant's conduct was demonstrably reprehensible, scandalous and outrageous. In fact the Board is so outraged by the Appellant's egregious behaviour in wasting the time and the resources of the Board and Wal-Mart that it will exercise its authority under section 97 of the OMB Act to order full indemnity of the costs of this motion. The fact that the Appellant neither filed response materials nor appeared at the motion hearing demonstrates the Appellant's contempt for this Board and its proceedings and therefore attracts the unusual award of costs on a full indemnity basis.
46The Tribunal finds that the persistent behaviour being exhibited by the Appellant demonstrates his contempt for this Tribunal and its proceedings. The Tribunal finds that this egregious behaviour attracts the “unusual award of costs on a full indemnity basis.”
47The Tribunal has reviewed the itemized bill of costs included in the Affidavit of Ms. Johnson, setting out the costs claimed by the Municipality, and the Affidavit of Ms. Stewart, setting out the costs claimed by the County, and the Tribunal finds them to be an appropriate accounting of the costs incurred in respect to this matter.
48Tribunal grants the Motion for Costs on a full indemnity basis.
ORDER
49THE TRIBUNAL ORDERS THAT the application for costs is granted and directs:
Steven Maynard shall pay the Municipality of Mississippi Mills a costs award in the amount of $21,209.28.
Steven Maynard shall pay the County of Lanark a costs award in the amount of $12.824.40.
Steven Maynard has six months to pay the costs awards of this Order, following which it is subject to interest calculated in accordance with section 129 of the Courts of Justice Act.
“David Brown”
DAVID BROWN
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.