Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 29, 2024

CASE NO(S).: OLT-23-000815

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

Applicant/Appellant: King’s Bay Golf Club Limited

Subject: Request to amend the Official Plan– failure to adopt the requested amendment

Description: Proposed redevelopment of existing golf course into 44 lots for single detached dwellings and open space

Reference Number: D01-2022-003

Property Address: 27 Stub Road

Municipality: City of Kawartha Lakes

OLT Case No.: OLT-23-000815

OLT Lead Case No.: OLT-23-000815

OLT Case Name: King’s Bay Golf Club Limited v. Kawartha Lakes (City)

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

Applicant/Appellant: King’s Bay Golf Club Limited

Subject: Zoning By-law Amendment Application – failure to make a decision

Description: Proposed redevelopment of existing golf course into 44 lots for single detached dwellings and open space

Reference Number: D05-2022-001

Property Address: 27 Stub Road

Municipality: City of Kawartha Lakes

OLT Case No.: OLT-23-000816

OLT Lead Case No.: OLT-23-000815

OLT Case Name: King’s Bay Golf Club Limited v. Kawartha Lakes (City)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: King’s Bay Golf Club Limited

Subject: Proposed Plan of Subdivision – failure to make a decision

Description: Proposed redevelopment of existing golf course into 44 lots for single detached dwellings

Reference Number: D06-2022-001

Property Address: 27 Stub Road

Municipality: City of Kawartha Lakes

OLT Case No.: OLT-23-000817

OLT Lead Case No.: OLT-23-000815

OLT Case Name: King’s Bay Golf Club Limited v. Kawartha Lakes (City)

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

Request by: King’s Bay Golf Club Limited

Request for: Request for an Order Awarding Costs

Costs sought against: City of Kawartha Lakes

Heard: October 16, 2024 in writing

APPEARANCES:

Parties

King’s Bay Golf Club Limited (“Applicant”)

City of Kawartha Lakes (“City”)

Counsel

Steven C. Ferri

David Germain

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

Introduction and Background

1This is a Motion for costs by the Applicant against the City, purportedly due to misconduct by the City in relation to the underlying appeal. This motion follows a settlement of the appeal pursuant to the decision issued July 4, 2024 (King’s Bay Golf Club Limited v Kawartha Lakes (City), 2024 CanLII 65200 (ON LT); as amended July 8, 2024 (King’s Bay Golf Club Limited v Kawartha Lakes (City), 2024 CanLII 68176 (ON LT)).

2The underlying Appeal arose following a non-decision by the City with respect to applications for an Official Plan Amendment (“OPA”), Zoning By-law Amendment (“ZBA”) and Draft Plan of Subdivision (“DPS”). The proposed development, as facilitated by the above planning instruments, involves 44 single detached residential dwellings and associated blocks for open space, parkland, servicing, and public roads. The subject lands were previously the site of King’s Bay Golf and Country Club, a nine-hole golf course surrounded by the existing residential community of King’s Bay.

Applicant’s Costs Claims

3The Applicant is seeking costs against the City as follows:

1. Full costs associated with the appeal in the amount of $445,375.56;
2. In the alternative, costs of a lesser amount as the Tribunal deems appropriate.
3. Costs fixed at $8,070 in connection with the present motion.
4. Interest on the above-noted costs pursuant to Rule 23.11 of the Ontario Land Tribunal Rules of Practice and Procedure.

4The Applicant’s grounds for its cost-claims can be summarized in two parts:

1. Delay contrary to statutory requirements: the City failed to deliver the Appeal package to the Tribunal in accordance with subsections 22(9)(b), 34(23)(b), and 51(35)(b) of the Planning Act, insofar as the statute requires it to be delivered within 15 days after the appeal was filed, and the City did not deliver it until after ~90 days (~75 days past due). The Applicant submits that this delay specifically caused an estimated $26,200 in claimable costs; and
2. Other delays: the Applicant complains about other conduct of the City, of a non-statutory nature, which it contends caused further avoidable costs. These complaints include a two-week delay in providing information necessary for the Applicant to send Notice of the Case Management Conference, a demand by the City that the Applicant cease communicating with City staff directly (after the Applicant suggested that it may commence litigation against the City and Clerk personally), insisting upon preconditions to engage in mediation, delay in providing its Issues List and a lack of cooperation in scoping issues, introduction of a new issue (albeit before the production of its Issues List), and refusal to accept the Applicant’s initial offers to settle and otherwise making unreasonable settlement demands (collectively hereafter, “alleged other delays”). The Applicant submits that such conduct by the City resulted in the balance of costs being claimed, in the amount of $419,175.56.

The Tribunal’s Approach to Awards of Costs and the Legal Framework

5A decision to award costs must follow the test at Rule 23.9 of the Tribunal’s Rules of Practice and Procedure. Pursuant to this rule, the Tribunal may only order costs if the conduct or course of conduct of a Party has been unreasonable, frivolous, vexatious, or acted in bad faith. The onus is on the Moving Party to prove such claims. The decision to award costs remains discretionary, however, regardless of whether the threshold set in Rule 23.9 is met.

6The Tribunal notes that a comprehensive summary of its approach to assessing and awarding costs and the legal framework that governs such Decisions is succinctly set out at paras. 31-35 of Abbotts v Blue Mountains (Town), 2023 CanLII 56712 (ON LT). Of relevance to this present case, Abbotts (at para. 35) provides the following summaries of some of the Tribunal’s guiding considerations and principles that have developed over time within its jurisprudence:

• [distinguishing the Tribunal’s approach to costs from that of the Courts] Costs do not “follow the cause” and are not presumptively payable by an unsuccessful party to a “winner”. An award of costs by the Tribunal is not routine, is not made lightly, and instead may be considered exceptional. The successful party should accordingly have no expectation that he, she, or it will recover costs of the proceeding.
• Awards of costs may only be considered where there has been misconduct rising to the high threshold established in Rule 23.9. In the event of a finding of such conduct, the award of costs is not assured and remains discretionary. The final wording of Rule 23.9 makes clear that the seriousness of the misconduct will be considered.
• Despite the exceptional nature of a costs award, the approach of the Tribunal nevertheless recognizes that parties must also be held accountable for their conduct if it is clearly unreasonable, frivolous, vexatious or in bad faith that it is deserving of an order compensating a party impacted by such conduct. There is no total immunity from cost claims.
• Something which is unreasonable is irrational, not in accordance with good sense, or foolish, whether intentionally or unintentionally.
• If the Tribunal is to exercise its discretion, costs are rarely recoverable on a substantial indemnity or full indemnity basis. For the Tribunal to consider such an elevated scale of costs, the conduct of the paying party must be found to be conduct characterised as truly egregious, reprehensible, outrageous or scandalous and beyond the type of misconduct identified in Rule 23.9.

[emphasis added]

Analysis

7As it relates to the City’s failure to deliver the Appeal package to the Tribunal in accordance with subsections 22(9)(b), 34(23)(b), and 51(35)(b) of the Planning Act, the Tribunal finds this to be clearly unreasonable, to a degree which warrants consideration of a costs award. More generally, the Tribunal finds that any failure to adhere to clear statutory obligations by a party is prima facie unreasonable, as contemplated by Rule 23.9. Put another way, infringement of a statutory duty is certainly exceptional and cannot be found to be routine, and there should be no expectation of immunity from costs for such conduct.

8While the Tribunal finds that the City’s misconduct in relation to its failure to deliver the Appeal package in a timely manner was likely unintentional and may have been a product of staff shortages (as claimed by the City), the Tribunal adopts previous findings of the Tribunal, insofar as intent (or a lack thereof) does not abrogate a finding of unreasonableness.

9Upon its finding of unreasonableness, the Tribunal turns to consider whether to practice its discretion to award costs. At this step, the Tribunal examines the seriousness of this misconduct and its associated impact on the Applicant. Given that the present finding of unreasonableness involves a breach of a statutory obligation, the scope of the infringement is one factor to consider.

10Looking at the scope of infringement, the Tribunal finds it to be significant, constituting a delay which is approximately six-times the statutorily prescribed time-limit. For this reason alone, the Tribunal is persuaded to award costs in an amount reflective of the length of delay and to act as a deterrent to dissuade others from similarly failing to abide by such obligations.

11Regarding impact on the Applicant, the Tribunal does not find that the Applicant has proven that it suffered significant prejudice, apart from the obvious delay. Based on the evidence before the Tribunal, the Tribunal is unable to determine the amount that such a delay might have cost the Applicant, and it is further unable to connect the claimed costs of $26,200 to such a delay. Despite such challenges in quantifying the prejudice caused, the Tribunal is satisfied that the delay caused at least some avoidable costs.

12In light of the above conclusions, the Tribunal elects to practice its discretion to fix costs at $2,500, payable by the City to the Applicant, as a consequence of failing to deliver the Appeal package on time and ~75 days past due.

13Regarding the alleged other delays, the Tribunal does not find that these allegations of misconduct rise to a degree to warrant costs under Rule 23.9. The various delays described by the Applicant are not all clearly attributable to the City, in the Tribunal’s finding, nor are the delays that are clearly attributable to the City significant enough to be found to be unreasonable, frivolous or vexatious, or acts of bad faith. The Tribunal further finds that the complaints about the City’s conduct associated with mediation efforts and settlement negotiations, in particular, are unremarkable given that the City is under no obligation to partake in such resolution efforts. If the Applicant was frustrated by settlement efforts, it always had the option of focussing on bringing the matter to a merit hearing as soon as possible. On this point, the Tribunal finds that the Applicant clearly incurred considerable costs attempting to force the proverbial horse to drink, when it could do no more than lead it to water. The Tribunal further finds that the City’s decision to limit direct communication between City staff and the Applicant’s representatives, requiring it to go through counsel, is a predictable consequence of the Applicant’s suggestion that it might sue the City and one of its staff members personally.

14As it relates to the quantum of costs being claimed, the Tribunal emphasizes that, as noted in Abbotts (cited above), “costs are rarely recoverable on a substantial indemnity or full indemnity basis”. Given that the Tribunal has found that the impugned conduct of the City does not meet the threshold established by Rule 23.9 (apart from the delay in delivering the Appeal package), it naturally also finds that the conduct complained of does not meet the exceptionally higher threshold to warrant full costs.

15In addition to all of the above reasons, the Tribunal further finds that it would not practice its discretion to award costs associated with the alleged other delays, even if it found that this conduct satisfied the Rule 23.9 test, because the Applicant has failed to provide the Tribunal with satisfactorily-particularized evidence to allow it to distinguish which of its costs were incurred in relation to the conduct complained of, versus costs which would have inevitably been incurred if the City had acted in a perfect manner (even by the Applicant’s standards). The Tribunal notes that it would come to the same conclusion even if it allowed the additional evidence improperly submitted by the Applicant in Reply (see below for reasons why it was not allowed).

16The Tribunal further declines to practice its discretion to award any costs payable in relation to the present motion, because the Applicant knew or ought to have known that its costs claims would be mostly unsuccessful (especially its request for full costs).

Limits on Reply by the Moving Party

17The Reply materials received from the Applicant were problematic for several reasons:

1. The Applicant sought new relief (seeking an Order “requiring that the invoices and records provided to the City in this motion be maintained as confidential and be returned to Counsel for King’s Bay or destroyed following the decision of the Tribunal with respect to this motion”);
2. The Applicant introduced new evidence that could have been provided as part of its initial Motion Record (invoices particularizing the costs already claimed); and
3. The Applicant repeated much of its original submissions previously outlined in its Notice of Motion.

18The Tribunal elects to disregard the above-described submissions altogether because it is improper for the purpose of a Reply. Not only are such submissions contrary to Rule 21.3(c) of the Ontario Land Tribunal Rules of Practice and Procedure, but it is also procedurally unfair because it provides the City with no opportunity to respond.

ORDER

19THE TRIBUNAL ORDERS that the motion for costs is granted, in part, and directs the City of Kawartha Lakes to pay King’s Bay Golf Club Limited a costs award in the amount of $2,500 total, inclusive of any interest or HST. The costs award is to be paid within one month of the issuance of this Order and subject to interest calculated thereafter in accordance with section 129 of the Courts of Justice Act.

20In all other respects, the motion for costs is dismissed.

“K.R. Andrews”

K.R. ANDREWS 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.