Sunday, February 10, 2008

OMB, Citizen Involvement and the threat of costs

The Toronto Star had an interesting article today with regards to a developer going after a citizen's group for $3.6 million in costs at an Ontario Municipal Board hearing. The Ontario Municipal Board (OMB) is an independent, adjudicative tribunal that hears appeals and applications on land use disputes. When people can't resolve their differences on community planning issues, the Ontario Municipal Board provides a public forum for resolving disagreements. Members are appointed by the Ontario government to mediate and/or resolve these disputes under a variety of legislation.

To sum up this article, essentially, the OMB has the power to award costs for what is typically considered 'patently unreasonable behaviour' during hearings. In this article, a $1 billion dollar resort development in Innisfil (Big Bay Point Resort) proposed by Kimvar Enterprises, a subsidiary of Markham-based Geranium Corporation, went to the OMB. In late December, Kimvar filed a motion for costs against the Innisfil District Association Inc (IDA), a ratepayers group that opposed the development, to the tune of $3.6 million due to the legal fees and consulting costs incurred during the four month long hearing. A written decision on both the actual hearing, and the motion for costs has not been delivered yet, but this threat of costs has already had an effect on other cases.

The article goes on to describe another development in Hillsdale, a nearby community northwest of Innisfil, where there is a new proposal for a 473 home development by the Hillsdale Land Corporation, which incidentally is also a subsidary of Geranium Corporation. The Concerned Residents of Hillsdale (CROH), a citizens group against the development filed for party status at the OMB hearing. Upon hearing of Kimvar's motion for costs against the IDA, the CROH gave up its status as a party for fear that the similar motion for costs would be sought against them.

Costs are usually only awarded for inappropriate behaviour at hearings. The OMB further states in its rules that "There must be no threats to potential appellants that costs will be requested. This could prevent opponents who have different but sincerely held opinions from exercising their right to appeal." However, the possibility of a $3.6 million cost claim is certainly enough to make people or groups re-consider opposing developments, which essentially flies against the face of democracy. The sheer number itself, many comment, is enough to intimidate, and we have already seen a victim of this with CROH.

Did the IDA do anything wrong at the hearing, as Kimvar contends? Will the OMB award costs, and if they do, will that number be anywhere close to the $3.6 million? What will be the implications of such a cost award at future OMB hearings? Will the province get involved (or do they even need to)?

We will likely see the final ruling for this motion for costs in the very near future. For more information, here is a link to the full story - 'Developer's cost claims raise fears of legal chill'

What do you think of this?

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