As the old saying goes, “Big oaks from little acorns grow.”
So it has been in recent years in southern Ontario with small local land management disputes mushrooming into much more widespread and profound debates.
The standoff between concerned citizens and developers on the crest of the Oak Ridges Moraine in October 2003 led the newly elected McGuinty government to expedite its greenbelt commitment. Sometimes the very name of a specific controversy – “Ipperwash” for instance – comes to symbolize much larger social issues.
What we are witnessing at the moment is the making of another such seminal land use conflict.
On the western shore of Lake Simcoe at a place called Big Bay Point a dispute between concerned citizens and a developer is fast becoming another key test for all Ontarians and their provincial government.
What is at stake is nothing less than the democratic process itself. And whether ordinary citizens can continue to defend their communities and their environment without fear of devastating financial liability.
The proposed Big Bay Point development is a resort proposal of unprecedented size for this part of the province. In December, the Ontario Municipal Board approved a huge hotel and condominium complex including substantial commercial space and a 1,000 slip mega-marina.
Because the developer, Geranium Corporation, actually owns only about 200 feet of expensive lake frontage, the creation of this huge project will necessitate the digging of a new thirty-acre lake, the equivalent of more than 15 football fields.
Not surprisingly, the Big Bay Point development has elicited opposition because of its potential negative impact on the already threatened Lake Simcoe and the precedent it will set.
Opposition to the project is hazardous: Geranium has filed at least four separate lawsuits against its critics for a total of approximately $90 million. These lawsuits allege things like libel, intentional interference with economic relations and conspiracy.
In addition, the local ratepayer group (the Innisfil District Association or IDA) and its lawyers are the subject of an extraordinary cost claim for $3.6 million at the OMB. The developer has taken the highly unusual step of seeking the award against the lawyers personally and against their firm. As a result, the law firm has had to withdraw from the case and hire its own lawyer to defend itself.
Geranium has indicated that opposition to its project was justified until the various public agencies signed off at the OMB. From that point on, it argues, the actions of the IDA and its lawyers were vexatious and they should receive indemnity for every penny spent.
Some local residents were too frightened to testify at the OMB hearing despite being given assurances their testimony was protected privilege. And at least one other citizens group in Simcoe County has dropped its opposition to an ongoing development project specifically citing their fear of liability for the kinds of costs being sought in the Big Bay Point case as the reason.
This type of litigation could be characterized as Strategic Lawsuits Against Public Participation (“SLAPP”) as the phenomenon has been recognized by some legislators and judges in the United States and British Columbia. An action which effectively silences any and all criticism.
According to the SLAPP Resource Centre at the University of Colorado, a “SLAPP” is a civil complaint or counterclaim filed against individuals or organizations arising from their communications to government or speech on an issue of public interest or concern.
SLAPPs often are brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims as a means of transforming public debate into lawsuits.
Statements of defence filed by members of the IDA are nearly identical: “This action, like many actions commenced by Geranium in this and other jurisdictions, is being brought by the plaintiff for the improper purpose of exerting pressure on (the IDA member) so that he would not publicly oppose the Plaintiff’s project (Big Bay Point resort).”
While most SLAPPs lose in court, they succeed in the public arena. This is because defending a SLAPP, even when the legal defence is strong, requires a substantial investment of money, time and resources. The resulting effect is a “chill” on public participation in, and open debate on, important public issues. This chilling effect is not limited to the SLAPP target(s): fearful of being the target of future litigation, others refrain from speaking on, or participating in, issues of public concern.
The developer at Big Bay Point argues the citizens and their lawyers wasted a lot of time at the hearing. The total length of IDA’s direct evidence was five days, the whole hearing lasted less than 25, making it one of the shorter OMB hearings in Ontario history for a project of this size.
Environmental Defence has launched an application before the OMB to intervene and oppose the motion for $3.6 million in costs. Specifically, it will put before the OMB the latest legal understanding of SLAPP suit litigation to enable the board to evaluate this unprecedented cost application in a proper legal context. Environmental Defence has hired eminent civil rights lawyer Clayton Ruby to argue this case on its behalf.
The threat of chilling public participation in planning is already occurring and the McGuinty government has the power and is obliged to stop it. As a party to the original OMB hearing, the Ontario government must oppose this cost application as being inimical to democratic participation and Ontario must catch up to the 20 or so U.S. states and British Columbia that have passed anti-SLAPP legislation to protect their citizens. Ontario needs such legislation as soon as possible.
Protection for the public from future intimidation must become the legacy of this awful episode in land-use planning history. In the absence of government action, no citizen in their would ever again appear in front of the Ontario Municipal Board.
Rick Smith is executive director of Environmental Defence. Devon Page is acting executive director of Ecojustice Canada.