Chris Simon’s editorial of March 12 mischaracterizes the Ontario Municipal Board’s findings regarding Big Bay Point.
The board did reject the version of the facts presented by the losing side. Of course it did; that’s why they lost.
The board thought an expert based his opinion on mistaken facts.
This is hardly unusual, if true.
However, Simon wrongly asserts that this rejection was accompanied by harsh criticism that might justify a costs award.
Far from it.
Nothing in the judgment amounts to more than an ordinary decision where one side’s evidence is accepted over the other’s.
The board’s rules and commentary require something quite different before a party will be forced to pay costs, like real misconduct such as failing to appear for a hearing date, refusing to comply with a direction from the board, or to make reasonable efforts to cooperate with the other parties.
The commentary states explicitly that costs will be awarded only in the most unusual of circumstances. In fact, the Big Bay Point decision goes so far as to commend all the parties, including those Kimvar is now pursuing for costs-for agreements for making the hearing a great deal shorter than it otherwise would have been.
Kimvar’s planned costs application will raise issues that matter to everyone in Ontario, like the importance of public participation in land-use planning, the threat of Strategic Lawsuits Against Public Participation (SLAPP suits) and the risk of a chilling effect that could deter citizens from seeking their turn to be heard before the OMB.
My organization, Environmental Defence, will intervene not to argue the merits of the costs claim but to assist the board in protecting everyone’s opportunity to be heard, without fear of reprisal.
Dr. Rick Smith,
Executive director of
Environmental Defence