Allison Hanes
The battle over a planned marina and luxury resort on a man-made lagoonlinked to Lake Simcoe has alternately been portrayed as a David-vs.-Goliathstruggle of lowly volunteers against a powerful corporation and an exampleof NIMBY-ism by a handful of wealthy landowners. Round One went to the developer last year when the Ontario Municipal Boarddismissed the concerns of local residents and environmentalists by givingits stamp of approval to the proposed Big Bay Point Resort near Innisfil. But the six-year dust-up between a ratepayers group that opposes thebillion-dollar project and the developer, Kimvar-Geranium, is far from over– and some believe its outcome will have far-reaching implications for thelocal development process province-wide. The two sides will be back at the OMB today, duking it out over who has topick up the tab for three months of wrangling over the environmentalfootprint of the 1,000 boat slips, 1,600 housing units and 700 hotel roomsplanned for the 235-hectare site. The project also includes a conference centre, retail space, a golf courseand an extensive conservation area. After its first-round victory, Geraniumis seeking $3.2-million in costs from the Innisfil District Association, agroup of local ratepayers, their lawyers and a company that was hoping tobuild a golf course nearby, for “unnecessarily” dragging out theproceedings. Geranium’s bid is bolstered by the Town of Innisfil, where thecouncil endorses the development. But the community association and its supporters argue the move to obtaincosts is just the latest in a series of legal manoeuvres by the company tointimidate the project’s opponents. They also claim that in backing the costapplication, the town government is essentially suing its own citizens. To Environmental Defence, a national think-tank, the stakes are so high ithas obtained intervener status at the OMB. Rick Smith, executive director of Environmental Defence, calls the caseunprecedented in a number of ways, from the amount of money being claimed incosts, to the three “outrageous” defamation lawsuits the developer launchedearlier against various critics, to the town council’s backing. “If this cost application is allowed, it is no exaggeration to say it willbe the death knell for public participation in the development process inthis province,” he said, “because no one in their right mind is going towant to speak out after this.” According to Mr. Smith, the developers are going after the ratepayers foreverything from buckets of ice to bug jackets to “$450 platters of cheeseand crudites” consumed as a morning snack when the hearing was on. “The ratepayers group put on a good case, a professional case,” he said. “Atthe OMB, the victor does not get to have all their fees paid for as a matterof course by the vanquished.” Michael Miller, the lawyer representing Geranium at the hearing, denied theinclusion of those costs as simply “not true.” “I never had a piece of cheese,” he said. Environmental Defence has brought in the big guns — hiring lawyer ClaytonRuby to fight in the residents’ corner. He has characterized the developers’ cost-recovery effort as a SLAPP — aStrategic Lawsuit Against Public Participation. An American phenomenon,SLAPPs are loosely defined as the launching of legal action by deep-pocketedproponents of lucrative projects as a means of silencing the grassrootsopponents with few financial resources. “This is a SLAPP suit,” he said. ” This is a suit that has no intrinsicmerit. It’s designed to have a chill effect on the larger community.” Mr. Ruby said cost applications are exceedingly rare at the OMB and thatawards are typically in the $2,000 range. He said the $3.2-million claim is”overreaching.” Mr. Miller, Geranium’s lawyer, said that the allegation of SLAPPing is apublic relations strategy the ratepayers turned to with the help of theirwell-funded supporters after losing at the OMB. The developer has a justified claim to the costs because a handful ofInnisfil residents prolonged the OMB hearing unreasonably, Mr. Miller said,by refusing to agree to certain obvious facts, failing to provide evidenceto prove its case and forcing Geranium to jump through hoops presenting amuch more fulsome case than would otherwise have been required. “If they had a legitimate disagreement with the project other than ‘We don’twant it.’ They had nothing. They wasted the government’s time, they wastedthe OMB’s time, they wasted our time,” he said. “The IDA is a very privileged and wealthygroup of people who are … not used to not getting their own way. “They don’t want to share their little piece of heaven.” Protesters disrupted an Innisfil town council meeting last month, objectingto the fact the developer has covered the town’s approximately $700,000legal bill, which is part of the $3.2-million cost claim. The chamber erupted in jeers of “Shame!” when councillor Dan Davidson failedto get a seconder for a motion to find out more about the agreement betweenthe town and Geranium. Mayor Brian Jackson issued a statement the next day denying the accusationthe town is suing its own residents. Quinto Annibale, lawyer representing the town, said it is quite common fordevelopers to cover certain fees for local governments to secure andfinalize a project it has already approved. He pointed out that in this caseInnisfil is not seeking to recover costs for itself. “We are not suing our ratepayers but we are supporting the position of thedeveloper on the cost motion,” he said. “How people portray things and thereality are two different things.” Some have questioned why the town has status at all at today’s hearing,instead of bowing out like the district did and leaving Geranium to argueits own case. “While the ratepayers said there was no fair and transparent process, therein fact was,” Mr. Annibale said. “The primary reason for us being involvedis to defend the public process.” Don Avery, who was president of the Innisfil District Association from 2002until last year when he became chairman, said from the beginning residentsof the Big Bay Point area of Innisfil have been worried about increased boatand road traffic along the narrow peninsula the resort is slated for. But of greater concern is the deteriorating Lake Simcoe ecosystem, whichcould soon be protected with new legislation by the province. About 300 families are members of the IDA and contrary to the company’scharacterization, Mr. Avery said fewer than half are waterfront landowners.Only four of six board members own lakeside property. The rest include twoteachers, a social worker, a retiree and a housewife. Mr. Avery himself isalso named in two defamation suits filed by Geranium. The retiredseptuagenarian figures he could personally be on the hook for about$1-million. But he vows to fight on as the Big Bay Point Resort goes to an environmentalassessment, even though last few years have been stressful. “Sure there are times you wonder why you are doing this, why are youdevoting all your time at the expense of time you could be spending withyour family and friends,” he said. “Once you take on the responsibility youfeel an obligation to see it through. That’s what I’m trying to do and hopethat I can and hope that I can keep my health in doing so. But there aretimes when you really wonder.”