In the interests of reducing “chill”, the Ontario Municipal Board has denied the Big Bay Point Resort developer’s request for $3.2 million in costs associated with a lengthy 2007 hearing.
Hearing chairman Jan Seaborn ruled Geranium will not receive costs associated with the development appeal by Nextnine Inc., 2025890 Ontario Inc. and the Innisfil District Association on the development that includes a 1,000-slip marina, a championship golf course, 1,600 fractional-ownership resort units and a 400-room hotel. In her Dec. 14, 2007 decision approving the resort plan, she did allow Geranium to file for costs it incurred, as well as those submitted by Simcoe County and the Town of Innisfil, which both approved the resort, and two other citizens’ groups.
The hearing began with resort opponents, joined by lobby group Environmental Defence, launching an unsuccessful motion to adjourn, which consumed five days of the 30 hearing days between August and November 2007.
Within days of the hearing ruling in December 2007, Geranium announced it would file for costs.
In seeking costs, Geranium argued opposition counsel, Gilbert’s LLP, was unreasonable, frivolous and vexacious. The developer’s lawyers also argued some opponents’ witnesses were unprepared and ill-informed about the project.
Resort opponents, led by Environmental Defence, called on Clayton Ruby, a constitutional and civil rights specialist, to argue the public interest would not be served by awarding costs. The case was heard last fall and lasted 17.5 days.
In her ruling, Seaborn said Geranium’s claim cannot be awarded, although she did defend the developer’s right to ask for costs, as it argued opponents “unduly protracted” the lengthy 2007 hearing.
Prior to the hearing starting in August 2007, the developer worked with two other citizens’ groups, Innisfil and Simcoe County to address concerns as it modified its development proposal, she noted. She further rejected the idea the cost claim was brought forward for an “improper purpose” – to suppress public participation.
“(Geranium subsidiary) Kimvar genuinely believed it was required to prepare for and participate in a proceeding that, but for the opposition of Nextnine, was unduly protracted,” she said.
“Nonetheless, there is no question that the claim is unprecedented and the Board finds that an award of costs anywhere near the amount request would create a chilling effect. In this regard, the Board adopts Mr. Ruby’s submission that the public interest impact of a costs award is a relevant factor for the Board to consider in exercising its discretion,” she said.
“Potential parties and the public should not be fearful of participating in Board proceedings, a sentiment that has been expressed in decision after decision. Costs should never be used as a threat or a reason to disuade public participation.”
Ruby applauded Seaborn’s public-policy ruling. “The decision protects the public from developers’ SLAPP (strategic litigation against public participation) suits,” he said, “These meritless suits are so costly to defend that simply being a target is enough to chill public participation.”
IDA president Roger Parkinson called on the province to pass anti-SLAPP legislation “to prevent others from going through the agony that we have been through.”
Still, Geranium does not consider Seaborn’s ruling a defeat.
“We are very pleased that the OMB rejected the allegations of the opponents that the cost claim was brought for an improper purpose or to suppress public participation,” said Geranium spokesperson Jim McLean.
“Geranium takes each OMB decision as it comes in stride, and continues to be delighted that the OMB approved the Big Bay Point Resort itself.”