By Raveena Aulakh
Photo: Don Avery is chair of the board of the Innisfil District Association, which is being sued by a developer whose project they opposed.
An unprecedented $3.2 million lawsuit against Innisfil residents and their lawyers who fought a developer’s billion-dollar resort on Lake Simcoe is already having a chilling effect on community activism, says the province’s environmental commissioner, Gord Miller.
“I’ve had many encounters with people who have concerns and constantly discuss the ramifications of this case,” Miller told an Ontario Municipal Board hearing this week.
Kimvar Enterprises is seeking a refund of its legal costs from the Innisfil District Association (the ratepayers’ group) and its former lawyers, who took the developer to the board last year. The ratepayers lost and, weeks later, were sued.
Clayton Ruby, counsel for Environmental Defence Canada, called Miller during the first phase of the hearing that concluded yesterday.
Ruby argued the demand for legal costs is an attempt to intimidate ordinary citizens and ratepayers’ groups into silence – what’s called a SLAPP suit (Strategic Lawsuit Against Public Participation).
He accused Kimvar of being greedy, vengeful and vindictive.
There was high drama as a threat against David Donnelly, the ratepayers’ former lawyer, was brought up. Ruby read from an affidavit in which Kimvar head Earl Rumm is alleged to have threatened Donnelly: “You’re mine. I’m going to spend every dime to f–k you.”
The ratepayers group isn’t the only one being sued.
The hearing heard about Kelly Clarke of Innisfil, who wrote a letter to the town fiercely opposing the project. The developer fought to get a copy of that letter and three months later filed a defamation suit against her for $3.5 million.
“The question is, why did they fight so hard (for the letter) when the town was already with them?” said Ruby. “It’s a developer going after opponents.”
Jeff Davies, a lawyer for Kimvar, said there isn’t an “iota of proof that anyone had been intimidated.” He dismissed accusations as “conjecture, innuendo and scandalous.”
Referring to about two dozen people who attended the hearing on Thursday to hear Miller speak, Davies said it indicated people are not scared. “This turnout is a validation of democracy.”
He also disputed the SLAPP suit label, arguing such suits occur before a developer gets what he wants.
“I’m worried about a reverse chill factor,” said Davies. If costs cannot be awarded for (mis)conduct, it allows opposition to act in any way and use any tactic without fear of reprisal, he argued.
The presence of Innisfil area residents and environmental group volunteers brought excitement to the proceedings on Thursday.
The meetings, which began last month, have usually been attended only by lawyers from the two sides, along with Rumm, Donnelly and Don Avery, chair of the board of directors of the Innisfil District Association. While Avery takes copious notes, Rumm and Donnelly mostly punch away on BlackBerrys.
Anna Slaight, co-founder of the Ladies of the Lake, a group dedicated to protecting and revitalizing Lake Simcoe, said she attended because the outcome of this case is crucial for democracy. “Anything that hampers the ability of people to speak up is very dangerous.”
The amount Kimvar is demanding – $3.2 million – is enough to dissuade people from taking part in environmental planning processes, said Miller. It works against his mandate to encourage people to participate and bring transparency to the process, he added.
Miller said ordinary people have limited resources and will be reluctant to get involved if there’s a fear of losing their home or savings. “The cost of defending against costs – that alone will be a deterrent for people down the road.”
Critics of the $1 billion project, Big Bay Point Resort, say the development proposed six years ago is harmful to the environment and the health of Lake Simcoe.
Jan Seaborn, who is hearing the motion to recover costs, also headed the OMB panel that ruled in favour of the Kimvar project last year.
The first phase was to determine if the cost claim was improperly brought. If the case is deemed valid, a second phase will establish cost amounts and who pays them.