JOHN BARBER
Globe and Mail
May 5, 2008
Toronto council can and will do anything, so there was no surprise this week when it swept aside cumbersome due process in its headlong rush to defend the “Concerned Residents” of the fictional hamlet of Hillside, Ont.
When combined with the opportunity to “request legislation from the provincial government,” such excursions become downright predictable. It hardly matters that the place is actually named Hillsdale – nor that the account of its plight, as outlined in Councillor Michael Walker’s motion to rescue its Concerned Citizens, contained similar minor errors. It’s a crusade!
But this one is less Quixotic than it might seem. In defending Simcoe County villagers who dropped their appeal at the Ontario Municipal Board against a major development – allegedly because they feared legal reprisal from the developer – Toronto council is hoping to protect the right of all Ontario citizens to intervene in zoning disputes without fear of penury.
The actual impetus for the crusade occurred when Geranium Corp., developer of a proposed resort on Lake Simcoe, asked the OMB to order groups and individuals who opposed its construction, including the lawyers who represented them, to repay $3.6-million in costs that the developer claims it incurred during a four-month hearing at the tribunal.
The defendants and their supporters immediately denounced the claim as a pretence, saying its real purpose was to silence anybody who dared speak out against the company’s plans.
Almost certainly the largest such claim made in OMB history, the Geranium demand joined a raft of similar litigation the company has launched in the courts, including defamation lawsuits that target individual executive members of a different ratepayer’s group, one of whom said “terrible things about our company,” according to Geranium lawyer Michael Miller.
Geranium has also levelled charges of conspiracy against other local figures allegedly involved in the business. All told, the company is seeking $86-million in damages from the targets of its various lawsuits, according to lawyer David Donnelly, himself a defendant in the OMB action.
Approval for the Lake Simcoe development – a major resort with 1,600 housing units, 400 hotel rooms and a 1,000-slip marina just south of the affluent enclave of Big Bay Point – took years to obtain and inspired unprecedented controversy. By contrast, Geranium’s plan to triple the size of Hillsdale in another project drew scant opposition.
The Concerned Residents of Hillsdale entered the fray by leaving it, dropping their official standing at a planned OMB hearing shortly after Geranium announced it was seeking $3.6-million from the Big Bay Point appellants. CROH chairwoman Tanya Mullings told the board her group was dropping its opposition because it felt intimidated by the developer.
“This increasingly pervasive form of litigation aimed at opponents of contentious projects is known as SLAPP (Strategic Lawsuits against Public Participation),” the Toronto motion declares. It urges the McGuinty government to follow the example of Quebec and several American states that either have passed or have promised to pass legislation to suppress such lawsuits.
“What is going on in Simcoe County is beyond outrageous,” said Rick Smith, director of the group Environmental Defence, which supported the Big Bay Point appellants and has since won standing at the cost-award hearing. “The pattern of intimidation could not be more blatant.”
Absent anti-SLAPP legislation, he added, his organization and others are advising all Ontario citizens and ratepayer groups not to appeal land-use decisions to the OMB. “How could we do otherwise?” he said.
The developer’s cost claim is “reprehensible” and “vexatious,” according to lawyer Derek Bell, who represents three of the appellants it targets. Geranium filed the claim in order to “silence opposition to the Big Bay project and to publicly demonstrate its intent to punish anyone who does oppose the project,” he wrote in a letter filed with the tribunal.
The company has been quick to publicize its intentions but slow to substantiate its demand for the unprecedented award, according to Mr. Bell. “The $3.6-million figure was chosen for sticker-shock value and nothing else,” his letter charges.
Geranium president Earl Rumm has responded to these allegations with a searing denunciation of Dr. Smith and Environmental Defence in the Toronto Star, arguing for the revocation of the group’s charitable status. The company will soon itemize the costs underlying its claim and intends to pursue it vigorously, according to Mr. Miller, Geranium’s lawyer.
The company actually spent more than $3.6-million fighting the ratepayers and their allies, according to Mr. Miller. He says their conduct at the hearing was “totally inappropriate,” and that OMB rules invite litigants to seek costs in such circumstances. “What part of our civil system says that when an act provides that you ask for costs, you’re not able to do that?” he asked.
“This SLAPP theory can work both ways,” he said. “Sometimes when you’re reacting, you’re accused of starting the problem.”
It will be months before the OMB makes a judgment in the dispute. In the meantime, concerned citizens should govern themselves accordingly.