"Dire" cost consequences of defending claims remain
TORONTO, Jan. 30 /CNW/ - Resident and environmental groups from around
Lake Simcoe are elated by today's judgment of the Ontario Municipal Board
("OMB"), dismissing Kimvar/Geranium's unprecedented claim for $3.2 million in
costs in the Big Bay Point development case.
The Board agreed with the submissions of Clayton Ruby, Environmental
Defence and the Innisfil District Association that an award of costs anywhere
near the amount requested by the developer would create a "chilling effect" on
public participation. The Board's decision reads:
"Nonetheless, there is no question that the claim is unprecedented and
the Board finds that an award of costs anywhere near the amount requested
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 decision."
The Innisfil District Association (IDA) and their lawyers had asked the
Board to dismiss the claim to prevent further extraordinary cost to citizens
and taxpayers. The hearing is already a record-breaker, having lasted 17.5
days to date. The developer's claim was launched on December 21, 2007. Costs
estimates for defending the claim so far are now over one million dollars.
"We're relieved for the Innisfil District Association and their lawyers
that this matter is over, but the reality is the cost of defending this claim
at the OMB is more expensive than the maximum amount the Board has ever
awarded in costs," said Dr. Rick Smith, Executive Director of Environmental
The Board noted the submissions of Clayton Ruby, the Environmental
Commissioner of Ontario and Environmental Defence that to award costs at
anywhere near the scale requested by Kimvar, the claim would have the effect
of a Strategic Litigation Against Public Participation ("SLAPP") suit sending
a message that opposition from the public will not be tolerated.
"The decision protects the public from developers' SLAPP suits," said
Clayton Ruby, C.M., civil rights lawyer. "These meritless suits are so costly
to defend that simply being a target is enough to chill public participation
to protect the environment."
The Board also ruled that the initial OMB hearing on the merits of the
mega-marina application was not unreasonable in length, nor did the Board
agree with the criticisms of the project's opponent's evidence. Contrary to
Kimvar's claims, the Board held that costs cannot be sought against lawyers
appearing at the OMB and that in any event in this case there was not improper
conduct that should attract an award of costs.
In its decision, the Board noted the extraordinary and acrimonious nature
of the $3.2 million claim. The Board's decision reads: "In this case, the
magnitude of the costs claimed, coupled with the position that legal counsel
be held equally accountable, revealed an animosity between the parties which
was rarely evident during the hearing."
"We're enormously grateful to our membership and all the others who have
provided support that enabled us to succeed; now we can get back to the
business of stopping the Big Bay Point mega-marina," said Roger Parkinson,
President of the IDA. "Having now gone through a very difficult mega-claim at
the OMB, I don't think it's fair for the McGuinty government to watch from the
side-lines any longer. They must pass anti-SLAPP suit legislation immediately
to prevent others from going through the agony that we have been through."
Don Avery, Past-President of the IDA and subject of a continuing $1
million SLAPP suit, received the Bob Hunter "Damn Fine Activist" Award for
The developer is seeking approval for 2,000 hotel and condominium units,
a 300-person theatre, 86,000 square foot resort commercial space, 54,000
square foot conference facility, 32,000 square foot recreation centre and a
1,000 slip mega-marina.
"The tragedy for environmentalists is that the developer claimed we put
on a bad case but in reality the Big Bay Point development could not pass the
strict requirements of the new Lake Simcoe Protection Act "Shoreline
Protection" provisions if it were proposed today," said David Donnelly, a
target of the costs claim and counsel to Environmental Defence and the IDA.
"I'm just glad I can speak out again against this project; I was getting a
little rusty," Donnelly added, after one year of being restricted from
commenting on the case.
For further information:
For further information: or to arrange interviews, please contact:
Jennifer Foulds, (416) 323-9521 ext. 232, (647) 280-9521 (cell); Roger
Parkinson, Innisfil District Association, (416) 818-1686 (cell), (239)
594-3727; Don Avery, Past-President of the Innisfil District Association,
(416) 977-7836 (cell)