Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

February 27, 2025

CASE NO(S).:

OLT-23-001262

PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2

Appellants:

See Attachment 1 – Appellant List

Applicant:

Alexis Brenner and Andrew Duncan

Respondent:

Niagara Escarpment Commission

Subject:

Conditions of Approval for a Development Permit Application

Description:

To appeal the conditional approval of a Development Permit Application for recognizing the existing use of various activities occurred on the subject property

Reference Number.:

G/A/2023-2024/259

Property Address:

576799 Concession 9

Municipality/UT:

Chatsworth/Grey

OLT Case No.:

OLT-23-001262

OLT Lead Case No.:

OLT-23-001262

OLT Case Name:

Brough v. Ontario (Niagara Escarpment Commission)

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

Request by:

Alexis Brenner and Andrew Duncan

Request for:

Request for an Order Awarding Costs

Costs sought against:

Susan Reeve and Donald Brough

Linda Hyder

Armand and Barbara Labute

Shirley Torrie

Ange and Brad Torrie

Beatrice and Veronica Balough

Paul Dreossi

Heard:

February 20, 2025 in Writing

APPEARANCES:

Parties

Counsel/Representative*

Ange and Brad Torrie, Beatrice and Veronica Balogh, Linda Hyder,

Shirley Torrie, and

Susan Reeve and Donald Brough

John Goudy

Paul Dreossi

Self-Represented*

Armand and Barbara Labute

Not Present

Alexis Brenner Andrew Duncan (“Applicants”)

Alexis Brenner*

DECISION DELIVERED BY JEAN-PIERRE BLAIS AND ORDER OF THE TRIBUNAL

INTRODUCTION

Link to Order

1The matter before the Tribunal is a Motion for Costs against “the Appellants” brought by the Applicants in the amount of $35,000 following a Report issued on December 19, 2024, by this Member, acting as a Hearing Officer under the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.3, and following a vigorously disputed five-day Merit Hearing.

2Eric K. Gillespie acted for the Applicants at the Merit Hearing and sent a letter to the Tribunal on January 16, 2025, advising that, pursuant to Rule 23.1 of the Tribunal’s Rules of Practice and Procedure (“Rules”), the Applicants would be seeking costs against “the Appellants”.

3On January 17, 2025, the Tribunal directed that the Applicants serve and file their Motion Materials within 35 days. The Motion Materials were to include a Notice of Motion, including the reasons for the request, as well as the information listed under Rule 23.4(b) of the Rules.

4Ms. Brenner informed the Tribunal that she would be representing herself and Andrew Duncan on this Motion for Costs and filed what might very loosely be called a Notice of Motion and relevant Affidavits with respect to costs incurred, namely an Affidavit affirmed by Andrew Duncan on February 20, 2025, and an Affidavit affirmed by Sarah Quildon on February 20, 2025. These Affidavits were respectively marked as Exhibit 1 and Exhibit 2 to this Motion for Costs.

5The Parties against whom the request for costs was made were exceptionally directed to wait for further instructions with respect to filing their Response. Given the Tribunal’s findings below, their Responses are not required to dispose of this matter as the Applicants have not demonstrated, even minimally or on a prima facie basis, why cost ought to be awarded.

WHO ARE THE PROPER RESPONDENTS TO THIS MOTION FOR COSTS?

6There were several Appellants in this appeal, namely Ange and Brad Torrie, Beatrice and Veronica Balogh, Linda Hyder, Shirley Torrie, Susan Reeve, Donald Brough, Paul Dreossi, and Armand and Barbara Labute.

7Many, but not all, of the Appellants were represented by John Goudy.

8Paul Dreossi and Armand and Barbara Labute were not represented by Mr. Goudy and did not take an active part in the Merit Hearing. Mr. Goudy informed Ms. Brenner on February 20, 2025, that he did not represent the Labutes.

9There is no evidence before the Tribunal that the Labutes have been properly served with the Motion for Costs or had notice of the same. This is despite the clear direction of the Tribunal to the Applicants with respect to Rule 7.11 of the Rules. Accordingly, the Tribunal finds that the Labutes are not proper respondents to this Motion for Costs, and no order as to Costs could be made against them.

10With respect to the other Appellants, Mr. Gillespie copied his letter of January 16, 2025, to Mr. Goudy (incorrectly identifying him as “Counsel for the Applicants”) but not Mr. Dreossi. Ms. Brenner appears, however, to have served electronically Mr. Goudy (on behalf of his clients) and Mr. Dreossi with the Motion for Costs and the related Affidavits.

11Accordingly, the Tribunal finds that the following individuals are the sole respondents to this Motion for Costs: Ange and Brad Torrie, Beatrice and Veronica Balogh, Linda Hyder, Shirley Torrie, Susan Reeve, Donald Brough, and Paul Dreossi (hereinafter, the “Respondents”).

CRITERIA FOR AWARDING COSTS

12The test to establish whether costs should be awarded pursuant to section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, is set out in Rule 23.9 of the Rules. Under this Rule, 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 acted in bad faith. The decision to award costs is discretionary, whether the threshold is met or not, and the onus is on the party seeking a Cost Order to demonstrate that such conduct has occurred.

13The Tribunal’s approach to assessing and awarding costs is ably and comprehensively set out by Vice Chair Lanthier’s decision in Abbotts v. Blue Mountains (Town), 2023 CanLII 56712 (ON LT).

IS A COST ORDER WARRANTED IN THIS INSTANCE?

14The Applicants request that the Tribunal award full indemnity costs in the amount of $35,000 for conduct deemed “reprehensible, scandalous or outrageous”, or at a substantial indemnity basis if the conduct is considered “merely unreasonable, vexatious or bad faith conduct”. The Applicants are not seeking costs for the six Case Managements Conferences but seek to recover costs associated with the preparation for and appearance at the Merit Hearing.

15Upon review of the Applicant’s Motion materials, the Tribunal finds their submissions to be completely lacking in substance and merit.

16Paul Dreossi did not appear at the Merit Hearing in person but sent written submissions. Counsel for the Applicants did not object. Considering his minimal involvement in the Merit Hearing, a claim of costs against Mr. Dreossi is entirely without merit and verges on the frivolous.

17With respect to the other Respondents, the Applicants have failed to meet the threshold for an award of costs, which they themselves admit is “neither routine nor an entitlement of a successful party.”

18First, the Applicants’ allegations that the Respondents’ behaviour was motivated by the Applicants’ non-Christian ownership of the property is completely devoid of any evidentiary support on this Motion for Costs through affidavit evidence or otherwise. Moreover, this Member saw absolutely no evidence at the Merit Hearing that religious discrimination was an underlying motivation by the Respondents.

19Second, the Respondents’ submissions and evidence, though ultimately unsuccessful, were not unreasonable or devoid of any merit. Much turned, in the end, on the Appellants having the burden of the case (and not the Applicants), a matter of explicit agreement by Counsel for both sides. Moreover, the Member often had to decide valid but contradictory factual matters based on a balance of probabilities. Despite what the Applicants seemingly suggest implicitly in their submission of this Motion for Costs, the outcome of the Appeal was anything but certain for either side. At the end of the day, the Respondents’ case was not without merit and did not lack seriousness. It simply was less persuasive, on balance, than the position taken by the Applicants. The finding that certain evidence is not probative, helpful, or to be given much weight does not mean that the Respondents’ Appeal and the conduct of the Appeal were improper, abusive, reprehensible, scandalous, frivolous, vexatious, unreasonable, or made in bad faith. No reasonable person could so conclude.

20Third, although the list of concerning conduct at Rule 23.9 is not exhaustive or binding on the Tribunal, the Applicants have neither alleged nor proven any such conduct.

21Fourth, the Applicants conveniently ignored the Tribunal’s finding that Ms. Brenner’s own evidence as being “of very little use” to the Tribunal and was characterized as “very defensive, argumentative, and self-serving”.

22For all the above, the Tribunal is not persuaded that this is a case to exercise its discretion to award costs.

ORDER

23THE TRIBUNAL ORDERS THAT the application for costs is denied and no costs are awarded.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS

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.

Attachment 1

Appellant List

Appellant Name

Appeal No.

Susan Reeve and Donald Brough

009583

Linda Hyder

009584

Armand and Barbara Labute

009585

Shirley Torrie

009586

Ange and Brad Torrie

009587

Beatrice and Veronica Balough

009588

Paul Dreossi

009589