SHOULD THE THREAT OF COST AWARDS DETER COMMUNITY PARTICIPATION AT THE OMB?
On April 30, 2015 the Ontario Municipal Board heard a motion asking the Board to award costs against the Richmond Hill Naturalists because of their actions opposing a housing development on the David Dunlap Observatory land (above) in Richmond Hill.
Given the fear expressed by some community groups that this kind of cost award – possibly as much as $200,000 in this case – could deter or even prevent future public interest interventions [1-3]. I (Max Allen) attended the hearing to see how the motion was argued.
So: Should the threat of cost awards deter community participation at the OMB?
The answer seems to be “no” to both ways of reading the question: No, it should not be used as a threat; and no, it should not be seen as a threat by community or public interest groups..
A cost-awards action can be initiated by a winning party against a losing party. [4] Such an action is not initiated by the OMB itself. Cost actions at the OMB are rare, and awards are made even more rarely. But they do happen. [5] As the Board held in Kimvar:
…applications for costs are not routine, and cost awards are rare. In short, a successful party appearing before the Board should have no expectation that it will recover its costs. The Board “does not award costs lightly and it does not award costs automatically. In decision after decision, the Board has expressed a sensitivity to the right of appellants to bring matters before this Board” (Westfield Place Inc. v. Blandford Blenheim (Township) Pit Application, [1996] O.M.B.D. No. 1252 at p. 19). Nevertheless, the Board has also concluded that parties must be accountable for their conduct and if that conduct or course of conduct has been unreasonable, frivolous or vexatious, or if the party has acted in bad faith, then the Board may order costs.
And
the Board has restricted awards of costs to the clearest of cases, where the conduct complained of is unreasonable and improper.
Was the Richmond Hill Naturalists’ case “unreasonable and improper”? The developer Corsica, a subsidiary of Metrus (as it was known initially, now The DG Group, of Concord, Ontario; DG refers to the de Gasperis family) argued that the Naturalists’ case was improper. Many details were presented about the five-party negotiations and the eventual agreement which the Naturalists opposed at every step. According to the city of Richmond Hill [6]:
The mediated settlement between five parties for the David Dunlap Observatory (DDO) lands was formally presented at the May 7, 2012 Ontario Municipal Board (OMB) pre-hearing meeting. At the pre-hearing, the Richmond Hill Naturalists stated their objection to the settlement and an OMB hearing has been scheduled to begin August 7 to deal with their issues.
The mediated settlement represents the formal position of five of the parties, officially replacing the original development proposal submitted by Corsica Development Inc. The Town fully supports the mediated settlement as it proposes to save approximately 40 hectares (99 acres) from development and have this natural area dedicated to the Richmond Hill community as public space. The settlement was a result of many months of mediation facilitated by the OMB between Corsica Development Inc., the David Dunlap Observatory Defenders, the Town of Richmond Hill, the Region of York, and the Toronto and Region Conservation Authority (TRCA). The Richmond Hill Naturalists are the only party objecting to the settlement and will now have their issues addressed at an OMB hearing scheduled to begin August 7, 2012.
The Naturalists’ lawyer, Ian Flett, took notes only twice (that I saw) during David Bronskill’s presentation on behalf of the developer. The Board member hearing the case, Joseph Sneziek, took many more.
I was not able to stay for the afternoon session, in which Mr. Flett presented his case, but I assumed he was not going to contradict Mr. Bronskill’s presentation about the technical facts of the case (the sides exchange general summaries of their issues and positions in advance of the OMB hearings), but rather he was going to concentrate on whether the Board, recognizing the implications for future interveners, should refuse to award costs against his client – continuing the Board’s traditional reluctance to do so – as a matter of good public policy.
The OMB member who heard the case, Mr. Sneziek, said at the outset that he would not be able to write a decision quickly because of the pressures of other work. After the hearing, the Naturalists’ lawyer said he thought “it went OK, but no bets.”
Meanwhile, here are the highlights in point form of the argument in favour of a cost award presented to the OMB by Corsica/DG Group:
WHY A COST AWARD?
Although the Naturalists have a right to be a party at Board hearings, they must accept the associated responsibilities.
The Board has no mechanism other than cost awards for discouraging or dealing with baseless or vexatious cases.
A cost award is the only remedy available for improper conduct.
The Naturalists persisted in the face of warnings from the Board about re-litigating already settled issues, and warnings from the developer that a cost award might result.
THE PUBLIC INTEREST
A public interest group does not deserve special treatment. The Naturalists should not be held to a lower standard than any other party before the Board.
The Naturalists wear “a manufactured cloak of false nobility” as “the last opponent standing” in the Richmond Hill case. But there is no nobility in pursuing a case that has already been lost (and, by implication, there is such a thing as losing).
“Good faith” is a binary concept; there is no middle ground. There is no evidence (affidavits, etc.) before the Board that the Naturalists acted in good faith.
This was an ideological pursuit.
HOW DO THE RICHMOND HILL NATURALISTS WORK?
The Naturalists say their organization has 65 members.
There is no evidence before the Board that any of the actions undertaken by the Naturalists’ executive went out to the members for approval.
One individual has apparently funded the Naturalists to the tune of $500,000.
The line between whistleblower and gadfly is narrow.
The Naturalists have engaged a different law firm for each of their actions, for a total of five.
EVIDENCE
When you appeal a planning issue to the Board, you must provide demonstratively sustainable evidence in support of your position, and the Naturalists presented no meaningful evidence.
“This is not about a successful cross-examination of their planning expert; it’s about the quality of the evidence presented to the Board.”
The Naturalists’ case had no meaningful planning evidence against the development, and they knew or should have known it. A month before the hearing, the Naturalists’ planning expert told them that the draft plan of subdivision conformed to OPA 230.
COOPERATION BETWEEN THE PARTIES
The OMB’s Rules of Procedure [7], section 103, lists eight “Circumstances in Which Cost Orders May Be Made,” one of which is lack of co-operation with other parties.
The Naturalists did not reply to Mr. Bronskill’s request for positions before the pre-hearing teleconference.
The Naturalist’s issues list of January 31st was a laundry list of 18 subjects unrelated to the guiding policy documents, and was not helpful in efficiently narrowing the issues in contention. In response Mr. Bronskill gave the Naturalists an issues list that could be used as a form for their own issues list.
The Naturalists produced a witness list of 12 names. Corsica needed to prepare for all of them, which it did, including a witness to present archeological evidence. Later some of the witness names were removed, which meant that Corsica had spent time and money unnecessarily.
One major issue raised by the Naturalists was downstream capacity; and Corsica had to prepare for it. But during the hearing no evidence about downstream capacity was led for Corsica to respond to.
In brief: For a compact summary of the chronology and the mediated settlement, see footnote [6]. For a visual representation of what is at stake, see footnote [8].
NOTES
[2] See: 2010 Report to the Ontario Attorney General of the Anti-SLAPP Advisory Panel: http://www.attorneygeneral.jus.gov.on.ca/English/anti_slapp/anti_slapp_final_report_en.pdf
[3] OMB cost decision in Big Bay Point case: PL050290 30 Jan 2009
[4] A cost award means that the losing side is required to pay some or all of the expenses of the winning side, including lawyers and expert witness fees.
[6] See: http://www.richmondhill.ca/subpage.asp?pageid=david_dunlap_observatory Richmond Hill’s chronology of events, including the city’s purchase of 12 acres of the Observatory lands from the developer for $19.1 million.
[7] Lack of cooperation et al.: https://www.omb.gov.on.ca/stellent/groups/public/@abcs/@www/@omb/documents/webasset/ec059424.pdf
[8] Clearance of forested lands – by implication the Observatory lands, although the video is not specifically identified – is shown here: http://www.rhnaturalists.ca/2015/04/paying-for-the-last-stand-of-trees/