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posted on February 03, 2009

OMB rejects developer's $3.2 million claim against residents

Published: January 31, 2009
Source: Toronto Star

The Ontario Municipal Board has dismissed an unprecedented $3.2 million cost claim against Innisfil residents and their lawyers who lost their fight against a developer's billion-dollar resort on Lake Simcoe.

It was a case closely watched by environmental and citizens groups across Canada, who saw it as a so-called "SLAPP suit" (strategic lawsuit against public participation).

While disagreeing that that was the developer's intent, the board did agree the amount demanded could create a chilling effect.

"It feels like total vindication," said David Donnelly, a lawyer for the Innisfil District Association who was himself being sued.

"It also gives more strength to people facing an incredible challenge of speaking out against well-funded developers and their aggressive lawyers."

Kimvar Enterprises was seeking a refund of its legal costs from the ratepayers group and its former lawyers, who took the developer to the board in 2007 over its proposed Big Bay Point Resort project.

Weeks after the ratepayers lost their case, the developer went back demanding costs, accusing the lawyers of acting unreasonably, frivolously and vexatiously in dragging out the hearing.

The ratepayers' lawyers argued the demand was an attempt to intimidate ordinary citizens into silence. Well-known lawyer Clayton Ruby said in court last month that the amount Kimvar was suing for $3.2 million was enough to dissuade people from taking part in the planning process.

In its 20-page ruling, released late yesterday, the board agreed that the "public interest impact of a costs award is a relevant factor for the board to consider," and said awarding anywhere near the amount demanded would create a chill.

As the news spread, members of the 298-family ratepayers group celebrated. "Everybody is ecstatic," president Roger Parkinson said. "We never thought there was any merit in the suit, but even then, it was enough to give sleepless nights."

Kimvar's spokesperson could not be reached for comment last night.

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