Cost awards and SLAPP: Techniques used to chill public participation in planning decisions
Every year, the ECO receives many inquiries from Ontario residents and neighbourhood groups who are concerned about development proposals in their communities. Unfortunately, these concerned residents and ratepayer organizations often lack the resources and specialized knowledge necessary to navigate the complex planning approval process. The system is hugely weighted in favour of those in the development industry, who have the resources, knowledge and experience (and access to a stable of planning, environmental and other professionals with specialized expertise) to skillfully argue their case before the Ontario Municipal Board (OMB).
Nowhere is the asymmetry of the system more evident than in the relative economic power of the two sides involved. When the stakes are in the many millions – sometimes billions – of dollars, the resources that developers are prepared to invest to overcome residents’ objections far surpass the capacity of most citizens groups, environmental organizations, and even conservation authorities and municipalities.
Adding to the wide asymmetry inherent in the system is the threat of “SLAPP suits” – Strategic Lawsuits Against Public Participation – described as “civil actions with little or no substantial basis or merit advanced with the intent of stifling participation in public policy and decision-making.” In the planning context, SLAPP suits are advanced by developers to discourage local residents from participating in the planning approval process, to divert citizens groups’ financial and/or other resources from public participation, or to punish residents for participating. SLAPP suits, whether successful or not, affect far more than the specific individuals or groups that are targeted as defendants; such lawsuits can deter others from participating in the same or other matters of public concern, out of fear of the financial liability that could ensue.
The Big Bay Point Decision
In Ontario, a recent case before the OMB shone a spotlight on this issue. A group of concerned residents and others participated in an OMB hearing regarding approvals for Big Bay Point Resort, a proposed $1 billion luxury resort project on the shores of Lake Simcoe. The developer, Kimvar, who was successful at a 2007 hearing in obtaining the required approvals to proceed despite opposition from the residents’ group, subsequently sought a costs award of $3.2 million dollars against the group of opponents and their lawyers. Kimvar argued that the opponents had delayed the hearing process and engaged in unreasonable, frivolous and vexatious conduct in bad faith and without regard to cost. The opponents argued that the motivation behind Kimvar’s claim for costs was to silence public opposition to the project, which constitutes an improper purpose, and that making the requested award for costs would have the effect of a SLAPP suit. The Environmental Commissioner was called as a witness for intervenors who sought to argue that a large cost award would discourage public involvement in future OMB hearings.
In its January 2009 decision on the costs motion, the OMB disagreed that the developer’s claim for costs was brought for an improper purpose, but adopted the opponents’ position that the public interest should be considered and that in this case “an award of costs anywhere near the amount requested would create a chilling effect.” Accordingly, the OMB denied the developer’s claim for costs. Despite this positive outcome for the opponents, the costs incurred just to defend the developer’s claim have reportedly exceeded the maximum amount the OMB has ever awarded in costs.
The Need for Equal Footing
The Big Bay Point decision and similar cases have led to calls for the Ontario government to develop anti-SLAPP legislation, a move that several US States, British Columbia and Québec have already made. On December 9, 2008, a private member’s bill, Protection of Public Participation Act, 2008, received First Reading in the Ontario Legislature. However, Bill 138 died on the Order Paper when the Legislature adjourned in June 2009.
The public’s right to participate in decision-making over matters of public interest is a cornerstone of our democratic system. Efforts aimed at suppressing this right should be discouraged by the Ontario Legislature and other public agencies. The ECO sees a need for provincial legislation that would put both sides of development disputes on equal footing. Such legislation could serve to halt SLAPP suits in their tracks. It also could provide a means for the public to access financial and other resources in order to exercise their participatory rights in planning approvals and other contexts that have a significant bearing on the environment.
| Recommendation 2:
The ECO recommends that MMAH take the lead in developing legislation to discourage developers from using cost applications and similar tactics to frustrate public participation in the planning approval process. |
| This is an article from the 2008/09 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2009. "Reforming Land Use Planning." Building Resilience, ECO Annual Report, 2008-09. Toronto, ON : Environmental Commissioner of Ontario. 23-25.
