Romanov v. Wood, 2023 ONTLAB 7

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211

Toronto, Ontario M4R 1B9

Date:

2023-02-10

22 162668 S45 04 TLAB

Romanov v. Wood, 2023 ONTLAB 7

MOTION DECISION AND ORDER

Issuance Date:

February 10, 2023

PROCEEDING COMMENCED UNDER Subsections 45(1) & 45 (12) of the Planning Act, R.S.O. 1990, c. P.13, as amended and Section 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990 c. S.22, as amended

Appellant

Lala Wood

Applicant

John Romanov

Property Address:

127 Glenlake Avenue

COA File No.:

22 119705 STE 04 MV (A0286/22TEY)

TLAB Case File No.:

22 162668 S45 04 TLAB

Written Hearing Date:

January 25, 2023

Decision Delivered By:

TLAB Panel Member Ron Kanter

Registered Parties and Participants:

People Type

Name

Representative

Applicant/ Party

J. Romanov (Moving Party)

J. Polowin

Appellant

L. Wood (Responding Party)

Party

A. Romanov

R. Ackerman

Participant

D. Samoyloff

Expert Witness

M. Fry

For A. Romanov

Expert Witness

A. Smit

For A. Romanov

INTRODUCTION AND CONTEXT

1This is a motion by the Applicant, John Romanov, for an Order of costs in the amount of $41,799.26 with respect to an appeal by the Appellant, Lala Wood.

2The Applicant is an architect seeking to redevelop 127 Glenlake Road from a single family residence to a duplex (the "Proposed Development").

3The Appellant is a neighbor who owns a property at 245 Indian Grove, immediately west of the Proposed Development.

4The Applicant requested 17 minor variances from the Committee of Adjustment, 9 of which described existing conditions. On June 8, 2022, the Committee approved the minor variances, subject to a condition requiring a green roof (the "CofA Decision")

5On June 28, 2022, the Appellant appealed the Decision to the Toronto Local Appeal Body ("TLAB"). The Notice of Appeal raised a number of issues including the following: loss of sunlight and privacy; restrictions on access and egress; inadequate parking configuration; and damage to a tree located in the rear yard of the Appellant's house adjacent to the Proposed Development (the "Tree").

6On the date set by TLAB, 3 people submitted witness statements to TLAB on behalf of the Applicant: Mr. Romanoff; Michael Fry, a land use planner; and Andrew Smit, an arborist.

7On the same date, the Appellant submitted an Arborist Report prepared by Mark Ellis, which concluded that the construction of the Proposed Development would most likely destabilize and injure the Tree to the point where it would likely die over the course of some years. Donna Samoyloff, a neighbour, submitted a witness statements opposing the application.

8At a TLAB hearing held on November 18, 2022 (the "TLAB Hearing"), Mr. Romanov, Mr. Fry and Mr. Smit gave oral evidence on behalf of the Applicant. Ms. Wood and Ms. Samoyloff gave oral evidence on behalf of the Appellant.

9By Decision and Order dated November 30, 2022, I allowed the appeal in part. I upheld the approval of the variances approved and the condition imposed by the C of A Decision, but I added two further conditions: a standard condition permitting construction substantially in accordance with plans and elevation; and a detailed condition setting out measures to mitigate damage to the Tree.

10On December 29, 2022, the Applicant filed a Motion seeking costs from the Appellant.

11Subsequently the Appellant, Ms. Samoyloff and two ?2 other neighbours responded in writing to the Motion. The Applicant then replied to their Responses.

JURISDICTION

12The legislative framework for a party seeking an award of costs is set out in Section 17.1 of the Statutory Powers Procedure Act (the "SPPA"). The SPPA permits (but does not require) TLAB to order costs providing 2 conditions are met: the conduct of the party ordered to pay costs must be: unreasonable, frivolous, vexatious or in bad faith (Ss. 17.1(2)); and TLAB must make rules with respect to the ordering of costs (Ss. 17.1(4)).

13As permitted by the SPPA, TLAB has made rules concerning costs. Rule 28 of TLAB's Rules of Practice and Procedure set out the circumstances in which costs may be requested and ordered:

28. COSTS

Who May Request an order for Costs

28.1 Only a party or a person who has brought a motion in the proceeding may seek an award of costs.

28.2 A request for costs may be made at any stage in a proceeding but in all cases shall be made no later than 30 days after a written decision is issued by the TLAB.

Member Seized to Consider Costs Order

28.3 The Member who conducts or conducted the Proceeding in which a request for costs is made shall make the decision regarding costs.

Submissions Respecting Costs

28.4 Notwithstanding Rule 17.4 all submissions for a request for costs shall be made by written Motion and Served on all Parties and Filed with the TLAB, unless a Party satisfies the TLAB that to do so is likely to cause the Party significant prejudice.

28.5 Submissions for a request for costs shall address:

a) the reasons for the request and the amount requested;

b) an estimate of any extra preparation or Hearing time, and a breakdown of all associated rates, fees and disbursements, caused by the conduct alleged to attract costs and specifically any of those matters outlined in Rule 28.6;

c) copies of supporting invoices for expenses claimed or an Affidavit of a Person responsible for payment of those expenses verifying the expenses were properly incurred; and

d) attach an Affidavit in which the Party swears the costs claimed were incurred directly and necessarily.

Considerations for Costs Award

28.6 Notwithstanding the TLAB’s broad jurisdiction to award costs the TLAB is committed to an approach to awarding costs that does not act as a deterrent to Persons contemplating becoming a Party or continuing to be a Party to a Proceeding. In determining whether to award costs against a Party the TLAB may consider the following:

a) whether a Party failed to attend a Proceeding or to send a Representative when properly given notice, without giving the TLAB notice;

b) whether a Party failed to co-operate with others or the TLAB, changed a position without notice or introduced an issue or evidence not previously disclosed;

c) whether a Party failed to act in a timely manner;

d) whether a Party failed to comply with the TLAB’s Rules or procedural orders;

e) whether a Party caused unnecessary adjournments, delays or failed to adequately prepare for a Proceeding;

f) whether a Party failed to present evidence, continued to deal with irrelevant issues, or a Party asked questions or acted in a manner that the TLAB determined to be improper;

g) whether a Party failed to make reasonable efforts to combine submissions with another Party with similar or identical issues;

h) whether a Party acted disrespectfully or maligned the character of another Party or Participant; or

i) whether a Party presented false or misleading evidence.

Threshold relating to Costs

28.7 In all cases a Member shall not order costs unless the Member is satisfied that the Party against whom costs are claimed has engaged in conduct, or a course of conduct, which is unreasonable, frivolous, vexatious or in bad faith.

Interest on Award of Costs

28.8 Costs bear interest at the same rate as provided in the Courts of Justice Act.

SUMMARY OF SUBMISSIONS

14The Applicant submitted by motion that the Appellant proceeded unreasonably, since:

(a) the issues raised by the Appellant in her Notice of Appeal were not based on any planning principles or rationale, and amounted to misconceptions, misunderstandings, and innuendo;

(b) the Appellant's oral evidence did not present any additional or coherent evidence as justification for nullifying the C of A Decision; and

(c) the Appellant's concern about a non-protected private tree had been addressed through the C of A process.

15The Applicant alleged that the Appellant proceeded frivolously, since she made a "false flag" tree presentation which merely confirmed information provided by the Applicant at the C of A, and the sole reason for the appeal was that the lot grading plan showing tree protection "which is already (could have been) a condition imposed by the C of A".

16The Applicant referred to amendments to the Planning Act as of November 28, 2022 which removed the rights of third parties, such as the Appellant, from appealing the C of A Decision.

17The Appellant's Response to the Motion stated that she proceeded in good faith, since:

(a) she presented, as best as she could, evidence to demonstrate the non-conformity, undesirability and adverse impact of the Proposed Development; and

(b) she filed and explained a Tree Protection Report prepared by an arborist describing likely damage to her tree.

18The Appellant responded that the amendments to the Planning Act cited by the Applicant should not be applied retroactively to her appeal, which was heard orally by TLAB on November 18, 2022.

19The Appellant further responded that the costs claimed by the Applicant were unreasonable, since the Applicant sought costs for:

(a) lawyer and land use planner retained initially but not used at the TLAB hearing;

(b) a flight to Toronto and hotel accommodation in Toronto for a lawyer retained subsequently, although the TLAB Hearing was held remotely

20The Neighbour who appeared at the TLAB Hearing agreed with the Response of the Appellant, and added that:

(a) ordinary people must be able to participate in TLAB hearings without worrying about whether they will face financial ruin if they do not prevail; and

(b) she cross-examined the land use planner called by the Applicant with respect to his knowledge of the immediate neighbourhood where the Proposed Development was to be located.

21Other neighbours supported the Appellant's Response, and added that the appeal was neither frivolous nor malicious, since it reflected the reasonable sentiments and legitimate concerns of the immediate nearby community.

22The Applicant replied, submitting that the Responses to his Motion:

(a) "while couched in generalities of purported planning principles, provide nothing more than innuendo, conjecture and self-interest . . . the Appellant and company present "the mere impression" of impact to their respective properties, and as such have misused and wasted the time of TLAB. Consequently, they must bear a burden of the costs that they foisted on the applicant through their ill-fated appeal."

ISSUES AND ANALYSIS

23The issues before the Tribunal on this motion are as follows:

(a) Should the Tribunal order costs against the sole Appellant?

(b) If the Tribunal were to order costs, what amount should be paid?

24The Applicant/Mover of the Motion before this Tribunal is seeking the following amounts:

Legal Representation: Ackerman Law & Growling WLG:

$26,393.95

Land Use Planning Evidence: Biddle

$11,780.00

Arborist Evidence: Treescape

$3,625.31

Total Costs incurred by the Applicant:

$41,799.26

The Applicant is seeking costs on a "substantial indemnity" basis, which generally is calculated as approximately 90% of the costs actually incurred.

25As set out above, TLAB's jurisdiction to order costs is governed by S. 17.1 of the Statutory Powers Procedure Act (the "SPPA"), and TLAB's Rule 28.

26As a general principle, TLAB rarely awards costs. One of the main reasons that costs are not routinely awarded to the "winner" (as typically occurs in civil courts) is to avoid deterring the public from participating in the hearing process. As an administrative tribunal, TLAB has a duty to ensure justice to all members of the public, whether they are parties represented by counsel who retain expert witnesses; parties who represent themselves whether or not they retain expert witnesses; or people who choose to appear as participants.

27I will review the Appellant's behaviour in light of TLAB's considerations for awarding costs.

28The Appellant provided reasons for objecting to the Proposed Development in her Notice of Appeal on the date required by TLAB. She retained an arborist who provided an expert witness statement in accordance with TLAB's Rules.

29The Appellant did not cause unnecessary adjournments or delays, prior to or at the TLAB Hearing.

30The Appellant provided oral evidence at the TLAB hearing with respect to her perception of the negative adverse impact of the Proposed Development, including perceived traffic impacts and non-compliance with provincial policies and plans. I preferred the evidence of the Applicant’s land use planner on these matters. She did not present evidence which I found false or misleading.

31The Appellant did not retain a land use planner. However, she referred to the expert witness statement of the arborist she retained.

32At the TLAB Hearing, the Applicant's arborist, Mr. Smit, accepted some of the recommendations of the Appellant's arborist, Mr. Ellis, concerning protection of the Tree.

33I generally allowed the Proposed Development as proposed by the Applicant. However, the Appellant's participation resulted in the imposition of 2 additional conditions to maintain the general intent and purpose of the Official Plan: one to mitigate damage to the Tree; and the second to require compliance with the site plan and elevations.

34The fact that I preferred the Applicant's land use planning evidence to that of the Appellant, and the fact that I decided the case largely in favour of the Applicant are not, in the absence of unacceptable behaviour by the Appellant, sufficient grounds to award costs to the Applicant.

35I do not find that the Appellant behaved in any way described in TLAB Rule 28.6 (a) to (f), which would led me to determine I should award costs against her. Nor did she engage in conduct which I found to be unreasonable, frivolous, vexatious or in bad faith, which is a prerequisite to allow me to issue a cost award, in accordance with Ss. 17(2) of the SPPA or TLAB Rule 28.7

36The Applicant submitted 3 cases in support of his request for costs.

(a) The first case cited by the Applicant is distinguishable on the facts. In Re Margaritis (19 143533 S45 19 TLAB), the Appellant did not file any form of disclosure or witness statements. The parties reached a settlement prior to the hearing date based on material filed previously with TLAB, and no hearing was held. The Appellant did not file any affidavits to provide evidence to oppose the motion for costs. The TLAB Decision found that the Appellant in that case acted unreasonably and frivolously.

(b) The second case does not assist the Applicant's position with respect to seeking costs. In Re Ott (19 1310764 S45 09 TLAB), the Appellant challenged the issues of "massing and scale" and asserted negative impact on light, views and rear yard amenity space based on her practical experience, without calling a land use planner or other expert. Former TLAB Chair Lord allowed the application with modifications, but refused the Applicant's request for $700 in costs, stating that:

"costs as administered by the TLAB are not designed as punishment but rather turn on conduct that lacks a reasonable foundation".

(c) The third case cited, Re Hoffman (20 124166 S45 15 TLAB) refers to a decision rendered by current TLAB Chair Lombardi. Chair Lombardi discusses the nature of evidence required to constitute undue adverse impact, and finds that he requires more than a "mere impression" to make a determination of undue adverse impact. The evidence required support a determination of undue adverse impact is different than the evidence required to support a determination that costs should be awarded. There was no request for costs in the case cited, and that decision is therefore not relevant to the Glenlake case before me.

37Since I am not awarding costs, it is not necessary to decide the quantum (amount) sought. Nevertheless I will make some comments on the amount claimed. The Applicant submitted a total Bill of Costs of almost $42,000 for a 1 day hearing on minor variances, the majority of which sought to maintain existing conditions. The amount appears unreasonable in the circumstances of this case. The claim included significant invoices for the Ackerman Law Firm, which did not appear at the hearing conducted remotely, as well as for Gowlings, which did appear. I also note that in those few cases where TLAB awards costs, it generally does not do so on a substantial indemnity basis (Re Margaritis, supra, at Par. 32)

CONCLUSION

38I will not order award costs to be paid by the Appellant as requested by the Applicant.

DECISION AND ORDER

39The Tribunal will not make a cost award for any amount against the Appellant.

Ron Kanter

Panel Member