Canadian Consulting Engineer

Liability chill might freeze out opponents to development

November 14, 2008
By Canadian Consulting Engineer

A controversial hearing at the Ontario Municipal Board that could set a major precedent for developments is set to ...

A controversial hearing at the Ontario Municipal Board that could set a major precedent for developments is set to resume in December.

The developer of a new marina and resort on Big Bay Point on Lake Simcoe east of Barrie is claiming $3.6 million in legal costs against a local ratepayers’ group and its lawyers who opposed its plans.

The plans by the developer call for 1,600 condominiums and homes, hotels and a marina on a 242-hectare site.

The Innisfil District Association representing 298 families and other residents had opposed the development for years and took their opposition to the Ontario Municipal Board. The board ruled against the ratepayer group, and now Kimvar is seeking financial compensation for the costs it says it built up in lawyers’ and experts’ fees, etc. in order to defend its right to proceed.


The case is seen as precedent-setting for Ontario, because if the developer wins compensation, the prospect of facing similar repercussions could become a powerful deterrent to environmental and other groups that oppose developments. They would be too afraid of being sued to dare to mount any opposition.

Environmental Defence, a non-profit activist group backing the ratepayers’ association, is likening the case to what in the U.S. are called Strategic Lawsuits Against Public Participation, or SLAPP suits.” Environmental Defence is calling on the Ontario government to introduce legislation to make SLAPP suits illegal.  Quebec has already introduced legislation to prevent similar suits.

Environmental Defence’s lawyer Clayton Ruby says in a release: “The provincial government has an obligation to ensure the OMB (Ontario Municipal Board) operates democratically, so that everyone can take part in the process. Otherwise it becomes a game that only the wealthy can play.”

David Donnelly, counsel to Environmental Defence and one of the targets of the $3.6 million claim, says “What’s the use of having Canada’s most robust environmental protection regime if people are afraid to speak out and engage it.”




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