Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
March 17, 2025
CASE NO(S).:
OLT-23-001195
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
1685078 Ontario Inc.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To facilitate the development of 21 new residential dwellings
Reference Number:
RZ 08-05
Property Address:
0 Highway 9, Part of Lots 28 & 29, Concession 9
Municipality:
Town of Caledon
OLT Case No.:
OLT-23-001195
OLT Lead Case No.:
OLT-23-001195
OLT Case Name:
1685078 Ontario Inc. v. Caledon (Town)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
1685078 Ontario Inc.
Subject:
Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description:
To facilitate the development of 21 new residential dwellings
Reference Number:
21T-08001C
Property Address:
0 Highway 9, Part of Lots 28 & 29, Concession 9
Municipality:
Town of Caledon
OLT Case No.:
OLT-23-001196
OLT Lead Case No.:
OLT-23-001195
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by:
Caledon Residences Inc.
Request for:
Request for an Order Awarding Costs
Costs sought against:
Town of Caledon
Costs sought against
1685078 Ontario Inc.
Heard:
March 04, 2025 in Writing
APPEARANCES:
Parties
Counsel
Caledon Residences Inc.
M. Helfand
1685078 Ontario Inc.
J. Alati
M. Cook
The Corporation of the Town of Caledon
P. Boutis
DECISION DELIVERED BY C. HARDY AND ORDER OF THE TRIBUNAL
Link to Order
1Caledon Residences Inc. (“CRI”) submitted a request for costs to the Tribunal and, in accordance with Rule 23 of the Tribunal’s Rules of Practice and Procedure (“Rules”), the Tribunal directed that the request be heard by way of written Motion. This Decision and Order determines CRI’s Motion for Costs (“Motion”).
MATERIALS CONSIDERED
2CRI served and filed a Notice of Motion on January 16, 2025, together with the Affidavit of Teresa Patterson sworn on January 13, 2025, with composite exhibits, the Affidavit of Jim Rawling sworn on January 13, 2025, with composite exhibits and an excerpt of the Rules. CRI also filed a Notice of Reply to the Responses, dated February 6, 2025.
31685078 Ontario Inc. (“Appellant”) served and filed its Notice of Response to Motion dated January 27, 2025, which included the Notice of Response and the Affidavit of Robert Russell, dated January 27, 2025, with composite exhibits. The Appellant also filed a Book of Authorities.
4The Corporation of the Town of Caledon (“Town”) served and filed its Notice of Response to Motion, dated January 31, 2025, which included the Notice of Response and Affidavit of Kamille Champagnie, dated January 31, 2025, with composite exhibits. The Town also filed a copy of Pauze v. Midland (Town) (1995) 32 O.M.B.R. 4 (O.M.B.) (“Pauze”).
BACKGROUND
5The Appellant is the owner of land municipally known as 0 Highway 9 in the Town (“Subject Property”). In March 2008, the Appellant applied to the Town for a Zoning By-law Amendment (“ZBA”) and a Draft Plan of Subdivision (“DPS”) to facilitate the development of 22 estate lots for single detached residential dwelling units. The applications had a lengthy history as set out in detail in the Tribunal’s Decision issued on December 24, 2024, and need not be reiterated in this Decision, but for the following points, which provide context for this Motion.
6At the first Case Management Conference (“CMC”) convened on February 22, 2024, CRI was granted Party status to the proceedings. CRI is the developer of a 41-unit subdivision south of the Subject Property (“CRI lands”). In 2014, CRI filed applications for a DPS and ZBA relating to the CRI lands, the development was approved by the Town in 2016 and is currently fully constructed. CRI had an interest in the proceedings as it had funded infrastructure as part of its subdivision, and it argued that the Appellant’s proposed development would benefit from the infrastructure. As such, CRI wished to include cost sharing issues related to the infrastructure.
7The Parties attended a second CMC on June 11, 2024, where inter alia, the Tribunal scheduled a five-day hearing to commence on November 4, 2024, which was later reduced to a three-day hearing to commence on November 6, 2024. Pursuant to the second CMC, the Procedural Order (“PO”) governing the proceedings was issued by the Tribunal on June 26, 2024.
8On consent, the hearing was adjourned, and a three-day hearing was scheduled to commence on December 9, 2024. Following without prejudice discussions between the Appellant and the Town, on September 22, 2024, the Town advised the Tribunal and all Parties that its issues had been resolved and as such, it would not be exchanging witness statements in accordance with the PO timeline.
9On December 6, 2024, the Tribunal was advised that the Town and the Appellant had entered Minutes of Settlement, and it was further advised that the Appellant was withdrawing its DPS appeal.
STATUTORY FRAMEWORK
10The Tribunal’s authority to award costs can be found in section 20 of the Ontario Land Tribunal Act, S.O. 2021, c. 4, Sched. 6 (“OLTA”) and Rule 23 of the Rules, which are consistent with the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended. 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.
11Rule 23.9 sets out the circumstances under which costs may be awarded, as well as a non-exhaustive and illustrative list of the type(s) of conduct which might attract such an award.
COSTS CLAIM AND POSITION OF CRI
12CRI seeks the following relief from the Tribunal:
a) An award of costs in the total amount of $80,993.03, with 50% attributable to the Town and 50% attributable to the Appellant; and
b) Such further and other relief as counsel may advise and this Tribunal permit.
13In support of the requested relief, it is submitted that CRI incurred significant expenses in the pursuit of the inclusion of a cost sharing obligation as a draft plan condition and those costs were ultimately wasted. CRI fully participated in the appeal up to the point of the Appellant’s withdrawal of the DPS appeal hours before the hearing was scheduled to begin (the withdrawal occurred on a Friday with the hearing set to commence on a Monday). CRI refers to:
Rule 23.9 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 PO; and
Rule 23.9 c) failing to act in a timely manner or failing to comply with a PO or direction of the Tribunal where the result is undue prejudice or delay.
14CRI argues that the withdrawal of the DPS appeal itself does not attract an award of costs, rather, it is the conduct surrounding the withdrawal of the DPS appeal that was problematic. To emphasize the point and the distinction, CRI relied on Two Sisters Resorts Corp. v. Niagara-on-the-Lake (Town), 2023 CanLII 56708 (“Two Sisters”) where it was noted that:
(I)f the party’s conduct is examined and that conduct can be objectively considered to be unreasonable, frivolous, vexatious, or in bad faith and the timing of the withdrawal…is demonstrative of conduct requiring the exercise of discretion, then costs may be ordered based upon such misconduct.
15CRI alleges that the Appellant and the Town led the Tribunal and CRI to believe that the DPS appeal would proceed, and at the last minute, they changed course resulting in extreme prejudice against CRI.
16CRI submits that the conduct of the Appellant and the Town were unreasonable as both were aware that CRI had an interest in the draft plan conditions as it sought a cost sharing condition which could be secured through the draft plan process. Further, both knew that CRI had a reasonable expectation that it would have an opportunity to call evidence regarding the cost sharing condition and that withdrawing the DPS appeal would remove the Tribunal’s jurisdiction over CRI’s request, which would cause prejudice against CRI. The last-minute withdrawal of the DPS appeal resulted in CRI losing its opportunity to call a case for which it had fully prepared. CRI alleges that it was “strung along” by the Appellant and the Town to believe that the DPS appeal would be heard by the Tribunal. CRI argues that the Appellant and Town intended to cause prejudice to CRI by withdrawing the DPS appeal and maintaining the ZBA appeal in order to prevent CRI from advancing its case on the draft plan conditions. Further, the “formal notice” to CRI of the withdrawal one business day prior to the start of the hearing resulted in CRI being unable to change course or bring a motion to amend its issues.
17The sworn Affidavit of Mr. Rawling details the costs incurred and includes supporting material in the form of invoices. He notes that the costs requested are limited to legal and consultant fees incurred from May 2024 when CRI was granted Party status up to December 9, 2024, being the first day of the hearing. CRI is not claiming costs incurred relating to filing the Party status request, nor costs incurred in filing this Motion.
18In its Reply materials, CRI refutes the Appellant’s notion that confidential discussions made it unable to inform CRI of the potential withdrawal of the DPS appeal, but rather, submits that the Appellant made a calculated choice not to tell CRI. In support, CRI notes that on December 2, 2024, the Appellant filed a hearing plan with the Tribunal that included the DPS appeal and on that same day, it had entered Minutes of Settlement with the Town, which contemplated the DPS withdrawal.
19CRI agrees that the Appellant had a right to withdraw its DPS appeal but argues that the question in the Motion is whether the withdrawal was unreasonable. CRI submits that it was unreasonable for the following reasons:
i. The purpose of the withdrawal was to prevent CRI from advancing its case;
ii. CRI was led to believe the DPS appeal would proceed until the last minute withdrawal;
iii. The Appellant and the Town deliberately withheld informing CRI of their intention to withdraw the DPS appeal; and
iv. The Appellant and the Town knew or ought to have known that CRI was incurring expenses for a hearing that they knew would be withdrawn.
20CRI distinguishes Newhouse v. Mississauga (City), 2023 CarswellOnt 11684 (OLT) (“Newhouse”) which was relied upon by the Appellant as being “right on the money”. CRI points out that notice to withdraw in Newhouse was provided in a timely manner as opposed to the extremely short notice provided by the Appellant. Further, the appeal in Newhouse was withdrawn in full whereas in this case, the ZBA remained with the Tribunal. CRI submits that this distinction is important as one appeal remained with the Tribunal and as such, with more notice, CRI could have brought a motion to amend its issues or provide an alternative course of action. CRI argued that costs awards are fact-specific and urged the Tribunal to prefer the guidance set out in the Two Sisters decision.
21In sum, it is the position of CRI that the settlement was reached between the Appellant and the Town months before the formal withdrawal of the DPS appeal was made and the conduct of the Appellant and the Town is clearly unreasonable behaviour falling squarely within Rule 23.9, which should be sanctioned with an award of costs.
RESPONSE TO THE MOTION BY THE APPELLANTS
22In its Responding materials, the Appellant requests that the Tribunal dismiss the Motion. It is argued that CRI’s entire claim hinges upon the conduct surrounding the withdrawal of the DPS appeal and the conduct in no way approaches the high threshold required for the Tribunal to exercise its discretion in awarding costs.
23It is submitted that the timeline set out in CRI’s materials demonstrates that throughout the proceedings, the Appellant conducted itself in a reasonable manner, abiding by all of the requirements set out in the PO leading up to the hearing. The Appellant argues that all communications to the Tribunal were consistent with its intended course of action at the time those communications were made.
24The Appellant submits that CRI was not privy to its discussions with the Town for the very fact that they were confidential without prejudice settlement discussions and until the negotiation was complete, it could not disclose the subject matter of the discussions or the implications to the DPS appeal. The Appellant agrees with CRI that its change in position was last minute, however, argues that it is not the type of change in position contemplated in the Tribunal’s Rules. Rather, the change in position was not unreasonable and CRI was advised of the change within minutes of the full execution of the Minutes of Settlement and prior to the Appellant notifying the Tribunal. The Appellant refers to Wang v. Ottawa (City), 2023 CarswellOnt 15373 (OLT) in support of its argument that awarding costs against the Appellant would dissuade Parties from working together to reach a settlement and avoid a contested hearing.
25The Appellant points out that CRI’s argument that the last-minute withdrawal did not afford it the opportunity to change course and bring a motion for alternative relief was unsupported by any legislation, rules, or case law. The Appellant asserts that the Planning Act, R.S.O. 1990, c. P.13, as amended (“Planning Act”) contemplates the withdrawal of a DPS appeal in s. 51(36), and further, third Parties do not have independent appeal rights relating to draft plans. The Planning Act provides the Appellant with the right to withdraw its DPS appeal and it has no obligation to maintain an appeal to allow CRI the opportunity to remain as a Party. In addition, the Appellant argues that any prejudice suffered by CRI was self-induced as it could have advanced issues on the ZBA appeal from the start knowing that a draft plan appeal could be withdrawn by the Appellant at any time pursuant to the Planning Act.
26The Appellant argued that the Tribunal in Newhouse provided some helpful findings, particularly that Parties should expect to incur costs in pursuing appeals and should be aware of the Tribunal’s high threshold to trigger an award of costs. The Tribunal in Newhouse found that the conduct throughout the proceedings could not be characterized as lacking seriousness, irrational, or designed to cause annoyance and the Appellant argued that its conduct could be characterized in the same manner.
27The sworn affidavit of Mr. Russell sets out a detailed timeline of the execution of the Minutes of Settlement between the Appellant and the Town. He notes that confirmation of the fully executed Minutes of Settlement was received by the Appellant on December 6, 2024 at 12:19 p.m. and Counsel for CRI was advised of the settlement and the withdrawal of the DPS appeal on December 6, 2024 at 12:44 p.m., less than a half hour following the full execution of the Minutes of Settlement. He explained that until the DPS appeal was withdrawn on December 6, 2024, he and other experts were actively preparing for a contested hearing.
28Overall, it is submitted that, when one examines the totality of the circumstances, it cannot be said that the Appellant’s conduct was unreasonable, and the high threshold required for the Tribunal to exercise its discretion to award costs has not been established by CRI.
RESPONSE TO THE MOTION BY THE TOWN
29In its Responding materials, the Town requests that the Tribunal dismiss the Motion. In the alternative, the Town submits that if the Tribunal decides to use its discretion and award costs, the Appellant should bear the costs and not the Town. In the further alternative, if the Tribunal determines that the Town should bear some of the costs, the Town submits that costs should be nominal given that the Town did not contribute materially to CRI’s incurred costs.
30The Town set out a chronology of events, noting that the Ministry of Transportation (“MTO”) was opposed to the original application due to the lack of adherence of the Mount Pleasant Access Point with MTO’s Highway Access Management Guidelines. The Town explained in its materials that the proceedings continued in the normal course while the Appellant and the Town engaged in without prejudice discussions relating to the MTO concern. On August 7, 2024, the Town provided a letter of opinion regarding MTO’s concern. On September 22, 2024, it advised all Parties that its issues had been resolved as MTO was now satisfied with the proposal.
31The Town asserts that pursuant to Rule 23 and as set out in Two Sisters, a Party must have demonstrated conduct or a course of conduct that has been unreasonable, frivolous, vexatious, or acted in bad faith, and without this level of conduct, no costs can be awarded. The Town points to the “reasonable person” test set out in Pauze and which is commonly referred to by the Tribunal when examining the conduct of Parties:
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 Tribunal’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.
The Town submits that its conduct throughout the proceedings does not meet the test set out in Pauze.
32The Town submits that on September 22, 2024, it notified all Parties that its issues had been resolved and as such, it would not be providing witness statements. At that time, the Town anticipated that the DPS conditions would be presented to the Tribunal as part of a settlement. The Town emphasized that it is the approval authority and has no control over what an Appellant decides to do with its appeal. Further, CRI is a sophisticated Party and ought to know that withdrawal of a DPS appeal was always open to an Appellant and is contemplated in the Act. The Town did not consent to the withdrawal, and further its consent is not required. The Town argues that if costs are awarded in these circumstances, the Appellant and the approval authority would be put in a position of being forced to go through with a hearing rather than withdrawing an appeal in order to avoid costs consequences to third Parties, when such a withdrawal is specifically contemplated by the Act. The Town alleges that this is an absurd result.
33Finally, the Town looks to Rotary Club of Brampton Glen Community Centre v. Brampton (City), 2024 CanLII 109284 (ON LT), which found that costs could only be awarded if the conduct is so improper that it cannot be ignored. The Town argues that its conduct surrounding the withdrawal of the DPS appeal was not improper at all. Town staff cannot exercise their authority to approve draft plans, or related conditions, if a draft plan appeal remains in front of the Tribunal. As of its September 22, 2024 email, the DPS appeal remained in front of the Tribunal, so the only option was to proceed to a settlement hearing. From the September 22, 2024 email up until the withdrawal of the DPS appeal, the Town asserts that resolution discussions continued with the Appellant. The two Parties reached an agreement that upon the Appellant’s withdrawal of the DPS appeal, the Town would approve the DPS and the related conditions.
34To summarize, the Town argues that the conduct was consistent with the nature of settlements. Looking at the proceedings as a whole, a reasonable person could not conclude that the conduct was not right, not fair and resulted in being obligated to another for that conduct. Rather, the conduct of the Town is consistent with the statutory framework and the nature of settlements.
ANALYSIS AND DISPOSITION
35As a starting point, costs are rarely awarded in Tribunal proceedings as the threshold which a Party claiming costs must meet is high. The Tribunal has discretion to award costs and the exercise of that discretion is fact-specific and reserved for exceptional circumstances, including clearly unreasonable conduct, which was the focus of CRI’s arguments in the Motion. The Tribunal also recognizes that there are circumstances where Parties must be accountable for their conduct when it is clearly unreasonable, and despite the high threshold, Parties are not immune from having costs awarded against them in certain circumstances.
36The Town asserted that CRI is a sophisticated Party and ought to have known that pursuant to the Act, withdrawal of a DPS appeal was always an option open to the Appellant. While the sophistication of a Party may be a factor in assessing conduct, the Tribunal is not persuaded that it would also be a factor in being familiar with the relevant legislation. Rather, the Tribunal routinely reminds all Parties, including self-represented Parties, that in order to fully participate in an appeal, they must familiarize themselves with the relevant Rules and legislation. In this case, sophistication of a Party has nothing to do with the fact that CRI ought to have been aware that the Planning Act contemplates withdrawal of a draft plan appeal at the sole discretion of the Appellant.
37CRI argued that the Appellant and the Town knew, or ought to have known, that CRI was continuing to fully participate in the appeal and incurring related costs with the reasonable expectation that both the ZBA and DPS appeals would take place on December 9, 2024. The Tribunal was persuaded by the Appellant’s interpretation of Newhouse, where the Tribunal found a Party can expect to incur some costs in pursuing appeals and ought to be aware of the high threshold to meet for the Tribunal to exercise its discretion to award costs. While the Tribunal agrees with CRI that the facts in Newhouse are distinguishable, the findings in Newhouse are relevant. The Tribunal was not persuaded that the conduct of the Appellant or the Town lacked seriousness, was irrational, or designed to cause annoyance. In fact, CRI and the Appellant continued to fully participate in the appeal and incur related costs, which were reasonable given that the settlement between the Appellant and the Town was not finalized until one business day prior to the commencement of the hearing. The Tribunal finds that the Appellant and the Town notified CRI in a timely manner of the settlement and the withdrawal of the DPS appeal.
38The Tribunal was not presented with any evidence that the Appellant and the Town deliberately (emphasis added) withheld informing CRI of the intention to withdraw the appeal. In fact, the chronology set out in the Town’s materials demonstrates that as of September 22, 2024, the Appellant and the Town had reached a resolution which would be presented to the Tribunal at a hearing of the proposed settlement. It was not until December 6, 2024, that the settlement was finalized and at that time, CRI and the Tribunal were informed of the settlement. As set out in the Motion materials, during the intervening period between September 22, 2024 and December 6, 2024 the Appellant and the Town continued discussions which ultimately resulted in a settlement agreement which included the Appellant withdrawing the DPS appeal thereby taking jurisdiction away from the Tribunal and placing it back with the Town, allowing it to approve the DPS and related conditions.
39The Tribunal finds that none of the evidence presented demonstrates deliberate withholding of information or any unreasonable conduct on the part of the Appellant or the Town. Confidential without prejudice settlement discussions are standard practice as appeals work their way towards a hearing. The Tribunal was persuaded that the last-minute change in the Appellant’s position was the result of ongoing settlement discussions between the Appellant and the Town. As evidenced in Mr. Russell’s affidavit, CRI was notified of the settlement within a half hour of it being fully executed by the Appellant and the Town. The conduct was not unreasonable and in no way can the Tribunal find that it demonstrates the type of conduct contemplated in Rules 23.9 (b) or (c). Looking at the conduct of the Appellant and the Town objectively, as noted in Two Sisters, the Tribunal cannot find the timing of the withdrawal of the DPS appeal to be unreasonable, frivolous, vexatious or in bad faith. The Tribunal was not presented with any concrete evidence that the Appellant or the Town intended to cause prejudice to CRI, and the Tribunal will not speculate that this was the ultimate objective of the withdrawal of the DPS appeal and the maintaining of the ZBA appeal.
40The withdrawal of the DPS appeal immediately prior to the scheduled hearing cannot be viewed independently of all other conduct leading up to a hearing event. When looking at the conduct of the Appellant and the Town throughout the proceedings, the Tribunal cannot find that either Party exhibited conduct that it would consider clearly unreasonable, frivolous, vexatious, or bad faith. The Tribunal cannot find that the conduct of the Appellant and/or the Town rose to the level of being unfair, not right, or clearly unreasonable to warrant the Tribunal’s exercise of discretion in awarding costs in favour of CRI.
41Separate and apart from the analysis and reasons given above, the Tribunal was concerned to find CRI’s implication in its Motion materials, which form part of the public record, that the Tribunal appeared to be aware of discussions between the Town and the Appellant to which CRI was not privy to. The implication that the Tribunal was being informed of discussions between the statutory Parties while CRI was “kept in the dark” is not supported nor substantiated in any way by CRI. On September 22, 2024, all Parties, including the Tribunal and CRI, were made aware that the Town and the Appellant were working on draft plan conditions, and the intent was to present those to the Tribunal as part of a settlement. The Tribunal routinely emails Parties as events are approaching to clarify what Parties’ intentions are at a hearing event. In no way does the email from the Tribunal’s Case Coordinator requesting an update on the status of the draft plan conditions imply that the Tribunal was being improperly informed by the Appellant and the Town while CRI was “kept in the dark”. The unsubstantiated allegation in CRI’s Motion materials brings the reputation of the Tribunal into disrepute. To be clear, every Tribunal Member, including the presiding Member, approach all hearing events in an unbiased and impartial manner and Members make decisions based on the evidence presented. As a further point of clarification, in no way did this allegation by CRI have any impact on the Tribunal’s consideration or rulings on this Motion.
ORDER
42THE TRIBUNAL ORDERS THAT the application for costs is denied and no costs are awarded.
“C. Hardy”
c. hardy
VICE CHAIR
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.