A high-profile environmental watchdog is calling on the Ontario government to protect those who challenge development proposals from deep-pocketed builders who launch hefty claims against them.
Environmental Defence argues that a developer’s $3.6-million cost claim against a ratepayers’ association and its lawyers will spook others from taking on projects at the Ontario Municipal Board (OMB).
“If this developer is able to get away with threatening crippling financial penalties against concerned people, our concern is that this sickness is going to spread, that other developers will start doing the same thing,”
Rick Smith, executive director of the Toronto-based activist group, said yesterday.
The provincial government must intervene in the case of the planned Big Bay Point resort on Lake Simcoe or else “admit that the OMB has ceased to be a welcoming public forum,” Smith said.
Last December, the OMB ruled in favour of a Geranium Corporation proposal, which was supported by the Town of Innisfil, but challenged by the Innisfil District Association. The 590-acre plan calls for a maximum of 1,600 residential and about 400 hotel units. The resort will also have an 18-hole golf course and a marina with as many as 1,000 boat slips.
The OMB has granted Environmental Defence intervener status, which means it can participate in an October hearing dealing with Geranium’s cost claim, which the developer says is $3.2 million, not $3.6 million.
Smith said Geranium’s manoeuvre smacks of a “strate gic
lawsuit against public participation,” or SLAPP suit, which is meant to “intimidate and steamroll any opposition.”
But Jim Maclean, spokesperson for the developer, maintains the Markham-based corporation is acting within its rights.
Geranium hasn’t launched a separate lawsuit, but, in fact, followed protocol spelled out by the OMB, Maclean said.
“So it’s not a strategic lawsuit against public participation,” he said, adding the ratepayers “did, in fact, participate in the hearing.”
Moreover, Geranium’s case isn’t “any kind of frivolous or vexatious suit,”
as Environmental Defence claims, Maclean added.
But lawyer Clayton Ruby, representing Environmental Defence in the cost dispute, suggests the developer’s multimillion- dollar move is breaking new ground.
“They won. Good luck to them. It happens,” Ruby said. “You fight and lose.
That’s normal, but then they immediately… commenced this application. I mean, no one’s asked for dollars like this before, or even remotely like this.”
Indeed, the OMB doesn’t have a track record of awarding such hefty cost claims.
Costs are awarded in less than one per cent of cases, said Karen Kotzen, communications consultant for the board: “Generally, they’re awarded in the amount of $2,000 to $5,000.”
Though Ruby said he believes Geranium will have a tough time making its case, he said fighting the claim will cost a fortune.
And that, he said, is the essence of a SLAPP suit.
“It’s a suit that may not have any merit, may not succeed, but which will cost hundreds of thousands of dollars to defend.”
Ruby said he hopes Queen’s Park will pass legislation to outlaw SLAPP suits and impose financial sanctions against those who don’t comply.
Dismissing Environmental Defence’s call for legislation, Maclean argued the OMB already has adequate safeguards in place for hearing participants.
In the Big Bay Point case, those opposing the development used the OMB as a “foot-dragging exercise” and put up “non-substantive opposition,” he charged.
Smith, calling Maclean’s comments “outrageous,” responded that Ontarians have had the right to voice concerns before the publicly accessible tribunal for 100 years.
“I’m sorry if the Geranium Corporation is irked that it had to go to the OMB because some concerned citizens think that the building of the largest inland marina in eastern North America might have some environmental implication.”
Some at Queen’s Park have taken an interest in the Big Bay Point case.
Simcoe North MPP Garfield Dunlop expressed concern that citizens could shrink from publicly opposing a developer’s plans when faced with the spectre of legal action.
“If people feel they are being bullied, and then they’re afraid to make any kind of comment, I don’t think that’s right,” Dunlop said.
But, if false information, rumours and innuendo are driving campaigns against developers, that is a different story, he added.
The Ontario government is aware of legislation in the United States and Quebec dealing with SLAPP suits, said Brendan Crawley, spokesperson for the Ministry of the Attorney General.
“We’re paying close attention to those developments, with a view to considering if Ontario needs more legal support for free speech and public- interest advocacy.”
Currently, however, the province has no plans to introduce legislation, Crawley said.
Meanwhile, others in the legal world plan to keep a close eye on the Geranium case.
Not having seen the evidence, Eric Gillespie, a veteran of OMB hearings, declined to comment on the validity of the developer’s allegations.
But, he noted, “most legal counsel who appear regularly before the OMB know there are certain things that will likely cause the board to seriously consider a cost award.”
“What seems to be quite unusual, if not unprecedented,” he added, “is the amount that is being sought and the wide range of parties it is sought from.”
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Big Bay points
The resort would feature a maximum 1,600 residential and about 400 hotel units, down from the original total of 4,200, with all significant development confined to the eastern section of the site.
A golf course and fire station would be the only development built in the western portion.
An 87-hectare stretch of land located in the middle of the development has also been allocated for environmental protection, with only a road linking Big Bay Point Road with the town’s 13th Line permitted for construction.