Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 28, 2025
CASE NO(S).: OLT-25-000150
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Larry Pomerantz
Motion for: Order Awarding Costs
Costs sought against: Township of West Lincoln
Heard: In writing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Larry Pomerantz | B. Duxbury |
| Township of West Lincoln | J. Reynar G. Thorlakson, student-at-law |
DECISION DELIVERED BY S. BRAUN AND C. HARDY AND ORDER OF THE TRIBUNAL
BACKGROUND
1This Decision results from a written Motion for costs by Larry Pomerantz (“Moving Party” / “Appellant”) against the Township of West Lincoln (“Township” / “Respondent”). The costs claimed relate to a consolidated Hearing of two appeals - one in relation to a Temporary Use By-Law (“TUBL”) and another in relation to an Interim Control By-Law (“ICBL”). The Tribunal issued its Decision and Order on July 30, 2025 (“Pomerantz Decision”) dismissing the appeal of the ICBL and allowing the appeal in relation to the TUBL, ordering a three-year extension thereof.
2Costs were initially sought on a substantial indemnity scale in the amount of $92,357.75, plus HST and the costs of this Motion. In reply to materials filed by the Respondent, which took issue with some of the specific costs claimed, namely, planning and engineering fees incurred prior to the February 14, 2025, filing of the appeals, and additional property rental fees, the Moving Party reduced the amount sought to $69,649.87, as follows:
Legal fees: $ 52,312.50
Land Use Planning Witness Fees: $ 23,676.25
Engineering Witness Fees: $ 1,400.00
TOTAL: $ 77,388.75
90% (substantial indemnity): $ 69,649.87
3The following materials were submitted by the Parties:
Notice of Motion, including: o Affidavit of Larry Pomerantz, September 24, 2025 o Written submissions and book of authorities o Supplementary Affidavit of Larry Pomerantz, October 1, 2025
Response to Motion, including: o Affidavit of Gerrit Boerema, October 10, 2025 o Written submissions and book of authorities
Moving Party’s Reply
LEGAL FRAMEWORK
4Section 20 of the Ontario Land Tribunal Act states that, subject to any other Act, the Tribunal may fix the costs of, and incidental to, any proceeding and order a party to the proceeding to pay costs in accordance with the Tribunal’s Rules of Practice and Procedure (“Rules”). The Statutory Powers Procedure Act, in s. 17.1(4), provides that a Tribunal may make rules with the respect to the ordering of costs; the circumstances in which costs may be ordered; and the amount of costs or the manner in which the amount of costs is to be determined.
5The Tribunal’s Rules of Practice and Procedure specify in Rule 23.9:
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.
6The Rule goes on to enumerate a lengthy, yet non-exhaustive, list of conduct which clearly meets that threshold. Finally, it is noted that even in circumstances where a party’s conduct falls squarely within that list, the Tribunal is not bound to order costs and the seriousness of the misconduct will be considered.
DECISION
7The Tribunal finds the Respondent did not exhibit any conduct listed in Rule 23.9 and, looking beyond that non-exhaustive list, its conduct during the proceeding fell short of meeting the necessary threshold for an award of costs. The Motion is therefore dismissed.
THE APPELLANT’S POSITION
8The Appellant submitted that the Township and its planning witness exhibited unreasonable, frivolous, vexatious and bad faith conduct meeting the necessary threshold in Rule 23.9. It was further submitted that, in this instance, the seriousness of the misconduct warrants a substantial indemnity award, as an objective observer of the proceedings would conclude a loss of public confidence in the Township’s planning practices.
9The Tribunal was directed to IAMGOLD Corporation v. Treelawn Capital Corp. and Wood Family Wealth Corporation, 2024 CanLII 97522 (ONLT) (“IAMGOLD”), wherein a panel differently constituted denied a motion for costs, noting “with interest” that the decision of former Vice-Chair Lanthier, who presided over the hearing of the merits, “did not include any strong negative commentary concerning – or explicit criticism of – the conduct of IAMGOLD or its counsel during the hearing”. In contrast to IAMGOLD, it was noted that the Pomerantz Decision includes several adverse findings consistent with intentional and deliberate conduct intended to cause trouble, if not failure, for the Appellant.
10In addition to the foregoing, the Moving Party presented excerpts of minutes from a January 8, 2025 meeting (“Meeting Minutes”) between Township planning staff and WSP, the company conducting a study to determine appropriate uses and a new planning framework for four properties, including the property subject to the TUBL (“Study”). The Moving Party drew attention to the following statements therein:
[Boerema] noted that there is an interested party that has a temporary use establishment for outdoor storage of rain barrels and it (sic) located on the largest parcel on the expanded settlement area. [Boerema] noted that Council does not favour this use and the agreement is set to expire in February 2025…
[Boerema] stated that he does not was to see outdoor storage as the primary employment in this area since it does not generate a substantial taxes (sic) for the Township but to offer more rural employment uses for light industrial or commercial buildings or some storage space on smaller parcels.
11It was submitted that the foregoing is evidence of an intent “to defeat the applicant and to force him out of the property before an ongoing study of potential uses for the property was even finalized…[B]ased upon a lack of any informed evidence of adverse impact and more likely based upon political maneuvering”. It was alleged, in light of this evidence, that:
a. Mr. Boerema interfered with the independence of WSP and attempted to influence the outcome of the Study;
b. Council had already determined it would not support an extension of the temporary use well before it considered that application in February 2025; and
c. Mr. Boerema was prevented from exercising any independent or objective obligation to the Tribunal at the hearing.
12Finally, although the ICBL was upheld by the Tribunal, it was submitted that this appeal was secondary to the TUBL appeal and took up very little hearing time. As such, the Moving Party sought recovery of all costs in relation to the entirety of the proceeding.
TOWNSHIP’S RESPONSE
13The Respondent submitted that its conduct during the proceeding was not unreasonable, frivolous, vexatious, or in bad faith; or, if it was, it was not serious enough to warrant the Tribunal exercising its discretion to sanction the municipality pursuant to Rule 23.9. It was argued that Council was entitled to make the decision it did in relation to the TUBL and to defend same at the hearing, and Mr. Boerema was entitled to change his opinion about the viability of the temporary use after directly observing the site in operation. It was also noted that the Tribunal has previously expressed reluctance to award costs against municipalities, reflecting the idea that a public authority should be permitted to defend its decision in the ordinary course without being subjected to a costs sanction (Woodruff v Woodstock (City), 2022 CanLII 496 (ON LT) at para 20).
14With respect to the various adverse findings in the Pomerantz Decision, the Respondent argued that the Appellant cannot rely on same to demonstrate that the Township was a poor participant in the Hearing, and drew attention to Milski Inc. v Thorold (City), 2023 CanLII 71960 (ON LT) (“Milski”), where the Tribunal declined to award costs based on quotations from a decision that disapproved of the unsuccessful party’s arguments. The Respondent also referenced Hajar Properties Inc. v. London (City), 2023 CanLII 115085 (ONT LT), where the Tribunal found motions for costs cannot succeed based on reiterations of arguments which resulted in success at the hearing.
15In response to arguments stemming from the Meeting Minutes, the Respondent referenced Rule 23.8 and submitted the Tribunal lacks authority to consider conduct prior to the proceeding. It was argued, in the alternative, that if the Tribunal considered this prior conduct relevant to its deliberation on costs, the Township’s decisions, communications and interactions with the Appellant were not unreasonable, as it was seeking to manage the public interest, constituent complaints, and an area in land use planning transition.
16It was submitted that, should the Tribunal find the Respondent’s conduct to meet the threshold in Rule 23.9,
the quantum claimed is excessive;
the Moving Party failed to demonstrate which costs, if any, arise from the alleged misconduct; and
the ordinary costs of a hearing are not recoverable, particularly as in this case, where success was divided.
17Finally, it was submitted that substantial indemnity awards are reserved for conduct which is found to be “reprehensible, scandalous or outrageous”, which the Respondent pleaded against, arguing that a reasonable observer would not be scandalized by its conduct in this ordinary, contested Hearing.
ANALYSIS
18In general, awards of costs at the Tribunal are rare and do not automatically follow success at a hearing, as there is an exceptionally high threshold to be met. In deciding on the Motion, the Tribunal must first determine whether the Township’s conduct during the proceeding was unreasonable, frivolous, vexatious or in bad faith. If that threshold is met, an examination of the seriousness of the conduct is undertaken to determine whether an exercise of discretion to award costs is warranted. Whether the Tribunal finds it appropriate to exercise its discretion is entirely driven by the specific facts of each case. If the Tribunal chooses to do so, it then goes on to determine the appropriate amount to be awarded.
19The decision in IAMGOLD quotes extensively from Two Sisters Resorts Corp. v. Niagara-on-the-Lake (Town), 2023 CanLII 56708 (“Two Sisters”), a decision of former Vice-Chair Lanthier who, at paragraph 14, paraphrases the accepted test to be applied
…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.
20That same paragraph goes on to explain some key considerations in relation to costs motions including, but not limited to, the following:
Something which is unreasonable is irrational, not in accordance with good sense, or foolish, whether intentionally or unintentionally...
Frivolous conduct is conduct characterized as conduct demonstrating a lack of seriousness, and unacceptable conduct that is intentionally “silly” or also “foolish”’
Vexatious conduct is characterized as instituted without sufficient grounds deliberately for the purpose of causing trouble or annoyance to another party or “nasty”
21Certain admissions made by Mr. Boerema during his testimony illuminated the fact that, throughout the Appellant’s attempts to navigate a complicated planning process, Township planning staff treated him rather unfairly and at times, whether intentionally or unintentionally, provided him with misleading information. Despite later expressions of regret/attempts at clarification of this testimony (as expressed in Mr. Boerema’s October 10, 2025 Affidavit), it is clear to the Tribunal that, in this instance, Township planning staff did the exact opposite of “working collaboratively [with the Appellant] to resolve matters without having to resort to the appeal process”. However, what undermines public confidence in the Township’s good-faith provision of information and evaluation of planning applications is not Mr. Boerema’s testimony itself, but the actual conduct of planning staff prior to the appeal.
22There is no dispute that planning staff abruptly reversed prior opinions that the temporary use should continue until the completion of the Study so that it could, thereafter, be evaluated against the new planning framework. While the Meeting Minutes appear to suggest that a decision on the extension application had been pre-determined at least a month in advance of both planning staff’s recommendation report and Council’s vote on same, the Tribunal declines to speculate on the motives/intent behind the decision and the reversal of opinion, and notes that allegations regarding interference with the independence of WSP and an attempt to influence the outcome of the Study are beyond the scope of this Motion.
23Despite there being an air of unfairness in some of the foregoing, Rule 23.8 makes it clear that costs may only be awarded for conduct during a proceeding. Turning to an examination of the proceeding, the Township was entitled to defend the decisions of Council and although the evidence and arguments presented were not found to be compelling, the Respondent did approach the proceedings with seriousness, cooperated with opposing counsel to produce a joint document book, and called a planning witness to provide opinion evidence at the Hearing.
24The Tribunal is not persuaded that determinations made by planning staff or Council prior to the Hearing prevented Mr. Boerema from fulfilling his acknowledgement of expert’s duty at the Hearing. Although many of the opinions provided by the Appellant’s experts were preferred over those of Mr. Boerema, the Tribunal accepts that he genuinely held the opinions communicated during the Hearing.
25Similar to the outcome in Milski, during the Hearing the Tribunal preferred the arguments of the Appellant, which led to the Appellant’s successful appeal. Although the Tribunal was indeed critical of many weaknesses in the Respondent’s case throughout the Pomerantz Decision, the presentation of a weak case falls short of the type of serious misconduct which might attract a costs award. It is well settled that success or failure of a party’s case is not a relevant consideration on these types of Motions.
26Ultimately, following consideration of the Respondent’s conduct throughout the relevant time period, it cannot be said that it approached the proceedings with a lack of seriousness, foolishness, silliness, nastiness or deliberately to cause trouble. Having found that the Respondent’s conduct during the proceeding did not rise to the necessary threshold, the Tribunal will not exercise its discretion, and the requested relief is accordingly denied.
ORDER
27The Motion for costs is dismissed.
“S. Braun”
S. Braun
vice-chair
“C. Hardy”
c. hardy
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.