Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

January 31, 2024

CASE NO(S).:

OLT-22-004326

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Upper Hunt Club Community Association

Subject:

Proposed Official Plan Amendment No. 281

Description:

To permit the development of a six-storey residential care facility and future low rise residential

Reference Number:

D01-01-21-0022

Property Address:

1470 Hunt Club Road and 1525 and 1531 Sieveright Avenue

Municipality/UT:

Ottawa/Ottawa

OLT Case No.:

OLT-22-004326

OLT Lead Case No.:

OLT-22-004326

OLT Case Name:

Upper Hunt Club Community Association v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Upper Hunt Club Community Association

Subject:

By-law 2022-233

Description:

To permit the development of a six-storey residential care facility and future low rise residential

Reference Number:

D02-02-21-0122

Property Address:

1470 Hunt Club Road and 1525 and 1531 Sieveright Avenue

Municipality/UT:

Ottawa/Ottawa

OLT Case No.:

OLT-22-004327

OLT Lead Case No.:

OLT-22-004326

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

Request by:

Larga Baffin Ltd.

Request for:

Request for an Order Awarding Costs

Costs sought against:

Upper Hunt Club Community Association

Heard:

In writing

APPEARANCES:

Parties

Counsel

Upper Hunt Club Community

Joshua Moon

Association

Noémie Ducret

Larga Baffin Ltd.

Michael Polowin

Kelly Duquette

DECISION DELIVERED BY N. Eisazadeh and ORDER OF THE TRIBUNAL

INTRODUCTION – THE APPLICANT’S REQUEST FOR COSTS

1The Applicant, Larga Baffin Ltd. (“Applicant”) filed a motion seeking substantial indemnity costs against the Appellant, Upper Hunt Club Community Association (“UHCCA” or “Appellant”), fixed in the amount of $278,233.70 for the preparation and attendance at the merit hearing of the appeals, which concluded on April 14, 2023. In the alternative, the Applicant seeks partial indemnity costs fixed in the amount of $209,078.83, or in the further alternative, as fixed by the Tribunal. The Applicant also seeks costs of this Motion.

2In accordance with Rule 23.4(c) of the Tribunal Rules of Practice and Procedure (“Tribunal’s Rules”), the Tribunal directed that the costs request be heard by way of a written Motion. This Decision determines the Applicant’s motion for costs (“Motion”).

BACKGROUND TO THE PROCEEDING

3This Motion arises from a four-day hearing on the merits (the “Hearing”) of the Appeals filed by UHCCA pursuant to s. 17(24) and s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13 as amended (the “Act”). The Appeals were filed in response to a decision by the City of Ottawa (“City”) to approve amendments to Official Plan No. 281 (“OP”) and Zoning By-law No. 2022-233 (“ZBL”), in relation to the properties municipally known as 1452, 1460, and 1470 Hunt Club Road and 1525, 1531, and 1545 Sieveright Avenue, in the City (collectively, the “Subject Property”). The application for the amendments to the OP and ZBL were made on behalf of the owner of the Subject Lands and the Applicant, Larga Baffin.

4On June 8, 2023, the Tribunal released its decision dismissing the Appeals in their entirety (“Hearing Decision”).

THE APPLICANT’S POSITION AND CLAIM FOR COSTS

5The Applicant sets out two main arguments as the basis for an entitlement to a costs award: (i) UHCCA persistently violated the Procedural Order (“PO”); and (ii) UHCCA’s appeals were frivolous, in bad faith and was brought for a collateral purpose. The Applicant submits that either of these bases are, alone, sufficient grounds to award costs.

ANALYSIS AND FINDINGS

Violations of the Procedural Order (“PO”)

6The Applicant contends that the UHCCA failed to comply with the PO, for which compliance is mandatory, in the following ways:

a. Amending the Issues List (“IL”) without prior notice to the Parties or prior permission from the Tribunal by abandoning two of the six issues. The Applicant submits that the PO itself (Paragraph 5, Schedule 1) specifically provides for costs against a Party that seeks to make such change to the IL without Tribunal permission.

b. Unilaterally withdrawing one of its witnesses after the exchange of witness lists, without notice, explanation, or motion. The Applicant submits that paragraphs 19 and 20 of the PO require a motion to be brought to amend the PO, which includes the calling of witnesses and witness statements. The Applicant argues that the UHCCA’s non-compliance with the PO in the unilateral withdrawal of both a witness and the two issues noted above, resulted in costs thrown away relating to the preparation of the Applicant’s responding witness and evidence in the amount of $10,376.23, inclusive of HST.

c. Unilaterally amending the proposed expertise of its witness, Robert Vastag, by expanding the area of expertise from transportation planning to also include land use planning, after the exchange of witness lists and without notice, explanation, or motion, which caused confusion and delay throughout the hearing preparation and proceedings.

d. Failing to cooperate in the production of a joint book of documents as required under the PO (paragraph 18, Schedule 1), which resulted in an unnecessary volume of materials at the Hearing, duplication of records, and increased inefficiencies.

7Additionally, the Applicant argues that the UHCCA failed to cooperate with the Applicant, generally, and particularly through delayed communications including delayed responses to the Applicant’s inquiries and communications, delay in withdrawing a witness, delay in scoping issues, delay in preparing a book of documents, as well as a nine-day delay in responding to particular email requests for the UHCCA’s position on issues to be addressed by their witnesses.

8The Applicant submits that the UHCCA’s disregard for the PO as noted above, and actions leading up to and during the Hearing, fall directly within the scope of clearly unreasonable conduct, and within the circumstances contemplated by Rule 23.9 of the Tribunal’s Rules as justifying a costs award, by:

a. Failing to make a written motion to the Tribunal seeking to remove a witness from the witness list;

b. Failing to notify the Tribunal that the written evidence of their witness was not part of their record;

c. Unilaterally abandoning issues that it had previously insisted on including;

d. 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 PO;

e. Failing to act in a timely manner or failing to comply with a PO or direction of the Tribunal where the result is undue prejudice or delay; and,

f. Failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper.

9The thrust of UHCCA’s response to the allegation that it violated the PO or was uncooperative is that its motivation leading up to and during the Hearing, as guided by its counsel, was to agree with the Applicant and the City on specific issues, reduce the scope of issues as much as possible, reduce the length of the Hearing when possible, and submit required materials in accordance with the timelines and directions of the Tribunal.

10The starting point for the analysis in determining this first ground is the PO. The relevant paragraphs of the PO, including paragraph 3 not raised by the Applicant, state (emphasis added):

3. The parties’ initial estimation for the length of the hearing is 5 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

5. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before February 10, 2023 (60 days) and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

6. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before March 28, 2023 (14 days).

7. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

8. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

11On the UHCCA’s evidentiary record, in support of its Response to this Motion, the Tribunal accepts that on March 7, 2023, its counsel wrote to the Tribunal and the Parties advising, inter alia, that it was withdrawing two issues and would not be calling Mariette Fyfe-Fortin who had previously submitted a Written Statement that would not form part of the Appellant’s Record. Accordingly, the Tribunal is satisfied that these actions were carried out in compliance with paragraphs 3 and 20 of the PO, and not contrary to it.

12The Tribunal agrees with the submission of the UHCCA, that the PO imposed no further obligation on it to call Ms. Fyfe-Fortin at the Hearing, or to bring a motion to have her, or the two issues, more formally withdrawn given its March 7, 2023, correspondence which was over one month prior to the Hearing.

13By nature of the language of paragraphs 3 and 20 of the PO, combined with the Tribunal’s mandate under s.12(2) of the Ontario Land Tribunal Act¹ to adopt practices and procedures that offer the most fair, just and expeditious resolution to the merits of proceedings, it can be inferred that paragraphs 5 and 19 of the PO are not intended to result in any unnecessary procedural motions that would impose an increased burden on the costs and resources of the Parties or this Tribunal. Requiring a motion to seek Tribunal permission to withdraw issues, and the associated witnesses intended to speak to those issues whose written evidence was not sought to remain on record, one month before a hearing would appear to impose just the sort of expenditure of unnecessary time and resources that is intended to be avoided – particularly, when the result is a scoped IL and a reduction in the length of hearing, which ultimately reduces the burden of costs and resources on all Parties.

14Similarly, while paragraph 18 of the PO states that the Parties shall cooperate in the filing of a Joint Book of Documents, its language does not mandate the filing of Joint Books, nor does it limit the Parties from filing separate Books of Documents where necessary or appropriate to do so. It simply requires cooperation between the Parties to file a Joint Book where possible in the interests of organizational efficiency. In other words, the filing of separate Books of Documents, while not necessarily preferred or endorsed by the Tribunal, does not automatically constitute a breach of the PO, particularly absent clear evidence of an unreasonable lack of cooperation in the filing of a Joint Book.

15Pursuant to the PO, a Joint Book of Documents was to be filed by March 28, 2023. Due to what appears to have been electronic issues, a Joint Book was not filed by the City until April 1, 2023. A separate book titled “Appellant Book of Documents Supplementary to the Joint Book of Documents” (“Supplementary Book”) was filed by the UHCCA on March 31, 2023. Indeed, a further book by the Applicant titled “Applicant’s Book of Documents Supplementary to the Joint Book of Documents” was also filed, by the Applicant, on April 10, 2023.

16The evidentiary record on this Motion contains emails between the Parties spanning between March 17 to March 31, 2023, in which it appears that the Parties are at least attempting to cooperate in the compilation and filing of a Joint Book. On the basis of those communications, the Tribunal accepts that the UHCCA felt it was not in a position to finalize a Joint Book right away for the following three key reasons: (i) it was initially waiting on the meeting of the experts which was to occur on March 20, 2023; (ii) its counsel was called into other Court appearances; and (iii) it was under the impression that it had either missed the City’s internal timeline for the compilation of the book in order that it be filed by the PO mandated deadline, or, that adding further documents on March 27, 2023, might interfere with that process creating delay which is why it turned its mind to, and ultimately did file, its Supplementary Book.

17The Tribunal takes note that counsel for the UHCCA was responsive to the communications from the City and the Applicant throughout, albeit perhaps not in a manner that opposing counsel deemed ideal. However, there is no evidence on the record to indicate any unreasonable delay or lack of cooperation in an intentional attempt to frustrate the process or thwart the filing of a Joint Book. While the PO mandated deadline was known in advance, the Tribunal finds that all Parties ought to have commenced the preparation of their document books much sooner than as reflected on this Motion’s evidentiary record and evident by the late filings by all Parties of their respective books. Accordingly, the Tribunal finds no breach on the part of the UHCCA with regard to paragraph 18 of the PO.

18Similarly, the Tribunal finds that there was no breach of the PO respecting the area of expertise that the UHCCA’s witness, Mr. Vastag, was tendered to be qualified. Paragraph 9 of the PO requires the exchange of witness lists with the area of expertise of any expert to be produced along with a copy of their respective Curriculum Vitae (“CV”). Mr. Vastag was identified on the UHCCA’s witness list dated February 10, 2023, as an expert in Transportation Planning and a copy of his CV was produced at the same time. Mr. Vastag’s CV, while reiterating his position and experience in Transportation Planning, also sets out his education with a Bachelor of Environmental Studies, Honours in Urban and Regional Planning and his professional affiliations as a Registered Professional Planner and Member of the Ontario Professional Planners Institute. Despite the objection of the Applicant and the City, Mr. Vastag was accepted by the Tribunal as an expert in both transportation and land use planning for these reasons and for the purposes of the Hearing; a motion was not required.

19Mr. Vastag’s witness statement, from which the Applicant submits they were first made aware that his area of expertise was expanded, was produced on February 27, 2023, 17 days following the exchange of witness lists. The statement addressed all of the issues remaining on the IL, and the Tribunal agrees with the UHCCA that the area of expertise of Mr. Vastag remained consistent throughout the proceeding, as was outlined in his witness statement, which included his considerations of what constituted consistency with the Provincial Policy Statement, 2020 (“PPS”), conformity with the City’s OP, and good planning.

20The Tribunal adds that, beyond the issues having been scoped down, the language of the remaining issues on the IL had not changed or been added to. The Applicant and the City remained fully aware of the issues they were required to respond to. By the Applicant’s own witness list, as well as that of the City, it is evident that the Applicant had already intended on calling its own planning expert (Jacob Bolduc) and had known that the City would be calling its planning expert (Melanie Gervais), to deal with any such issues. Accordingly, there appears to have been no further evidence required to be called, or additional significant costs that would not otherwise have been incurred in this regard.

21While the Tribunal finds that there was no breach of the PO in the circumstances of this case, that is not to say that an award of costs is not warranted where there are more calculated motives at play. The Tribunal must look to the actions of a Party and determine whether that Party acted reasonably under the circumstances, or whether the impugned conduct constitutes frivolous, vexatious, or bad faith actions which justify a costs award. In other words, there need not necessarily be a breach of the PO for conduct to justify a costs award.

22For the reasons set out above, the Tribunal finds no such improper conduct on the part of the UHCCA warranting a costs award on the Applicant’s first basis for its relief sought. In this regard, the Tribunal adds that there is no evidentiary basis on this Motion to support the Applicant’s allegation that Ms. Fyfe-Fortin was only withdrawn after multiple queries from counsel regarding her lack of qualifications or for some other improper purpose.

23Before moving to the Applicant’s second basis for the relief sought on this Motion, a brief look at the authorities cited by the Applicant is warranted. The first four cases, Hanover², RioCan³, Campione⁴ and TGI (citing Kimvar)⁵ are referenced as “first principles” in establishing the legal framework guiding costs awards. Those authorities and their principles are accepted and not in dispute. The two remaining authorities are Altone⁶ and 135 Ontario Inc.⁷

24The Tribunal finds that the cases of Altone and 135 Ontario Inc. are distinguishable and not applicable on the present motion. Altone was a decision arising from a motion to amend a PO to re-introduce issues not raised in the initial appeal following a settlement that had been reached, ultimately lengthening the scheduled hearing only days prior. The Tribunal in Altone (then the Ontario Municipal Board, “OMB”) found the actions of the moving party to be an abuse of process given the facts of that case. No such finding of an abuse of process is made on this Motion regarding its underlying appeal.

25In 135 Ontario Inc., this Tribunal (then the Local Planning Appeal Tribunal, “LPAT”) found that the appeal itself was based on the self-interest of the Appellants and not the public interest; and further, that the Appellant failed to notify the other parties that it would not be calling a witness until the hearing itself without prior notice which unduly required more hearing preparation resources to be expended. As set out above, this Tribunal has found that the withdrawal of the UHCCA witness was carried out with notice over one month in advance of the Hearing and in compliance with the PO.

26In the present case, the issues and witness were withdrawn with advanced notice thereby reducing, not substantively changing or adding to the nature of the appeal whereby the result would increase the time and expense necessary to respond. Awarding costs for the reduction of issues in such a case, absent evidence of a clear frivolous, vexatious, or bad faith intention, would contribute to a chilling effect and might dissuade future parties from scoping issues in fear of a costs award. An award of costs here would suggest that Parties are better advised to proceed with a lengthier hearing calling evidence on issues that could otherwise have been scoped or withdrawn, for fear of a costs award.

27In sum, as the Tribunal finds there was no breach of the PO by the UHCCA, the first ground for the relief sought on this Motion is rejected.

Appeals Were Frivolous, in Bad Faith and for a Collateral Purpose

28The Applicant’s second basis for a costs award contends that the UHCCA’s appeals were frivolous, in bad faith, and brought for a collateral purpose, specifically, as follows:

a. The UHCCA had experienced legal counsel who either knew or ought to have known the merits of the appeal, the evidence to be called, chance of success, the costs associated with a hearing, and the risk of an award for costs against it;

b. The UHCCA admitted that the appeals were filed for a collateral purpose during cross-examination of its sole witness, Mr. Vastag, when he agreed that the appeal concerned more with the lack of action by the City related to pre-existing traffic issues, than the development proposal itself. The Applicant submits that Mr. Vastag admitted “that the appellant used the appeal of the ZBL amendment to challenge un-appealable site plan issues, stating that there was no legal mechanism for the public to appeal site plan issues”. The Applicant submits that, contrary to the argument of the UHCCA, Mr. Vastag’s admissions can be gleaned from this Tribunal’s Hearing Decision at paragraphs 73 and 75;

c. Mr. Vastag also presented false/misleading evidence and/or failed to present evidence as follows:

1. He indicated that the ZBL before the Tribunal would render a multi-use pathway (“MUP”) impossible, then stated “highly unlikely” under cross-examination;

2. He failed to address, despite being asked, how the ZBL amendment resulted in traffic and transportation conflicts. The Applicant submits that mere apprehension is not appropriate evidence; and,

3. He suggested that issues typically retained for site plan approval should be done at zoning without offering any authority in support.

d. There were no transportation reasons that would provide any basis upon which the appeals could be allowed and the ZBL modified. The appeal was not the proper forum for the alleged concerns raised and it is insufficient to rely on a notice of appeal as alleged evidence that the proceedings are based on genuine planning grounds; and,

e. Two directors of UHCCA, who signed its appeal, as well as its withdrawn witness, had each objected to the proposed development through the public submissions process which included statements that the Applicant describes as being motivated by discrimination, racism and people-zoning.

29The Applicant adds that the UHCCA intentionally engaged in a consistent pattern of delay, lack of cooperation and persistent disregard for the timelines and requirements of the PO, knowingly, in opposition to a development that would serve a vital public health purpose and despite being aware of the risks of delay to the persons served by the development.

30The UHCCA disputes all of the allegations of the Applicant set out above, states much of it has been taken out of context, and responds that its appeal was not frivolous, in bad faith or brought for a collateral purpose, more broadly for two key reasons: (i) its appeal addressed valid substantive planning issues; and (ii) Mr. Vastag presented no false or misleading evidence, nor made any such admissions as alleged by the Applicant, and, notwithstanding, such admissions would not constitute the type of conduct meriting a costs award.

31The thrust of the Applicant’s argument that the appeal was motivated by self-interest, collateral-purposes, and was not based on any valid appeal grounds, hinges predominantly on the opposing views regarding the evidence of Mr. Vastag. The Tribunal rejects the Applicant’s proposition that Mr. Vastag made admissions during his cross-examination equating to an admission by UHCCA that the appeals were filed for a collateral purpose.

32As reflected at paragraphs 73-75 of the Hearing Decision, it was Mr. Vastag’s opinion that the ZBL amendment process was the only mechanism available to the public to express concerns, and the ability to effect change beyond the boundaries of the site is lost at the site plan stage. This evidence was received in the context of the discussion as to whether the ZBL amendment was premature and whether it was reasonable to implement a holding provision on the ZBL amendment. So too was Mr. Vastag’s agreement on cross-examination that the concerns raised related less to the proposed development and more with the existing deficiencies remaining unmitigated by the City. This evidence was in the context of his opinion that the ZBL amendment was premature, that there remained transportation and safety concerns which, in his opinion, remained contrary to the policies of the City’s OP and the PPS, and that a holding provision was necessary should the subject application have been approved.

33In other words, it remained consistently Mr. Vastag’s professional opinion that there were valid transportation issues which were not in conformity with the City’s applicable OPs, consistent with relevant policies under the PPS, and of the noted Ministry policy manuals and City guidelines. While the Tribunal indeed preferred the planning evidence of the Applicant and the City in this regard and disagreed with Mr. Vastag’s application of the relevant policies and guidelines, to say that this amounts to the type of misconduct warranting costs would be overreaching. Moreover, one must be careful in conflating an admission by a witness on cross-examination with the motives of the party calling that witness in bringing the appeal. It does not necessarily follow that they are related, particularly absent clear evidence to the contrary, which I do not find to be the case here. Additionally, the Applicant’s descriptions of the UHCCA’s appeal as meritless and lacking proper planning grounds demonstrate a misplaced focus upon the outcome of the issues and Hearing; the Tribunal’s approach to a costs award has never been a focus on the outcome.

34I also reject the notion that Mr. Vastag intentionally presented false or misleading evidence or failed to present evidence such as to trigger a costs award. It is the Tribunal’s conclusion that the UHCCA was committed to the presentation of its transportation and planning evidence in its position and carried through with that representation to the Tribunal.

35Regarding the allegations of discrimination, racism and people-zoning, the Tribunal finds they are bold and overreaching. The communications relied on by the Applicant in support of this proposition pre-date the appeal and do not relate to any of the transportation and planning issues raised or addressed by the Appellant during the hearing. They are communications which formed the public submissions aspect of the initial application process, and were not covert. They were also not submitted on behalf of the UHCCA. The Tribunal agrees that they have been taken out of context and have been inserted here to support a proposition of vexatious and bad-faith conduct, which is not otherwise found on the balance of the record, on the part of a separately formed organization for the purpose of an appeal which was ultimately scoped down in issues. It must also be noted that speculation on the motives of some do not comprise the motives of the whole. Based on the overall conduct of the UHCCA and its Counsel throughout the course of the proceeding, and on the totality of the evidentiary record, I make no finding of frivolous, vexatious or bad faith conduct or intention on the part of UHCCA.

36Before concluding, I will touch briefly on the additional authorities cited by the Applicant on its second ground for this Motion. The Tribunal agrees with the UHCCA, that they are each distinguishable from the present case.

37In Fockler⁸, the OMB held that the Tribunal generally finds: (i) a lack of good faith when it is apparent that the appeal was filed for a purpose unrelated to the planning merits of the application; (ii) a frivolous appeal where there is patently no substantive planning issue; and (iii) a vexatious appeal when there is clear intent to cause some prejudice. However, the appellant in Fockler filed an appeal stating it was acceptable to do so without an identified planning reason and failed to make any submissions on planning grounds during the hearing. The Board also made an express finding that the appeal in Fockler was intentionally filed to cause the applicant prejudice and in order to coerce the parties to undertake certain actions.

38Similarly, Hanover⁹ is distinguishable as the appeal in that case was brought for no apparent land use planning ground, and the OMB expressly found that it was brought only in fear of competition from the applicant.

39In Sneyd¹⁰, the OMB found that the appellants’ actions amounted to an abuse of process by attempting to re-argue a rezoning appeal (that was not only dismissed, but refused on two separate requests for review) on a subsequent consent appeal, as well as on the motion for costs itself. The Board made an express finding that the appeals were brought with an intentional view to delay the subject development.

40Finally, in Maynard¹¹ key reasons for the costs award comprised of a history of frivolous appeals brought by the appellant, a demonstrable lack of seriousness and preparedness, and an eleventh-hour scoping of issues by the appellant during the hearing itself which resulted in the unnecessary time and expense incurred for the preparation of witnesses and materials.

41The circumstances in each of these cases are distinctly different from the present appeal. No such findings of frivolous, vexatious, or bad faith intention or conduct on the part of the UHCCA is made. Costs, being rare, are not meant to indemnify a successful party, but to penalize improper conduct (Kimvar). It is equally important to note that the public and community members are not to be dissuaded from exercising their appeal rights in fear of a costs award which are meant to be rare, are not routine and do not follow the cause. It is the conduct as a whole alongside the absence of genuine planning grounds that can warrant a costs award, not the fact that an appeal was brought or dismissed (268 Ontario Ltd.)¹².

42Given that I have found that there has been no conduct that warrants a costs award in the circumstances of this proceeding, there is no need to review whether the costs claimed by the Applicant are reasonable.

SUMMARY OF DISPOSITION

43For the reasons set out in this Decision, the Tribunal finds that the conduct, or course of conduct, of the UHCCA in the proceeding and in the Hearing does not meet the threshold and parameters of misconduct warranting the exercise of the Tribunal’s discretion to award costs. Neither are costs for this Motion warranted.

44The request for costs by the Applicant as advanced in the Motion is accordingly denied.

ORDER

45The Tribunal orders that the request for costs brought by the Applicant, Larga Baffin Ltd., against the Upper Hunt Club Community Association is denied and the Motion is dismissed.

“N. Eisazadeh”

n. eisazadeh

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.

Footnotes

1. 1Ontario Land Tribunal Act 2021, S.O. 2021, c.4, Sched. 6 (“OLT Act”).
2. 2Hanover County Fair Plaza v. Hanover (Town), 2006 CarswellOnt 1468 (OMB) (“Hanover”)
3. 3RioCan Real Estate Investment Trust v. London (City), 2005 CarswellOnt 5133 (OMB) (“RioCan”)
4. 4Campione v. Vaughan (City), 2016 CarswellOnt 19377 (OMB) (“Campione”)
5. 5Toronto Guild Investments Ltd v. Whitby (Town), 2021 CarswellOnt 18380 (OLT) (“TGI”), citing Kimvar Enterprises Inc., Re, 2009 CarswellOnt 666 (OMB) (“Kimvar”)
6. 6Altone Investments Ltd. v. Brampton (City), 2003 CarswellOnt 5943 (OMB) (“Altone”)
7. 71353837 Ontario Inc. v. Ontario (Municipal Affairs), 2019 CarswellOnt 21165 (LPAT) (“135 Ontario Inc”)
8. 8Fockler v. Toronto (City) (Committee of Adjustment), 1999 CarswellOnt 3774 (OMB) (“Fockler”)
9. 9Hanover County Fair Plaza v. Hanover (Town), 2006 CarswellOnt 1468 (OMB) (“Hanover”)
10. 10Sneyd v. Parry Sound (District), 2022 CarswellOnt 17479 (OLT) (“Sneyd”)
11. 11Maynard v. Mississippi Mills (Town), 2022 Carswell 1962 (OLT) (“Maynard”)
12. 122684360 Ontario Ltd. v. Kingston (City), 2021 CarswellOnt 2726 (“268 Ontario Ltd”).