Judge sides with Tecumseth Estates, calls injunction ‘a disproportional response’

New Tecumseth Free Press Online

Ontario Justice Margaret Eberhard released her decision this afternoon that rejects AWARE Simcoe’s application for a temporary injunction to permit a judicial review of the approvals process that permits Tecumseth Estates to clear 30 acres of woodlot from its 9th Line property in Beeton.

Justice Eberhard called the August 19 hearing held in Barrie, that featured AWARE Simcoe squaring off against Tecumseth Estates and the County of Simcoe, “a well-argued, compelling proceeding which engaged issues of environmental concern, the social value of protest, limitations on the rights of ownership of private property, public influence over private property and who is the guardian of public interest.”

The ruling runs through 89 points and touches in depth on the questions raised by AWARE Simcoe’s application claiming that “natural justice” was denied, and that two County councillors who were not at the initial April hearing date, voted nonetheless at the May meeting when the stop work order was lifted by the County.

Below are selections from Justice Eberhard’s ruling:
-Even if I am wrong and there is a serious case to be tried whether the mistake of County Council is caught within the general rule that “he who decides must hear”, for a stay pending Judicial Review the Applicant must also demonstrate irreparable harm. To do so, the Applicant argues “Tecumseth Estates Inc. will be in a position to clear the Beeton Woods as of August 28, 2015. Without the requested stay, the Beeton Woods will be gone and there will be no redress whatsoever available to the Applicant”. In this the Applicant departs from the abstract of denial of natural justice and invokes the merits. In oral argument this was no more developed than to observe that without a stay the trees are gone August 28. So, simply put, the harm is to the trees.
-The stand of trees is on Tecumseth Estates Inc.’s private property. The public has no right of entry and the pictorial evidence of various objectors on the property is insufficient to assert a legal right to be there. Nor is the moniker “Beeton Woods”, unheard by the landowner or the County forester before the dispute arose, evidence of heritage use.
-Still, the value of public protest is an important consideration. Without requiring evidence, it is well known to this court and informed citizens generally that many societal concerns, and in particular environmental concerns, are brought forward by the actions of protesters for public debate and scrutiny. At the very least it can be said that there is often a public interest in features of the environment even though the land may be privately owned.
-But the public does not have an interest in every tree. At least not directly. There are public agencies and statutory bodies charged with the protection of the environment and elected officials representing the public interest.
-There is no indication of the extent to which the Applicant’s views are representative of the public interest. No elected local representatives join in their Application. There is no evidence of any expert assessment that the trees or the woods are significant.
-I have averted to the value of public protest in this ruling but so too did the County by issuing the stop work order when Tecumseth Estates Inc. was in full compliance with its requirements. The objectors were given an opportunity to put forward evidence to give pause to the County in confirming a Special Permit already based on 3 years of assessment with concessions extracted from Tecumseth Estates Inc. The objectors failed and the Applicant fails to put forward evidence of irreparable harm to trees significant in the public interest with the cutting of these trees.
-The corporate make-up of the Applicant raises similar concems about recovering damages but the real point is that a titled landowner should not be restricted in the lawful use of its land without demonstration of a legal right irreparably harmed.
-A further considerable inconvenience is argued by the County that an injunction granted in circumstances of a procedural mistake to the Applicant with no interest in the property, no evidence or special expertise in the significance of the trees, no irreparable damage to any legal interest, would compromise the County in exercising its authority under The Municipal Act to “govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues.”
-A standard of procedural perfection would leave every decision vulnerable. County Council is made up of elected persons who do not claim legal training.
-To deny injunction with a consideration of the County’s authority, and responsibility, as a component of balance of convenience is not carte blanche. But the court’s response to a mistake that, on the evidence, could have made no difference should be approached with an eye on proportionality.
-I find that the County took considerable steps to assess the value of trees on the subject land and Tecumseth Estates Inc. took considerable steps to comply. Then the County realized its inadvertence about notice to the abutting owners and enlarged notice far beyond that which was required. They issued a stop work order to give objectors their say. The vote was clear and could not have been different even if the County had not inadvertently and wrongly, allowed the two who had not heard to cast their votes.
-A stay is a disproportional response to an enor that went to natural justice but did not result in a decision tainted by a denial of natural justice. This disproportionality is in addition ‘to the Applicant’s not demonstrating an interest that is irreparably harmed nor a consequent inconvenience to balance against delay and expense to Tecumseh Estates Inc. and impairing the authority of County Council by a standard of procedural perfection.
-For these reasons the Applicant is not entitled to a stay of the’ decision of the County Council to lift a stop work order 2015-035 and confirm the special permit issued to Tecumseh Estates Inc. pending determination of Judicial Review.
AWARE Simcoe counsel Michael Fleischmann told Free Press Online this afternoon via email, “I will be seeking instructions from my client as we digest the decision.”

As a result of this decision, Tecumseth Estates will be in position again to resume clearing the trees as per its special permit conditions by the end of this month as the nesting period will have ended.