Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 28, 2024

CASE NO(S).: OLT-23-000295

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Rotary Club of Brampton Glen Community Centre

Subject: Request to amend the Official Plan – Refusal of Request

Description: To permit the development of two multi storey residential apartment buildings with a height of twelve and fourteen storeys.

Reference Number: OZS-2021-0018

Property Address: 1857 Queen Street West

Municipality: City of Brampton

OLT Case No.: OLT-23-000295

OLT Lead Case No.: OLT-23-000295

OLT Case Name: Rotary Club of Brampton Glen Community Centre v. Brampton (City)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Rotary Club of Brampton Glen Community Centre

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To permit the development of two multi storey residential apartment buildings with a height of twelve and fourteen storeys.

Reference Number: OZS-2021-0018

Property Address: 1857 Queen Street West

Municipality: City of Brampton

OLT Case No.: OLT-23-000296

OLT Lead Case No.: OLT-23-000295

PROCEEDING COMMENCED UNDER subsection 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Rotary Club of Brampton Glen Community Centre

Request for: Request for an Order Awarding Costs

Costs sought against: City of Brampton

Heard: October 3, 2024, by written motion

APPEARANCES:

Parties	Counsel
Rotary Club of Brampton Glen Community Centre	Rodney Gill
City of Brampton	Eugenia Bashura

DECISION DELIVERED ON BY S. DEBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal was the motion (“Motion”) commenced by the Rotary Club of Brampton Glen Community Centre (“Rotarians”) dated September 4, 2024, seeking an award of costs against the City of Brampton (“City”) due to the Decision delivered by the Ontario Land Tribunal (“OLT” or “Tribunal”) pursuant to s. 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4 Sched. 6, as amended (“Act”).

2The Notice of Motion requests the Tribunal to grant an awarding of costs in the amount of $85,000.00 to be paid by the City to the Rotarians due to what the Rotarians consider to be conduct of the City which was unreasonable, frivolous, vexatious or acting in bad faith as per Rule 23.9 of the OLT’s Rules of Practice and Procedure (“Rules”).

3The City opposes the Motion and requests that the Tribunal dismisses the Motion before it.

4The materials before the Tribunal on the Motion are:

1. Affidavit of Service by Nancy Borges dated September 18, 2024;
2. Rotarians’ Motion Record dated September 4, 2024, comprising 257 pages, inclusive of exhibits;
3. City’s Response to the Motion dated September 19, 2024, comprising 59 pages;
4. City’s Book of Authorities dated September 19, 2024, comprising 69 pages.

5The Rotarians did not provide a Reply to the City’s Response to the Motion.

TEST FOR AWARDING COSTS IN A TRIBUNAL PROCEEDING

6In order for the Tribunal to award costs in a proceeding that was before it, the Tribunal must consider the following statutes and rules which govern the OLT. For the Motion before it the Tribunal considers that s. 20 of the Act and Rule 23 of the Rules are most applicable.

7Section 20 of the Act states:

Costs

20 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 states:

COSTS

23.1 Who May Request an Order for Costs Only a party may ask for an award of costs at the end of a hearing event. If the request for costs is not made before the Tribunal renders its decision at the end of the hearing event, the party must notify the Tribunal and the party from whom costs are sought within 30 days after the written decision is issued that the party will be seeking costs, against whom the costs are sought, and an indication of the approximate amount of costs being sought.

23.2 Costs Requests will be considered by Written Motion All cost requests shall be considered and disposed of by the Tribunal in writing unless a party satisfies the Tribunal that consideration of the request in writing is likely to cause the party significant prejudice. […]

23.4 Disposition of Request Where Request Made After Issuance of Decision Subject to the party satisfying the requirements in Rule 23.1 for submission of a request, and Rule 23.2 for an in person or electronic motion, the Tribunal may direct the party or parties requesting costs to:

(a) attend before the Tribunal, on notice to the party or parties against whom costs are sought, on a date fixed by the Tribunal, and make oral submissions with respect to the application for costs provided that the party or parties against whom costs are sought shall also be permitted to make oral submissions with respect to the application for costs; or

(b) within 35 days of the Tribunal’s direction, serve upon each party against whom costs are sought, and file with the Tribunal documentation which shall include, subject to any other documentation ordered by the Tribunal:

i the reasons for the request and the amount requested;

ii an estimate of any extra preparation or hearing time caused by the conduct alleged to attract costs;

iii copies of supporting invoices for expenses claimed or an affidavit of a person responsible for payment of those expenses verifying that the expenses were properly incurred; and an affidavit verifying that the costs claimed were incurred directly and necessarily for the time period in question; or

(c) within 35 days of the Tribunal’s direction, serve and file a notice of motion for costs in accordance with Rule 10. A motion for costs shall only proceed as an in person or electronic hearing, if a party satisfies the requirements in Rule 23.2, and the notice of motion must contain the following information:

i the reasons for the request and the amount requested

ii an estimate of any extra preparation or hearing time caused by the conduct alleged to attract costs; copies of supporting invoices for expenses claimed or an affidavit of a person responsible for payment of those incurred; and

iii an affidavit verifying that the costs claimed were incurred directly and necessarily for the time period in question.

23.5 Response by Other Party Where the Tribunal directs a proceeding in writing in accordance with Rule 23.2, the party or parties against whom the request for costs is made shall, within 15 days of service of the documentation from the party requesting costs, provide a written response to the Tribunal and the other parties to whom the request for costs is made.

23.6 Reply by Party Seeking Costs Where the Tribunal directs a proceeding in writing in accordance with Rule 23.2, the party requesting costs may provide to the Tribunal and other parties to whom the request for costs relates a reply to a written response, within 10 days of the service of the response.

23.7 Member Seized to Consider Costs Order 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.

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.

POSITIONS OF THE PARTIES

Rotarians

9Through its Motion materials, it was the position of the Rotarians that the City acted in a manner that should be considered to be unreasonable, frivolous, vexatious or in bad faith. The Rotarians argued that City Planning Staff was in support of the original Applications that were before the City’s Planning and Development Committee (“Committee”). The Committee had recommended that the Applications be approved by City Council. City Council ultimately refused the Applications as presented. The Rotarians then had to appeal the City’s decision to the OLT.

10The Rotarians stated that the City needed to hire outside consultants to appear before the Tribunal. The Rotarians argued that throughout the process leading up to the Appeal Hearing, the Rotarians had met with the experts retained by the City. The Rotarians had made revisions to their proposal to address the comments and concerns brought forth by the City’s outside experts. The Rotarians made a final “without prejudice” proposal which was rejected by City Council on February 28, 2024.

11The Rotarians then filed a “with prejudice” proposal to the Tribunal on March 1, 2024. The experts for both Parties held an experts’ meeting on March 12, 2024, in which – according to the Rotarians’ arguments – resulted in only basic facts being agreed to. The Rotarians argued that the City’s experts did not withdraw any of their 17 issues that were before the Tribunal prior to the commencement of the Hearing.

12The Rotarians argued that throughout the Hearing, the City’s experts agreed with the Rotarian’s expert on nearly every issue except for one issue pertaining to the 2.5 metre setback on the north side of the proposed north building.

13The Rotarians continued to argue that a six-day hearing was not needed nor warranted for one minor setback issue. The Rotarians argued that the City’s experts did not provide any material evidence to support their positions pertaining to the 17 issues and that the nature of the conduct of the City and its experts should be considered frivolous and in bad faith.

14The Rotarians argued that the City did not make it possible to have a fair, just expeditious and cost-effective resolution of the Merits Hearing. They continued to argue that the behaviour of the City and its experts put the Rotarians in an unfair position in which they had to expend considerable monetary resources up to and including the Hearing itself. The Rotarians argued that the City did not provide any expert evidence to support their positions and thus extended a hearing event that should have been concluded in a one-day hearing event and not the six days that were used to hear the merits of the Appeals.

15Based on these arguments, it was the position of the Rotarians that an appropriate cost would be about two thirds of the total costs incurred during the hearing process. The Rotarian’s breakdown of the cost fees were:

1. Planning - $37,000.00
2. Legal - $35,000.00
3. Architecture/Urban Design - $13,000.00
4. Total cost request of $85,000.00

16The Rotarian’s conclusionary arguments were that the City and its expert witnesses chose to act in an unreasonable manner which forced the length of the Merits Hearing to be five days longer than was needed for the Tribunal to come to the conclusions in its Decision.

City

17In its response to the Motion, the City argued that it had not acted in a manner that could be considered to be unreasonable, frivolous or vexatious or that it has acted in bad faith. The City continued to argue that the Rotarians had not met any of the criteria listed in Rule 23.9. The City had inter alia, attended all the required hearing events, it had not failed to give notice nor co-operate with the Rotarians, complied with the Procedural Order (“PO”) approved by the Tribunal, and provided expert witnesses for the City’s position on the issues.

18The City argued that their experts had provided detailed witness statements and reply witness statements to the issues that were before the Tribunal. The City’s position pertaining to the appeals were based on what it considered to be legitimate land planning issues and the City had hired the appropriate experts to provide evidence to those positions.

19The City argued that even though the Rotarians had provided a “without prejudice” proposal to City Council that was ultimately rejected, this does not qualify as the City acting in an unreasonable, frivolous or vexatious manner. It was the City’s argument that simply rejecting the proposal brought forth by the Rotarians does not meet any of these qualifications as per Rule 23.9 of the Rules.

20The City argued that it had followed all the agreed upon timelines leading up to and including the hearing event. The City argued that it had met all of the requirements of the PO and did not delay the Merits Hearing itself, nor request any delays leading up the Hearing.

21The City argued that awarding costs for not agreeing on issues prior to a Merits Hearing would set a precedent for Parties seeking costs in the future and would possibly prevent a fulsome hearing process in the future as Parties or Participants would fear cost repercussions for not resolving some or all of the issues prior to a Merits Hearing.

22The City argued that the onus is on the Rotarians to provide evidence that the City meets the criteria in Rule 23.9. The City argued there is simply no evidence that has been provided that demonstrates how the City has acted in an unreasonable, frivolous or vexations manner. The City continued to argue that it had followed all of the rules and procedures ordered by the Tribunal concerning this matter. Simply following the rules and procedures cannot be considered to be acting in bad faith.

ANALYSIS AND FINDINGS

23The Tribunal has considered the Motion request by the Rotarians, has taken into consideration the content of the Tribunal’s file on the entire matter, the conduct of the Parties throughout the hearing process, and the Decision and Order issued by the Tribunal.

24In the Tribunal’s view, there is no conduct on the part of the City that represents the type of clearly unreasonable, frivolous, vexatious, or bad-faith conduct identified in Rule 23.9 of the Rules, that would warrant the rare exercise of the Tribunal’s discretion to award costs.

25Despite the ultimate findings of the Tribunal during the Merits Hearing, the Tribunal finds that its Decision does not warrant a basis for awarding costs under the Tribunal’s jurisprudence.

26The City in this matter has not demonstrated any of the acts that could be determined to be unreasonable, frivolous, vexatious or of bad faith. The City provided the Tribunal with expert witnesses and expert opinion evidence. Even though this evidence may not have been accepted by the Tribunal, this in part, does not demonstrate any acts that could be deemed of the awarding of costs. Costs may only be awarded where the conduct of the Party is so improper that it cannot be ignored. The awarding of costs does not “follow the cause” and are not presumptive in nature to be payable by an unsuccessful Party to a successful Party.

27The Tribunal has had the full opportunity to observe the conduct of the Parties up to and including the Merits Hearing. The Tribunal finds that the City and its witnesses were respectful, courteous and presented their evidence in a fair and reasonable manner.

28The Appellant had the full right to file the Appeal and followed the Appeal process accordingly. The City followed the same process as a Party to the matter, and as a result, the Tribunal finds that no undue delay occurred as both Parties followed the Tribunal approved Procedural Order and both Parties provided evidence in accordance with the Issues List.

29The Tribunal finds that the requested Motion for Costs should be denied and that the Parties shall bear their own costs for this Motion.

ORDER

30THE TRIBUNAL ORDERS THAT the motion for an award of costs brought forth by Rotary Club of Brampton Glen Community Centre is dismissed. There shall be no Order regarding the costs of the motion.

“S. deBoer”

S. deBoer MEMBER

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.