Ruling comes on “chilling” lawsuit by developer

In an important, but not much publicized, ruling, the Ontario Municipal Board has decided not to award legal costs against a community group that opposed a development at Big Bay Point in Innisfil, near Barrie, Ontario.

The developers, Kimvar, were trying to recover their costs against the community group, charging that the group had deliberately held up the Board’s hearing of their development by using frivolous and unreasonable methods.

Kimvar was claiming approximately $3.2 million from the citizens’ group and its lawyers to cover the extra legal costs Kimvar said it had incurred over the protracted hearing.

The OMB decided it would not approve the claim, agreeing with the defendants’ lawyer Clayton Ruby that to have approved the suit would send a strong message to other citizens groups and dissuade them from getting involved and voicing their opinions on developments.

The decision, made January 30, 2009, noted that while it did not believe the developer had the intention of sending a message to the public, its claim would still “create a chilling effect.” Therefore, the OMB wrote:  “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.”

In the U.S. claims launched by developers in an effort to dissuade citizens’ groups from opposing their plans are known as “Strategic Litigation Against Public Participation,” or SLAPP suits.