Resort has the right to seek OMB costs
Comment
by Chris Simon

Regardless of the outcome in the $3.6 million Big Bay Point Resort cost recovery hearing, history will be made.

Last week, the Ontario Municipal Board approved a plan from the advocacy group Environmental Defence, which will allow them to present evidence during the hearing. Environmental Defence says the Geranium Corporation/Kimvar Enterprises is using the hearing, which is attempting to recover $3.6 million in legal fees and expert witness costs, as a bullying tactic against opposition to the proposed Innisfil resort. Several of the site's opponents, like the Innisfil District Association, Nextnine Limited, law firm Gilbert's LLP and lawyers David Donnelly and Tim Gilbert have been named in the suit.

The lawsuit - formally called a cost application hearing - stems from the OMB's decision to approve the 235-hectare site last December, following a four month legal battle. Kimvar representatives have suggested the suit is simply an attempt to recover costs from that previous OMB hearing, on behalf of themselves, the Town of Innisfil and the County of Simcoe.

Environmental Defence representatives say Kimvar's costs are greatly exaggerated, and inappropriate. And they hope that the evidence they bring forward will prove that Kimvar has attempted to intimidate their opposition during previous development projects. The group's lawyer, Clayton Ruby, says any ruling in Kimvar's favour would be unprecedented and an affront to democracy.

Apparently, the OMB rarely hands out compensation to winners, unless extreme circumstances of gross negligence can be proven.

Exactly what that means is up for interpretation.

Ruby argues that a Kimvar victory will prevent opposition to large-scale development from coming forward at future OMB hearings. He makes a good point, and it's hard to imagine any individual residents or small groups wanting to be threatened with a multi-million dollar lawsuit simply for having an opinion.

But a line has to be drawn somewhere. It is within the rights of Kimvar to ask for their costs to be covered, and company representatives feel they have a strong case against site opponents.

In the OMB's 28-page verdict on the resort, judges harshly criticized the opponents' case. They say expert opponent witnesses failed to provide evidence about the negative impact the resort would have on the environment. Another witness was provided with either inaccurate or incorrect information regarding water quality on the site.

Yet another expert witness, who lives in British Columbia, admitted he knew little of Kimvar's development proposal.

"In assessing the evidence provided by the opponents with respect to environmental impacts, the board notes that the experts retained by the opponents were not consistently familiar with the breadth of the study undertaken by Kimvar and the government agencies, or particularly familiar with the myriad of conditions recommended to the board as part of any approval," said the judges in the verdict. "There were no additional conditions of approval offered by the opponents as alternative relief."

It seems like opponents of the site either withheld evidence from their witnesses, failed to fully inform themselves about the project, or never had the intention of working towards a solution for Big Bay Point. Any of those options show bad faith on their behalf, another reason for Kimvar to ask for a lawsuit. Opponent lawyers had plenty of time to prepare their witnesses, but made fundamental errors that were caught by OMB judges.

People should have a legal platform to present their concerns about development in an open and honest setting. They should be allowed to freely express their opinions, without fear of reprisal. But there has to be some accountability for those who dislike a proposal, yet do little to prove their case.

This project has already cost millions of taxpayer dollars. And the longer this project is held up, the more tax and tourist revenue will be lost. If opponents are found to have been purposely negligent throughout the OMB proceedings, they owe residents across the entire region some money and an apology.