Tribunal says Town of Napanee and Keep Napanee Great not on hook for Tomlinson’s legal fees

The Napanee Quarry owned by Tomlinson is the site of a permanent asphalt plant. Photo by Michelle Dorey Forestell/Kingstonist.

Neither the Town of Greater Napanee nor Keep Napanee Great will be required to pay R.W. Tomlinson Inc.’s Ontario Land Tribunal (OLT) legal fees.

According to the decision by tribunal member Dale Chipman, Tomlinson will not receive any money to cover its legal costs for its successful appeal decided late last year.

The company initiated the appeal after the Napanee Town Council voted unanimously to deny Tomlinson’s request for a rezoning of its property to allow for installation of a permanent asphalt plant. Council’s vote took place at its regular meeting on Tuesday, Apr. 5, 2022 (a full video of the meeting can be viewed here), and the Town declared itself an unwilling host for the project.

At the same time, a citizens group called Keep Napanee Great (KNG) — which had formed around a shared opposition to the idea of a hot mix asphalt plant being erected close to homes, the Town’s downtown core, and the Napanee River — was granted legal status as a party in the appeal.

In December of 2023, it was announced that Tomlinson’s appeal to the OLT to amend a Town zoning bylaw had been successful and that the company could proceed with its plans for a hot mix asphalt (HMA) plant. The HMA plant is now immediately adjacent to the R.W. Tomlinson Napanee Quarry, an active operating quarry licensed under the Aggregate Resources Act.

On Thursday, Feb. 29, 2024, Tomlinson made a motion to the OLT seeking costs of $153,488.10 with interest from the Town of Greater Napanee and KNG jointly, related to extra preparation and hearing time for the appeal. Tomlinson’s motion set out a list of examples of conduct which, in its view, warranted an order for costs against the Town and KNG, including “engagement in conduct that unnecessarily lengthened the hearing.”

In a decision released on Monday, Apr. 22, 2024, the OLT disagreed.

Google Earth location and image of a hot mix asphalt (HMA) plant similar to the one Tomlinson’s. Images via Town of Greater Napanee Council documents.

The tribunal may only order costs against a party if the party’s conduct or course of conduct has been unreasonable, frivolous, or vexatious, or if the party has acted in bad faith, stated Chipman in the decision.

Tomlinson claimed the Town and KNG wasted time by raising evidence and arguments relating to Tomlinson’s quarry and not the hot mix asphalt plant, basing their opposition almost entirely on how it would exceed air quality and acoustic impact standards. Tomlinson also claimed that KNG failed to make reasonable efforts to combine its submissions with the Town in that it took positions contrary to those taken by the Town. 

Tomlinson further argued that the KNG and Town of Napanee arguments “consisted of unfounded apprehensions and personal views on the proposed development which were not substantiated in any meaningful way with supporting evidence, and were not considered helpful in determining the land use planning.”

However, the Town and KNG responded that Tomlinson should not have expected to recover its costs and that a costs motion is not the appropriate forum to argue the merits of the appeal; if this was Tomlinson’s primary concern, it should have brought a motion for dismissal during the proceedings. 

Both the Town and KNG arguments emphasized that the public should be able to exercise their rights to participate in the appeal process without fear of a possible financial burden. 

“It would be fair to say that this hearing ended up being a thoroughly contested battle,” Chipman wrote. “Vigour to achieve each Party’s objective was apparent, examinations of witnesses were extensive, and cross-examinations were careful and intense.”

Although Tomlinson was successful in the appeal, Chipman asserted that this did not constitute a basis for an award of costs: “As Counsel for the Town and KNG rightly point out, awards of costs in connection with Tribunal hearings are rare and dependent upon the facts in each particular case… To attract an award of costs, the Tribunal must find that the conduct of a Party has been unreasonable, frivolous, vexatious, or in bad faith.”

Civility was never questioned during the hearing, and all counsel and all witnesses behaved properly and professionally, according to Chipman. The tribunal found no party to this proceeding acted unreasonably or demonstrated any misconduct which rises to the level of the non-exhaustive list of examples.

Much of Tomlinson’s arguments focused on the fact that the arguments against the appeal had no reasonable prospect of success. Still, Chipman said that was “not a relevant consideration in this Motion as Tomlinson attributes the meaning of ‘reasonable’ to the appeal, as opposed to the conduct of a Party.”

“All Parties approached these Tribunal proceedings with seriousness and, in so doing, had familiarized themselves with applicable legislation and policies, the Tribunal’s Rules and their own procedural and substantive responsibilities, including introducing relevant evidence to advance their position at a hearing. Whether their evidence could give rise to the relief requested or was insufficient to do so, was ultimately for the Tribunal to determine.”

Chipman noted that she agrees with the Town and KNG that a motion for costs is not the correct way to raise a claim that an appeal has no reasonable prospect of success. Rather, she explained that those claims should have been “properly put forward in a motion for dismissal before the Merit Hearing, or during the hearing itself.”

It was Tomlinson’s position that the case, as presented, consisted of unfounded apprehensions and personal views on the proposed HMA. Still, Chipman explained that the OLT heard the testimony of qualified experts and thoroughly examined and weighed the evidence of those qualified experts in coming to its conclusion. 

Chipman found that the claim that KNG and the Town raised irrelevant evidence was wrong. She noted that because the quarry is adjacent to the site of the hot mix asphalt plant, “there was crossover evidence presented, but none of which extended the hearing so significantly that a costs award would be qualified. “

As for the charge of unreasonable conduct by KNG, Chipman said that organization, “in being granted Party status at a prior Case Management Conference,… had the right to produce expert opinion evidence in support of their position. This was done efficiently.”

Chipman explained further that the right to costs is not routine and does not follow the cause, and that awards of costs are rare. The approach of the OLT is to ensure that litigants are not dissuaded from exercising their right of appeal for fear of costs. However, each case is specific, and despite the exceptional nature of a costs award, the tribunal’s rules recognize that parties must also be accountable for their conduct. There is no total immunity from cost claims.

Considering all of the evidence, the tribunal found that a reasonable person would not conclude that the Town or KNG’s conduct constitutes unreasonable, frivolous, vexatious, or bad faith conduct. Therefore, no costs were awarded.

A media release from KNG acknowledged the OLT’s decision, saying, “As confirmed by the Tribunal’s cost decision, our participation in the appeal process was conducted in good faith and with due diligence. KNG’s aim throughout the proceedings was to ensure that all relevant factors were considered in the decision-making process.”

The release states that KNG’s involvement “was driven by our commitment to protecting the community’s interests and advocating for responsible land use planning practices.” 

“Staff will provide an update on this matter in the Growth & Expansion Services activity report on next week’s [Council] agenda. Any further discussion on this will ensue at the Regular Session of Council on April 30,” the Town of Napanee responded to a request for comment. Photo by Michelle Dorey Forestell/Kingstonist.

KNG stated in a release that it remains dedicated to fostering constructive dialogue and engagement in community development and environmental stewardship matters.

“Our organization will continue to actively participate in discussions and processes to promote sustainable growth and preserve the quality of life in Greater Napanee,” KNG said.

“We appreciate the opportunity to participate in the appeal process and respect the Tribunal’s decision on the matter. KNG remains committed to working collaboratively with all stakeholders to address shared concerns and contribute positively to our community’s future development.”

Asked for comment, the Town of Greater Napanee communications department stated, “Staff will provide an update on this matter in the Growth & Expansion Services activity report on next week’s agenda. Any further discussion on this will ensue at the Regular Session of Council on April 30th.”

Kingstonist also contacted Tomlinson for comment, but none was forthcoming by time of publication. If and when a comment is received, we will provide an update.

One thought on “Tribunal says Town of Napanee and Keep Napanee Great not on hook for Tomlinson’s legal fees

  • The issue of “costs” in Tribunal proceedings is something that needs to be revisited at a Rules and policy level. “Costs” in civil proceedings are normally awarded to successful parties in the Courts of this province. Anyone who has ever been a litigant knows that costs liability is a major factor in deciding what to argue and what to dispute. A rational litigant is very careful to assess merit before deciding to engage the legal process. The effect is to limit the number of cases and the number of far fetched claims. “Costs” also operate to dissuade frivolous defences as a respondent can also be ordered to pay costs if they force an applicant to bring a claim. Tribunals Ontario (and all the Tribunals under that umbrella—there are about 11 I think), have severely limited “costs” rules and the logic is premised in access to justice and the notion that Tribunals are swift and efficient. That logic and the availability of costs is reflected in this article. In my view, the costs policy needs to re-visited and the discouraging power to dissuade frivolous positioning is needed in the Tribunals context. Simply look at the Ontario Landlord and tenant Board as an example of a swamped system full of litigants who have zero concern about wasting time or taking irrational positions OR refusing to admit facts that should be admitted. The lack of meaningful costs rules encourages litigants to throw anything and everything at the wall and hope something sticks. As they do that, and end endless time and Tribunal resources serious cases wait in endless lines for a hearing date causing real prejudice, harm and damages to at least one of the parties. If Tribunal litigants could suffer real cost consequences for unreasonable positions the backlog would shrink and litigants would start settling their cases.

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