Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 01, 2024

CASE NO(S).: OLT-21-001518 (Formerly MA 016-18)

PROCEEDING COMMENCED UNDER section 181 of the Mining Act, R.S.O. 1990, c. M. 14, as amended

Applicant: IAMGOLD Corporation (Respondent for the Liability Phase)

Respondents: Treelawn Capital Corp. and Wood Family Wealth Corporation (Applicants for the Liability Phase)

Subject: Claim for payment of expenditures

Patented Mining Claims: Chester 2 Properties on Young-Shannon Lands, District of Sudbury (See Schedule “A”)

OLT Case No.: OLT-21-001518

Legacy Case No.: MA 016-18

OLT Case Name: IAMGOLD Corporation v. Treelawn Capital Corp. and Wood Family Wealth Corporation

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

Request by: Treelawn Capital Corp. and Wood Family Wealth Corporation

Request for: Request for an Order Awarding Costs

Costs sought against: IAMGOLD Corporation

Heard: June 21, 2024 In Writing; Supplementary Submissions received August 22, 2024

APPEARANCES:

Parties	Counsel
Treelawn Capital Corp. and Wood Family Wealth Corporation (“Treelawn” or “Applicant”)	Ian Katchin, Martin Kaplan
IAMGOLD Corporation (“Respondent” or “IAMGOLD”)	Kimberly Potter, Vaso Maric

DECISION DELIVERED BY WILLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL

A. INTRODUCTION

1This Decision and Order relates solely to a motion commenced by Treelawn dated April 25, 2024 seeking an award of costs (“Motion”) stemming from an earlier proceeding brought by the Applicant before the Ontario Land Tribunal (“OLT” or “Tribunal”) pursuant to s. 181(4) of the Mining Act, which resulted in a Decision of former Vice Chair Lanthier issued November 15, 2022 (“November-22 Decision”). The November-22 Decision sets out the lengthy background and history of this matter, which will not be reiterated here.

2In its Notice of Motion, the Applicant requests that the Tribunal grant:

An Order and/or Award of costs against …IAMGOLD Corporation ("IAMGOLD") in the amounts as set out in the Bill of Costs attached hereto as Schedule "A", or such other amounts to be determined by the Tribunal, in relation to IAMGOLD's section 181(2) Application…, Treelawn's s. 181(4) Application… (i.e.: the appeal of the section 181(2) Application), and the steps related to or incidental to these proceedings…

3The Respondent opposes the Motion and seeks its dismissal.

4The materials before the Tribunal on the Motion were:

(a) Motion Record of Treelawn, comprising 2402 pages (inclusive of exhibits);

(b) Factum of Treelawn, comprising 71 pages

(c) Treelawn Brief of Authorities, comprising 12 pages;

(d) Factum of IAMGOLD, comprising 31 pages;

(e) IAMGOLD Abbreviated Book of Authorities, comprising 90 pages;

(f) Treelawn Supplementary Submissions Concerning Two Sisters Corp Case, comprising 23 pages; and

(g) IAMGOLD Supplementary Factum, comprising 10 pages

5For clarity, as noted in paragraph [4] above, IAMGOLD did not file a responding motion record in this proceeding, solely a factum and supplementary factum.

B. TEST FOR AWARDING COSTS IN A TRIBUNAL PROCEEDING

6It is clear that the test applicable to awarding costs in a proceeding before the Tribunal is much different than the standard used by the Ontario Court of Justice. Significantly, there is no ‘loser pays costs’ principle yet set out in the OLT Rules of Practice and Procedure (“OLT Rules”) or in the Ontario Land Tribunal Act S.O. 2021 C.4 Sched. 6 (“OLTA”). Treelawn acknowledges this by relying on section 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) and Rule 23 of the OLT Rules of Practice and Procedure.

7Section 17.1 of the SPPA provides that:

Costs

17.1 (1) Subject to subsection (2), a tribunal may, in the circumstances set out in rules made under subsection (4), order a party to pay all or part of another party’s costs in a proceeding.

Exception

(2) A tribunal shall not make an order to pay costs under this section unless,

(a) the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith; and

(b) the tribunal has made rules under subsection (4).

Amount of costs

(3) The amount of the costs ordered under this section shall be determined in accordance with the rules made under subsection (4).

Rules

(4) A tribunal may make rules with respect to,

(a) the ordering of costs;

(b) the circumstances in which costs may be ordered; and

(c) the amount of costs or the manner in which the amount of costs is to be determined. […]

Submissions must be in writing

(7) […] submissions for a costs order, whether under subsection (1) or under an authority referred to in subsection (6), shall be made by way of written or electronic documents, unless a party satisfies the tribunal that to do so is likely to cause the party significant prejudice.

8Of course, section 12(3) of OLTA provides that:

Statutory Powers Procedure Act…

(3) Despite section 32 of the Statutory Powers Procedure Act, this Act, the regulations and the rules prevail over any provisions of that Act with which they conflict.

9Thus, section 20 of OLTA is more germane to OLT proceedings than is the SPPA, and provides:

Costs

20 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.

10Rule 23 of the OLT Rules states (below emphasis added):

COSTS

23.1 Who May Request an Order for Costs Only a party may ask for an award of costs at the end of a hearing event. If the request for costs is not made before the Tribunal renders its decision at the end of the hearing event, the party must notify the Tribunal and the party from whom costs are sought within 30 days after the written decision is issued that the party will be seeking costs, against whom the costs are sought, and an indication of the approximate amount of costs being sought.

23.2 Costs Requests will be considered by Written Motion All cost requests shall be considered and disposed of by the Tribunal in writing unless a party satisfies the Tribunal that consideration of the request in writing is likely to cause the party significant prejudice. […]

23.4 Disposition of Request Where Request Made After Issuance of Decision Subject to the party satisfying the requirements in Rule 23.1 for submission of a request, and Rule 23.2 for an in person or electronic motion, the Tribunal may direct the party or parties requesting costs to:

(a) attend before the Tribunal, on notice to the party or parties against whom costs are sought, on a date fixed by the Tribunal, and make oral submissions with respect to the application for costs provided that the party or parties against whom costs are sought shall also be permitted to make oral submissions with respect to the application for costs; or

(b) within 35 days of the Tribunal’s direction, serve upon each party against whom costs are sought, and file with the Tribunal documentation which shall include, subject to any other documentation ordered by the Tribunal:

i the reasons for the request and the amount requested;

ii an estimate of any extra preparation or hearing time caused by the conduct alleged to attract costs;

iii copies of supporting invoices for expenses claimed or an affidavit of a person responsible for payment of those expenses verifying that the expenses were properly incurred; and an affidavit verifying that the costs claimed were incurred directly and necessarily for the time period in question; or

(c) within 35 days of the Tribunal’s direction, serve and file a notice of motion for costs in accordance with Rule 10. A motion for costs shall only proceed as an in person or electronic hearing, if a party satisfies the requirements in Rule 23.2, and the notice of motion must contain the following information:

i the reasons for the request and the amount requested

ii an estimate of any extra preparation or hearing time caused by the conduct alleged to attract costs;

copies of supporting invoices for expenses claimed or an affidavit of a person responsible for payment of those incurred; and

iii an affidavit verifying that the costs claimed were incurred directly and necessarily for the time period in question.

23.5 Response by Other Party Where the Tribunal directs a proceeding in writing in accordance

with Rule 23.2, the party or parties against whom the request for costs is made shall, within 15 days of service of the documentation from the party requesting costs, provide a written response to the Tribunal and the other parties to whom the request for costs is made.

23.6 Reply by Party Seeking Costs Where the Tribunal directs a proceeding in writing in accordance with Rule 23.2, the party requesting costs may provide to the Tribunal and other parties to whom the request for costs relates a reply to a written response, within 10 days of the service of the response.

23.7 Member Seized to Consider Costs Order The Tribunal Member who conducted the hearing event on the merits shall make the decision on the request for costs. If that Member is, for any reason, unable to hear or deal with the request, the Chair will direct another Member of the Tribunal to hear the motion.

23.8 Period Eligible for Costs Order The Tribunal may make a costs award for conduct at any time during a proceeding.

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:

a. failing to attend a hearing event or failing to send a representative when properly given notice, without contacting the Tribunal;

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;

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;

d. a course of conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events;

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

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.

23.10 Powers of Tribunal The Tribunal may deny or grant the application for costs or award a different amount and fix the costs of and incidental to the proceeding and direct payment be made by a certain date by order. […] “

11Perhaps one of the best recent OLT Decisions to summarize the Tribunal’s jurisprudence concerning the discretionary power of the OLT to make a costs award is Two Sisters Resorts Corp. v. Niagara-on-the-Lake (Town), 2023 CanLII 56708 (“Two Sisters”), a Decision issued approximately 14 months ago. Coincidentally, Two Sisters is also a Decision delivered by former Vice Chair Lanthier, who presided over the previous Mining Act proceedings that have given rise to this Motion and the author of the November-22 Decision.

12In Two Sisters, the Tribunal adjudicated two motions seeking a costs order under Rule 23.7 of over $600,000 against a developer who had filed objections under the Heritage Act in relation to two Notices of Intention to Designate on properties that the developer was seeking development approval in various planning applications and related court proceedings. There was a long history of motions, advocacy, and adversarial proceedings often instigated by the developer, which primarily involved the governing municipality and a local association opposing development on the property. Eventually, a five-day hearing to deal with the Heritage Act objections was scheduled for December 6, 2021. However, five weeks before, in the letter dated November 2, 2021, the developer suddenly withdrew its objections. As characterized by VC Lanthier:

Both sides have cast aspersions on the objectives, motivations, strategies, tactics, reasonableness and propriety of the others’ actions, regarding aspects of the obviously acrimonious proceedings

13In Two Sisters, VC Lanthier noted that:

The Town submits that the conduct of the Owners is deserving of an award of costs as it was unreasonable, frivolous, vexatious, due to the manner in which they failed to act in a timely manner, acted disrespectfully and maligned the character of another party

VC Lanthier then defined the issues under Rule 23 as follows:

…6. Did the Owners fail to act in a timely manner in withdrawing the Objections, and if so, was it clearly unreasonable misconduct. Is the misconduct so egregious as to call for extraordinary costs.

7. Were the reasons for withdrawing the Objections, as communicated by the Owner, based upon unfounded and unproven allegations which do not justify their last-minute withdrawal and if so do such reasons clearly constitute circumstances identified in Rule 23.9 which give rise to a discretionary order of costs.

8. Did the Owners fail to act in a timely manner in bringing the Motion to Strike and if untimely, is it clearly unreasonable misconduct and an abuse of process.

9. If the Owners failed to act in a timely manner in bringing or withdrawing the Motion to Strike, or withdrawing the Objections, are such actions part of a history of commencing and abandoning appeals that is itself an abuse of process and clearly unreasonable.

10. Did the Owners malign the character of the Town and act disrespectfully in making statements in the course of the proceedings which were untrue and if so were they serious and clearly unreasonable.

11. Was there an abuse of Process on the part of the Owners because they advanced the Objections and continued the proceedings as a means to secure information to inform and assess its other planning applications.

12. Does any Delay caused by the Objections and the Proceedings which adversely impacted the Rand Estate represent misconduct on the part of the Owners as identified in Rule 23.9 which would give rise to a discretionary order of costs.

13. Is the indication by the Owners, within the withdrawal notice, that they intend to proceed with development applications, make the necessary applications under the Ontario Heritage Act, and pursue binding adjudication on all issues with the Tribunal, an abuse of process that represents clearly unreasonable misconduct on the part of the Owners.

14. If the Town and the Association are entitled to costs, what is the amount that should be awarded…

14Naturally, in every proceeding where costs are sought under Rule 23, the Tribunal’s consideration must turn on the particular facts, allegations, and conduct evident in the case. However, the nature of the issues in Two Sisters is broadly similar to and analogous in character and significance to those raised by Treelawn in this Motion. More importantly, this Decision provided a useful outline of the key principles at play on such costs motions (below emphasis added):

(a) An award of costs by the Tribunal is not routine, is not made lightly, and instead may be considered exceptional. Unlike the Courts, costs do not follow the cause, and costs are not automatically awarded simply because the party filed an appeal that was unsuccessful. The successful party should accordingly have no expectation that he, she, or it will recover its costs of the proceeding.

(b) The absolute requirement for an award of costs is that the party against whom the request is made, must have demonstrated conduct or a course of conduct of a party in the proceeding that has been “unreasonable, frivolous or vexatious” or the party has acted in bad faith. Absent such conduct, there can be no award of cost.

(c) 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.

(d) An objective test must be applied when examining the conduct of the responding party to a motion for costs which is essentially a “reasonable person” test. The Tribunal must consider whether a reasonable person, looking at all of the circumstances, the conduct or course of conduct of the party proven at the hearing, and the person’s familiarity with the Tribunal’s procedures, would conclude that the totality of the party’s conduct was not “right” or “fair”, such that the party should be obligated to compensate the requesting party for that kind of conduct.

(e) 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.

(f) 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 public interest impact of a costs award is a relevant factor for the Tribunal to consider in exercising its discretion. This is especially the case where an appeal clearly gives rises to matters of broader public interest that go well beyond the limited interests of the party or appellant.

(g) 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.

(h) Something which is unreasonable is irrational, not in accordance with good sense, or foolish, whether intentionally or unintentionally.

(i) Frivolous conduct is conduct characterized as conduct demonstrating a lack of seriousness, and unacceptable conduct that is intentionally “silly” or also “foolish”.

(j) Vexatious conduct is conduct characterized as conduct which is instituted without sufficient grounds deliberately for the purpose of causing trouble or annoyance to another party or “nasty”.

(k) An examination of motivation and intent for conduct may be required with respect to conduct during a proceeding. A question that can be asked is: what was the real motivation, the driving force, the endgame relating to the conduct of the party from whom, or from which, costs are pursued and is there a lack of legitimacy of purpose underpinning the actions of the party that causes the conduct to be insincere or disingenuous?...

Rule 23.9, when read as a whole, demonstrates that the threshold for discretionary awards of costs is high, and the incidence of cost awards are rare. The criteria to be considered expressly does not include the success or failure of the party. The Tribunal’s Rules have always focused solely upon the conduct of a party in a proceeding rather than the ultimate result or outcome of the proceeding.

15This Tribunal accepts and adopts the outline of key principles in Two Sisters concerning the factors relevant to the possible exercise of discretion to award costs under Rule 23. Based on the Parties’ supplementary submissions in this proceeding, they also agree that Two Sisters sets out many of the key factors to be considered, although they differ in their views as to its applicability here

16Two additional 2023 Decisions by VC Lanthier concerning costs awards were cited in IAMGOLD’s Brief of Authorities and Factum (Abbotts v. Blue Mountain 2023 CarswellOnt 9980 and Clifford v. Douro-Dummer Township OLT Case No. OLT-22-002230 ), but neither of those two cases or Two Sisters were referred to by Treelawn in its original Factum or Brief of Authorities. Treelawn included in its Brief of Authorities solely a much older 1998 Decision of then Member Krushelnicki of the former OMB in Smith v. Toronto (City) Committee of Adjustment, 1998 CarswellOnt 5498, 37 O.M.B.R. 197, (“Smith”). On the other hand, in its Factum, Treelawn did refer to additional OLT jurisprudence on costs.

C. THE CONDUCT AND BEHAVIOUR OF IAMGOLD DOES NOT MEET THE REQUIRED OBJECTIVE THRESHOLD TO WARRANT THE EXERCISE OF THE TRIBUNAL TO AWARD COSTS

17At the underlying hearing, three witnesses were called on behalf of the Applicant: Mr. Jeffrey Wood, the principal of the Applicant; Ms. Lisa McCormack, a former corporate secretary with Trelawney Mining and Exploration Inc., appearing under summons; and Mr. Greg Gibson, the former President and CEO of Trelawney, also appearing under summons. On the other hand, IAMGOLD called no witnesses, although it did introduce several documents into evidence. It is this fact that is relied upon by Treelawn repeatedly in its Factum.

18In the November-22 Decision, the Tribunal set out a great deal of detail concerning certain rulings it was required to make regarding evidentiary disputes and procedural objections, particularly in Attachment 2 to the November-22 Decision – which were all included in the Treelawn Motion Record. Again, there is no need to replicate in the body of this Decision all of that detail. Certainly, a good deal of that content is set out in Treelawn’s Factum in any event and is expressly relied upon by it.

19The November-22 Decision is lengthy and thorough – as was recognized by the Divisional Court in dismissing the appeal commenced by IAMGOLD. Among other things, that Decision recounts a detailed description of the evidentiary disputes and rulings made. However, it is of interest to this Tribunal that nowhere in the body of that Decision or in Attachment 2 thereto is there any strong negative commentary concerning - or explicit criticism of - the conduct of IAMGOLD or its counsel during the hearing.

20Certainly, the November-22 Decision did contain detailed analysis of the positions taken and tactics employed by counsel for IAMGOLD, and the views of VC Lanthier regarding same. Given the arguments made by Treelawn on this Motion, it is important to examine in detail that analysis and those views, which include the lengthy excerpts which have been extracted to form Attachment A to this Decision.

21Although certainly not determinative of the question as to whether this Tribunal ought to exercise its discretion under Rule 23 to award costs against IAMGOLD, it is nonetheless instructive to consider the comments and analysis of VC Lanthier concerning the numerous and contentious evidentiary disputes between the Parties at the hearing and the tactics and strategy utilized by IAMGOLD’s counsel at the hearing. This is particularly so when Treelawn has in effect relied on so many of the same elements in this Motion in making its arguments that this Tribunal ought to make a costs award against IAMGOLD, as evident in Treelawn’s Factum:

Summary of the Tribunal's Findings

137. The findings of the Tribunal relevant to the issue of costs can be summarized as follows:

a. Failing to call any evidence whatsoever, apart from the read-ins of Jeff Wood on the last day of the hearing.

b. Failing to call or produce any evidence that refutes the existence of the Oral Agreement or contradicts the witnesses Treelawn called.

c. Denying the Oral Agreement without any evidence.

d. Refusing to accept the uncontradicted evidence of the Oral Agreemente. Adopting a strategy of only denying the Oral Agreement and attacking witnesses’ credibility with no foundation or evidence for doing so.

f. Failing to call any witnesses, including Jeff Snow and current employees.

g. Representing to the Tribunal that IAMGOLD would call Jeff Snow and resiling from that representation, without prior notice, only at the end of the hearing.

h. Impugning the uncontradicted evidence of Greg Gibson.

i. Attacking Jeff Wood personally, implying that he was lying under oath.

j. Attacking Jeff Wood personally without introducing any evidence to refute him.

k. Ignoring the public documents and reports confirming Treelawn’s carried interest.

l. Making “numerous” unfounded objections alleging improper leading questions.

m. Making unfounded objections about introducing into evidence six documents Iamgold itself produced.

n. Making unfounded objections to two of three categories of read-ins of Jeff Snow’s examination for discovery.

o. Opposing Treelawn’s position in law regarding the Vesting Order without citing any authority in support.

p. Relying on the Norregaard Memo but not calling Mr. Norregaard, not explaining his unavailability, and refusing to accept uncontradicted evidence that the memo was incorrect.

q. Adding the Wood Family without any foundation for doing so…

22As can be seen from the excerpts in Attachment A, although the Tribunal certainly dealt with all of the matters itemized in paragraph [21] above, it did not chastise or otherwise harshly impugn the conduct of IAMGOLD or its counsel. In this Tribunal’s view, the closest VC Lanthier came to doing so was in relation to the argument of Treelawn that certain adverse inferences ought to be drawn as against IAMGOLD – as set out in the following lengthy passages of the November-22 Decision (below emphasis added):

[255] At the conclusion of this hearing, the Respondent has produced no evidence to dispute the existence of the Oral Agreement between Trelawney and the Applicant or to address the other related issues in this hearing. The Applicant asks the Tribunal to exercise its discretion and draw an adverse inference from the Respondent’s failure to call any witnesses…

[257] Mr. Snow, who was identified in the Hearing Plan as the witness to attend the hearing on behalf of the Respondent, logically has no direct evidence to provide with respect to the Oral Agreement and this has been acknowledged. Mr. Snow might have testified as to what facts that the Respondent relies upon to deny the existence of the Oral Agreement and support its position that the Respondent had no knowledge of the Oral Agreement and the fact that the Applicant’s interest was carried and non-participating…What is abundantly clear is that the Respondent has provided no explanation of any kind for suddenly electing not to call Mr. Snow upon the conclusion of the Applicant’s case. Mr. Snow would remain within the exclusive control of the Respondent…

[261] In the Tribunal’s view, the Respondent’s submissions, and rather vehement cross- examination on Mr. Norregaard’s memorandum, were rather forcefully advanced in support of its assertions that: (a) Mr. Norregaard’s communication underscores how remarkable it is that he was unaware of the Oral Agreement; (b) no one at Trelawney corrected Mr. Norregaard’s expressed views (which, the Tribunal has found, was pointedly contradicted by Mr. Gibson’s testimony); and (c) Mr. Norregaard’s fiduciary duty to his own employer, in forwarding his inter-office Memo to an employee of the Respondent, should be considered. Mr. Norregaard would have been the only person to support the Respondent’s position but was not called by the Respondent. No explanation was provided as to why, given such a position, this employee purportedly acting adverse to Trelawney’s evidence in this hearing, was not called to support the Respondent’s submission on these points.

[262] Cumulatively, the circumstances might very well warrant an adverse inference being drawn against the Respondent as a result of the non-attendance of these witnesses. However, on the central issue of whether there was an Oral Agreement, none of these witnesses, save and except Mr. Norregaard, on behalf of Trelawney, as the other contracting party, might have evidence relating to that central issue. The indication is that these witnesses, particularly Mr. Snow, have no direct evidence to contribute as to the Oral Agreement and the Tribunal will not draw an adverse inference on that central issue.

[263] The failure of the Respondent to call Mr. Norregaard, given the nature of counsels’ submissions, without explanation, does cause the Tribunal to consider exercising its discretion. However, ultimately, when the Tribunal has examined Mr. Norregaard’s statements in writing carefully, (Exhibit 68) they are little more than a personal interpretation of the Vesting Order and other documents he has reviewed. It is unnecessary to draw any adverse inference from his non-appearance at this hearing because upon the whole of the evidence, and in particular the direct testimony of Mr. Gibson contradicting Mr. Norregaard’s opinion, and his direct statement that Mr. Norregaard would have been corrected, the Tribunal is not persuaded that Mr. Norregaard’s non-attendance factors significantly in the weighing of the evidence. There is no indication that Mr. Norregaard has any legal background and the Tribunal has heard and considered the legal arguments as to the effect of the Vesting Order who can provide no evidence of assistance on this point. There is no indication what these “other documents” are that Mr. Norregaard referred to in his Memo, or why he thought Treelawn should be contributing, when there were numerous written statements identifying an interest that would not require such contribution.

[264] There is a distinction to be drawn between drawing an adverse inference from a party electing not to call any witnesses in a civil proceeding and a hearing where the trier of fact is weighing the absence of any evidence of one party against the totality of the only evidence presented by the other party on the issues raised in the proceeding.

[265] In this case, upon the analysis of all of the evidence, the Respondent has advanced no evidence of any kind to support its position that there was no Oral Agreement. The Respondent’s strategy has, to the Tribunal, been to object to the introduction of written evidence, read-ins, and proper questions relevant to the issues before the Tribunal and, through cross-examination of the Applicant’s witnesses, challenge the credibility and reliability of the Applicant’s evidence. The Respondent has the right to present its case and advocate its position as it wishes and no adverse inference will be drawn from that strategy, which included the election not to call any witnesses…

[266] However, as is always the case, the Respondent’s elected strategy is advanced with the risk that the Tribunal will fail to assess the credibility and reliability of the Applicant’s witnesses in the critical and negative manner urged by its counsel. That is the case here, as indicated in the analysis of the evidence…

[268] The Respondent’s steadfast refusal to acknowledge the existence of the Oral Agreement and challenge its form, in the absence of any material evidence from the Respondent to refute the oral testimony submitted by the Applicant, is insufficient to create any doubt in the mind of the Tribunal as to the existence of the Oral Agreement.

[269] In contrast, on the balance of probabilities, with the oral testimony, and the whole of the evidentiary record, the Tribunal has found that the Applicant and the Respondent entered into an Oral Agreement in the form submitted by the Applicant to which the Respondent is bound. No discretionary adverse inference is necessary.”

23This Tribunal agrees with the statements made by VC Lanthier in the November-22 Decision that IAMGOLD’s counsel had the right to present its case and advocate “as it wishes” at the clear risk that its strategy could be entirely unsuccessful – as in fact it was. VC Lanthier dealt squarely with many of the matters complained of and relied upon by Treelawn in this Motion yet did not impose the serious ‘sanction’ of a discretionary adverse inference on those grounds.

24Similarly, this Tribunal is disinclined to consider the same conduct as amounting to serious, clearly unreasonable, frivolous, vexatious, or in bad faith conduct, or as ‘foolish, pointless, or nasty’ behaviour warranting a discretionary award of costs. In reality, IAMGOLD has already suffered the consequences of its poor strategy and tactics since it was completely unsuccessful under the November-22 Decision. But, as noted above, the OLT does not ‘punish’ parties by way of a Rule 23 costs order for losing and also does not thereby reward the prevailing party.

25Treelawn in its Factum relies on other factors in support of its Motion. It points to the circumstances regarding the Pre-Hearing Conference Order; the Procedural Order and the s. 181(2) Order. However, it is this Tribunal’s opinion that these arguments by Treelawn can be distilled to perhaps a single essential point: ‘IAMGOLD aggressively advocated for a different outcome than did Treelawn but Treelawn’s positions were wholly successful’.

26While it may be true that the Tribunal in making those Orders reserved costs to the Tribunal hearing the full dispute, in very lengthy reasons it made no strong disapproving comments or criticisms of the positions taken or tactics employed by IAMGOLD. As already noted, in the absence of other clear detailed evidence of serious misconduct relating to these Orders – none of which is marshalled by Treelawn – this Tribunal will not order costs against IAMGOLD on the basis that it ‘lost’ during those proceedings. The mere fact that IAMGOLD advocated for a different approach than did Treelawn that, in Treelawn’s view, was ‘less procedurally fair’ does not justify a costs award under Rule 23.

27Treelawn also raises the fact that the Tribunal in the November-22 Decision found that the Woods Family Wealth Corporation was not a proper party to the proceeding. If it could be demonstrated through evidence that the sole purpose of adding this entity was to harass, to force the incurrence of unnecessary costs or was otherwise pursued in bad faith, then this could be relevant to the Tribunal’s exercise of discretion under Rule 23. However, here Treelawn offers no such evidence beyond the bald statement in written argument that “IAMGOLD dragged Wood Family through this proceeding needlessly” and simply repeats the Tribunal’s findings about the Woods Family Wealth Corporation. It is important to note that once again the Tribunal did not impugn any conduct of IAMGOLD in that respect.

28Counsel for IAMGOLD notes in its Factum that during the underlying hearing, during cross-examination of Mr. Woods, a parcel register showing that for one relevant property, the Woods Family Wealth Corporation was indicated as owner, was put to him. Ultimately, it seemed that the parcel register was in error in this regard. There were no surrounding circumstances regarding this point that indicated any unfair, unreasonable, foolish, or bad faith conduct on the part of IAMGOLD, however. IAMGOLD also notes that in the second application under the Mining Act brought by Treelawn, it was Treelawn that included as a party Woods Family Wealth Corporation. This Tribunal sees no basis here to consider making an award of costs against IAMGOLD.

29Contrary to the arguments made by Treelawn, there is also no evidence in the motion materials to support the notion that the character of Jeffrey Woods or Greg Gibson were unfairly maligned, nor was there any comment or criticism made by the Tribunal to that effect in the November-22 Decision. Certainly, it appears from both that Decision and a review of the hearing transcripts that during several occasions counsel for IAMGOLD pursued a very robust and vigorous cross-examination of those two witnesses. However, this alone does not rise to the level of unfair, unreasonable, or ‘nasty’ conduct under Rule 23. Clearly, the right of cross-examination in OLT proceedings is broad and ought never to be unduly restricted – although it is subject to reasonable constraints if it becomes repetitive, harassing or highly argumentative. There is no indication that VC Lanthier had to warn or restrict counsel for IAMGOLD in this regard, however.

30As a final point, this Tribunal notes that it cannot accept the proposition that the complete failure of one party’s case strategy at a hearing – however spectacular - should in essence lead the OLT to therefore conclude that this party must have behaved unreasonably, unfairly, in bad faith, or otherwise engaged in serious misconduct. The relevant jurisprudence demonstrates that much more than this is required to meet the threshold test set out in Rule 23 and in the jurisprudence described in Part B above.

ORDER

31THE TRIBUNAL ORDERS THAT this motion by Treelawn Capital Corp. is dismissed. There shall be no Order regarding the costs of the motion.

“William R. Middleton”

WILLIAM R. MIDDLETON

VICE-CHAIR

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.