ISSUE DATE:

December 20, 2012 PL080057 Ontario Municipal Board Commission des affaires municipales de lOntario IN THE MATTER OF subsection 97(1) of the Ontario Municipal Board Act, R.S.O. 1990, c.O. 28, as amended Request by: Request for: Costs sought against: Richcraft Group of Companies Request for an Order Awarding Costs Ted Cooper

APPEARANCES:

Parties Ted Cooper Richcraft Group of Companies

Counsel

A. Cohen J. Cohen

DECISION ON A MOTION FOR COSTS DELIVERED BY M. C. DENHEZ AND ORDER OF THE BOARD INTRODUCTION [1] Ted Cooper is a self-proclaimed whistleblower. This infrastructure engineer at the City of Ottawa (the City) opposed development projects near the Carp River, claiming flood risk. [2] He was involved in four appeals (of City planning instruments) to the Ontario

Municipal Board (the Board) one as chief witness, and three as appellant. Sometimes, public authorities and the Board agreed with him, sometimes not. One of his appeals was settled to his satisfaction, but the other three did not turn out as he had hoped. Indeed, one developer said Mr. Cooper had an abysmal lack of understanding of landuse planning; and in one of those appeals, that developer sought costs against him of over $69,000, on five separate grounds.

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[3] Mr. Cooper called this claim an attempt at intimidation. He added that the developers award of costs, if any, should be offset by costs claimable by him. [4] Mr. Cooper had filed this specific appeal in late 2007, against a subdivision by the Richcraft Group of Companies (Richcraft). Some four years later, in early 2012, Richcraft filed a Motion to Dismiss it, unders. s. 51(53) of the Planning Act. That Motion was successful: the Board found that, whatever the merits of this appeal in 2007, intervening events (and numerous conditions now imposed on the subdivision) indicated that as of 2012, there were no remaining planning grounds on which the Board could refuse the draft plan of subdivision. [5] Richcraft then filed this Motion for Costs. The main thrust was less about: whether the appeal had planning merit at the time it was launched, than whether Mr. Cooper should have abandoned the appeal, in light of the events that occurred in the interim.

[6] Richcraft added that the appeal should have referred only to the area which Mr. Cooper considered at risk; most of its subdivision was outside that area, and should not have been targeted by the appeal in the first place. [7] Next, Richcraft said Mr. Cooper had agreed to be cross-examined on an affidavit then reneged (which was disputed). Richcraft also said his attempts to reopen the Board decision that had dismissed his appeal used language that maligned the Board and Richcrafts planner, further meriting costs. [8] Mr. Cooper replied that it was Richcraft that was being unreasonable, and he called for an offsetting award of costs in the opposite direction. He was not represented by counsel. At the hearing on the Motion for Costs, the City observed, but took no position. [9] The Board has carefully considered all the evidence, and the submissions of both sides pertaining to the various grounds for costs. Although the Board finds that some of Mr. Cooper's conduct was indeed problematic, there are technical difficulties with the claims of both sides, which result in no money being owed by either.

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[10] The Board first considered Richcrafts main ground, which said Mr. Cooper persisted in his appeal after it should have been abandoned or recast. The Board, however, was not persuaded that this ground merited costs, for several reasons to be outlined. [11] The Board did agree with Richcraft that the geographic scope of Mr. Cooper's appeal was too widely cast. If Mr. Cooper had had any ready mechanism to correct that, then he should have used it but no such mechanism was demonstrated to be at his obvious disposal. [12] As for the out-of-pocket costs for the cancelled cross-examination, there were unusual circumstances for both sides; in any event, the Board was not advised of any cancellation fees from the reporting/examiners service. [13] As to whether Mr. Cooper maligned the Board, this panel agrees with Richcraft that his accusation of systemic bias was profoundly derogatory. If it had been made in Board proceedings, it might have indeed merited costs but it was not. It was in correspondence with a third party, outside the ambit of normal costs awards. [14] Finally, the Board does not agree that Mr. Cooper's language, concerning Richcraft's planner, was unparliamentary; his choice of words corresponded to the applicable legal provisions, just as Richcraft's did. [15] Mr. Cooper, for his part, alluded to his own costs, and accused Richcraft of unreasonableness during both its Motion to Dismiss and the current Motion for Costs. He wanted his costs to offset any costs award to Richcraft. He added that he should have not have been required to retain counsel, as he did during the Motion to Dismiss. The Board does not accede to Mr. Cooper's claims, any more than it did to Richcraft's. The details and reasons are set out below. BACKGROUND [16] This debate referred to four main appeals, though several others involving Mr. Cooper were alluded to. In the first, Mr. Cooper was a witness in an appeal by an environmental group against subdivisions in an area called Fernbank. In the three others, he filed the appeals himself. One such dispute was on Jockvale Road (not in the

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same watershed, but nearby); that appeal, of Zoning By-law 2007-489, was settled. The next (called Trinity) proceeded to a hearing on the merits, and was dismissed. The final one was the matter at hand, with Richcraft. [17] Ted Cooper, M.A.Sc., P.Eng., calls himself an "Infrastructure Planner", though neither his academic nor professional credentials are in land-use planning. He is a Professional Engineer with "24 years of experience in water resources and municipal engineering"; but he was unable to persuade his employer, the City, of his views about the Carp River Corridor. That led him to these appeals in his personal capacity, usually at odds with his employer. He insisted that under the Professional Engineers Act of Ontario and the regulation thereunder, he was duty-bound to speak out on behalf of the public interest. Section 77(2) of the regulation says that Professional Engineers must "regard the practitioner's duty to public welfare as paramount. [18] Mr. Cooper had two early successes. The first was the settlement in the Jockvale appeal. Second, he was instrumental in the discovery of a miscalculation of flood risk data. That discovery unleashed a major chain of events, summarized in the Boards decision from the Motion to Dismiss (Motion decision):
In 2007, in response to a tip from the Appellant, the City's Auditor General launched an audit of the rivers watershed studies. That is when the City discovered what was commonly called "the Egregious Modeling Error (EME). A miscalculation of runoff from hard surfaces meant that in a "worst-case scenario" for the Carp River Corridor, there could be 85.6 million litres of extra stormwater, with nowhere to go. Discovery of the EME changed the complexion of the issue. In January, 2008, the City asked MOE (the Ministry of the Environment) to delay review of bump-up requests, pending more analysis. The City also undertook a Third Party Review (TPR) of plans and models. MOE directed revisions to documentation in EAs (Environmental Assessments), and attached further conditions to the overall project. In due course, the TPR reported that modeling errors were corrected. The City and local developers responded by revising/updating the Carp River Restoration Project, the Master Servicing Study, and the Transportation Master Plan. The City also adopted a new OPA (Official Plan Amendment), called OPA 76, with new floodplain policies. The Appellant himself told the hearing that as of June 2009, "floodplain policies were completely rewritten". Next, the lands would also need to be rezoned. This was expected to include preconditions, to be itemized in an "H" Holding provision under section 36 of the Planning Act. For good measure, the subject property is also within the existing holding zone of Bylaw 2010-231, pertaining to pumping station capacity.

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OPA 76 specified that development in the floodplain would need Conservation Authority (MVC) approval, before obtaining a building permit.In late 2011, the City initiated public consultation for yet a further OPA, to recognize both the two-zone approach and the Carp River Restoration Policy Area with preconditions to development again to be entrenched in an "H" Holding provision, and eventual removal of lands from the floodplain.

[19] In short, along with changes in the physical plans for flood-proofing, these events produced a regulatory framework far different from when the appeal was launched. There were now multiple approvals to be obtained, in stages. [20] Richcraft said an additional turning point occurred when the Board dismissed Mr.

Cooper's appeal at the Trinity site, abutting Richcraft's. According to Richcraft's planner, "Mr. Cooper ought not to have pursued the subject appeal once the Trinity decision had issued. In the Board's view, however, the larger change was what Mr. Cooper himself acknowledged: "The floodplain policies were completely rewritten. There was now a clear critical path: various requirements had to be met at each stage, before the next could begin. The insertion of these preconditions, the Board concluded, had made Mr. Cooper's original grounds of appeal moot. By now, his remaining arguments were essentially (a) that all these conditions should be fulfilled in advance, instead of being addressed along this critical path in stages, and/or (b) there were still unknowns that should prevent even a staged critical path from starting at all:
Mr. Cooper did not argue shortcomings in Richcrafts physical arrangements, nor any imminent threat to the public interest. He said Richcrafts subdivision plan illustrated prospective blocks inside the floodplain, albeit - conditional on redrafting that floodplain boundary, thanks to public works (projects), - and subject to multiple government approvals. He said no potential development in the current floodplain should have been illustrated: this space on the map should have been left blank. He was firm in saying this was his only remaining substantive issue. The Board grants the Motion to Dismiss. Whatever the planning grounds at the time he launched his appeal (2007), the single issue today is - Whether a municipality is authorized to approve subdivision blocks in a floodplain, - Conditional on works which remove those lands from that floodplain. Mr. Cooper essentially argued that municipalities have no such right, even conditionally. The Board disagrees on the premise that the retrieval work is duly approved by those with the environmental authority and expertise to do so. Those approvals are a prerequisite here, and the process has been correctly structured accordingly. There was no other ground on which the Board could refuse approval of the plan. The Motion is granted.

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[21] The Board issued a summarized oral decision at the hearing (March 12, 2012), followed by a more detailed written version (Issued April 26, 2012). Three events then occurred: Richcraft filed the current Motion for Costs, and Mr. Cooper attempted to reopen the Board decision on two fronts, the first being at the Board under s.43 of the Ontario Municipal Board Act. The next was to ask the Ministry of Municipal Affairs and Housing (MMAH) to intervene. Neither of those overtures succeeded. [22] Meanwhile, Richcraft continued with its demand for costs, on a full indemnity

basis ($69,037.25), the main ground being that Mr. Cooper had been unreasonable in how he handled his appeal after the Trinity decision, and MOEs refusal to halt the project. Richcraft added that although most of its 112-acre subdivision was outside current floodplain mapping (comprising only four or five acres), the entire subdivision was targeted by Mr. Cooper's appeal. [23] As for the cross-examination on Mr. Cooper's affidavit, Mr. Cooper sent an email, saying he would make himself "available to be cross-examined. Then, at 1:19 pm on the afternoon preceding the appointment date, his newly-arrived lawyer advised that Mr. Cooper would be backing out. Richcrafts counsel replied by e-mail that he would cancel the appointment at the Examiners Office:
Given your assertion that you will not attend to-morrow, I will (for no other reason) cancel the time at Gillespie (Reporting Services) to avoid the cost.

[24] Exactly 15 minutes later, he sent another e-mail indicating he had changed his mind:
Please note that we are NOT going to cancel the Gillespie appointment for tomorrow. [Emphasis in original]

[25]

He later explained that he wanted proof of Mr. Cooper's non-attendance. Another

lawyer for Richcraft (Ms. Cohen) did attend at the appointed hour for the crossexamination. Ms. Cohen waited for approximately 15 minutes but Mr. Cooper did not appear." When Mr. Cooper was confronted with a claim for costs on that account, he replied that when he agreed to make himself "available to be cross-examined", this did not necessarily mean that he agreed to attend. He added that, in any event, Richcraft had not met the relevant notice requirements.

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[26] Richcraft also said Mr. Cooper's correspondence with MMAH maligned the Board. He had written a five-page letter to MMAH on April 3, 2012, stating the following:
I am awaiting the written decision of Board Member Denhez What is astounding is how this decision clearly contradicts Member Denhez's March 9, 2012 decision concerning the successful appeal of the Rideau Valley Conservation Authority of the Committee of Adjustment approval of a minor variance at 26 Burland Street. The situation with the Richcraft plan of subdivision is much, much more serious and warrants intervention by the province. There are several incredible circumstances that raise serious doubt about the validity of Member Denhez's March 12, 2012 oral decision. (It) disregarded my Affidavit and submission that the MVCA did not sign off on the technical analysis on which the City and Richcraft have relied in having my appeal dismissed without a hearing.

[27]

He wrote to MMAH again on April 18, 2012:

Isn't there something amiss in Member Denhezs oral decision when he disregarded the changes made to floodplain policies in OPA76? (It) leaves me with the impression that the OMB only takes seriously appeals by conservation authorities when the appeals involve apparent inconsistencies with natural heritage policies while disregarding appeals filed by members of the public on similar grounds. Clearly that is not the expectation of Bill 51, which identifies who has a right to appeal their concerns to the OMB. What is also troubling with Member Denhez's decision, is that he gave little to no regard to the fact that he decided the appeal prior to the MVCA (Mississippi Valley Conservation Authority) completing its review of the updated floodplain analysis completed by the City and Kanata West Owners Group.

[28] Mr. Cooper also wrote to the Board that Richcrafts planner, Mr. Tremblay, had given false and misleading evidence. Although neither MMAH nor the Board acceded to his requests, Richcraft said the above language, pertaining to both the Board and Richcrafts planner, merited an award of costs. [29] Mr. Cooper replied, overall, that Richcraft's tactics were akin to Strategic Litigation Against Public Participation (SLAPP), a well-known tactic to deter public interest litigation. He elaborated:
The purpose of this Motion for Costs on a full indemnity basis is to intimidate me and other private citizen litigants from participating in Appeals to the OMB. The real purpose of the Richcraft motion for costs against me on a full indemnity basis is not about the money it would receive, but it is to silence me, to ensure I would no longer be able to afford when I might choose to exercise my Statutory Rights, or to serve the public interest, by engaging in proceedings before the OMB.

[30] Neither Mr. Cooper's original Response to Motion nor his Supplementary Response to Motion laid out a counterclaim as such. However, he did itemize his own

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costs; and he repeatedly referred to them as if they were mitigation of any potential costs award in favour of Richcraft:
The Board should consider the unnecessary expenses that I have incurred during the motion to dismiss process and reduce any cost award it may be considering.

CRITERIA [31] Section 97 of the Ontario Municipal Board Act allows the Board to fix costs in the

discretion of the Board. Rule 103 of the Boards Rules of Practice and Procedure outlines the general principle:
The Board may only order costs against a party if the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or if the party has acted in bad faith. Clearly unreasonable, frivolous, vexatious or bad faith conduct can include, but is not limited, to: a) failing to attend a hearing b) failing to give notice without adequate explanation, lack of cooperation with other parties during prehearing proceedings, changing a position without notice, or introducing an issue or evidence not previously mentioned; c) failing to act in a timely manner or failing to comply with a procedural order or direction of the Board d) A course of conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events; e) failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Board has determined to be improper; f) failing to make reasonable efforts to combine submissions

g) acting disrespectfully or maligning the character of another party; and h) knowingly presenting false or misleading evidence.

ANALYSIS [32] Richcraft argued that Mr. Cooper should be liable for costs of $69,037.25 (full indemnity basis). On consideration, the Boards starting-point is clear. The Board does not welcome a plethora of costs motions in these circumstances. As it said in Kimvar Enterprises Inc. v. Innisfil (Town), [2009] M.P.L.R. (4th), following Westfield Place Inc. v. Blandford-Blenheim (Township) Pit Application, [1996] O.M.B.D. No. 1252:

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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. The test for clearly unreasonable conduct that is most often cited in Board decisions is: would a reasonable person, having looked at all of the circumstances of the case, conclude the conduct was not right; the conduct was not fair and that person ought to be obligated to another in some way for that kind of conduct.

[33] The Board has also explained the terms unreasonable, frivolous, vexatious, and in bad faith. In Mason Homes et al. v. City of Kawartha Lakes (2008) 59 O.M.B.R. 129, the Board followed the decision in Re Town of Midland Zoning By-law 94-50, (1995) 32 O.M.B.R. 4, citing the following passage:
The different facets of a party's participation are reflected in the... use of the terms "frivolous", "vexatious" and "clearly unreasonable". Contrary to popular assumption, these are not synonyms, but are meant to reflect different types of inappropriate conduct.... "Frivolous" means "characterized by lack of seriousness".... "Vexatious", particularly in legal parlance, describes action "instituted without sufficient grounds for the purpose of causing trouble or annoyance" to another party.... "Unreasonable" means "irrational" or not in accordance with common sense.... Thus, in the colloquial, we have the "silly", the "nasty" and the "foolish". To be either "silly" or "nasty" in this context requires some deliberateness of purpose; one is trying not to be serious or is trying to be bad. And while there is no doubt that one can intend to be unreasonable, one can also be unreasonable without making any effort at all....

[34]

Mason also addressed the hierarchy of conduct which may trigger awards of

costs in various amounts. Partial costs ("costs on a partial indemnity basis") might be awarded for conduct that was "clearly unreasonable"; but if the conduct went beyond "unreasonable", and became (in terminology that originated in the Courts) "reprehensible, scandalous or outrageous", then the Board could consider costs at a higher "substantial" or "full" indemnity basis. Mason cited the following explanatory passage from Wal-Mart Canada Corp. v. Signum Corp., [2004] O.M.B.D. 1832:
(For) clearly unreasonable conduct, the Board must then determine whether this conduct was such that costs should be awarded on a full indemnity basis or on the lesser partial indemnity basis The Board adopts the test used by the Courts in determining whether a costs award should be made on a substantial indemnity basis: was the conduct of the party against which costs are sought reprehensible, scandalous or outrageous? Clearly unreasonable is not synonymous with any of reprehensible, scandalous or outrageous.

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[35] Awards of costs on a partial indemnity basis have tended to be relatively modest. In contrast, some awards of costs on a full indemnity basis have been large. The best-known were in cases where commercial competitors were using Board litigation tactically, to prevent each other from opening new stores (store wars). [36] This brings us to Mr. Cooper. Since the amount sought is on a full indemnity basis, the question is whether his conduct meets the criterion of being "reprehensible, scandalous or outrageous", notably on the main question of having persisted in his appeal. [37] Counsel for Richcraft, Mr. Cohen, said it did answer the description of "scandalous". As a municipal engineer, Mr. Cooper was a "sophisticated party" who knew or should have known that there is nothing unusual about projects which follow a critical path, with preconditions timed to coincide with different stages. There is no ironclad assumption that all preconditions must be identified and fulfilled at a single time before anything starts. By that reasoning, the key question was less about what preconditions needed to be met, but when. For example, said Mr. Cohen, even if development were suspended within the flood plain (by whatever definition) pending fulfillment of preconditions, there was no reason why Mr. Cooper should oppose work starting in other parts of the subdivision outside the area of flood risk. Even within the flood plain, Mr. Cooper should have acknowledged that preparatory measures could be undertaken conditionally. If Mr. Cooper had duly consulted a land-use planner, said Mr. Cohen, he would have realized that, and Richcraft's Motion to Dismiss "might not have been required. As it was, Mr. Coopers preoccupation with front-ending all preconditions displayed "an abysmal lack of understanding of land-use planning, a real or wilful blindness to the subdivision process. If you've been told in the past, there's no strength to your case', then for goodness sake, go get a planner. Yes, said Mr. Cohen, in the case of an otherwise sophisticated party, that conduct was "scandalous". [38] Mr. Cooper was undeterred. Indeed, notwithstanding the various decisions against him, and the lack of support from MOE and MMAH, he maintained that there were still obvious examples of how the project was flawed from the outset. Issues persist to this day. Not all the issues of the subdivision are resolved. He cited the example of proposed pathways, which might still be at risk of flooding.

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[39] If anything, he felt vindicated by some recent events, such as the City decision to move the pumping station:
The City now agrees with me about the location of the (Kanata West Pumping Station); the City agrees with me about the flood risks inherent in the (Carp River Restoration Plan); and in approving the new limits of the floodplain overlay and by-law 2012-277, the City has agreed that the floodplain overlay affects future residential and park development blocks on the Richcraft Plan of Subdivision. The facts and action taken (by) the City demonstrate that the City is now in agreement with me. The facts establish that my appeal therefore has not been unreasonable, frivolous, vexatious or filed in bad faith.

[40] He added (twice) that he had even been congratulated by former Mayor Larry O'Brien. [41] On close examination of Mr. Cooper's voluminous evidence, however, and his correspondence with MMAH and the Board, it is still unclear whether to this day, Mr. Cooper grasps the distinction between: projects which are reviewed and approved all-at-once in advance, and projects which are reviewed and approved strictly in stages.

[42] It is one thing, however, to call an appellant's position obtuse; it is another to call it clearly unreasonable, and yet another to call it scandalous. In Mason, the Board followed the Divisional Court's definition of "scandalous" in 876502 Ontario Inc. v. E.F. Propco Holdings (Ontario) 10 Ltd. (1997), 37 O.R. (3d) 70 (Ont. Gen. Div.) at 76:
Offensive allegations made for the purpose of prejudicing the opposite party, allegations which are unbecoming of the court to hear, or unnecessary allegations bearing cruelly on the moral character of an individual.

[43] With all possible sympathy to the weight of Richcrafts expenses, the Board found nothing in the exercise of Mr. Coopers statutory rights which answered the above definition. This case does not meet the criterion for an award of costs at the full indemnity scale. [44] As for costs on a partial indemnity scale, the Board proceeds with caution, and not merely because of Kimvars admonition about not awarding costs lightly. This case is unlike store wars, NIMBY cases (Not-In-My-Back-Yard), appeals based on political opportunism, or ideological appeals (so-called BANANA cases, Build-AbsolutelyNothing-Anywhere-Near-Anything). This appellant was not pursuing his personal or

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ideological interest. As misguided as Richcraft's counsel may have thought Mr. Cooper to be, there was no serious dispute that he at least saw himself as pursuing the public interest in flood control. At the hearing, he referred to himself as a whistleblower, speaking out against projects which if not nefarious, were at least ill-considered. [45] There is a public interest in whistleblowing. In the famous words of the Victorian jurist, Baron Parke Wensleydale, a man is but a poor citizen, to say nothing worse of him, if he is deliberately silent when he sees the lives of the public likely to be imperilled or the property of another person in obvious danger of being stolen or destroyed. [46] Granted, the line between whistleblower and gadfly is narrow. The Planning Act

reflects a clear apprehension when it provides that appeals can be dismissed where the appellant "has persistently and without reasonable grounds commenced proceedings that constitute an abuse of process. On the other hand, an inference about broad legislative intent may also be drawn from provisions to protect whistleblowers under e.g. the the Public Service Act of Ontario and the Environmental Bill of Rights. Whistleblowing has at least some legislative recognition. [47] The Board must also be wary of the chill effect that could ensue, if there are undue difficulties for citizens who challenge the policy basis of planning decisions. As the Board said in Kimvar:
The Board takes a cautious approach to cost awards against citizens and strives to accommodate public participation in land-use planning decisions. Costs cannot be used as a threat to deter public participation; and costs will only be awarded (whether the parties are commercial entities, ratepayers or citizens) where the conduct complained of is so improper that it cannot be ignored.

[48] There is a key reason for this. In a policy-led system (which is how the Provincial Policy Statement describes Ontarios planning framework), the right of appeal on the ground of bringing decisions into conformity with fundamental planning policy is not only a statutory right; it is part of the lifeblood of this system. [49] Richcraft's counsel countered that Mr. Coopers allusions to the public interest were not only incorrect; they were a questionable attempt to usurp the position of council the body legally assigned to speak for the municipal public interest. While that municipal role is indisputable, it is not the whole story. In a policy-led system, even

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councils and municipal administrations can be bound by planning policies; if they do not comply, challenges are not only possible, but expected. [50] In short, there is a public interest at stake a public interest in the transparent application of binding policy. [51] That does not change one iota of Rule 103 against unreasonableness: unfair conduct is no less unfair, merely because the perpetrator claims a higher motive. In this case, however, this appellant clearly believed he had urgent substantive matters to convey to the Board, not only at the start of this appeal, but even after the outcome of the Trinity appeal, and after MOE took a different path (he was still trying to convey that viewpoint, after the hearing on the merits, and even in this Motion for Costs). The Board finds nothing either suspect or incoherent in the fact that he pursued the appeal. Other individuals might have dropped the matter (as Richcraft said Mr. Cooper should have done), but in its discretion, the Board finds nothing so unreasonable in that conduct that it justifies an award of costs. [52] The next question pertains to the geographic ambit of Mr. Cooper's appeal,

namely whether it was reasonable for Mr. Cooper to appeal the entirety of the 112-acre subdivision, when his concerns (in areas allegedly at risk) included only a small part. [53] Though that question received the least discussion at the hearing, it remains troubling. In the case of a whistleblower, it appears unreasonable for an appeal purportedly launched in the public interest to tie up all kinds of other lands where the same public interest simply does not exist. [54] There are, however, two difficulties in suggesting that this merits costs here. First, the Board was shown no readily visible mechanism, at Mr. Coopers disposal, to segregate lands of concern to him from those which were not. Second, even if such a mechanism had been brought to his attention, the Board was not shown how this would have significantly expedited the rest of Richcraft's subdivision, given other restrictions on the property. Although the Board is unimpressed with the geographic scope of Mr. Cooper's appeal, the Board was not shown how that situation could have been significantly improved. An award of costs is not warranted on that account.

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[55] Next, there is the question of the non-attendance for cross-examination. The Board discounts Mr. Cooper's disingenuous arguments about whether he truly agreed to attend, and about whether he received proper notice of the appointment. A more important question is whether counsel for Richcraft acquiesced, at least temporarily. Another factor is more important still: if there had been a cancellation fee, then the Board would have found it elementary for Mr. Cooper to absorb it; but the Board's attention was not drawn to any such cancellation fee from the reporting/examiner's service in Richcraft's extensive accounting. The Board is therefore not in a position to order costs on that account. [56] The next question is whether Mr. Cooper "maligned the Board". He had written to MMAH that he found the Boards oral summary decision dismissing his case astounding, and subject to serious doubt. He concluded that his evidence had been disregarded, and that something was amiss. Whatever the Board's view of the accuracy of those descriptions, it finds nothing in that language which might be considered unparliamentary, or otherwise deserving of an award for costs. [57] However, there was a more troubling passage, where Mr. Cooper accused the

Board of a double standard. In his correspondence with MMAH, he contrasted his own unsuccessful appeal to a more successful appeal, decided recently (by the same panel) in favour of the Rideau Valley Conservation Authority. Mr. Cooper described the impression that the OMB only takes seriously appeals by conservation authorities when the appeals involve apparent inconsistencies with natural heritage policies while disregarding appeals filed by members of the public on similar grounds. [58] Mr. Cooper defended his messages to MMAH:
My letters to MMAH in April 2012, subsequent to the oral decision at the March 12, 2012 Motion to Dismiss hearing were factual, and by definition were not maligning the Board.

[59] The Board disagrees, concerning the above quotation contrasting Board treatment of conservation authorities with private citizens. That passage does indeed malign the Board. There is no accusation more derogatory toward any adjudicative tribunal than one of systemic bias. What makes the comment even more intemperate is that it was made without awaiting or consulting the Board's written decision, which had not yet been issued. Whatever Mr. Cooper's frustrations, these comments to MMAH

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were uncalled for. If they had been made within Board proceedings, this panel would have had little hesitation in awarding costs on that account. [60] The difficulty is that they were not made within Board proceedings. Rule 102 specifies that the Board only makes a "costs award for conduct at any time during a proceeding. Although some Board cases have debated whether this included conduct which provoked proceedings, e.g. SmartCentres Inc. (Toronto Film Studios Inc.) v. Toronto (City), (2011) 80 5M.P.L.R. (4th) 330, the Board was shown no authority for the proposition that a letter to a government office sent after the hearing, to a third party uninvolved in either the appeal or the request under s. 43 was part of the Board "proceedings". That correspondence however derogatory is not an appropriate basis for the Board to award costs. [61] The final question concerning Richcraft's Motion is whether Mr. Cooper maligned Richcrafts planner when, in his request to reopen his case under s. 43, he called the planner's evidence "false and misleading". Mr. Cohen called that characterization "scurrilous". [62] Mr. Cooper replied that in Richcrafts Motion materials, Mr. Cohen described Mr. Coopers conduct and materials as frivolous, vexatious, and most importantly, in bad faith. Why should one be scurrilous, and not the other? [63] The Board acknowledges the awkwardness of parties being pursued for costs, for using the very language which is in the statute and Rules. In this case, however, Mr. Cohen used the terms "frivolous", "vexatious" and "in bad faith" only to the extent necessary to put forward his case, under the relevant statutory criteria which use those very words. In that respect, use of those relevant legal terms is essentially unavoidable, in making a claim under that statutory provision. In all other respects, Mr. Cohens case was presented soberly, methodically, and with all due civility. The Board discerned nothing overtly gratuitous. [64] The Board found the same in Mr. Cooper's request to the Board under s. 43 where the terms "false or misleading evidence" are similarly ensconced at Rule 115.01:
The Chair may exercise his/her discretion and grant a request and order either a rehearing of the proceeding or a motion to review the decision only if the Chair is satisfied that the request for review raises a convincing and compelling case that the Board

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d) heard false or misleading evidence from a party or witness. [Emphasis added]

[65] Like Mr. Cohen, Mr. Cooper essentially had to use those terms, in order to make his submission. Again, the argument was made soberly and methodically; and again, the Board found nothing gratuitous. The Board finds no grounds for costs on that account. [66] The Board now turns to Mr. Cooper's own claim for costs. On consideration, the Board dismisses that claim for two reasons. [67] First, as mentioned, Mr. Cooper did not present it as a stand-alone counterclaim: it was couched in references to mitigating any award of costs for Richcraft. Since the Board is not making an award of costs for Richcraft, that makes Mr. Cooper's claim moot, at least as presented. [68] Second and more substantively, the Board reiterates that there were aspects of Mr. Cooper's conduct with which the Board profoundly disagrees. If Mr. Cooper avoided any award of costs on their account, it is for the legal reasons outlined herein not because Richcraft filed this Motion empty-handed. [69] Finally, the Board considered Mr. Cooper's contention that part of his purpose, in the current proceedings, was to defend the principle of self-representation:
To establish the right to be able to file an Affidavit in this proceeding that includes my professional engineering opinion concerning an appeal filed with the OMB, and to be able to be self-represented and argue my case before the Board on a case that involves public health and safety issues. I should not have had to go to the expense of hiring legal assistance to access justice.

[70] In response, the Board has held repeatedly that although Board appeals involve no statutory obligation to be represented by counsel (and supported by experts retained for that purpose), there is indeed a formal obligation to come well-prepared. Though no one disputed Mr. Cooper's preparedness to offer engineering opinions or the effort invested in conveying same, the question was his preparedness concerning law, planning, and process. Whatever Mr. Coopers opinions of his own expertise, the Board can only convey the widely-held practical advice that, at the sweeping geographic scale of Mr. Coopers appeals, there is as much wisdom to entrusting legalities and land-use

- 17 -

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planning solely to engineers as there is to entrusting hydraulics solely to lawyers and planners.

- 18 CONCLUSION

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[71] The Board dismisses Richcrafts Motion for Costs, as well as Mr. Coopers claim under the same heading.

M. C. Denhez

M. C. DENHEZ MEMBER