Andrew Cash

While all eyes have been glued to the wild ride our parliamentary democracy has been taking of late, a real threat to citizens’ power is playing out in near obscurity on the 16th floor of the Bay Street hearing room of the Ontario Municipal Board.
Here, final arguments wrap up on whether a Lake Simcoe residents group should pay the legal costs of a large land developer. 
Shortly after winning a several-? year fight at the OMB a year ago to plunk a resort and marina smack dab in the middle of the bucolic Lake Simcoe community of Big Bay Point, Markham-?based developer Geranium Corporation quickly turned around and asked the OMB to make those opposed to the project pay its legal costs.
On the hook for $3.2 million in costs are the Innisfil District Association, some individual members of the group and, surprisingly, their lawyer, David Donnelly.
Though the OMB rarely awards costs and rarely for this amount, the case is being watched carefully by countless residents groups across the province, as well as by Hamilton Centre NDP MPP Andrea Horwath. Last week she introduced a private member’s bill to give residents’ groups protection against what are known as SLAPPs, or strategic lawsuits against public participation.
Horwath says she first came face to face with the problem as a Hamilton city councillor working with a residents group opposing a development. “The threat of a SLAPP action makes it harder for regular people to participate if they are concerned about a project,” she says.
While several U.S. states have some form of anti-?SLAPP legislation, only BC and Quebec are in the process of crafting such laws in Canada. And while lawyers have found ways of getting around much of this legislation, supporters of Horwath’s bill say hers comes with a key difference: once a SLAPP has been launched, the province must suspend all approvals processes until the issue is resolved.
This would have been critical in the IDA/Big Bay Point fight, since the developer first brought suits against IDA members four years ago. Donnelly says that would have put Geranium more than four years behind where it is now. 
“It’s a time disincentive, and for developers time is money,” says the anti-?sprawl activist. “The developer has seven or eight lawsuits against residents and he keeps them going without plans to conclude them.”
Horwath’s bill, the Protection of Public Participation Act, makes it very difficult to bring a claim against someone when the sole purpose is to divert the defendant’s time and money away from public participation, or to scare the person into silence. And it places reverse onus on the plaintiff to prove there is some merit to the claim.
While it is rare for a private member’s bill to become law, Horwath, who is running for the Ontario NDP leadership, hopes the Libs will use her bill to create one of their own. “I’m hopeful that it could provide a framework for government legislation.” 
But a spokesperson for Jim Watson, provincial minister of Municipal Affairs and Housing, says the government has no plan to introduce anti-?SLAPP legislation right now. 
“We are paying attention to the issue,” says spokesperson Adam Grachnik. “We are definitely aware of it.”
Geranium rep Jim Maclean is predictably unhappy with the NDP’s proposal. “It takes away the rights of those who have been inconvenienced to seek costs,” he says. “There’s been no attempt by Geranium to stifle public opposition.” 
But a chill is definitely being felt by the East Toronto Community Coalition, which opposes the building of a SmartCentres shopping mall on Eastern Avenue. That fight resulted in a four-?month OMB hearing; a ruling is expected before Christmas. 
“We heard about what was happening in Simcoe, and it really did create some fear in our group,” says Kelly Carmichael, chair of the coalition. “There have been times when we thought, ‘Should we be doing this?’” 
Her group has had to incorporate, as every group does if it wants “party status,” giving it the right to call witnesses, acquire directors’ insurance and hire lawyers in order to fight at the OMB. “We weren’t trying to stall the process, but this threat can be very scary.”
Scary, indeed. Estimates peg the the IDA’s and Donnelly’s legal costs just for defending themselves against Geranium’s cost motion at well over $1 million, and counting. 
Carmichael says it’s cost her east-?enders close to $80,000 to fight the SmartCentres project so far. Win or lose, she’s still fundraising to pay off the cost of the fight. She says she’d be really surprised if the developer went after residents for costs – but without the kind of protection the NDP bill proposes, she can’t be sure.