Ontario Municipal Board Cost Awards


On April 30, 2015 the Ontario Municipal Board heard a motion asking the Board to award costs against the Richmond Hill Naturalists because of their actions opposing a housing development on the David Dunlap Observatory land (above) in Richmond Hill. 

Given the fear expressed by some community groups that this kind of cost award – possibly as much as $200,000 in this case – could deter or even prevent future public interest interventions [1-3].  I (Max Allen) attended the hearing to see how the motion was argued.

So: Should the threat of cost awards deter community participation at the OMB?

The answer seems to be “no” to both ways of reading the question:  No, it should not be used as a threat; and no, it should not be seen as a threat by community or public interest groups..

A cost-awards action can be initiated by a winning party against a losing party. [4]  Such an action is not initiated by the OMB itself. Cost actions at the OMB are rare, and awards are made even more rarely.  But they do happen. [5]  As the Board held in Kimvar:

…applications for costs are not routine, and cost awards are rare. In short, a successful party appearing before the Board should have no expectation that it will recover its costs. The Board “does not award costs lightly and it does not award costs automatically. In decision after decision, the Board has expressed a sensitivity to the right of appellants to bring matters before this Board” (Westfield Place Inc. v. Blandford Blenheim (Township) Pit Application, [1996] O.M.B.D. No. 1252 at p. 19). Nevertheless, the Board has also concluded that parties must be accountable for their conduct and if that conduct or course of conduct has been unreasonable, frivolous or vexatious, or if the party has acted in bad faith, then the Board may order costs.


the Board has restricted awards of costs to the clearest of cases, where the conduct complained of is unreasonable and improper.

 Was the Richmond Hill Naturalists’ case “unreasonable and improper”?  The developer Corsica, a subsidiary of Metrus (as it was known initially, now The DG Group, of Concord, Ontario; DG refers to the de Gasperis family) argued that the Naturalists’ case was improper. Many details were presented about the five-party negotiations and the eventual agreement which the Naturalists opposed at every step.  According to the city of Richmond Hill [6]:

The mediated settlement between five parties for the David Dunlap Observatory (DDO) lands was formally presented at the May 7, 2012 Ontario Municipal Board (OMB) pre-hearing meeting. At the pre-hearing, the Richmond Hill Naturalists stated their objection to the settlement and an OMB hearing has been scheduled to begin August 7 to deal with their issues.

The mediated settlement represents the formal position of five of the parties, officially replacing the original development proposal submitted by Corsica Development Inc. The Town fully supports the mediated settlement as it proposes to save approximately 40 hectares (99 acres) from development and have this natural area dedicated to the Richmond Hill community as public space. The settlement was a result of many months of mediation facilitated by the OMB between Corsica Development Inc., the David Dunlap Observatory Defenders, the Town of Richmond Hill, the Region of York, and the Toronto and Region Conservation Authority (TRCA). The Richmond Hill Naturalists are the only party objecting to the settlement and will now have their issues addressed at an OMB hearing scheduled to begin August 7, 2012.

The Naturalists’ lawyer, Ian Flett, took notes only twice (that I saw) during David Bronskill’s presentation on behalf of the developer. The Board member hearing the case, Joseph Sneziek, took many more.

I was not able to stay for the afternoon session, in which Mr. Flett presented his case, but I assumed he was not going to contradict Mr. Bronskill’s presentation about the technical facts of the case (the sides exchange general summaries of their issues and positions in advance of the OMB hearings), but rather he was going to concentrate on whether the Board, recognizing the implications for future interveners, should refuse to award costs against his client – continuing the Board’s traditional reluctance  to do so – as a matter of good public policy.

The OMB member who heard the case, Mr. Sneziek, said at the outset that he would not be able to write a decision quickly because of the pressures of other work. After the hearing, the Naturalists’ lawyer said he thought “it went OK, but no bets.”   

Meanwhile, here are the highlights in point form of the argument in favour of a cost award presented to the OMB by Corsica/DG Group:


Although the Naturalists have a right to be a party at Board hearings, they must accept the associated responsibilities.

The Board has no mechanism other than cost awards for discouraging or dealing with baseless or vexatious cases.

A cost award is the only remedy available for improper conduct.

The Naturalists persisted in the face of warnings from the Board about re-litigating already settled issues, and warnings from the developer that a cost award might result.


A public interest group does not deserve special treatment. The Naturalists should not be held to a lower standard than any other party before the Board.

The Naturalists wear “a manufactured cloak of false nobility” as “the last opponent standing” in the Richmond Hill case.  But there is no nobility in pursuing a case that has already been lost (and, by implication, there is such a thing as losing).

“Good faith” is a binary concept; there is no middle ground. There is no evidence (affidavits, etc.) before the Board that the Naturalists acted in good faith.

This was an ideological pursuit.


The Naturalists say their organization has 65 members.

There is no evidence before the Board that any of the actions undertaken by the Naturalists’ executive went out to the members for approval.

One individual has apparently funded the Naturalists to the tune of $500,000.

The line between whistleblower and gadfly is narrow.

The Naturalists have engaged a different law firm for each of their actions, for a total of five.


When you appeal a planning issue to the Board, you must provide demonstratively sustainable evidence in support of your position, and the Naturalists presented no meaningful evidence.

“This is not about a successful cross-examination of their planning expert; it’s about the quality of the evidence presented to the Board.”

The Naturalists’ case had no meaningful planning evidence against the development, and they knew or should have known it.  A month before the hearing, the Naturalists’ planning expert told them that the draft plan of subdivision conformed to OPA 230.


The OMB’s Rules of Procedure [7], section 103, lists eight “Circumstances in Which Cost Orders May Be Made,” one of which is lack of co-operation with other parties.

The Naturalists did not reply to Mr. Bronskill’s request for positions before the pre-hearing teleconference.

The Naturalist’s issues list of January 31st was a laundry list of 18 subjects unrelated to the guiding policy documents, and was not helpful in efficiently narrowing the issues in contention. In response Mr. Bronskill gave the Naturalists an issues list that could be used as a form for their own issues list.

The Naturalists produced a witness list of 12 names. Corsica needed to prepare for all of them, which it did, including a witness to present archeological evidence.  Later some of the witness names were removed, which meant that Corsica had spent time and money unnecessarily.

One major issue raised by the Naturalists was downstream capacity; and Corsica had to prepare for it.  But during the hearing no evidence about downstream capacity was led for Corsica to respond to.

In brief:  For a compact summary of the chronology and the mediated settlement, see footnote [6].  For a visual representation of what is at stake, see footnote [8].


[1]  See:  http://www.weirfoulds.com/files/11300_Legal%20Ethics%20-%20Getting%20SLAPPed%20by%20Costs%20-%20Julia%20Croome%20and%20Jeff%20Cowan.pdf

[2]  See: 2010 Report to the Ontario Attorney General of the Anti-SLAPP Advisory Panel: http://www.attorneygeneral.jus.gov.on.ca/English/anti_slapp/anti_slapp_final_report_en.pdf

[3]  OMB cost decision in Big Bay Point case: PL050290  30 Jan 2009

[4]   A cost award means that the losing side is required to pay some or all of the expenses of the winning side, including lawyers and expert witness fees. 

[5]  See:  http://www.ecoissues.ca/index.php/Cost_awards_and_SLAPP:_Techniques_used_to_chill_public_participation_in_planning_decisions  

[6]  See: http://www.richmondhill.ca/subpage.asp?pageid=david_dunlap_observatory   Richmond Hill’s chronology of events, including the city’s purchase of 12 acres of the Observatory lands from the developer for $19.1 million.

[7]  Lack of cooperation et al.: https://www.omb.gov.on.ca/stellent/groups/public/@abcs/@www/@omb/documents/webasset/ec059424.pdf

[8]  Clearance of forested lands – by implication the Observatory lands, although the video is not specifically identified – is shown here: http://www.rhnaturalists.ca/2015/04/paying-for-the-last-stand-of-trees/

Development 101

By Max Allen

Property development in Toronto is a balancing act between preserving good buildings and public spaces, and encouraging new buildings and spaces that may not be identical to the old ones, but don’t wreck them either.

Property development and the decisions surrounding it looks, to an outsider, like a huge black box of mysterious judgements and occasional shouting.  To get a close-up look, you can go and see the process in action, at least the public part of it.  You won’t learn much by going to a full meeting of City Council, because by the time an issue reaches there most details have already been decided.  But there are five arenas where development decisions are actually made:

1.    The councillor’s office

2.    The local Community Council (there are four Community Councils, one for each quadrant of the city). The Grange area is in Ward 20, which is part of the Toronto and East York Community Council

3.    The Committee of Adjustment

4.    The City’s Planning and Legal Departments, and

5.    Other interconnected departments and sub-departments like Transportation, and Municipal Licensing and Standards, and Heritage Preservation. 

The first three are open to the public.  The last two do their business mostly behind closed doors and you have to worm your way in.

If you want something really major, like building a 50-storey building where only 20 storeys are allowed, you go to Community Council and then to City Council for a zoning and/or an Official Plan amendment. The Community Council that governs Ward 20 consists of all the elected councillors from the old downtown city of Toronto plus East York. Maybe the planning department or some other city department dislikes your project so much they recommend that Community Council refuse it. Maybe Community Council says OK to your project anyway, and you get the result you want.

Many projects are fine from the beginning. Objections are minor and can be worked out. But occasionally both the Committee of Adjustment and Community Council deal with situations that are real tragedies in which everybody has good points but there are irreconcilable differences. The Committee or the Council have a miserable job to do in these cases, trying to be fair and decide among competing interests all of whom are to some extent “right.” These cases can be very dramatic.

The Committee of Adjustment and the Community Council meetings are open to the public, and anybody can go. The committees hear a wide range of presentations, from big developers to people who just want to expand their house to accommodate their expanding family – an expansion, as it happens, that will block the sun from their neighbour’s yard. But the committees also listen to the views of any interested person who may either speak or submit their ideas in writing. 

These meetings take place monthly or even more often – during regular working hours, unfortunately, so if you have a job that you can’t take time off from, you’re out of luck. 

The meeting agendas are online on the city’s website.  In addition, advance notices of what’s coming up specifically around Ward 20 are on the councillor’s website. The meetings I’ve described are among the best free shows in town, and if you want to know how the world of city-building works, you should go and watch.

But be warned: The meetings are not viewer-friendly. No real attempt is made to ensure the audience can clearly hear, see or understand what’s going on. The Committee of Adjustment, in particular, sometimes discusses how they feel about an issue, but often their decision seems based on criteria they may understand and agree on, but people watching are mystified by.  No transcripts are made of any of these proceedings.

Do ordinary people, or residents’ associations like the Grange Community Association, have any significant input into what happens?  Yes.

This example from April 27, 2010, involved a new five-storey building proposed for the north-west corner of McCaul and Queen. It would have replaced a two-storey building that had been empty for a couple of years and looked like this:

The owner talked about the proposal at several community meetings and was given some suggestions. His architect came up with several versions of the building which the neighbours and the Grange Community Association thought were appropriate.

The owner went to the Committee of Adjustment, asking for some minor variances and got them. He also showed his ideas to the planning department and to the Toronto Preservation Board, because this section of Queen Street has special rules for the preservation of outstanding old buildings and the design of new ones.

City Planning and the Preservation Board decided the architect should change the building in various major ways, and they wrote a report saying so to Community Council.

There was a meeting of Community Council where several people spoke in favour of the building. Nobody from the community was opposed. The councillor who had been consulted thoughout the whole process, asked Community Council to approve the architect’s version of the building in spite of bureaucratic objections. And that’s what happened.

That was in 2010, and the building was boarded up in hopes that it would soon be demolished and rebuilt.  

 Five years later, the owner of the site has still not found a major tenant for his proposed building, and so the the old building has been spruced up a bit and has had a succession of tenants including a dance studio upstairs and a fish and chips restaurant in half the main floor level.

Here’s another example. With its superior outcome, this development has taken on the status of a legend in neighbourhood planning circles. The site is on the north side of Richmond, about halfway between John and Peter, where the Joker nightclub used to be.  About six years ago the owner of the site came to a community meeting with a proposal to build a residential tower of the usual oversized boxy rectangular characterless smooth green glass and aluminum type.  The low stores along Queen Street would have blocked a view from the north of its base, but otherwise this dull building would have been prominently visible from the east and west and from about a mile away down the unobstructed view corridor of Beverley Street. 

The community meeting told the developer and his architect that they were wasting a fine opportunity to build something outstanding, particularly given the fact of its prominence and visibility from all sides, and they should go away and give it more thought. 

A couple of months later the developer returned with another proposal.  This one looked like Habitat turned on its side.  The building had a highly articulated facade, with all kinds of positive and negative areas and was about half covered by trees growing from its thrust balconies.  It was a show-stopper.  Can you afford to build this, we asked the developer.  Yes, he said.  Then why didn’t you show us something like this in the first place, we wanted to know.  Because nobody ever asked us, was the answer.  We learned a lesson:  Ask!

The spectacular Habitat-style building is not being built, because the owner sold the site to another developer.  But something almost as remarkable has taken its place.  The new owner, and his architect Stephen Teeple, have devised a building called The Picasso with an articulated facade and bands of landscaped balconies.