R.K Radbourne Building LTD. v. Owen Sound (City), 2024 CanLII 81249

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 19, 2024

CASE NO(S).: OLT-23-000958

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

Appellant: R.K Radbourne Building LTD.

Applicant: Albert Wakeford

Subject: Zoning By-law

Description: To permit a rock-climbing bouldering gym located within the existing Industrial Mall.

Reference Number: ZBA No. 50 By-Law 2023-095

Property Address: 1580 20th Street (RANGE 8 EGR PT PARK PT LOT 5)

Municipality/UT: Owen Sound/Grey

OLT Case No: OLT-23-000958

OLT Lead Case No: OLT-23-000958

OLT Case Name: R.K Radbourne Building LTD. V. Owen Sound (City)

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

Request by: Albert Wakeford, City of Owen Sound

Request for: Request for an Order Awarding Costs

Costs sought against: R.K. Radbourne Building Ltd.

Heard: In Writing

APPEARANCES:

Parties	Counsel
Albert Wakeford (“Applicant”)	Colin Leger
City of Owen Sound (“City”)	Harold Elston
R.K. Radbourne Building LTD. (“Appellant”/ “Respondent”)	Al Burton

DECISION delivered BY STEVEN T. MASTORAS AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal is a Motion for Costs to be heard in writing pursuant to Rule 23 of the Tribunal’s Rules of Practice and Procedure (“Rules”). The Motion follows a decision by R.K. Radbourne Building LTD. (“Appellant/Respondent”) to withdraw an Appeal on February 21, 2024, two days prior to a scheduled Hearing before the Tribunal on February 23, 2024.

2The Appeal, filed on November 21, 2023, followed the City of Owen Sound (“City”) decision to approve a Zoning By-law Amendment No. 2023-095 to Zoning By-law Amendment No. 50 (“ZBLA”) changing the zoning applicable to the municipal property known as 1580 20th Street (Range 8 EFR PT PARK PT LOT 5) (“Subject Property”). The approved ZBLA provided for a change from ‘Heavy Industrial’ to ‘General Industrial’ (“Application”), which permitted a climbing gym within the Subject Property. No exterior physical changes were proposed.

3The matter was scheduled to proceed directly to a Merit Hearing on February 23, 2024, and a proper Notice of Hearing (“NOH”) was served by the City, confirmed by an Affidavit signed by Staci Landry on December 5, 2023, as directed by the Tribunal on November 21, 2023. No Case Management Conference (“CMC”) was required, and the NOH established a deadline of 10 days prior to the Merit Hearing as the required date for the filing of documents.

4The Motion for Costs is now before the Tribunal by Albert Wakeford (“Applicant”), as represented by Counsel (Colin Leger) and the City (Counsel - Harold Elston) (together “Moving Parties”).

5The Applicant is seeking the amount of approximately $19,480 plus HST (inclusive of all Legal/Planning fees and Motion submission costs), and the City is seeking the amount of $5,000 plus HST (exclusive of Motion costs).

STATUTORY FRAMEWORK

6The Tribunal’s statutory authority to award costs can be found in s. 20 of the Ontario Land Tribunal Act (“OLTA”) and s. 23 of the Rules, which are consistent with the Statutory Powers Procedure Act. Section 20 of the OLTA states:

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.

7Rule 23.9 sets out the circumstances under which costs may be awarded:

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. … The Tribunal is not bound to order costs when any of these examples occur as the Tribunal will consider the seriousness of the misconduct.

EXHIBITS

8The Evidence provided to the Tribunal includes the following:

• Exhibit 1 – Affidavit of Service of Motion by Albert Wakeford (signed by Lyne Poulin, dated June 13, 2024, and served on June 7, 2024);
• Exhibit 2 – Affidavit of Service of Motion by the City (signed by Kristin Vanderkruys, dated June 7, 2024);
• Exhibit 3 – Wakeford/Applicant - Motion Record;
• Exhibit 4 – City/Applicant Motion Record– February 21, 2024;
• Exhibit 5 – Appellant/Respondent Response to Motion – July 2, 2024;
• Exhibit 6 – City/Applicant – Reply – July 12, 2024; and,
• Exhibit 7 – Wakeford/Applicant – Reply – July 12, 2024.

MOVING PARTY SUBMISSIONS

Applicant/Wakeford Submissions

9Counsel for the Applicant submitted that the reason for bringing the Appeal to the ZBLA was frivolous and vexatious and that the Appeal should not have been brought in the first place as the Appellant refused to diligently pursue its Appeal or cooperate/communicate with the Applicant or the City; the Appellant refused to comply with direction from the Tribunal; and, the Appeal was withdrawn at the last moment, exposing the Applicant to unnecessary costs relating to the Hearing.

10For a more accurate overview of costs incurred, Counsel submitted an Affidavit of Albert Wakeford, confirming legal/planning consulting costs in the total sum of $19,480 plus HST (Exhibit 3, pg.18). The breakdown of costs incurred includes the following:

1. $8,580 plus HST in legal fees directly and necessarily for the preparation for the Hearing of the Appeal in this proceeding;
2. $5,400 plus HST in expert planning consulting fees directly and necessarily for the preparation for the Hearing of the Appeal in this proceeding;
3. In excess of $5,500 plus HST in legal fees directly and necessarily for the preparation of the Motion for Costs; and
4. Counsel notes that these costs did not include lost potential revenues caused by the undue delay and withdrawal of the Appeal.

11In an Affidavit signed by Lyne Poulin and dated June 7, 2024 (Exhibit 3, pg.21, para.2), Ms. Poulin states:

2. On November 21, 2023, the Tribunal issued a Notice of Hearing, which scheduled the hearing of the Appeal for February 23, 2024. The Notice of Hearing is attached as Exhibit ‘A’ to hereto.

12The Tribunal notes that the letter directing the City (dated November 21, 2023) confirming the Merit Hearing on February 23, 2024, also copied Counsel for the Appellant/Respondent. Counsel for the Appellant/Respondent was further reminded of the Merit Hearing date by copy of the Affidavit/NOH previously referenced above (para. [3]) on December 5, 2023.

13Counsel for the Applicant/Wakeford notes that the City Planning staff provided its support of the ZBLA at the September 11, 2023, Council meeting and that subsequent to the City’s approval and resulting from the Appeal of the ZBLA, a further report dated October 23, 2023, was submitted reinforcing its support of the ZBLA in response to the Appeal (Exhibit 7, pg.34). Council also provided direction to its legal and planning to attend at the Hearing in support of its earlier decision in support of the ZBLA.

14Finally, regarding efforts made to contact the Appellant/Respondent prior to the Hearing, Counsel for the Applicant/Wakeford submitted that a response was never received from Counsel for the Appellant/Respondent, and that no documents in support of the Appeal were filed with the Tribunal, until Notice was provided of the withdrawal on February 21, 2024. Counsel further submitted that despite best efforts, it also took an additional eight-day period for the Respondent to determine whether to continue with the Appeal following receipt of the Applicant/Planning Witness Statement (submitted February 13, 2024). Counsel reiterated that the Applicant and the City’s efforts to reach out were unsuccessful, including attempts to cooperate in the lead-up period (three weeks out) from the Hearing.

15The Tribunal notes that differences in the cost totals sought by each of the Moving Parties are the result of additional work involved on the part of Applicant/Wakeford for the purposes of the Hearing.

Applicant/City Submissions

16Counsel for the City is seeking an Order from the Tribunal to award costs of $5,000 plus H.S.T., and such further and other relief as Counsel may advise and the Tribunal permits.

17The City’s grounds for the Motion are as follows:

1. the appeal was misguided and ought never to have been made in the first place;

2. once made, the Appellant intentionally refused to prosecute the appeal in a diligent and respectful fashion; and

3. having imposed all the burdens associated with an appeal on the Applicant, the City, and the Tribunal, the Appellant abruptly and at the last moment withdrew its appeal. Such a course of conduct can only be described as being unreasonable and vexatious.

18Counsel for the Applicant/City submitted that the two fundamentally wrong reasons for the Appeal of the ZBLA were that the Appeal takes no issue with the proposed rock-climbing bouldering use, and the Appeal suggests that the Subject Property would be “more appropriately” zoned as “Mixed-Use Industrial” (MU). In other words, in Counsel’s interpretation, it was not appropriate for the Appellant/Respondent to suggest that while the proposed use was acceptable, a different zoning designation should be applied, allowing the use, which also did not conform to the City’s Official Plan (“OP”) and would also require an OP Amendment.

19Counsel for the City further submitted that the Appellant was “disrespectful of the process, the other Parties and the Tribunal,” reinforcing the point that Counsel for the Appellant/Respondent never responded to the Applicant’s efforts to connect prior to the Hearing until February 1, 2024, where a request was made for “all staff reports” relating to three unrelated zoning applications.

20Although additional efforts were made by email and voicemail on February 6, 7, 9, and 12, 2024, by the Applicant and the City in an effort to coordinate witnesses and file relevant documents for the Hearing, a response from the Appellant/Respondent’s decision to withdraw the Appeal was not provided until the Tribunal reached out on February 21, 2024.

21The Tribunal also notes that the City’s submissions consist of additional costs incurred in preparation for the Motion. This is further outlined in the detailed Witness Statement of Sabine Robart, dated June 7, 2024 (Exhibit 4, pg.13), which begins with her efforts in the lead-up to the City’s approval of the ZBLA and the Hearing. Regarding the Hearing, the City Planner asserted that the Appeal was inappropriate and unwarranted, reinforcing submissions from Counsel for the City related to costs incurred in preparation for the Hearing and Motion. It also states that additional legal costs associated with the Hearing and Motion include legal fees of $1,512 and $3,800 plus H.S.T., respectively. This generally reinforces the Motion for Costs summary from Counsel for the City.

Appellant/Respondent Submissions

22Counsel for the Appellant/Respondent submits that awards for costs are not routine and should not be expected by a successful Party, which in this case is the City, and that there are few examples in which the Tribunal has awarded costs in such circumstances.

23The Appellant/Respondent is initially on record as having concerns with the proposed ZBLA (Exhibit 4, pg. 125) dating back to July 24, 2023, as the owner of the property directly across from the Applicant. The letter from Counsel for the Appellant/Respondent identifies that it prefers an MU zoning designation for the Subject Property permitting a “Community Lifestyle Facility,” which would also bring other current uses into conformity. It notes that its own intention is also to transition its ongoing uses to reflect current and future land use changes that are “undergoing rapid redevelopment within a shrinking industrial focus.”

24In its letter of Appeal (Exhibit 4, pg.129) dated September 29, 2023, Counsel for the Appellant/Respondent provides extensive rationale for its position and concludes with the following observations:

a) The ZBLA is not consistent with the PPS;

b) The ZBLA does not conform with the City OP;

c) The ZBLA permits a clearly existing illegal use on the Subject Property;

d) The ZBLA is poor planning and is not in the public interest; and,

e) Such further and other grounds as counsel may advise.

25Following the decision by the City approving the ZBLA, the Appellant/Respondent submits that the Applicant’s Planning Witness Statement was filed 10 days before the scheduled Hearing. The Appellant/Respondent considered this to be the first land use planning evidence submitted in support of the Applicant’s position on the Appeal. Counsel submitted that its Appeal letter speaks to the various reasons for the Appeal and that the Appellant/Respondent “intended to make its case largely through cross-examination which is entirely permissible in Tribunal proceeding.”

26Counsel further submitted that given that there was no Procedural Order in this matter, the Appellant complied with the Tribunal at all times and reiterated that it intended to “prosecute” the case from the Appellant’s “point of view” through “cross-examination” with “no specific documents to file in advance of the hearing.”

27Counsel for the Appellant/Respondent further submitted the following summary of reasons to deny the Motion:

• The withdrawal saved time and money regarding the scheduled Hearing;
• The Appellant never questioned the permissibility of the proposed land use but only questioned the appropriateness of the preferred City zoning designation;
• The Planning Witness Statement from the Applicant made the Appellant reconsider the Appeal as it must, during all phases of an appeal;
• There was no evidence of efforts to reach out during a five-month period leading up to the Hearing until February 2024, and the dates proposed for discussions were not compatible;
• No Motion was brought to the Tribunal pursuant to the Planning Act (“Act”) or Rules alleging either a lack of planning grounds or the Appeal lacking a reasonable prospect of success;
• The Motion is speculative and discarded the genuine validity of the Appeal until more planning evidence was submitted into evidence from the Applicant;
• A costs award could have a chilling effect on public participation in the planning process;
• No detailed billing information is included in the “exaggerated, excessive” and “bald Affidavit” of the Applicant, noting a wide disparity between the Applicant and the City, for a one-day Hearing, and without invoices/dockets attached for review; and,
• The Applicant/City has also not provided evidence of actual legal costs in accordance with Rule 23 of the Tribunal’s Rules.

ANALYSIS AND FINDINGS

28Each proceeding before the Tribunal is a “unique ‘standalone’ event … [and] do not create binding jurisprudence” (Ferguson v. Little, 2001 CarswellOnt 5277, 43 O.M.B.R. 182 at para. 11). The Tribunal finds that in this circumstance, it appeared reasonable to assume that the Appellant/Respondent, through its Counsel, maintained land use planning rationale in support of its Appeal, that could have been pursued at the scheduled Hearing.

29Costs are not regularly awarded in Tribunal proceedings. Per Rule 23.9, even if it did consider the conduct of the Appellant/Respondent to be unreasonable, frivolous, vexatious or in bad faith, the Tribunal is not bound to order costs.

30Generally, in the past, when an Applicant sought a ZBLA, the Applicant understood that a rezoning is the subject of public scrutiny and that an appeal for whatever land use planning-related reason pursuant to the Act was a possibility. Clearly, the Appellant/Respondent Counsel correspondence shared the view of its client in a responsible fashion, notwithstanding the fact that their opinions could have been challenged by way of a Merit Hearing.

31Regrettably, communication between experienced Counsel for the Parties appears to have been quite limited as the Hearing approached early into the new year. However, based on submissions, this may have been attributable to scheduling conflicts and perhaps a degree of privileged solicitor-client discussions about whether to proceed to the Hearing itself. This appears to have crystalized following the Appellant/Respondent’s review of the expert witness statement submission, which also seems to have further reinforced previous City Planning Reports to Council.

32Furthermore, the Tribunal is not persuaded that the conduct of the Appellant/Respondent should be considered unreasonable, frivolous, vexatious, or in bad faith for some of the following additional reasons:

• The Appellant/Respondent maintained the right pursuant to the Act to disagree in the first instance and subsequently appealed the Council decision supporting the ZBLA as a neighbouring property owner within the statutory notice area for the public meeting;
• The fact that a Hearing did not transpire lends credibility to the Appellant/Respondent’s position that costs were ultimately spared after their review of the Applicant’s Planning Witness Statement;

33In addition, the test that the Tribunal very commonly applies, and one that should be considered with a Motion such as this, is:

…would a reasonable person, having looked at all of the circumstances of the case, the conduct or course of conduct of a party proven at the hearing, and the extent of his or her familiarity with the Board’s procedure, exclaim “that’s not right; that’s not fair; that person ought to be obligated to another in some way for that kind of conduct.

Ajax (Town) v Pickering (City) 2018 CanLII 89434 at para 17. (Case No. PL150145)

34Upon consideration of the Appellant/Respondent’s conduct through this Appeal and based on a careful review of the materials submitted by the Parties, the Tribunal is not persuaded that a reasonable person would find the conduct of the Appellant/Respondent to be “not right” or “not fair” in this instance.

35The Tribunal finds that an award of costs against the Appellant/Respondent is not warranted.

ORDER

36THE TRIBUNAL ORDERS that the application for costs is denied and no costs are awarded.

“Steven T. Mastoras”

STEVEN T. MASTORAS

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.