Ontario Municipal Board

Commission des affaires municipales

de lOntario

ISSUE DATE: July 20, 2015 CASE NO(S).: PL141340

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O.

1990, c. P.13, as amended
Appellant: Douglas Cardinal Architect Inc.
Appellant: Richard Jackman
Appellant: Lindsay Lambert
Appellant: Larry McDermott; and others
Subject: Proposed Official Plan Amendment No. 143
Municipality: City of Ottawa
OMB Case No.: PL141340
OMB File No.: PL141340
OMB Case Name: Jackman v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O.

1990, c. P.13, as amended
Appellant: Douglas Cardinal Architect Inc.
Appellant: Richard Jackman
Appellant: Lindsay Lambert
Subject: By-law No. 2014-395
Municipality: City of Ottawa
OMB Case No.: PL141340
OMB File No.: PL141341

PROCEEDING COMMENCED UNDER subsection 17(45) of the Planning Act, R.S.O.

1990, c. P.13, as amended
Motion By: City of Ottawa
Purpose of Motion: Request for an Order Dismissing the Appeal
Appellant: Douglas Cardinal Architect Inc.
Appellant: Richard Jackman
Appellant: Lindsay Lambert
Appellant: Larry McDermott; and others
Subject: Proposed Official Plan Amendment No. 143
Municipality: City of Ottawa
OMB Case No.: PL141340
OMB File No.: PL141340
 2 PL141340

PROCEEDING COMMENCED UNDER subsection 34(25) of the Planning Act, R.S.O.

1990, c. P.13, as amended
Motion By: City of Ottawa
Purpose of Motion: Request for an Order Dismissing the Appeal
Appellant: Douglas Cardinal Architect Inc.
Appellant: Richard Jackman
Appellant: Lindsay Lambert
Appellant: Larry McDermott; and others
Subject: By-law No. 2014-395
Municipality: City of Ottawa
OMB Case No.: PL141340
OMB File No.: PL141341

Heard: June 3 and 4, 2015 in Ottawa, Ontario

APPEARANCES:

Parties Counsel

City of Ottawa T. Marc

Windmill Green Fund LPV A. K. Cohen

Douglas Cardinal Architect Inc. M. Swinwood

Lindsay Lambert D. Simmons

Richard Jackman

Romola Trebilcock-Thumbadoo

Larry McDermott

DECISION DELIVERED BY R. G. M. MAKUCH AND ORDER OF THE BOARD

[1] This is the first Pre-hearing Conference respecting appeals against the adoption
of Official Plan Amendment No. 143 (OPA 143) and the enactment of Zoning By-law
No. 2014-395 by City of Ottawa Council. These planning instruments relate to the
future development of Chaudire and Albert Islands located in the Ottawa River.
 3 PL141340

[2] The OPA 143 designates the islands as Central Area, which will allow for mixed
uses to be developed on the islands. By-law No. 2014-395 rezones the site from
O1L[329]-h (Parks and Open Space, Subzone L, Exception 329, under a holding
zone), to MD5[2172]S332-h (Mixed Use Downtown, Subzone 5, Exception 2,
Schedule 2172, under holding zone) and L2 (Major Leisure Facility).

[3] It is noted that the OPA was City initiated and the zoning by-law amendment was
applied for by Windmill Green Fund LPV (Windmill).

MOTION FOR RECUSAL

[4] At the outset of the hearing, Michael Swinwood, counsel for Douglas Cardinal
Architect Inc. (Cardinal) brought a motion that I recuse myself from the hearing of this
matter on the grounds that my participation in this hearing raises a reasonable
apprehension of bias against him. Mr. Swinwood argues that I could not be perceived
to be fair and impartial in making a decision on this matter given comments made by
myself concerning his conduct in Arber v. Prescott and Russell (United Counties) [2005]
O.M.B.D. No. 502. (Attachment 1 hereto).

[5] The decision in question made an award of costs against Mr. Swinwoods clients,
who had unsuccessfully appealed official plan and zoning by-law amendments adopted
by the United Counties of Prescott and Russell and the City of Clarence-Rockland
respectively. Mr. Swinwood had represented a number of appellants at the hearing on
the merits but did not represent the appellants on the cost motion brought by the
proponent against Mr. Swinwoods clients.

[6] Mr. Swinwood argues that I made a number of comments in the decision which
impugned him personally and that because he was not present, he did not get an
opportunity to defend himself.
 4 PL141340

[7] He relies on the decision by the Ontario Court of Appeal in R v. Hossu [2002] 162
O.A.C. 143; 167 C.C.C. (3d) 344; 98 C.R.R. (2d) 93 (Hossu), to support his allegation
that my comments raise a reasonable apprehension of bias in this matter. In the Hossu
case, the trial judge was found by the Court of Appeal to have made a number of open
and improper comments about witnesses during the course of their giving evidence
raising serious issues of favouritism toward the complainant in the case raising real
concern about whether the accused received a fair trial from an impartial judge.

[8] The Court of Appeal followed the reasoning of Mr. Justice de Grandpr in
Committee for Justice and Liberty v. Canada (National Energy Board) (1976) [1978] 1
S.C.R. 369 (S.C.C.) at page 17:

The apprehension of bias must be a reasonable one, held by reasonable and

right minded persons, applying themselves to the question and obtaining thereon
the required information that test is would an informed person, viewing the
matter realistically and practically conclude? and having thought the matter
through conclude. Would he think that it is more likely than not that [the
decision maker], whether consciously or unconsciously, would not decide fairly.

[9] Mr. de Grandpr also suggested that the grounds for this apprehension of bias
must however be substantial and refused to accept the suggestion that the test be
related to the very sensitive or scrupulous conscience.

[10] Counsel for the City and Windmill are opposed to the motion and argue that the
comments complained of by Mr. Swinwood are in the nature of findings made after the
conclusion of a hearing and that these were measured, calm and professional and were
not inflammatory in any way. These were made in response to submissions made by
counsel for the parties on the hearing of the motion for costs. They argue that the
comments complained of by Mr. Swinwood do not rise to the substantial level necessary
for a recusal. Furthermore, Mr. Cohen argues that Mr. Swinwoods acknowledgement
that he anticipated that I would be assigned to this case, placed an onus on him to
contact the Board prior to the hearing event to communicate his concerns regarding my
presence at this hearing. The comments complained of also refer to the circumstances
outlined in the Rule 103 respecting situations in which the Board could exercise its
 5 PL141340

discretion to make an award of costs against a party. The decision was made some ten
years ago.

[11] The Board agrees with the submissions of counsel for the City and Windmill that
there are no substantial grounds raised by the motion, which would suggest that I could
not be fair and impartial in this matter. I will not recuse myself from this matter and
accordingly, the motion is dismissed.

MOTION TO QUASH NOTICE OF CONSTITUTIONAL QUESTION

[12] The City brings a Motion for:

1) An Order of the Board dismissing the Notice of Constitutional Question

delivered to the parties on behalf of Douglas Cardinal; and

2) An Order of the Board abridging the timeline for bringing this Notice of Motion.

[13] The grounds for the Motion are:

1) The matters raised in the Notice of Constitutional Question are matters raise
in Ontario Superior Court of Justice file CV-14-517372;

2) The Superior Court of Ontario is the more appropriate forum; and

3) Although the Appellant Mr. Cardinal identified in his appeal in November

2014, that he would be bringing forward a Constitutional Question, such was
not served until May 22, 2015, less than 15 days prior to the Pre-hearing.

[14] The materials in support of the Motion consist of:

a. The affidavit of Stuart Huxley, sworn June 1, 2015; and

b. The affidavit of John Smit, sworn June 1, 2015.
 6 PL141340

[15] The materials in opposition to the motion consist of the Motion Record of the
Appellant Mr. Cardinal, which includes the affidavits of Douglas Cardinal, sworn May 27,
2015, Jayne Ann Chartrand, sworn May 29, 2015, and Stacy Amikwabi, sworn May 29,
2015.

[16] The Board has carefully considered the evidence as well as the submissions of
the parties as well as counsel for the parties and finds that the Motion should succeed
for the reasons that follow.

[17] Firstly, with respect to the request for an abridgement of time to serve the
motion materials, the Board finds that it would be proper to allow for such an
abridgement given that the City was served with the Notice of Constitutional Question
late in the day on May 22, 2015 and it would not have been possible for the City to
respond within the prescribed timeline.

[18] Rule 6 of the Boards Rules of Practice and Procedure provides that the Board
may grant all necessary exceptions from the rules to ensure that the real questions at
issue are determined in a just, most expeditious and cost effective manner.

[19] In this case, the Board is satisfied that the City responded within a reasonable
time given the necessity to review and collect the facts of the case in order to make an
informed response and to serve these materials on June 1 and 2, 2015, prior to the
scheduled Pre-hearing Conference on June 3, 2015.

[20] Section 109 of the Courts of Justice Act sets out the requirements, which must
be met by a party serving a Notice of Constitutional Question challenging the
constitutional validity or constitutional applicability of an Act of Parliament of Canada or
the Legislature, of a regulation or by-law made under such an Act or where a remedy is
claimed under s. 24(1) of the Canadian Charter of Rights and Freedoms in relation to an
act or omission of the Government of Canada or the Government of Ontario.
 7 PL141340

[21] Section (2.2) requires the notice to be served as soon as the circumstances
requiring it become known and, in any event, at least fifteen days before the day on
which the question is to be argued unless otherwise ordered.

[22] The City argues that the appeal filed by the Appellant Mr. Cardinal on November
10, 2014, with this Board refers to the Appellant bringing Notice of a Constitutional
Question in this appeal proceeding pursuant to s. 35(1) of the Constitution Act.

[23] It is noted that a Notice of Constitutional Question was served on the City in
December 2014, in relation to an action in the Ontario Superior Court of Justice file CV-
14-517372 by Stacy Amikwabi and others. It is also noted that Stacy Amikwabi also
seeks to be made a party to the proceeding within.

[24] As noted above, the Appellant served its Notice of Constitutional Question within
the appeal on May 22, 2015 and seeks the essentially the same relief as in Ontario
Superior Court of Justice file CV-14-517372.

[25] It was clearly known to the Appellant in November 2014, that a Notice of
Constitutional Question was to be brought but he waited until May 22, 2015, to do so
without giving the required fifteen days before the question was to be argued.

[26] Counsel for the City referred to a number of cases, where the Courts and the
Board considered whether to allow a constitutional Question to proceed even though
proper notice had not been given within the required timeline. The Federal Court in
Ishaq v. Canada (Minister of Citizenship and Immigration) (2015) FC156, 381 D.L.R.
(4th) 541 referred to a number of tests for granting an extension of time in cases such as
this. One of the relevant tests is whether the moving party had a reasonable
explanation for the delay.

[27] The Board was not offered any reasonable explanation by Mr. Swinwood for the
delay in moving with this request particularly when it was explicitly stated in the appeal
that such a question would be brought. The question was brought in the Ontario
 8 PL141340

Superior Court in December 2014 and it was reasonable for the City to assume that that
is what the Appellant was referring to in its appeal.

[28] Accordingly, the Board finds that the Notice of Constitutional Question was
defective in that the clear statutory requirement for notice was not met and on that basis
is quashed.

[29] Furthermore, the Board has consistently held that questions relating to ownership
of land were more properly brought in another forum such the Ontario Superior Court of
Justice. In this case, the Appellant and others have initiated an action in that court for
very similar if not the same relief. The Board on that basis would also quash the Notice
of Constitutional Question.

MOTION TO DISMISS

[30] The City had served its Motion Record on the Appellants on May 15, 2015, for an
Order of the Board pursuant to s. 17(45)(a)(i) and 34(25)(a)(i) of the Planning Act
dismissing the appeals against OPA 143 and Zoning By-law No. 2014-395. Mr.
Simmons who was retained by the Appellant Lindsay Lambert on the eve of the hearing
sought an adjournment of the hearing of this Motion on the grounds that he had not had
an opportunity to adequately prepare and to force him to proceed would be prejudicial to
his client. Before the Board could issue its ruling, Mr. Simmons fell ill requiring him to
be brought to the hospital for medical attention. The hearing was adjourned late in the
day on June 3, 2015, until June 4, 2015. Mr. Simmons returned on June 4, 2015 but it
was clear that he could not proceed. The hearing was adjourned on consent of the
parties.

[31] Counsel for the City and Windmill were looking for the earliest available date to
resume the hearing. Ms. Trebilcock-Thumbadoo, however is not available until she
returns from an overseas trip on August 13, 2015. The hearing is adjourned to 10 a.m.
on Monday, August 17, 2015. Three days have been set aside and this date is
peremptory. The hearing will take place at:
 9 PL141340

Ottawa City Hall

Keefer Room etc.
110 Laurier Ave. W.,
Cartier Square
Ottawa, ON K2P 2L7

[32] The Board notes that the parties have agreed to a set of dates for cross-
examination on the affidavits filed in support of the Citys Motion for dismissal without
holding a full hearing. Ms. Trebilcock-Thumbadoo agreed to make herself available to
cross-examine on Friday, June 5, 2015, prior to her departure from the country. The
Board expects all cross-examinations on the affidavits filed to be completed prior to the
next hearing event on August 17, 2015.

R. G. M. Makuch

R. G. M. MAKUCH
MEMBER

If there is an attachment referred to in this document,

please visit www.elto.gov.on.ca to view the attachment in PDF format.

Ontario Municipal Board

A constituent tribunal of Environment and Land Tribunals Ontario
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
 PL141340

ATTACHMENT 1

Update Week 2005-21

Planning

Case Name:
Arber v. Prescott and Russell (United Counties)

Philip Arber, Tina Hopson, Bruce Meness and others have

appealed to the Ontario Municipal Board under subsection
17(24) of the Planning Act, R.S.O. 1990, c. P.13, as
amended, from a decision of the United Counties of Prescott
and Russell to approve Proposed Amendment No. 4 to the
Official Plan for United Counties of Prescott and Russell
County File No. 020-OPA-02-002 OMB File No. O030069 and
Francoscnie Inc. has appealed to the Ontario Municipal
Board under subsection 34(11) of the Planning Act, R.S.O.
1990, c. P.13, as amended, from Council's refusal or
neglect to enact a proposed amendment to Zoning By-law 490
of the City of Clarence-Rockland (former Clarence Township)
to rezone lands respecting Lots 26, 27 and 28, Concession 3
from Conservation (CON) to include an outdoor amphitheatre
and accessory uses as permitted uses OMB File No. Z030081

[2005] O.M.B.D. No. 502

50 O.M.B.R. 56

File Nos. PL030382, O030069, Z030081

Ontario Municipal Board

R.G.M. Makuch (Member)

May 2, 2005.

(17 paras.)
COUNSEL:
P. Champagne, K.D. Yelle, for Francoscnie Inc.
M. Swinwood, for Tina Hopson and Bruce Meness.
P.A. Webber, for Ghislaine Rozon, Gerry Rozon, Sylvian Prevost, Dr. Erik Petersen and Donna Pe-
tersen.
Phil Arber, on his own behalf.

DECISION ON A MOTION FOR COSTS DELIVERED BY R.G.M. MAKUCH AND ORDER

OF THE BOARD:--
1 The Board issued Decision/Order No. 1920 on December 14, 2004 [See [2003] O.M.B.D. No.
1282] dismissing all appeals against the decision of the Council of the United Counties of Prescott
and Russell to approve Proposed Amendment No. 4 to the Official Plan for the United Counties of
Prescott and Russell as well as allowing Francoscnie Inc.'s appeal against the City of Clar-
ence-Rockland's Council's refusal to approve an amendment to permit the proposed use on the sub-
ject lands. At the conclusion of the hearing of this matter, Counsel for Francoscenie Inc. had re-
served the right to make a request for costs against the appellants pending issuance of the Board's
decision. Such a motion has now been filed in accordance with the Board's Rules as well as with
specific directives from the Board.
2 The materials before the Board on this motion consist of Francoscenie Inc.'s Motion Record
supported by the affidavit of Karina Yelle sworn January 17, 2005, the Response to Motion filed by
counsel for Sylvian Prevost, Erik Petersen, Donna Petersen, Ghislaine Rozon and Gerry Rozon, the
Response To Motion filed by counsel for Tina Hopson and Bruce Meness, the Response to Motion
filed by Phil Arber and finally the Reply by counsel for Francoscenie to each of the appellants' Re-
sponse to Motion for Costs.
3 In his Reply, counsel for Francoscenie Inc., indicated that he was abandoning his motion for
costs against Gerry Rozon and Donna Petersen, consequently, the Board will not be considering the
submissions and will not be making an award with respect to costs as against those individuals.
4 The total claim for costs is in the amount of $137,032.22, which includes the amounts of
$121,614.75 for legal fees, $6,460.92 for disbursements as well as $8,956.55 for GST. The claim
does not include any costs associated with the preparation of the various experts' reports or the at-
tendance by these experts at the hearing.
5 The claim for costs is being advanced on the grounds that the appellants were constantly at-
tempting to delay the hearing by: bringing frivolous and vexatious motions and requesting ad-
journments; constantly asking repetitive questions while cross-examining Francoscenie Inc's wit-
nesses simply for the purpose of delay; asking questions on cross-examination of the Francoscenie
Inc. witnesses for the purpose of attacking their credibility, knowing full well that the evidence of
their own witnesses would confirm the evidence of the Francoscenie Inc. witnesses; persisted in
trying to adduce evidence relating to issues that had previously been ruled irrelevant; the appellants
were cautioned during the course of the hearing that their conduct could attract cost consequences;
and finally, that their general conduct throughout the hearing was abusive, unreasonable, as well as
frivolous and vexatious.
6 Counsel for Francoscenie Inc. in his Reply submission suggests that while it has been very
difficult to properly estimate an exact number of hours by which the hearing was extended as a re-
sult of the conduct of the appellants, there is no question that this conduct did extend the hearing
and resulted in additional preparation time expended on behalf of his client. Mr. Champagne esti-
mates that 44% of the time spent at the hearing was needless additional time required to complete
the hearing by reason of the appellants' unreasonable conduct.
7 The Board has carefully considered all these materials and finds that it should, under the cir-
cumstances, exercise its discretion to make an award of costs against the appellants Ghislaine Ro-
zon, Sylvian Prevost, Erik Petersen, Tina Hopson and Bruce Meness.
8 The Board is not prepared to exercise its discretion to make an award of costs against the ap-
pellant Phil Arber. While Mr. Arber, who acted on his own behalf, did at times, carry out repetitive
cross-examination, this did not result in an inordinate amount of time being added to the hearing.
He was generally co-operative and heeded any cautions given him by the Board and did not persist
in a course of conduct which should attract cost consequences against himself. The Board recogniz-
es that Mr. Arber had similar interests as the other appellants represented by Mr. Swinwood at the
hearing and could have made a better effort of combining his efforts with those appellants, but giv-
en their conduct, it was probably a wise decision by Mr. Arber to keep some distance from these
individuals and their counsel. While there is also no doubt that Mr. Arber, as an appellant could
have expended a little more time informing himself as to the procedure before this Board prior to
the hearing, his conduct and demeanour throughout the hearing however, was nevertheless respect-
ful of the parties and of the Board.
9 With respect to the conduct of the other appellants, the Francoscenie Inc. Motion Record and
Reply contains a fair and accurate detailed account of the proceedings. The accuracy of this account
of the facts throughout the course of the hearing was not challenged or contradicted by the appel-
lants. The appellants through their counsel, continued on a path of conduct which was clearly un-
reasonable, frivolous, vexatious and in bad faith by: changing their position without notice respect-
ing the risk of forest fires and introducing a new issue respecting same during the course of the
hearing; they failed to act in a timely manner and to comply with the procedural order in not having
all of their witness statements filed within the prescribed time frames; they were not adequately
prepared for the hearing resulting in delays; they continued to deal with issues and asked questions
regarding these issues, which the Board had previously ruled to be improper or irrelevant; their
counsel acted disrespectfully and attempted to malign the character of the witnesses who gave evi-
dence in support of Francoscenie Inc.'s position; and, they knowingly presented misleading evi-
dence.
10 The Board does not accept Mr. Webber's argument that because the conduct complained of
and attributed to the appellants as a whole was by Mr. Swinwood, acting as their counsel, any claim
for costs resulting from that conduct should have been made against Mr. Swinwood personally. The
appellants were present throughout the hearing either feeding questions to their counsel while he
was cross-examining witnesses or simply consulting with him. The Board may only assume that he
was acting under instructions from his clients throughout the proceeding. These appellants are re-
sponsible for his conduct, and, if they now hold the view that he was acting outside the scope of
their retainer with him, they may very well have the right to seek redress for any losses incurred by
them as a result of that conduct in another forum. The Board must note that Mr. Swinwood's con-
duct and demeanour throughout the hearing as described in the Francoscenie Inc. Motion Record
and Reply submission could only be described as simply lamentable for an officer of the Superior
Court of Ontario.
11 It was also evident during the course of the hearing that Mr. Swinwood was not familiar
with the process before this Board and had very little knowledge of the governing legislation (Plan-
ning Act) under which these appeals were brought.
12 The Board accepts the estimate of 44% provided by Mr. Champagne as reasonably accurate
with respect to the additional time required to complete the hearing as a result of the appellants'
conduct. This estimate represents $53,510.49 for legal fees plus $3,745.73 for GST in additional
legal fees incurred by Francoscenie Inc. as a result of the conduct of the appellants throughout the
proceeding. There is no evidence before the Board as to what the additional disbursements incurred
are as a result of the appellants' conduct.
13 It must be noted that orders for costs are a rare occurrence in these proceedings and it is only
where a party's conduct is so clearly unreasonable that the Board will exercise its discretion to make
such an award. The Board's traditional test for "clearly unreasonable" conduct has been described
as:

... would a reasonable person, having looked at all the circumstances of the case,
the conduct or course of conduct of a party proven at the hearing and the extent
of his or her familiarity with the Board's procedure, exclaim, "that's not right;
that's not fair; that person ought to be obligated to another in some way for that
conduct.
Rule 106 provides a non-exhaustive list of examples of the type of conduct, which might attract cost
consequences.
14 The appellants through their counsel engaged in almost every example of such conduct
throughout the course of the hearing. The appellants adopted a strategy of "win at all costs" without
regard for the truth. Mr. Swinwood continued to advance his position on certain issues even after
his own witnesses freely admitted that the facts relied on by the appellants to support that position
did not exist or were proven to be based on inadequate/incomplete research and false assertions.
15 Although the Board finds the costs as submitted by counsel for Francoscenie Inc. to be very
reasonable under the circumstances, it is not prepared to make an award, which would compensate
Francoscenie Inc. for 44% of its legal costs. The Board finds after having regard to all of the facts,
that an award in the total amount of $15,000.00 would be appropriate under the circumstances to
compensate Francoscenie Inc. for the additional legal costs incurred by it as a result of the appel-
lants' frivolous, vexatious and unreasonable conduct.
16 Accordingly, the Board hereby orders the appellants Ghislaine Rozon, Sylvian Prevost, Erik
Petersen, Tina Hopson and Bruce Meness to pay forthwith to Francoscenie Inc. the sum of
$15,000.00 in costs.
17 It is so Ordered.
R.G.M. MAKUCH, Member