Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
April 09, 2024
CASE NO(S).:
OLT-22-003642
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by:
First Capital Holdings (Ontario) Corporation
Request for:
Request for an Order Awarding Costs
Costs sought against:
York Mills Leslie Residents Inc.
Heard:
February 15, 2024 in writing
APPEARANCES:
Parties
Counsel/Representative
First Capital Holdings (Ontario) Corporation (“Moving Party” / “Applicant”)
Denise Baker
York Mills Leslie Residents Inc. (“YMLRI”)
Conner Harris
MEMORANDUM OF ORAL DECISION DELIVERED BY KURTIS SMITH AND ORDER OF THE TRIBUNAL
INTRODUCTION/BACKGROUND
1The matter before the Tribunal is a Motion for Costs (“Motion”) by First Capital Holdings (Ontario) Corporation (“Applicant”) against the York Mills Leslie Residents Inc. (“YMLRI”), arising out of this Member’s Decision dated September 12, 2023.
2The Applicant appealed the non-decision of the Council of the City of Toronto (“City”) regarding its application to amend the City’s Zoning By-law to permit the proposed development.
3Three Tribunal events were conducted in relation to this appeal.
I. September 2, 2022, first Case Management Conference (“CMC”), with Decision issued on September 16, 2022, by former Vice-Chair G. Burton, where:
A. YMLRI was granted Party Status.
B. The Tribunal directed the Parties to clarify their issues and determine their proposed witnesses prior to the scheduled second CMC.
C. Subsequent to the CMC, on October 7, 2022, the Procedural Order, as agreed on between the Parties was issued to govern the proceedings of the merit hearing scheduled for fourteen (14) days to commence on July 31, 2023.
II. December 8, 2022, second CMC, with Decision issued on January 17, 2023, by Member K.R. Andrews.
A. YMLRI (and another added Party) failed to comply with the Order of the first CMC and the Procedural Order deadline to supply their lists of proposed witnesses. Additionally, several issues from the Issues List (“IL”) were required to be removed because YMLRI did not plan to call any contradictory evidence. As a result of the above an updated Procedural Order was issued implementing new deadlines and the updated IL.
III. July 31, 2023, a contested Settlement Hearing was conducted in writing, with Decision issued on September 12, 2023, by Member Kurtis Smith.
A. As outlined in Paragraph [2] of the Settlement Decision, the Tribunal received and marked seven (7) exhibits. Two being received from YMLRI:
Exhibit 6 i: An email dated July 11, 2023, with requested conditions regarding the proposed settlement.
Exhibit 6 ii: An email dated August 10, 2023, with an attached letter from Counsel, requesting additional conditions to the proposed settlement.
B. The Tribunal accepted the uncontested evidence of the proposed settlement and approved the appeal in part, on an interim basis.
4Following the issuance of the Settlement Decision, the Tribunal was in receipt of a Motion for Costs (dated October 12, 2023) from the Applicant and a Request for Review (dated October 12, 2023) of the Decision from YMLRI.
5On December 21, 2023, the Request for Review was dismissed by Tribunal Chair Michael Kraljevic and the Motion for Costs was scheduled for Thursday, February 15, 2024 to be heard in writing pursuant to Rule 23.2 of the Tribunal’s Rules of Practice and Procedures (“Rules”).
THE MOTION
6The Applicant is seeking:
I. $22,881.09 for the preparation for issues raised, but not supported by evidence by the Appellant at the settlement hearing:
A. $10,099.38 for legal fees from Weir Foulds LLP (Counsel).
B. $12,781.71 for planning fees from Bousfields (Urban Design expert, Tom Kasprzak).
II. $12,062.75 for the costs of bringing the Motion for Costs (Counsel).
III. Interest on the above-noted costs pursuant to Rule 23.11.
7YMLRI, in response, requests:
I. An order of the Tribunal dismissing the Motion for Costs.
II. An order of the Tribunal ordering that no costs be payable to either party.
III. In the alternative, if costs are ordered, an order of the Tribunal awarding costs in a reduced amount as compared to those claimed.
The Tribunals Approach to Award Costs and Legal Framework:
8The Tribunal’s approach to assessing and awarding costs and the legal framework that governs such decisions is set out by former Tribunal Vice-Chair David L. Lanthier in Abbotts v. Blue Mountains (“Abbotts”) at paragraphs 31-35 (OLT-22-002269 issued on June 20, 2023):
31The Tribunal is granted the discretionary power to fix and award costs under its home statute, the Ontario Land Tribunal Act, (“OLT Act”) and the Statutory Power and Procedures Act (“SPPA”).
32Section 17.1(2), of the SPPA provides that an award of costs may only be made where the conduct or course of conduct of a party has been “unreasonable, frivolous or vexatious or a party has acted in bad faith” and s. 17.1(4)(b) obligates the Tribunal to identify the circumstances in which costs may be ordered. Section 20 of the OLT Act provides that the Tribunal may fix costs of and incidental to any proceeding in accordance with the Rules.
33Rule 23.9 is the Rule that identifies the circumstances where cost awards may be made, mirrors the wording of the SPPA, and provides guidance as to the circumstances in which the Tribunal may consider an award of costs in a proceeding.
34The Tribunal must be satisfied that the party against whom costs are sought has demonstrated conduct or a course of conduct that has been: (a) unreasonable; (b) frivolous; (c) vexatious; or (d) in bad faith. The Rule provides nine extending, non-limited, examples of clearly unreasonable, frivolous, vexatious or bad faith conduct and provides pointedly that the Tribunal is not bound to order costs even when the identified examples occur because the Tribunal will consider the seriousness of the misconduct.
35This Panel Member has before set out a condensed summary of some of the Tribunal’s guiding considerations and principles that have developed over time within its jurisprudence relevant to a Motion for Costs. They include the following:
The case cited by the Residents Group, of Kimvar Enterprises Inc., Re, 2009 Carswell 666, (“Kimvar”) referenced in the Appellant’s submissions is often cited to distinguish 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.
Frivolous conduct is conduct characterized as conduct demonstrating a lack of seriousness, and unacceptable conduct that is characterized as intentionally “silly” or “foolish”;
An objective “reasonable person” test is applied leading to a conclusion that the totality of the party’s conduct was not “right” or not “fair”, such that the party should be obligated to compensate the requesting party for that kind of conduct.
In applying an objective test of a reasonable person, the seriousness of the misconduct, and its impact upon the ability of the Tribunal to ensure a fair and efficient hearing, or its impact upon other parties such as the party requesting the costs, is to be considered.
The approach of the Tribunal is to ensure that litigants are not dissuaded from exercising their right of appeal for fear of costs and historically has demonstrated a sensitivity to the right of appellants to bring matters before this Tribunal.
The Tribunal’s recognition of its public interest mandate in the consideration of costs was explained with clarity in the Kimvar decision. Vice-Chair Seaborn indicated that the public interest impact of a costs award, the “chilling effect” an award of costs may have and its deterrence of public participation in planning processes, is a relevant factor to consider and made reference to the message that the former Board and this Tribunal has “consistently communicated with respect to costs”. This statement in paragraph 40 of the Kimvar decision bears repeating:
Awards of costs are rare and costs are not intended to be used as indemnification to a successful party. The Board has made cost awards in cases where the dispute is between commercial entities and in limited circumstances, between government and business. These awards are unusual, far from routine, each turn on their specific facts. The Board…..takes a cautious approach to cost awards against citizens and strives to accommodate public participation in land use planning decisions. In fact, in the very limited number of cases where awards of costs have been made against citizens, amounts have always been nominal. This is entirely consistent with how the Board has typically proceeded: costs cannot be used as a threat to deter public participation; and costs will only be awarded (whether the parties are commercial entities, ratepayers or citizens) where the conduct complained of is so improper that it cannot be ignored.
- 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.
THE APPLICANT’S POSITION
9As outlined above, the Applicant requests an order of costs payable by YMLRI, in relation to the proceedings, to compensate it for costs it incurred in the proceedings of $22,881.09 inclusive of HST. Additionally, the Applicant also asks for an order for costs for this Motion in the amount of $12,062.75 inclusive of HST.
10In support of the Applicant’s position, an Affidavit of Denise Baker, Exhibit 2 was filed with the Tribunal in which its claims are summarized as follows:
I. YMLRI failure to comply to Tribunal Orders:
A. YMLRI did not file proposed witness list (Exhibit 2, page 68-71).
B. YMLRI witnesses did not attend expert witness meeting (Exhibit 2, page 114).
C. YMLRI did not file any expert witness statements.
II. YMLRI lack of communication:
A. Several email documents outline no or delayed responses from YMLRI to the Applicant (Exhibit 2, page 120-160).
III. Urban Design Issues:
A. As a result of the proposed Settlement between the City and Applicant, YMLRI provided the Applicant with an updated issues list (Exhibit 2, pages 145-149) having a total of 14 issues under the headings of: Issues retained from Issues List of the City of Toronto, Urban Design and Built Form, and Height and Densities.
IV. Settlement Hearing documents:
A. Provided an email response on July 11, 2023, stating that YMLRI will not pursue their issues list and requesting three conditions to be implemented during the site plan process (Exhibit 2, page 162).
B. Provided a letter dated August 10, 2023, 10 days after the settlement hearing event, outlining the position of YMLRI had the hearing taken place via video (Exhibit 2 page 168).
11Ms. Baker stated that due to the actions of YMLRI, the Applicant incurred unnecessary costs due to the needs to engage an expert in urban design to address the urban design and built form issues remaining on YMLRI’s issues list and additional legal costs to address the untimely letter of YMLRI following the written settlement hearing date.
12It is the position of Ms. Baker that the actions by YMLRI displayed a pattern of unreasonable, frivolous and/or vexatious conduct and failed to meet their obligation as a party to the appeal before the Tribunal which has resulted in unnecessary costs being incurred by the Applicant.
THE RESPONSE OF YMLRI
13YMLRI submits that costs are not warranted in the circumstances of this case and even if the Tribunal is of the view that an award of costs is warranted, the amount claimed by the Applicant is excessive.
14YMLRI states that there is an extremely high bar to reach for the Tribunal to award costs and must be conduct that rises to a level of being unreasonable, frivolous, vexatious or taken in bad faith (Rule 23.9).
15It is the opinion of YMLRI that the Applicant takes exception to the fact that they opposed the appeal and did not “simply” withdraw from the proceedings/reduce their issues list once a settlement had been reached between the City and the Applicant.
16YMLRI defends their position leading up to the settlement hearing as they recognized that their options were limited. As YMLRI is a residents organization with limited resources they proceeded with the most cost-effective way possible, providing correspondence in a “simple and straightforward” manner for consideration.
17YMLRI takes issue with the cost/expense documents supplied by the Applicant, asserting that they are not invoices and therefore not compliant with the Rules, and furthermore question whether those costs would have been incurred as part of the proceeding in any event.
REPLY SUBMISSION BY APPLICANT
18In the reply submission (Exhibit 6), the Applicant argued that YMLRI neglected its duty as a Party to the proceedings by repeatedly ignoring deadlines set by the Tribunal and failing to confirm its position on calling expert witness(es).
19In relation to the supplied costs/expense documents, the Applicant asserts that it is in compliance with Rule 23.4.
ANALYSIS AND DISPOSITION OF THE MOTION
20For the following reasons, the Tribunal finds that the conduct of YMLRI as unreasonable due to its:
I. Unprecedented lack of communication.
II. Noncompliance of Tribunal orders:
A. Failure to supply a witness list as ordered.
B. Failure to attend the experts witness meeting.
C. Failure to submit documents on time.
D. Failure to produce witness statements to provide evidence regarding the issues on the self provided IL.
21The Tribunal is of the opinion that following the second CMC of this matter, YMLRI comprehended that if it did not plan to call any evidence on its issues, its issues would be struck from the IL. As a result, eight of its issues were removed at the second CMC.
22YMLRI failed to identify witnesses to address its remaining issues or to withdraw those issues prior to the required expert witness statement submission deadline. This resulted in the Applicant incurring unnecessary costs to retain experts to address those issues.
23Additionally, YMLRI’s disregard of the hearing date and its supplying further correspondence 10 days after the hearing date is improper conduct of a Party. The Tribunal allowed the Applicant the opportunity to respond, resulting in further unnecessary costs incurred by the Applicant.
24In summary, the Tribunal finds the consistent pattern of conduct by YMLRI throughout the proceedings as unreasonable and constitutes proper grounds for the Tribunal to exercise its discretion and order YMLRI to compensate the Appellant for its costs.
25For all the reasons above, the Tribunal will exercise this discretion to grant costs of $1750.00 to the Appellant. This discretionary sum represents about five percent of the total requested cost of the Appellant for the unnecessary costs in preparing for the hearing and for the preparation of this Motion.
ORDER
26THE TRIBUNAL ORDERS that the application for costs is granted and directs the York Mills Leslie Residents Inc. to pay First Capital Holdings (Ontario) Corporation a costs award in the amount of $1750.00 total, inclusive of any interest or HST. The cost award is to be paid within two (2) months of this Order and subject to interest calculated in accordance with section 129 of the Court of Justice Act.
“Kurtis Smith”
KURTIS SMITH
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.