Oshawa resident ordered to pay more than $10,000 to developers after failed appeal

By Reka Szekely Brampton Guardian

OSHAWA — An Oshawa resident has been ordered to pay $10,000 to one of Canada’s largest retail real estate companies after a failed appeal at the Ontario Municipal Board.

Rosemary McConkey has been ordered to pay the money to RioCan, Canada’s largest real estate investment trust, and $700 to the City of Oshawa after an OMB adjudicator ruled in early February that Ms. McConkey failed “to prepare for the hearing in any substantial manner” and “demonstrated reckless disregard for the resources of other parties in the matter.”

In her decision, board member Mary-Anne Sills wrote that the board approaches cost awards in an extremely cautious manner and they are not routine.

But Ms. McConkey says the OMB has set a bad precedent and if the decision holds, other residents may be deterred from launching planning appeals. She plans to appeal the decision.

“What upsets me the most is I have now — with this loss — had a negative effect on other citizens hoping to have better development in their community, that’s what’s hurting,” she said.

In 2012, Ms. McConkey appealed an Oshawa official plan amendment related to development on the former Windfields Farm lands northeast of the Conlin Road and Simcoe Street intersection.

Ms. McConkey said she decided to appeal after attending a public meeting where she learned that the stone house at the corner of Britannia Avenue and Simcoe Street was slated for demolition.

“The stone house was the canary in the coal mine, it just struck me then this is not the best they could do,” she said of the plans.

Ms. McConkey’s appeal to the OMB affected three developers: RioCan, Metrus and Minto.

Her hearing was scheduled for January 2013. Ms. McConkey said she was working with a professional planner and had filed access to information requests with the City of Oshawa and she asked for a 60-day adjournment to further prepare because the hearing overlapped with her appeal of the Region’s official plan.

However, the OMB adjudicator denied her request and stated that the other parties had prepared fully for the hearing and they shouldn’t have to suffer further delays because Ms. McConkey was involved in other planning matters.

Ms. McConkey then represented herself at the hearing and did not call a professional planner to testify. The adjudicator ruled that Ms. McConkey failed to provide any planning evidence to support her appeal and dismissed it.

Participants in an OMB appeal who feel other parties acted frivolously, in bad faith or unreasonably can ask for costs. RioCan asked for $41,971.47 while the City of Oshawa requested $11,975. Minto and Metrus did not ask for costs.

Representatives from RioCan did not return calls for comment. David Potts, City solicitor for Oshawa, said another party in the appeal raised the issue of costs.

“When the issue of costs was raised by another party, the board member enquired about the City’s position on costs,” he said. “The City responded to the member’s enquiry with the written submission which was filed with the board.”

Ms. Sills wrote that the board is mindful costs awards are not intended to be punitive and as a result awarded roughly a quarter of RioCan’s request.

However, the City’s request was significantly reduced. The City’s submission was based on the market rate for staff time including: 17 hours from the assistant City solicitor at $300 per hour; 12 and half hours from the manager of development and urban design at $250 per hour; and 12 and a half hours each for two City planners at $150 per hour.

Ms. Sills ruled that the request represents a much higher cost than was actually incurred by the City as the staff members are on salary and not paid those hourly rates. She instead calculated the salaries of the staff on what she considered a realistic basis and awarded a quarter of that amount to the City.

She wrote that she did not find that Ms. McConkey’s conduct was egregious enough to warrant awarding full costs but that her conduct could not be overlooked or excused to allow for a trivial cost award.

“Notwithstanding her self-proclaimed status as a community planning advocate, objecting to development proposals simply for the sake of objecting is unacceptable, particularly when it results in the other parties incurring unnecessary costs,” Ms. Sills wrote.

Ms. McConkey is adamant that she did her best to prepare for the hearing and said she expected an adjournment as she had seen numerous adjournments during the Regional official plan appeal process. She admits she was “behind the eight-ball” at the hearing because of her other appeal, but said she spent countless hours on research and on the phone in preparing for the hearing.

“It’s a considerable amount of time and money I’ve put into it,” she said. “I can live with my loss but am saddened if my failure will negatively impact someone else trying to better their community in the future.”