Ontario Land Tribunal Costs: Understanding Cost Consequences and Award

Unlike Superior Court, where costs are routinely awarded to the successful party, cost awards before the Ontario Land Tribunal (the “Tribunal”) are generally uncommon. Though the Tribunal retains the authority to award costs under section 20 of the Ontario Land Tribunal Act, 2021, the longstanding principle underlying the Tribunal’s approach is based on the premise that costs cannot be used as a threat to deter public participation in planning processes. In order to invoke the cost consequences contained in Rule 23 of the Tribunal’s Rules of Practice and Procedure, a party’s behaviour must rise to the threshold of being unreasonable, frivolous, vexatious or in bad faith conduct – a high standard to meet.

In JRB Williams Enterprises Inc. v Brighton (Municipality), 2025 CanLII 14494 (ON LT), the municipality inexplicably did not comply with the exchange dates outlined in the Tribunal-approved Procedural Order. Further, its witness statement – which was provided over two weeks late – also raised an issue that had not been identified on the Tribunal-approved Issues List. As a result, the Appellant had to unnecessarily incur additional costs as they were obligated to respond to the new issue raised by the municipality. While the Appellant sought costs on a full indemnity basis, the Tribunal ultimately awarded costs in the amount of $20,500.00 which represented a partial indemnity basis.

Similarly, in Queenscorp (Mona Road) Inc. v Mississauga (City), 2022 CanLII 25748 (ON LT), the Tribunal issued a costs award against the non-Appellant Party, Region of Peel, for submitting issues to be included on the Issues List only to later advise that they would no longer be calling experts on those issues, instead choosing to address these issues through the City of Mississauga’s experts. The Region of Peel then dropped said issues entirely after witness statements had been exchanged. The Tribunal succinctly noted that “disregarding the requirements of the Procedural Order contributes to an inherent unfairness, and costs, for those Parties who adhere to these requirements.” The Tribunal fixed costs against the Region of Peel in the amount of $5,000.00 in this instance.

Beyond the obligations imposed on parties by the Tribunal within the context of a procedural order, developers and municipalities alike should also be cognizant of the statutory obligations imposed under the Planning Act. The Appellant in King’s Bay Golf Club Limited v Kawartha Lakes (City), 2024 CanLII 109289, sought full indemnity costs associated with the appeal in the amount of $445,375.56 in part on the basis of the City’s failure to deliver the Appeal package to the Tribunal within 15 days of the filing of the appeal (it was not delivered until approximately 75 days beyond the deadline). The Appellant also alleged further complaints about the conduct of the City amounting to the balance of the costs being claimed in the amount of $419,175.56. The Tribunal in this instance awarded costs against the City in the amount of $2,500, due to the inexplicable delay in forwarding the appeal to the Tribunal in accordance with the statutory timeline outlined in the Planning Act.

From a legislative perspective, one of the remaining provisions yet to be brought into force and effect as a result of Bill 23, the More Homes Built Faster Act, 2022, is subsection 20(2) of the Ontario Land Tribunal Act, 2021, which states:

20 The Tribunal may, subject to any other Act, fix the costs of and incidental to any proceeding, and order a party to the proceeding to pay the costs, in accordance with the rules.

“(2) “Subsection (1) includes the power to order an unsuccessful party to pay a successful party’s costs.”

At present and until subsection 20(2) of the Ontario Land Tribunal Act, 2021 is proclaimed and subsequently interpreted by the  Tribunal, successful parties before the Tribunal should have no expectation of recovering costs in the proceeding, absent the high bar of unreasonable, frivolous, vexatious or in bad faith conduct from another party.