Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 21, 2024
CASE NO(S).: OLT-23-000508
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 643855 Ontario Ltd.
Subject: By-law No. 2023-39
Description: Proposed Boathouse
Reference Number: ZA 02-2023
Property Address: 211 Wharf Road
Municipality/UT: Gravenhurst/Muskoka
OLT Case No.: OLT-23-000508
OLT Lead Case No.: OLT-23-000508
OLT Case Name: 643855 Ontario Ltd. v. Gravenhurst (Town)
Heard: In Writing
APPEARANCES
Parties Counsel
643855 Ontario Ltd. (“Appellant/Responding Party”) Peter A. Gross Jessica R. Chen (Student at Law)
Steve Johnstone (“Applicant/Moving Party”) Russell D. Cheeseman Stephanie Fleming
DECISION DELIVERED BY J. DENYES AND G.A. CROSER AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The following Decision and Order arises from a Written Motion for Costs sought by Steve Johnstone (“Applicant/Moving Party”) and brought pursuant to Rule 23 of the Ontario Land Tribunal Rules of Practice and Procedure (“Rules”). The Motion followed the Tribunal’s Decision of the Merit Hearing conducted on Friday, September 29, 2023 which dismissed the Appellant/Responding Party’s appeal of Zoning By-Law Amendment No. 2023-29 (“ZBLA”).
2The ZBLA made site-specific amendments to the Town of Gravenhurst’s (“Town”) comprehensive Zoning By-law No. 2014-04 (“ZBL”) for the property known Municipally as 211 Wharf Road (“Subject Property”). A single storey boathouse is located on the Subject Property, and the Appellant/Responding Party owns a boathouse adjacent to the Subject Property. The ZBLA permitted the construction of a deck attached to the front of the boathouse which faces Wharf Road. The deck would be created at or around grade, and would not project out, onto, or over, the boathouse’s 4.9 metres (“m”) of frontage on Lake Muskoka. Specifically, the amendments to the ZBL that were granted by the Tribunal are:
a) A reduced front yard setback from Wharf Road to 0.6 m, whereas the ZBL requires 3.0 m; and
b) An increased lot coverage to 62.2 percent, whereas the ZBL maximum coverage is 60.0 percent.
3The Motion for Costs (“Costs Motion”) addresses costs involved with the Appellant’s filing of a Motion to Adjourn, which was filed in writing in advance of the scheduled Merit Hearing, as well as costs arising from the Merit Hearing.
MATERIALS BEFORE THE TRIBUNAL
4The following materials were before the Tribunal for consideration of this Motion:
a) Affidavit of Darlene Hornsby sworn on November 28, 2023, attaching a Notice of Motion and invoices for services rendered by the Applicant; and,
b) Response to the Notice of Motion for Costs by the Appellant, dated on December 13, 2023, which included the affidavit of Marie Poirier, Land Use Planner affirmed on December 12, 2023.
c) No reply material was filed with the Tribunal.
RELIEF SOUGHT BY THE MOVING PARTY
5The Applicant/Moving Party seeks an award of costs in the amount of $14,781.78 representing:
a. $990.00 for legal costs for the Motion to Adjourn;
b. $11,160.00 for legal costs in respect of the Hearing;
c. $2,631.78 for land use planning consultant fees;
d. Costs of the present Motion; and
e. Such further and other relief as the Tribunal may deem just.
APPLICABLE LAW
The Planning Act
6As this Motion for costs arises out of a Planning Act (“Act”) Decision, s..1.1 of the Act, sets out the purposes:
The purposes of this Act are:
a. to promote sustainable economic development in a healthy natural environment within the policy and by the means provided by this Act;
b. to provide for a land use planning system led by provincial policy;
c. to integrate matters of provincial interest in provincial and municipal planning decisions;
d. to provide for planning processes that are fair by making them open, accessible, timely and efficient;
e. to encourage co-operation and coordination among various interests; and,
f. to recognize the decision-making authority and accountability of municipal councils in planning.
JURISPRUDENCE
7An award of costs by the Tribunal is not routine nor is it taken lightly. There should be no expectation that a successful Party will recover costs of a proceeding since awards are never based upon the success, or lack of success of a Party’s position in a planning Hearing. Costs will only be awarded where the conduct complained of is unreasonable, vexatious, or frivolous. The decision to award or deny costs ultimately turns on the particular facts of each case but remains discretionary.
8The accepted test for determining whether costs are warranted, are set out in a plethora of jurisprudence as follows, but is not limited to:
2684360 Ontario Ltd. v. Kingston (City):
The conduct of the Appellant as a whole, and, in the absence of any genuine planning grounds (emphasis added) is what attracts the finding of unreasonable and vexatious conduct and bad faith – not the fact that the Appeal was brought or simply that it was dismissed by Motion
Kimvar Enterprises Inc. Re, 2009 CarswellOnt 666 (OMBD):
The test for clearly unreasonable conduct would a reasonable person, having looked at all of the circumstances of the case, conclude the conduct was not right, the conduct was not fair and that person ought to be obligated to another in some way for that kind of conduct.
And further,
…awards of costs are not routine, and a successful party should have no expectation that it will recover its costs.
Midland (Town) Zoning By-Law 94-50 Re, 1995 CarswellOnt 5227:
…whether a reasonable person, having looked at all the circumstances of the case, would conclude that the conduct of a party was not fair and they should be obligated to another in some way for such conduct.
Minto Communities Inc. v. Ottawa (City), 2011 CarswellOnt 845
The Board in its body of case law on costs has described “unreasonable, vexatious, or frivolous as follows: “Frivolous” means “characterized by a lack of seriousness”. “Vexatious” describes actions “instituted without sufficient grounds for the purpose of causing trouble or annoyance to another party”. “Unreasonable” means “irrational” or not in accordance with good sense.
9The Tribunal’s authority to award costs is found in s. 20 of the Ontario Land Tribunal Act, which states that 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”. Section 17.1 of the Statutory Powers Procedures Act further provides authority to the Tribunal to make rules regarding the ordering of costs and to order that a Party reimburse another Party to pay its costs.
10Additional guidance with respect to the Tribunal’s past jurisprudence regarding the type of conduct that is relevant to the exercise of discretion to award costs, was summarized in a Decision of the former Ontario Municipal Board in the case of Re Kimvar Enterprises Inc., [2009] O.M.B.D., 61 O.M.B.R. 293, at para [14] as follows:
…The test for clearly unreasonable conduct that is most often cited in Board decisions is: would a reasonable person, having looked at all of the circumstances of the case, conclude the conduct was not right, the conduct was not fair and that person ought to be obligated to another in some way for that kind of conduct (Midland (Town) Zoning By-law 94-50, Re (1995), 32 O.M.B.R. 4 (O.M.B.); Customized Transportation Ltd. v. Brampton (City), [2002] O.M.B.D. No. 832 (O.M.B.); Barrie Paintball Adventure Club Inc. v. Essa (Township) 2006 CarswellOnt 5296 (O.M.B.)… [emphasis added]
11The rules regarding costs matters are set out in detail within the Tribunal’s Rules, specifically in Rule 23.9;
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: [emphasis added]
a. failing to attend a hearing event or failing to send a representative when properly given notice, without contacting the Tribunal; [emphasis added]
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; [emphasis added]
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; [emphasis added]
d. a course of conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events; [emphasis added]
e. failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper; [emphasis added]
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. [emphasis added]
ARGUMENTS
Motion to Adjourn
12In advance of the Merit Hearing, the Appellant filed a Written Motion for an Adjournment (“Written Motion”) of the Hearing, as the Appellant had received an incomplete Municipal Record from the Town. The Planning Justification Report (“PJR”) prepared by the Applicant’s Planner was accidentally omitted from the Municipal Appeal Package. There was a further delay in the production of this document to the Appellant’s planner owing to staff on vacation at the Municipality.
13At the start of the Merit Hearing, the Tribunal provided its oral Decision on the Written Motion, ruling that there was no substantial prejudice to the Appellant caused by the delay in receiving the PJR. The delay in receiving the PJR was not crucial to the Appellant planner’s preparation of an unbiased and independent report on the Merits of the appeal. It is of note that the Appellant’s planner was able to deliver their expert witness statements in advance of the Hearing date.
14The Applicant’s Costs Motion described the Written Motion as “unreasonable and frivolous”. This was based on the following points raised by the Applicant:
a. that the initial appeal was filed by the Appellant approximately four months prior to the Hearing;
b. the Applicant’s insinuation being that there was ample time to ensure that all relevant documents were produced; and
c. that the Appellant bore the responsibility of gathering the requisite evidence to support its appeal.
15The Appellant’s position was that pursuant to O.Reg 545/06, the PJR was required to form part of the Municipal Record. As such, while unsuccessful, the Motion for Adjournment was neither unreasonable nor frivolous and this fact was not denied by the Applicant.
16The fact that the PJR was a required component of the Municipal Record was neither denied nor addressed by the Applicant. The Tribunal finds that it was not unreasonable or frivolous for the Appellant to request a Motion for Adjournment. While the Appellant was not successful in the contested motion, it does not necessarily follow that costs follow the successful Party in such an event. There was a delay in the Appellant receiving the PJR which was compounded by staff on vacation at the Municipality, and O.Reg 545/06 does require that the complete Municipal Record be forwarded to the Appellant.
Merit Hearing
17The Applicant’s application to the Town of Gravenhurst (“Town”) sought a ZBLA to decrease the front yard setback to permit the installation of a ground-level deck and to increase the maximum lot coverage by 2 percent. The position of the Applicant/Moving Party in the Costs Motion was that, at the Hearing, the Appellant’s Planner “extensively commented upon extraneous proposed items on site, including a possible rooftop patio and stairs to access same.” The Applicant/Moving Party framed this as “frivolous evidence” that failed to address the matter under appeal and were, in fact, matters that would be addressed during the building permit process.
18The Appellant/Responding Party submitted that their planner’s evidence did focus on the ZBLA at issue, and was based on “valid substantive planning issues”. Further, the Appellant’s position was that the intended purposes of the ZBLA, being the construction of a deck and stairs to a rooftop patio “could potentially be a relevant factor in the Tribunal’s Decision.” The Appellant pointed to jurisprudence from the Tribunal which, in their view, “created uncertainty in the law with respect to this issue.” This argument was not countered by the Applicant/Moving Party.
19The Panel noted that both the Appellant/Responding Party and Applicant/Moving Party planners were able to work cooperatively and reasonably to deliver their unbiased and independent expert witness statements in advance of the Hearing date; and both were present during the Hearing to give scrutinized viva voce evidence.
20The Panel considered whether the evidence raised by the Appellant/Responding Party were based on valid and substantive planning issues. In doing so, the Panel was cognizant that the planning issue under appeal was the ZBLA, and not other extrinsic issues. The Appellant/Responding Party’s Response highlighted four issues as indicative of the valid and substantive land use planning issues it raised at the Hearing:
a. The potential for the development to result in a new illegal use of the property;
b. The compatibility of the development with the Town’s OP
c. The impact on the ecology of the area that the redevelopment would have; and
d. The impact on parking in the area and access to abutting boathouses that the re-development would have.
21The Panel is of the view that the potential for the development to result in a new illegal use is, at this point, unforeseeable and should not be adjudicated on a presumptive or premature basis. The Town’s Director of Planning, Mr. Adam Ager, who was summoned to appear at the Hearing by the Applicant/Moving Party, testified that such matters would be dealt with through the Town’s Building Department permit process.
22The Panel finds that the concerns with respect to the ecology of the area were tied to public health concerns over the potential future use of the boathouse. In addition, the uncontested evidence at the Hearing was that the Subject Property, part of the Wharf Road boathouses, is not situated in a traditional development area in the Town of Gravenhurst Official Plan (“TOP”). The Wharf Road Boathouses form part of Registered Plan 28 in the TOP. Plan 28 consists of approximately 57 lots, and most of them are occupied by single storey attached boathouses or docks, with no Municipal sewer or water services required.
23The impact on parking caused by the increase in lot area was effectively neutralized by the uncontested evidence at the Hearing of the availability of a Municipal parking lot in close proximity to the boathouses, the lack of a parking study, and an absence of any substantive evidence to bolster the Appellant/Responding Party’s position on this point.
24The Appellant/Responding Party did raise an issue regarding the compatibility of the development with the Town’s OP and the historical uniqueness of the Wharf Road Boathouse district. Given the substance of the ZBLA and the generic nature of the Issue, the question considered by the Panel was whether this Issue was reasonable and sufficient to ground an appeal. As it is not merely enough to raise an Issue that may be considered a land use planning ground, there must be underlying evidence to support the position taken by the Party.
25The Panel finds that, in this matter, the appeal was based on valid land use planning grounds. The Appellant/Moving Party raised concerns with respect to s.10.1 of the Act, and whether the PJR was provided to Council in advance of its decision on the ZBLA. Mr. Ager’s testimony included an acknowledgment that the Town must comply with the Act to pass a valid By-law and that the PJR, while not presented to Council at the public meeting, was provided to the appropriate departments in advance of the public meeting. In conjunction with the Wharf Road Boathouses specific planning policy within the Town’s OP, and the fact that the boathouses are not traditional accessory structures, the Panel finds that these Issues were reasonable valid land use planning grounds, which were supported by policy and applicable legislation.
26Further, the Panel finds that the conduct of the Appellant/Responding Party did not run afoul of Rule 23.9 of the Rules. The Appellant/Responding Party was represented by experienced legal Counsel, and was assisted by a Planner qualified to provide expert opinion evidence. The Panel is of the view that the conduct of the Appellant/Responding Party was neither vexatious, nor was the appeal brought in bad faith.
ORDER
27THE TRIBUNAL ORDERS the Motion for costs is dismissed.
“J. Denyes”
JACKIE DENYES MEMBER
“G.A. CROSER”
G.A. CROSER 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.