The OMB dismissed a public interest group's appeal and
ordered the group to pay the proponent $110,000 in costs. The OMB
called the public interest group's conduct frivolous and
In November 2012, North Dumfries Township granted Preston Sand
and Gravel's application to rezone its property for a gravel
pit. The Concerned Residents Association of North Dumfries (CRAND),
an eight-member public interest group, appealed the Township's
decision to the OMB. CRAND claimed that the gravel pit would
generate dust that would cause air pollution and would pose a
substantial risk to human health. Following the OMB's dismissal
of CRAND's appeal, Preston Sand brought a motion for costs
against CRAND. Preston Sand sought $240,000 for reimbursement of
the costs it incurred for experts and lawyers.
The OMB grounded its award of $110,000 in costs in the OMB's
Rules of Practice and Procedure. These Rules state that
the OMB may order costs against a party if the conduct of a party
has been unreasonable, frivolous or vexatious, or if the party has
acted in bad faith. The Rules list examples of such conduct
including changing a position without notice to the parties,
failing to act in a timely manner resulting in delay, acting
disrespectfully, and knowingly presenting false or misleading
The OMB found that CRAND exhibited unreasonable conduct that
warranted the costs award pursuant to the Rules. Some examples of
CRAND's unreasonable conduct follow:
"...numerous motions which were
brought which in my [Board Chair] view, were only to delay or
frustrate the process."1
"...he [CRAND's lawyer] made
a request to withdraw which was granted... This necessitated an
adjournment so that CRAND could locate a new
"...Ms. Brown indicated that the
only reason CRAND stayed engaged in the hearing to the end was that
so[sic] it would be in a position to appeal my decision to
the Courts. This is but one indicator of frivolous and unreasonable
"...into the sixth day of
hearing... the Agent for CRAND advised without prior notice and
without leave of the Board, that she would not be calling any
witnesses other than herself.4 At no time did
CRAND seek to amend its witness list or indicate that its expert
witnesses would not be called."5
"With respect to...'acting
disrespectfully,' ... the Board stopped the proceedings during
the evidence of Preston's witness, Mr. Lepage, as the Agent for
CRAND was texting on her cell phone during the proceeding. Mr.
LePage's evidence was specifically to address issues raised
only by CRAND."6
"With respect to...
'knowingly presenting false or misleading evidence,' ... I
pointedly asked the Agent for CRAND for the names of individuals
who made up CRAND. Her response at the time was remarkably
different than the information which became known near the
conclusion of the hearing. To put it bluntly, her answers to the
Board could be nothing less than
This was not the first time CRAND has been ordered to pay costs.
In March 2015, CRAND appealed the OMB's decision to dismiss
CRAND's appeal of Preston Sand's zoning application to the
Ontario Superior Court of Justice. The Court dismissed CRAND's
appeal and ordered CRAND to pay Preston Sand $15,000 and the
Township $9,000 in costs.8 The Court's
decision to order costs against CRAND was not a factor in the
OMB's decision to order costs.
The OMB stated that this costs award should not be interpreted
as stifling public participation and
involvement.9 The OMB cited numerous
accommodations for CRAND and said that CRAND's conduct was
egregious and disrespectful of the OMB's process and the public
That said, public interest groups or individuals participating
in hearings should be aware of the rules governing the tribunals
with which they are dealing. It seems trite to say that public
interest groups and individuals should be respectful of the
tribunals and other parties to the proceeding; failing to do so can
be very costly.
1.Preston Sand and Gravel Company Limited
v. Concerned Residents Association of North Dumfries, Ontario
Municipal Board, Case No. MM120031 at para 29 [Preston Sand v
2.Ibid at paras 24-25.
3.Ibid at para 19.
4.Ibid at para 14.
5.Ibid at para 15.
6.Ibid at para 35.
7.Ibid at paras 36-37.
8.Concerned Residents Assn. of North
Dumfries v. Preston Sand and Gravel Co., 2015 ONSC
9. Preston Sand v CRAND supra note 1 at
Julia Paillé, Student-at-Law, assisted with the
preparation of this article.
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