By Chris Simon
A dangerous precedent would be set if the Big Bay Point Resort developers were awarded compensation from a recent Ontario Municipal Board hearing, say representatives of an environmental group opposed to the site.
Resort owners Geranium Corporation/Kimvar Enterprises are currently seeking $3.6 million in legal fees and expert costs for themselves, the County of Simcoe and the Town of Innisfil, following the approval of their site application by the OMB late last year. In January, Kimvar lawyer Jeffrey Davies sent a statement to the Ontario government, indicating his firm will attempt to obtain several million dollars from opposition to the site, including Nextnine Limited, the Innisfil District Association, lawyer firm Gilbert’s LLP and lawyers David Donnelly and Tim Gilbert.
However, Rick Smith, director of Environmental Defence, an advocacy group opposed to the 235-hectare resort, says the lawsuit is inappropriate.
“It’s a critical public policy issue. The chilling affect of this cost application being filed by Kimvar is already being felt,” he said. “There is absolutely nothing in the OMB judgement that warrants this kind of a cost application. Besides the fact Geranium has taken the absolutely unprecedented step of seeking costs from the (Innisfil District Association’s) lawyers, and the outrageous amount of these costs, there was nothing in the conduct of the (association) that was unreasonable. You don’t get costs from a citizens group at the OMB, just because you win a hearing.
“The OMB is supposed to be a public body where any citizen can go and take part in discussions on these types of planning issues. I have never seen aggressive intimidation tactics like I have seen from this developer.”
Last week, the OMB approved plans to allow Environmental Defence to provide evidence from the Environmental Commissioner of Ontario and the Concerned Residents of Hillsdale group – who recently dropped its party status at the board for fear of having to pay Kimvar’s legal fees during another hearing – during the cost recovery application hearing, said Smith.
“We’re now going to be intervening in the case, the only question is under what terms,” he said. “We’re looking forward to the OMB allowing us to have the same status as any other participant. Whether or not this cost application is awarded, is going to very much affect all public participation in the OMB.”
But Davies says Kimvar is warranted in seeking the money. The groups opposed to the site withheld evidence from witnesses, held up proceedings and acted in bad faith during last year’s OMB hearing.
“The board’s rules, when acclaims for costs is made, (give) only a very short time after the ruling, 10 days, to file a request for costs. You don’t have time to do a highly detailed accounting. We were told that was the number by our client,” he said. “It covers legal and expert costs for Kimvar, the county and the town. Environmental Defence said they would carry on with all of the issues that had been named by all the parties that had settled. We had to get ready for every issue that had ever been raised about (the resort).
“(Opponents are) trying to deflect attention from their own behaviour, which we believe we’ll be able to show was not fully reasonable during the hearing.”
The project has been approved by the town and county municipal governments.
Kimvar did not oppose Environmental Defence’s intervention in the hearing, said Davies.
“They claimed they had an interest in applying public policy to the facts of the case,” he said. “In the interest of getting on with things, we decided to consent to that.”
Kimvar will release specific details for the $3.6 million cost soon, said Davies.
However, Environmental Defence lawyer Clayton Ruby called the lawsuit a “scare away” tactic, suggesting legal costs are rarely awarded in an OMB case.
“We’re entitled to raise public policy issues,” he said.
“(The developer) has been engaged in activities which we call slapsuits, namely lawsuits that are apt to make people fearful of opposing their development.”
If completed as planned, the 235-hectare development will feature 1,600 residential housing units and 400 hotel rooms. It would also include 87-hectares of environmentally protected land, a golf course, 1,000-slip marina, conference centre, theatre, an indoor sports, recreation and fitness facility and retail space.
It is unknown how long the cost application hearing will take.