Thank goodness for the Ontario Municipal Board’s common sense.
The OMB recently tossed an application by Kimvar Enterprizes, developer of Big Bay Point Resort, seeking to recover $3.2 million in costs from its opponents.
These millions were Kimvar’s costs at a lengthy OMB hearing, which finished up in its favour in 2007. The developer’s lawyers said opponents accused Kimvar of ‘impropriety’ and ‘misconduct’ during the hearing.
A ratepayers group, the Innisfil District Association, Nextnine, a numbered company and two lawyers were being asked by Kimvar to pick up its bill.
But the developer’s opponents didn’t take Kimvar’s application lying down. Aided by Environmental Defence and renowned lawyer Clayton Ruby, opponents argued the cost request was a SLAPP — a strategic lawsuit against public participation.
The $3.2-million cost application, in other words, was designed to discourage other citizen groups from challenging Kimvar. The developer has denied this, saying Kimvar’s application ‘demands accountability for misconduct, not the suppression of debate’.
The OMB, to its credit, wasn’t buying Kimvar’s argument (although why the board encouraged it in the first place is something of a mystery). It said the cost request was ‘unprecedented’, and that awarding cost anywhere near the amount Kimvar wanted ‘would create a chilling effect’.
Stated plainly, that means ratepayers groups and individual citizens would be afraid to oppose developers if they could be stuck with millions in costs for lawyers and planning consultants.
The OMB also decided the Big Bay Point Resort hearing was not unreasonably long, and that costs cannot be sought against lawyers appearing at a board hearing.
The bottom line is that opponents of this development had every right to use every means at their disposal to argue that it should not be allowed.
Big Bay Point Resort is to include 400 hotel rooms, 1,500 seasonal condos, a conference centre and a 1,000-slip marina on Lake Simcoe. It’s going to fundamentally change this area.
And while landowners have the right to develop their property and maximize their profits from their developments, area residents also have the right to say “no” and oppose plans.
Even if their elected officials support a development, residents have the right to continue their opposition.
That’s why the OMB was created, that’s why it continues to exist.
In this case, the board ruled in favour of the developer and its plans will proceed.
Kimvar’s opponents cannot say, however, that their side of the story was not heard and considered. The opposition may have even had a result on what will be built there.
But what sort of opposition would there have been if residents were concerned about losing their homes, to pay the developer’s costs? Probably none. Individuals don’t have the deep pockets developers do. Legal and consulting costs are part of the price of doing business for developers.
The OMB was right to toss Kimvar’s cost application. The board should not allow other such requests to proceed.