Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 28, 2026

CASE NO(S).: OLT-25-000246

PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended

Applicants: Save The Oak Ridges Moraine, Kingscross Ratepayers Association

Instrument Holder: St. Rita at Marylake Long Term Care Home

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of leave to appeal: Decision to issue a Permit to Take Water pursuant to section 34.1 of the Ontario Water Resources Act for post-construction foundation drainage

Instrument No.: P-300-9277228428

Property Address: 13760 Keele Street, King City

Municipality/Upper Tier: Township of King/York Region

OLT Case No.: OLT-25-000246

OLT Lead Case No.: OLT-25-000246

OLT Case Name: Save The Oak Ridges Moraine v. Ontario (Environment, Conservation and Parks)

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

Request by: St. Rita at Marylake Long Term Care Home

Motion for: Order Awarding Costs

Costs sought against: Save The Oak Ridges Moraine and Kingscross Ratepayers Association

Heard: In Writing

APPEARANCES:

Parties	Counsel
Save the Oak Ridges Moraine	David Donnelly
Kingscross Ratepayers Association	David Donnelly
Director, Ministry of the Environment, Conservation and Parks	Catalina Karam
St. Rita at Marylake Long Term Care Home	Quinto M. Annibale Alexandra Whyte Austin Ray

DECISION DELIVERED BY BITA M. RAJAEE AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision and Order arises out of a written motion for costs (“Motion”) pursuant to Rule 23 of the Tribunal’s Rules of Practice and Procedure (“Rules”). The Motion follows the Tribunal’s June 26, 2025 Decision (“Original Decision”), by this same Member, to dismiss a request for leave to appeal by Save the Oak Ridges Moraine and Kingscross Ratepayers Association (“Appellants”). The Appellants sought leave to appeal the decision of the Director of the Ministry of the Environment, Conservation and Parks (“Ministry”) to issue the Permit to Take Water No. P-300-9277228428 (“Permit”), pursuant to section 34.1 of the Ontario Water Resources Act, to St. Rita at Marylake Long Term Care Home (“St. Rita”), for the taking of water from a well located on lands known municipally as 13760 Keele Street in King City (“Subject Property”).

2The relevant Parties and dates are the following:

a. St. Rita is a not-for-profit corporation that is developing a Long-Term Care Facility for elderly residents on the Subject Property and intends to operate it. For the last several years, St. Rita has been pursuing all required approvals in order to develop the facility. One of those includes registering with the Ministry for the taking of water from a water body for creating or maintaining one or more dewatered work areas within a construction site for a single construction project. St. Rita applied to the Ministry for the Permit on August 28, 2024. The Permit application was posted on the Environmental Registry of Ontario (“ERO”) for public comment in 2024.

b. On March 14, 2025, the Ministry issued the Permit, which took effect on March 5, 2025 and expires on February 28, 2035.

c. The Appellants are volunteer-based public interest organizations concerned with environmental protection and local community impacts. They filed an application for leave to appeal (“Application”) the Permit, raising concerns regarding the environmental impacts of the proposed groundwater extraction, including potential effects on Marylake, nearby wetlands, and surrounding properties.

d. On June 26, 2025, the Tribunal released its Original Decision, denying the Application.

e. St. Rita subsequently requested, and the Tribunal granted, that this Motion be scheduled.

3The materials before the Tribunal for consideration at this Motion are:

a. Correspondences by way of email and in writing, as follows: i. Email from St. Rita’s Counsel to the Tribunal, dated July 18, 2025; ii. Email from the Director to the Tribunal, dated July 24, 2025; iii. Email from St. Rita’s Counsel to the Tribunal regarding the Director’s response, dated July 25, 2025; iv. Letter from the Appellant’s Counsel to the Tribunal, dated August 5, 2025; and v. Letter from St. Rita’s Counsel to the Tribunal, dated August 8, 2025.

b. St. Rita’s Motion Record, which included a Notice of Motion, the Affidavit of Roberta Green, sworn on August 8, 2025, and a Book of Authorities;

c. The Appellants’ Response to the Motion, which included a Notice of Response, the Affidavit of Alexandra Nemy, affirmed on August 25, 2025, and a Book of Authorities; and

d. St. Rita’s Reply Motion Record, including a Reply Book of Authorities.

4In their July 24, 2025 email, the Director advised the Tribunal as follows:

I wanted to advise the tribunal that the Director is not aware of any frivolous, vexatious or unreasonable conduct on behalf of the applicants that would satisfy Rule 23.9 of the Tribunal’s Rules of Practice and Procedure and that would justify an award of costs. The Director therefore does not consider it appropriate to seek costs for the ministry in this case.

5As such, the Director did not participate in this Motion.

POSITION OF THE PARTIES

6St. Rita seeks the following relief against the Appellants:

a. An Order of the Tribunal for recovery of legal and consulting costs from the Appellants in the amount of $95,430.20 that St. Rita unnecessarily incurred in responding to the Application, in light of the unreasonable, frivolous, and vexatious conduct of the Appellants;

b. An Order of the Tribunal for the recovery of legal costs incurred by St. Rita in connection with the preparation of this Motion, payable by the Appellants.

c. Such further and other relief as Counsel may seek and the Tribunal may grant.

7St. Rita posits that a costs award is justified as the Appellants’ Application was unreasonable, frivolous, and vexatious, and was intended to delay, or frustrate entirely, the proposed Long-Term Care Facility. St. Rita argues that the Application was an improper attempt to re-litigate the planning merits of the development rather than raise valid appeal issues. Moreover, within the hearing of the Application itself, the Appellants caused delays and did not adhere to the Tribunal’s timelines for submission of materials. St. Rita is a not-for-profit corporation with limited resources and must rely on fundraising to address the funding shortfall for its long-term care beds. Yet, it was forced to spend significant funds responding to the Application, diverting resources away from its core mission of providing care for elderly residents. St. Rita therefore seeks recovery of approximately $95,430 in legal and consulting costs, as well as the costs associated with bringing this Motion itself. All of the costs claimed arise as a result of the Appellants’ conduct during the course of the Hearing. St. Rita further submits that the Appellants’ conduct demonstrates a pattern of unreasonable and vexatious behaviour that meets the test for a costs award under Rule 23.9 of the Rules.

8The Appellants oppose the Motion and ask the Tribunal to dismiss it in its entirety. They submit that their Application raised legitimate and complex issues concerning the protection of the Oak Ridges Moraine, and was neither frivolous nor vexatious. Moreover, St. Rita incorrectly blames them for delays in the proceeding, noting that extensions of time were first requested by Counsel for the Director of the Ministry, and that the Appellants only requested a short additional extension to prepare their Reply materials. The Appellants further submit that the claim for approximately $95,430 in costs is excessive and punitive, especially given that the original proceeding involved a written Application for leave to appeal rather than a full hearing. Awarding such substantial costs would discourage public participation in environmental and land use matters and create a “chilling effect” on citizens exercising their rights under the Environmental Bill of Rights (“EBR”). St. Rita has not shown the type of reprehensible or outrageous conduct required to justify substantial indemnity costs, and the Appellants maintain that their conduct throughout the proceeding was reasonable. Furthermore, they challenge the reasonableness and transparency of the legal and consulting invoices St. Rita submitted, arguing that the claimed expenses are not sufficiently detailed (as they are significantly redacted) and appear excessive, especially as it was the Ministry who responded to the Application and St. Rita’s submissions were largely repetitive of the Ministry’s submissions.

STATUTORY FRAMEWORK

9Pursuant to section 20 of the Ontario Land Tribunal Act, 2021 (“OLTA”) and section 17.1(1)(2) of the Statutory Powers Procedure Act, the Tribunal has the authority to order one party to pay another party’s costs in certain circumstances. However, costs may only be awarded where a party’s conduct has been unreasonable, frivolous, vexatious, or in bad faith. The Tribunal’s Rules, specifically Rule 23.9, set out examples of this type of conduct, including causing unnecessary delays, failing to follow Tribunal directions, introducing improper evidence or arguments, acting disrespectfully, or taking steps that unnecessarily prolong proceedings. The Tribunal also has the power to deny or grant costs, award a different amount, fix the costs of and incidental to the proceeding, and direct payment be made by a certain date (Rule 23.10).

10St. Rita relies on case law to submit that the test for clearly unreasonable conduct that is most often cited in Board and Tribunal decisions is: would a reasonable person, having looked at all of the circumstances of the case, conclude that the conduct was not right, the conduct was not fair, and that the person ought to be obligated to another in some way for that kind of conduct (Re, Kimvar Enterprises Inc., 2009 CarswellOnt 666 (OMB) [“Kimvar”] at para. 14, citing Re, Midland (Town) Zoning By-law 94-50, [1995] CarswellOnt 5227 [“Midland”], at para. 37). “Frivolous” conduct refers to matters lacking seriousness, “vexatious” conduct refers to proceedings brought without sufficient grounds and mainly to cause trouble or annoyance, and “unreasonable” means irrational or not in accordance with good sense (Midland at para. 27). Prior Tribunal decisions have awarded costs where appeals were brought for improper motives (Manning Developments Inc. v. Lakeshore (Town), 2022 CanLII 15901 (ON LT) [“Manning Case”]) or primarily to delay a project (Davidson v McKellar (Township), 2022 CanLII 42285 (ON LT) [“Davidson Case”]). The authorities also state that parties have an obligation to make reasonable efforts to understand the issues before the Tribunal (Midland at para. 40), and that a party’s level of sophistication, experience with Tribunal processes, and access to resources may be relevant when deciding whether a costs award is appropriate (RioCan Real Estate Investment Trust v. London (City), 2005 CarswellOnt 5133 (OMB)).

11Of note, costs are rarely awarded in Tribunal proceedings. They do not automatically follow success at a hearing, nor do they automatically follow a finding that there is no merit in an appeal. The decision to award or deny costs ultimately turns on the particular facts of each case. Moreover, Rule 23.9 makes it clear that, even in circumstances where the conduct of a party is found to be unreasonable, frivolous, vexatious, or in bad faith, and falls within the list of examples provided, the decision to award or deny costs remains discretionary. Specifically, Rule 23.9 states: “The Tribunal is not bound to order costs when any of these examples occur as the Tribunal will consider the seriousness of the misconduct.”

ANALYSIS AND FINDINGS

12On this Motion, when deciding whether the Appellants acted in an unreasonable, frivolous, or vexatious manner, or in bad faith, the Tribunal considers the following issues that St. Rita raised:

a. Was the Appellants’ Notice of Appeal outside of the jurisdiction of the Tribunal, and if so, does this constitute behaviour worthy to be awarded costs against them?

b. Did the Appellants’ Application lack merit, and if so, does this constitute behaviour worthy to be awarded costs against them?

c. Did the Appellants file the Application with the intent to cause delay, or did they behave in a way to unreasonably cause delay, and if so, does this constitute behaviour worthy to be awarded costs against them?

d. If costs are awarded, what should the appropriate quantum of costs be, and are full indemnity costs, as claimed, appropriate?

Issue 1: Notice Outside of the Jurisdiction of the Tribunal

13St. Rita submits that, regarding the type of conduct that is so unreasonable it warrants an award of costs, the Ontario Municipal Board (this Tribunal’s predecessor) has previously held that (Kimvar at para. 14, citing Midland at para. 40):

It is not acceptable, as was the case here with the appellant, to remain wilfully or recklessly ignorant of the subject-matter of the hearing. That is clearly unreasonable behaviour. There is an obligation on all parties to make an effort to find out what the issues are, and to obtain what information is reasonably available about those issues.

14In this case, St. Rita argues, the Appellants’ Notice of Appeal sought relief that was clearly outside of the jurisdiction of the Tribunal. In particular, the Appellants improperly asked the Tribunal to require St. Rita to relocate the proposed Long-Term Care Facility to lands within an urban boundary where long-term care homes are permitted and municipal services are available. St. Rita submits that the Tribunal has no authority under the EBR or the Ontario Water Resources Act to force a party to terminate private agreements or relocate a development project. According to St. Rita, the Appellants, who were represented by experienced Counsel, knew or ought to have known that this type of relief was beyond the Tribunal’s powers.

15St. Rita further argues that many of the Appellants’ concerns went beyond the scope of the Permit proceeding and attempted to challenge the broader development itself, rather than the specific Permit. For example, St. Rita submits that arguments about whether the project constituted “major development” under the Oak Ridges Moraine Conservation Plan were not proper issues before the Tribunal in this proceeding. St. Rita also argues that the Appellants cannot rely on claims of confusion about the Permit process or Tribunal jurisdiction to justify their conduct. In St. Rita’s view, the Appellants’ requests and arguments demonstrate that the Application was frivolous, vexatious, and in bad faith, intended mainly to delay the project and force St. Rita, a not-for-profit organization, to incur unnecessary legal expenses.

16The Appellants submit that St. Rita, in this argument regarding jurisdiction, has ignored the fact that the Notice of Appeal expressly requested that the Permit be denied. Their Application was properly within the Tribunal’s jurisdiction and raised questions regarding the EBR statutory test for leave to appeal. They argue that the Permit approval was narrowly focused and failed to adequately address concerns regarding groundwater extraction, discharge, water management, and the environmental impacts on sensitive hydrological features within the Oak Ridges Moraine. These concerns justified a broader review of the Permit.

17The Appellants acknowledge that the wording of their request asking the Tribunal to require the Long-Term Care Facility to relocate to lands within urban boundaries could have been more accurately expressed. They state that their real concern was the lack of clarity regarding future municipal water, sanitary, and storm servicing for the proposed development and the potential environmental impacts of approving the Permit before those servicing issues were resolved. The Appellants dispute St. Rita’s characterization of their Application as being brought solely to delay the project. On the contrary, they submit, their participation in the proceeding reflected principled and legitimate opposition to the Permit rather than frivolous or improper conduct.

18The Tribunal disagrees with St. Rita that this constitutes behaviour that is worthy of awarding costs. With respect to jurisdiction, the Tribunal already made a number of findings in its Original Decision. Namely, the Tribunal agreed that requiring a relocation of the project would not be in its jurisdiction even if leave to appeal the Permit was granted. However, simultaneously, the Tribunal dealt with the issue of whether the Permit should go to a hearing on its merits and potentially be denied at said hearing. This question was also raised in the Notice of Appeal. Moreover, at the hearing of the Application, only St. Rita raised the issue of jurisdiction, requiring the Tribunal to deal with that question. The Director did not raise this, and the Tribunal primarily dealt with the test with respect to whether a leave to appeal the Permit should be granted. Thus, the Tribunal finds that St. Rita was not prejudiced by this since there was still enough of a valid issue for the Tribunal to deal with the merits of such an Application, rather than simply dismissing it for being outside of its jurisdiction.

19Even if one of the issues identified in the Notice of Appeal is outside the jurisdiction of the Tribunal, which the Appellants acknowledge as being the case, the Tribunal does not find that this meets the threshold to warrant a costs award. The Director responded to the Application using substantive arguments. St. Rita did as well. If the entire Notice of Appeal was outside the Tribunal’s jurisdiction, entirely different responses would have been filed. Namely, both Parties would have sought a dismissal solely on the basis of lack of jurisdiction. Yet, neither the Director nor St. Rita brought a motion to dismiss the Application, on the outset before the Hearing in June 2025, based on the lack of jurisdiction (as had been the case in the Manning Case). Based on the Notice of Appeal and the responses filed, the Tribunal was still able to address valid and substantial issues. The Tribunal does not find that such a request, even if it was worded in a way that was incorrect, appears to have been made solely for the intent to delay or frustrate the project. Thus, the Tribunal finds that, while the request for relocation is outside of the jurisdiction of the Tribunal (and was found to be so), this is not sufficient to warrant a costs award against the Appellants. With respect to jurisdiction, the Tribunal already agreed with St. Rita on those points, and dismissed the Application. This adequately addressed the question. At the Tribunal, costs do not follow a result, and therefore, simply because St. Rita was correct on those points is not sufficient to allow for an award of costs here.

Issue 2: Appeal Lacked Merit

20St. Rita submits that it was forced to respond to an Application that had no merit and raised issues that were outside of the proper scope of the Permit appeal. The Appellants made broad, unsupported allegations about construction dewatering, groundwater discharge, cumulative water-taking impacts, permanent dewatering, and the Oak Ridges Moraine Conservation Plan, even though many of these issues did not apply to the specific Permit before the Tribunal. St. Rita argues that the Appellants confused the Permit with the separate Environmental Activity Sector Registration (“EASR”) process and relied on speculation rather than proper evidence or expert opinion. As a result, St. Rita says it had to spend time and money (including hiring its own expert hydrogeologist) to respond to claims that were irrelevant, unsupported, or already considered by the Ministry. St. Rita further submits that the Tribunal’s Original Decision confirms that the Application lacked merit. The Tribunal found that the Appellants’ concerns were speculative, unsupported by evidence, or outside the regulatory scope of the Permit, and that general concerns, or repeated public comments, were not enough to justify the Application.

21St. Rita submits that the Appellants are not inexperienced Parties and should be held to a higher standard because of their lengthy history of involvement in Tribunal, court, and land use proceedings. Moreover, the Appellants were represented by an experienced Counsel, who has many years of experience acting for public interest groups and ratepayers’ associations. For that reason, St. Rita says the Appellants knew, or should have known, the proper legal test for leave to appeal, and the requirements for filing a proper application. Yet, despite this experience, the Appellants’ Application, and evidence filed in support of it, lacked merit and failed to properly address the statutory test for leave to appeal, even though the ERO notice clearly set out that test. The Appellants instead included irrelevant facts and misstated evidence in their original submissions, which were short and inadequate, and then tried to fix the problem later through Reply submissions. As St. Rita stated at paragraph. 4 of its Reply submissions,

The total number of substantive pages contained in the Applicant’s “Statement of Facts” and Reply in the main action was seven (7) pages. Such paltry submissions by experienced counsel and experienced litigants such as the Applicant are evidence that the Applicant did not file the Notice of Application with the bona fide intention of opposing the Permit, but rather to delay the development of the Facility and cause St. Rita to expend time and money defending against the Notice, while allowing the Applicant to expend minimal resources.

22For the reasons described above, St. Rita argues that the Application was frivolous and vexatious. It was not a genuine challenge to the Permit, but part of the Appellants’ broader opposition to the Long-Term Care Facility. Furthermore, St. Rita also argues that the Appellants filed a lengthy response to this Motion, while their materials in the actual leave Application Hearing were very short. In responding to this Motion, the Appellants are improperly trying to re-argue the main appeal and dispute the Original Decision, even though the Tribunal has already ruled that the statutory test for leave to appeal was not met. This continued attempt to relitigate the matter shows a lack of respect for the Original Decision and has caused St. Rita to incur even more unnecessary costs. Thus, St. Rita should be entitled to recover the costs it incurred in responding to the Application and the costs of this Motion as well.

23The Appellants submit that their Application had merit and was based on genuine environmental concerns, not delay or bad faith. They deny that the Application was simply an attempt to re-litigate planning approvals or delay the Long-Term Care Facility project. Their concerns were primarily environmental and related to the Permit, the EASR process, water-taking volumes, discharge, treatment, cumulative impacts, and the protection of sensitive natural features. They say they had difficulty obtaining clear information about how St. Rita would manage groundwater, stormwater, and discharge from the Subject Property, especially given the sensitive location near Marylake, wetlands, and the Oak Ridges Moraine. They argue that the Permit materials were confusing because they appeared to mix construction dewatering with long-term foundation drainage, used inconsistent wording, and did not clearly explain where the water would be treated or discharged. They also point to changes in the estimated water-taking amounts, including an increase from about 51,180 litres per day to 115,000 litres per day, as well as increases in the estimated excavation area and construction dewatering volumes. In their submissions, they itemized the various issues they had raised at the original hearing and demonstrate how each issue showed a legitimate concern regarding the Permit and the resulting harm to the environment.

24The Appellants submit that these issues were directly relevant to the statutory EBR test for leave to appeal. In their view, the Director’s decision may have been unreasonable because it relied on unclear or incomplete information, and the Permit could result in significant environmental harm through groundwater removal, contaminant discharge, and impacts to Marylake, fish habitat, wetlands, and hydrological systems. They accept that their submissions were ultimately not persuasive but say that losing the Application does not mean it was frivolous or vexatious. An unsuccessful environmental appeal is not the same thing as an improper one. They argue that St. Rita has not provided evidence showing that their opposition was improper. Overall, the Appellants submit that they sincerely attempted to meet the statutory test, raised legitimate questions about environmental risk, and should not be punished with costs simply because the Tribunal denied leave to appeal.

25The Appellants also reject St. Rita’s argument that the shortness of their submissions proves the Application lacked merit. They state that they were not required to prove their full case at the leave stage or to file a new expert report, but only had to show preliminary merit. They maintain that there was a genuine disagreement about environmental harm and the reasonableness of the Director’s approval of the Permit, not an improper attempt to obstruct the project. Moreover, they were mindful of their limited resources. According to the Appellants, their conduct was reasonable, carried out in good faith, and does not justify a substantial costs award.

26The Tribunal finds that the Application, though unsuccessful, raised enough appropriate issues to allow the Tribunal to address the EBR test on leave to appeal applications. In other words, the Application did lack merit in the sense that it was not successful. However, on every leave to appeal application, there is a risk that the application lacks merit. If it does, then leave to appeal is not granted. That is what happened in this case. However, the Appellants did raise questions that the Tribunal was able to address. More importantly, the Director and St. Rita were able to engage in those questions and address them as well. In its Reply submissions, St. Rita states:

…the Applicant’s Notice of Application did not in any way address the test for leave to appeal under the EBR. The Applicant did not cite the test, did not paraphrase the test, did not attempt to bring its submissions within the ambit of the test, did not attempt to use similar wording to the test, nor in any meaningful way provided an organized or structured framework for its opposition to the Permit. The fact that the Tribunal took it upon itself to completely reinterpret and rephrase the submissions of the Applicant and to put it into the framework of the statutory test only further evidences the degree to which the Notice of Application was in and of itself, inadequate.

27However, as mentioned above, neither the Director, nor St. Rita, asked the Tribunal to dismiss the matter on the basis that the Application did not raise any issues to be litigated. Rather, they asked the Tribunal to dismiss the Application on the basis that the Appellants have not met the leave to appeal legislative test. The Director, and even St. Rita, provided extensive submissions to address how the test was not met. The Tribunal was able to engage in these issues in the same way that the Director and St. Rita were able to engage in them. This indicates that questions with respect to the test had been raised. If the Application lacked merit entirely, then the Tribunal would not have been able to address it, and neither would the other Parties. The other Parties did an excellent job of addressing the leave to appeal test, which is why they were successful in the Original Decision, but were able to address it (rather than bringing an outright motion to dismiss) because enough issues had been raised to do so.

28With respect to St. Rita’s position that the Application was brought as an attack on the development (and the Tribunal did find some indication of this in the Original Decision), the Tribunal did not find that this was the sole reason that the Application had been brought. Rather, the Tribunal found, at paragraph [26] of the Original Decision that: “a number of the Appellants’ concerns go beyond the scope of the Permit…” Notably, the Tribunal did not indicate that “all” of the Appellants’ concerns fall in this category. The Tribunal was still able to consider other issues. The Director and St. Rita both filed responses to those other issues. Thus, there is enough indication that the Application was not brought in bad faith. Moreover, the attack on the development as a whole was that it would be harmful to the environment, which is still in some ways applicable. In other words, while the scope of the Permit was narrower than the Appellants believed it was, their understanding had been that it and the development that required it would be harmful to the environment. The Appellants misunderstood the scope of the Permit, but there is no indication that they did this intentionally simply to attack the development while knowing it was unrelated to the Permit.

29Similar to Issue 1, the Tribunal finds that St. Rita was already successful at the original Hearing in demonstrating that the Application lacked merit. However, costs at the Tribunal do not follow the result, and this is not sufficient to constitute behaviour worthy of an awarding of costs. In short, the Tribunal finds that the test, stated above in Kimvar, is not met, and a reasonable person, having looked at all of the circumstances of the case, would not conclude that the Appellants’ conduct was not right or fair, or that the Appellants ought to be obligated to St. Rita in some way for that kind of conduct. As for the test in Midland, the Tribunal was not persuaded that the Application lacked seriousness (being frivolous), was brought without sufficient grounds and mainly to cause trouble or annoyance (being vexatious), or was irrational or not in accordance with good sense (being unreasonable). The Tribunal only found, as it did in the Original Decision, that the Application did not successfully meet the EBR test for leave to appeal. This finding allows it to dispose of the argument that the Appellants are experienced litigants with experienced Counsel who ought to have known better. The Appellants may not have presented a successful case, but that is not sufficient for a finding of costs.

30With respect to relitigating the original Permit appeal at this Motion, the Tribunal finds that St. Rita, in this Motion, did raise issues with the Appellants’ position, addressing each of the Appellants’ claims in the original Hearing, and stating why each issue lacked merits. The Appellants then, in their Response, re-addressed those claims to explain why they had been raised and why there was merit to raising them. Thus, the Tribunal finds that this was appropriate and did not interpret the Appellants’ submissions to be relitigating the Original Decision. The Tribunal’s understanding is that the Appellant went through each issue to explain why it had merit in being raised and how the issues they raised in their Application fit the EBR test.

31Of note, in its Reply materials for this Motion, St. Rita submitted that:

…the legislature of Ontario has amended section 20 of the OLTA to include a new subsection (2) which allows the Tribunal the power to order an unsuccessful party pay a successful party’s costs. This section is not currently in force, until such a time as it is proclaimed by the Lieutenant Governor, but is indicative of the changing perspective of the legislature regarding costs before the Tribunal.

32Since this section is not in force, it bears no bearing on the case at hand. It remains to be seen how, and if, it impacts the Tribunal’s future cost decisions.

Issue 3: Intent to Delay

33St. Rita submits that costs should be awarded in this circumstance because the Application was brought for an ulterior motives (Manning Case), namely, it was brought solely for the purpose of delay (Davidson Case). In support of this, St. Rita’s arguments are twofold:

a. The Application was a “collateral attack” and attempt to delay the overall project rather than a legitimate challenge to the Permit itself. In other words, the Appellants filed the Application primarily: (1) to delay the construction of the Long-Term Care Facility, rather than a bona fide reason to appeal the Permit, and (2) to force St. Rita to spend additional money defending the proceeding. The Appellants’ broader criticisms of the development, rather than just the Permit, and requested relief outside the Tribunal’s jurisdiction, demonstrate that the Appellants’ real objective was to oppose the Long-Term Care Facility as a whole, rather than challenge the specific Permit. St. Rita argues that these factors, confirmed by the Tribunal’s findings in the Original Decision, indicate that the Application was frivolous, vexatious, an abuse of the Tribunal’s process, and brought mainly to delay the project and increase costs.

b. During the leave to appeal proceeding itself, the Appellants delayed matters. In support of this position, St. Rita points to the Appellants’ requests for extensions of time and their late filing of Reply submissions (they were due on May 12, 2025, but were submitted on May 13, 2025). Although the Tribunal granted extensions, which were on consent, and ultimately accepted the late Reply materials, St. Rita argues that the Appellants took extra time only to file limited submissions that largely repeated earlier arguments and included materials that should have been filed from the start. The unreasonable extension sought by the Appellants, the further delay occasioned by their violation of Reply deadline, and the sparse and repetitive Reply Submissions are clear evidence that the Appellants filed the Application solely with the intent of delaying the development of the Long-Term Care Facility and causing St. Rita to expend further financial resources defending against the Application.

34The Appellants deny that their Application was brought for the purpose of delay. They argue that St. Rita has provided no evidence showing that the Application was filed in bad faith or solely to delay construction of the Long-Term Care Facility. The original extension request came from Counsel for the Ministry, who requested more time because of the Director’s absence and Ministry holidays. The Appellants consented to that request and then sought a matching extension for their own Reply materials, which was also consented to by all Parties and approved by the Tribunal. The extension was short, reasonable, and caused no prejudice. After receiving 956 pages of responding materials from the Ministry and St. Rita on April 30, 2025, they had only about eight business days to review and respond. Although their Reply was filed one day late, the Tribunal accepted the filing and found that any prejudice to the other Parties was minimal. Moreover, the Tribunal still released its Original Decision within the revised schedule (resulting from the Director’s request for extension). In their view, St. Rita has exaggerated the significance of the delay and improperly characterized normal procedural conduct as evidence of bad faith. The Appellants submit that St. Rita, in this Motion, improperly attempts to use costs as punishment for opposing the project.

35The Tribunal agrees with the Appellants that delay here, if any, does not breach the threshold for which costs should be awarded. With respect to the Application having been brought solely for the purpose of delaying the development as a whole, the Tribunal has already detailed above in this Decision that the Appellants’ conduct does not demonstrate this to be the case. The Tribunal did find that the Application failed the EBR test. Part of that finding was indeed that some of the Appellants’ claims appeared to relate to the development as a whole, rather than just the Permit. However, the Tribunal does not see any indication that the Application was brought knowingly on this basis. In other words, for the Tribunal to find that this Application was brought for an ulterior motive (delay in this case), the Tribunal would have to find that the Appellants knew that they would not succeed but simply wanted to delay matters. The Tribunal does not find that to have been the case. Based on the Application material submitted, the Tribunal finds that there was enough information in there to indicate that the Appellants may have thought that leave to appeal would be granted. The Tribunal was also persuaded by the Appellants that the materials filed may have been more limited because this was a leave to appeal Application and not the appeal itself. There was indication in the material submitted that the Appellants were intending to proceed with a hearing on the basis that there would be genuine harm to the environment as a result of this Permit. Thus, the Tribunal does not find that the Application was filed solely for the purpose of delaying the development as a whole.

36Of note, this finding does not contradict the Tribunal’s finding in the Original Decision. While the Appellants demonstrated concern with the development as a whole, and the Tribunal agreed that some of those concerns strayed outside of the scope of the Permit, there is not enough evidence to suggest that this was intentional and for the purpose of simply delaying the development or causing extra costs. St. Rita relies on the Manning Case and the Davidson Case in support of its position (both Tribunal decisions and not binding on this present decision). However, with respect to the Manning Case, the Tribunal finds it distinguishable as it was a land use planning matter where the grievous party’s appeal lacked any land use planning grounds, and the appeal was ultimately dismissed (by way of a motion to dismiss) on this basis, and thus, costs were awarded. In the present case, the Tribunal was able to address the EBR test and the Application was dismissed on the basis of a failure to meet the test, rather than not being a proper Application. Similarly, the Tribunal distinguishes the Davidson Case, another land use planning matter, wherein the grievous party filed additional appeals (without disclosing land use planning grounds) and procedural motions to delay the implementation of a prior Consent approval. In the present case, the Tribunal does not have evidence before it that this Application was filed simply for the purpose of delaying the development.

37With respect to St. Rita’s second argument, that the Appellants attempted to delay the proceeding itself, the Tribunal disagrees. The Director made the original request for extension and it was consented to by the other Parties. The Tribunal revised timelines and the deadline for the issuance of the Original Decision based on the Director’s request. Ultimately, the Original Decision was issued by the deadline. The one-day delay in the filing of the Reply did not impact the Tribunal or any of the other Parties, since no other submissions were dependent on the Reply. The Tribunal already made this finding at the time. Thus, there is no indication that this delay was made in bad faith or was an attempt to delay the original proceeding as a whole.

CONCLUSION

38The Tribunal finds that no costs are payable in this matter, as the Tribunal has found the following regarding each issue:

A. Was the Appellants’ Notice of Appeal Outside of the Jurisdiction of the Tribunal, and if so, Does This Constitute Behaviour Worthy to be Awarded Costs Against Them?

39Some parts of the Appellants’ Notice of Appeal related to matters outside of the jurisdiction of the Tribunal, which is partly why they did not succeed at the leave to appeal Hearing. However, other parts of the Notice of Appeal were within the Tribunal’s jurisdiction and the Tribunal was able to deal with them. Moreover, the inclusion of matters outside the Tribunal’s jurisdiction was not behaviour, in this case, that met the threshold of frivolous, vexatious, unreasonable, or in bad faith.

B. Did the Appellants’ Application Lack Merit, and if so, Does This Constitute Behaviour Worthy to be Awarded Costs Against Them?

40The Appellants’ Application did lack merit, which is why it did not succeed at the original Hearing. However, costs do not follow the result at the Tribunal. Thus, simply being unsuccessful is not sufficient to meet the threshold for an award of costs. The Appellants did attempt to address the EBR test, though unsuccessfully.

C. Did the Appellants File the Application with the Intent to Cause Delay or Did They Behave in a Way to Unreasonably Cause Delay, and if so, Does This Constitute Behaviour Worthy to be awarded costs against them?

41There is not sufficient indication that the Application was filed solely for the purpose of causing delay or that the Appellants behaved in a way to cause further delay. This complaint does not meet the threshold to justify an award of costs.

D. If Costs Are Awarded, What Should the Appropriate Quantum of Costs Be and Are Full Indemnity Costs, as Claimed, Appropriate?

42The Tribunal finds that no costs are payable, and therefore a consideration of this issue is not required.

ORDER

43THE TRIBUNAL ORDERS that the motion by St. Rita at Marylake Long Term Care Home seeking costs against Save the Oak Ridges Moraine and Kingscross Ratepayers Association (“Appellants”) is denied and no costs are payable with respect to the Appellants’ leave to appeal application.

44THE TRIBUNAL FURTHER ORDERS that no costs are payable in respect of this motion.

“Bita M. Rajaee”

BITA M. RAJAEE

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.