Opponents of the Big Bay Point Resort won’t be paying damages sought by the project’s developer, Kimvar Enterprises.
An application filed last year by Kimvar was seeking recovery of legal costs from the Innisfil District Association, Nextnine, 2025890 Ontario Ltd., and Gilbert’s LLP lawyers, Tim Gilbert and David Donnelly.
The application was dismissed last Friday by the Ontario Municipal Boar (OMB).
The resort will include 400 hotel units, 1,600 seasonal condominium units, a theatre, a conference centre and a 1,000-slip marina on Lake Simcoe.
The developer was seeking $3.2 million in costs from the group of opponents, stemming from the lengthy OMB hearing into Big Bay Point resort’s planning applications, which concluded in 2007.
Environmental Defence, which was also opposed to the proposed resort, retained lawyer Clayton Ruby to argue that the massive request for costs was a so-called strategic lawsuit against public participation (SLAPP) suit, primarily designed to discourage other citizens’ groups from challenging the developer.
Kimvar lawyers Jeffrey Davies and Susan Rosenthal argued that the opponents’ line of attack was “to paint Kimvar with as thick a brush of impropriety as possible for bringing this application: abuse, improper purpose, SLAPP, chill, intimidation, etc. This is unfounded, unjustified, unproven and untrue,” the lawyers said in the application.
“The record shows Kimvar has good reasons for invoking the board’s costs jurisdiction. It is a justified response to the misconduct Kimvar was subjected to. Kimvar is doing nothing wrong,” they added.
At the conclusion of the OMB hearings in 2007, OMB vice-chairperson Jan Seaborn invited Kimvar to request costs, citing delays, failure to provide new evidence and the repeated raising of issues already dealt with by the board or beyond the board’s jurisdiction.
Kimvar’s lawyers have argued that the request for costs “is not a lawsuit, but a post-proceeding application,” that has not prevented the respondents from having their say in public, or shut down opposition.
“The application demands accountability for misconduct, not the suppression of debate,” they wrote, pointing out that by definition, SLAPP suits are designed specifically to silence or intimidate citizens and have no merit or reasonable expectation of success.
But after nearly 18 days of submissions, Seaborn ruled last Friday that the $3.2 million claim “is unprecedented, and the board finds that an award of costs anywhere near the amount requested would create a chilling effect” on public participation.
While happy with the outcome, IDA president Don Avery doesn’t believe the motion for costs should have proceeded in the first place.
“It was, in effect, a SLAPP suit. What’s the difference between ‘a chilling effect’ and intimidation? We believe it was brought forward to intimidate people,” he said.
Avery also believes the town was “absolutely wrong” to support Kimvar’s request for costs.
“The town was out of line in supporting this request for costs. Who made the decision to have the town support the motion for costs? They will not tell us who made the decision. Ratepayers are entitled to that information,” he said, adding the affair should be a wake-up call for the provincial government.
“It’s very important the provincial government get (around to) bringing the necessary laws to stop SLAPP suits,” he said.
The OMB also ruled that the length of the initial hearing was not unreasonable and that costs cannot be sought against lawyers appearing at the OMB, especially since there was no improper conduct that could have sparked a punitive award.
“The magnitude of the costs claimed, coupled with the position that legal counsel be held equally accountable, revealed an animosity between the parties which was rarely evident during the hearing,” Seaborn said in her report.