Cary v. Magnetawan (Municipality), 2024 CanLII 83210

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 28, 2024

CASE NO(S).: OLT-23-000771

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

Appellant: Darryl Cary

Subject: By-law No. 2023-19

Description: to establish site specific zoning to existing Tourist Commercial Zone

Reference Number: By-law 2023-19

Property Address: 1680 Lakeside Trail

Municipality/UT: Municipality of Magnetawan

OLT Case No.: OLT-23-000771

OLT Lead Case No.: OLT-23-000771

OLT Case Name: Cary v. Magnetawan (Municipality)

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

Request by: Klahanie Campers Corporation

Request for: Request for an Order Awarding Costs

Costs sought against: Darryl Cary

Heard: August 12, 2024, in writing

APPEARANCES:

Parties

Klahanie Campers Corporation (“Moving Party”/”Applicant”)

Darryl Cary (“Responding Party”/"Appellant”)

Counsel

Russell Cheeseman Stephanie Fleming

Larry Douglas

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

Introduction

1This is a Motion for costs (“Motion”) by the Applicant against the Appellant, arising following the Appellant’s decision to withdraw his appeal. The Municipality of Magnetawan (“Municipality”), which was also a Party to this matter, did not participate in the Motion.

Background

2The Appellant appealed the passing of Zoning By-law No. 2023-19, a Zoning By-law Amendment (“ZBA”) to establish site specific zoning to the existing Tourist Commercial Zone portion of the Applicant’s lands. The only hearing event to take place before the present Motion was a Case Management Conference (“CMC”), which was heard by the present Member on March 28, 2024, (see CMC decision: Cary v Magnetawan (Municipality), 2024 CanLII 33132 (ON LT)). At the time of the CMC, the Appellant was self-represented, while the other Parties were represented by counsel.

3At that CMC, the Parties engaged in a dispute regarding the contents of the case’s Issues List. The essence of the dispute concerned the inclusion of five issues proposed by the Appellant, which the Applicant and the Municipality opposed. These five issues constituted the only issues that were proposed by any of the Parties. This dispute, while not framed as a Motion to Dismiss the matter, was clearly pursued by the Applicant and the Municipality in an effort to have all of the Appellant’s issues declared improper for the purpose of forming the matter’s Issues List. Had they succeeded, there would have been no basis upon which the appeal could have proceeded, and the matter presumably would have been dismissed.

4Ultimately, the Applicant and the Municipality were only partially successful with their effort to have the Tribunal reject all of the Appellant’s issues, and the case was scheduled for a merit hearing based on a single issue. In coming to this conclusion, the Tribunal found that four out of the five proposed issues were not properly before the Tribunal and could not form part of the Issues List. Most of the reasons for these findings are inconsequential for the purpose of the present Motion; however, it is noteworthy that one of the four issues was rejected by the Tribunal because the Tribunal found it to be applicable to the Applicant’s upcoming site plan approval process, rather than the present ZBA appeal.

5Shortly following the issuance of the above noted CMC Decision, the Appellant notified the other Parties that he wished to withdraw his appeal of the ZBA. The reason provided was that he wanted to concentrate his efforts on dealing with his issue concerning the site plan approval process.

Appellants’ Costs Claims

6The Moving Party is seeking costs against the Appellant as follows:

1. $9,450.76 for legal costs of addressing the appeal in this matter;
2. $262.62 for land use planning consulting fees; and
3. Costs of the present Motion.

7While the Moving Party was unhelpful by failing to provide a calculation-summary of its costs (instead, the Tribunal received a number of separate invoices, independently appended to an affidavit), it appears that it is seeking ‘full costs’ (sometimes referred to as ‘costs on a substantial indemnity basis’) against the Appellant.

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

8In its Motion materials, the Moving Party correctly identified “the test to establish whether costs should be awarded” as being set out 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 or vexatious, or acted in bad faith. The decision to award costs remains discretionary, regardless of whether this threshold is met, and the onus is on the Moving Party to demonstrate that such conduct has occurred.

9The Tribunal notes that a more 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).

10Upon review of the Moving Party’s Motion materials, the Tribunal finds its submissions to be completely lacking in substance and merit. In terms of conduct complained of, the Appellant merely states that the Appellant lacked promptness in replying to communications from the other Parties leading up to the CMC, and then again after the CMC when the Parties’ Witness Lists were due. Regarding claims of wasted time and effort by the Moving Party, it only pointed to the fact that they wasted time preparing a Witness List, while the Appellant apparently deliberated the withdrawal of his appeal. It is noteworthy that the Moving Party failed to particularize what portion of their claimed costs were attributable to such wasted time and effort.

11In considering these limited submissions, the Tribunal finds that the Appellant did nothing which rises even close to the level of conduct contemplated by Rule 23.9. The Tribunal further finds that, given the Appellant was primarily self-represented throughout the matter, some understanding of his lack of experience should be expected. Furthermore, even if the Tribunal had found that the Appellant’s conduct could warrant costs, the Tribunal has been provided with nothing to even approximate an apportionment of the Moving Party’s costs attributable to such conduct, apart from it likely being minimal.

12Instead of finding that the Appellant conducted himself badly, the Tribunal finds that the Appellant’s conduct was reasonable and well-intentioned. For example, the Tribunal finds that he was relatively prompt in notifying the other Parties of his decision to withdraw his appeal, being less than two-weeks after the issuance of the March 28, 2024, CMC Decision. Relatedly, the Tribunal finds that the timeliness of the Appellant’s decision to withdraw his appeal certainly led to the other Parties saving significant time and costs associated with preparing for a merit hearing. This is far from a case where an Appellant withdrew his appeal on the eve of a hearing.

13Paradoxically, the Tribunal finds that there is an air of unreasonable, frivolous, vexatious and bad faith conduct on behalf of the Moving Party for bringing the present Motion. The Moving Party has experienced counsel and knows or ought to know that costs awards are rare, and the Appellant’s conduct falls well-short of the threshold set out in the Rules – especially considering the self-represented nature of the Appellant.

14In this sense, the Tribunal emphasizes the well-established principle that costs cannot be used as a threat to deter public participation in planning processes, as it would have a chilling effect on otherwise meritorious appeals. In the present matter, such a consideration is even more pronounced, as the claim for costs has arisen following an apparently well-contemplated and rationalized decision to withdraw the appeal. Such a Party’s decision should not be deterred out of a fear for costs. To be clear, it is hard to imagine a situation whereby the Tribunal would award any type of costs against a Party who withdraws its appeal well in advance of a scheduled merit hearing.

ORDER

15THE TRIBUNAL ORDERS that 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.