Simcoe County asks judge to award legal costs against AWARE Simcoe

AWARE Simcoe letter  — October 8 2015

Dear Members and Supporters:

AWARE Simcoe, a group of taxpaying residents, is in danger of being sued for approximately $50,000 in legal costs, some from a developer and some from Simcoe County. This is because we asked for an injunction to stop the clear-cutting of 30 acres of forest north of Beeton pending the outcome of a judicial review, possibly in 2016, of the process around the granting of a Special Permit.

AWARE Simcoe is a not-for-profit citizens’ group that works to protect water, the environment and health by promoting transparency and accountability in government. We monitor the meetings of local councils and agencies like the Nottawasaga and Lake Simcoe Region Conservation Authorities. We respond to requests for information and support from citizens regarding a range of issues, from the County’s new composting facility, to the status of the Nottawasaga River, to massive development in communities like Midhurst or Everett, to improper use of behind-closed doors meetings.

We believe that the active involvement of citizens like those who work through AWARE Simcoe and other groups is what will make Simcoe County a great place to live.

Nevertheless, the County’s lawyer Marshall Green has asked a judge to require AWARE Simcoe to pay between $15,709.33 and $23,485.70 in legal fees, and Ian Rowe, the lawyer for Tecumseth Estates Inc., the property owner, is seeking $24,050 to $39,947. (See attached letters for full details of Green’s and Rowe’s claims which are either for the full fee charged, or a portion.)

The judicial review will not be heard until next year. In August, Justice Margaret Eberhard heard AWARE Simcoe’s injunction application. She refused the injunction while recognizing the importance of the issues raised by AWARE Simcoe. Our lawyer has 10 days to reply to the County’s and the developer’s submissions. The judge can then decide to award any amount of costs, or none.

Although the lawyers have asked the judge for costs to be awarded against us, Simcoe County has not yet voted on the matter, so please call your Mayor or Deputy Mayor as soon as you can and ask them not to vote to sue our own taxpaying residents for trying to protect the environment. The matter is on the agenda for next Tuesday’s county council meeting. For more details, read on.

AWARE Simcoe’s role
County lawyer Marshall Green argues that County Council has an obligation to recover taxpayer monies. But by going after AWARE Simcoe for costs, the County will send a clear message to citizens: don’t stand up to us. It’s an action that could have a chilling effect on citizen participation.

In his submission, Marshall Green says that, as the County is made up of the mayors and deputy mayors of its 16 municipalities, residents of those municipalities have both a direct influence on County decisions at the level of their local politicians, and a second level of input at the County Council table itself. “With those two layers of input, the County Council is very well positioned to represent residents and taxpayers; much better than a ‘corporate’ lobby group with an undeclared membership.” But who’s better than the local residents to voice their concerns over actions being taken in the community they live in?

Yes, we recently incorporated, so that makes us “corporate,” we suppose.
And yes, we are a lobby group. We lobby for our farmland and local communities, we lobby for our wetlands and forests, we lobby for our First Nations allies and future generations. We consider it our responsibility to be active during municipal elections, and we consider it our responsibility to remain involved between elections. “The price of democracy is eternal vigilance.”

The Beeton issue
Earlier this year, we supported Beeton citizens in their efforts to save the Beeton Woods from clear-cutting. There had been numerous problems in the way the Town of New Tecumseth and the County of Simcoe handled the developer’s request to clear-cut 30 acres of forest, purportedly for agricultural purposes. To put it bluntly, our political process failed – even though policies and procedures are in place that should have provided a high level of protection for this important woodland in the southern end of the county that is severely impoverished in terms of forest cover.

In the coming days on the AWARE Simcoe website, we will be posting documents accessed through Freedom of Information to illustrate the many times that bureaucrats and politicians either failed to do their job or, alternatively, provided appropriate advice that was ignored by decision-makers. The failures came from within government. The environment, citizens and the property owner – Tecumseth Estates Inc. – have suffered as a result. But the real cost will be borne by future generations as Simcoe County’s unique and rich biodiversity is frittered away by sprawl.

The mistakes leading up to the granting of a Special Permit to allow the clear-cutting included:
– Failure to notify abutting landowners.
– Failure to notify other concerned citizens, in particular the original complainant when the first illegal cutting began over 2 years ago.
– Failure to disclose the property owner’s development plans. This was a failure by staff of the Town of New Tecumseth. The fact that there was an open planning application on the property would have put the request in a different category to one where the contemplated use was agricultural – a category that would have required the Nottawasaga Valley Conservation Authority to apply more stringent standards and require more detailed studies. But neither the NVCA nor other approving authorities, including the Ministry of Natural Resources and County councillors themselves, at their February meeting, were made aware of this fact.

This led to an unusual semi-judicial hearing by County councillors to which AWARE Simcoe and a number of other groups and individuals – many from Beeton – made presentations. Unfortunately, the hearing process was flawed:
– Although participants were told no further evidence would be accepted after the first day of the hearing, the developer was allowed to offer further evidence – principally, a decision to withdraw his planning application to the Town of New Tecumseth – that was received and discussed by county councillors behind closed doors when the hearing resumed.
– A request by participants that they have the right to explain why the developer’s evidence did not change the underlying issues was refused.
– County councillors had assumed the role of jury in this hearing, but two county councillors (Brian Smith from Wasaga Beach and Anita Dubeau from Penetanguishene) voted on the decision to allow the clear-cutting to go ahead without having been present on the first day of the hearing to listen to the evidence put forward in participants’ presentations.
– The Mayor and Deputy Mayor of New Tecumseth, who along with New Tecumseth council were clearly against the clearcutting, were recused from the hearing process. Although a lawyer presented New Tecumseth’s position at the hearing, the absence of their two county councillors left their residents without a voice during council’s deliberations nor a vote on the final outcome.

AWARE decision
Our Beeton members asked AWARE Simcoe to take legal action because – to use the legal language – principles of natural justice had not been observed. With lawyer Michael Fleischmann present, the AWARE Simcoe board deliberated whether to seek a judicial review very thoroughly. Our decision was based on our belief that the County’s process fell short of the necessary fairness and openness and our desire to ensure that its procedures should have integrity for the future.

In his submission Marshall Green misrepresents our position, and our relationship with the County on several key points.
– He cites an “expensive” open house on the new revised Official Plan as an example of how well the County responded to requests that it hold public meetings on this important land use document. He omitted to point out that it took repeated and continuous pressure by our group over two years, an election campaign and the election of a new council for the open house to happen. AWARE Simcoe was told that public meetings held in 2008 were sufficient public consultation for a revised Official Plan. We were also told that the Ontario Municipal Board hearing (a travesty in public accountability that is ongoing) was a public meeting.
– He says AWARE Simcoe complained about not being allowed to repeat its hearing position. Not true. The request from Beeton residents was not to repeat their hearing position, but to respond to new evidence presented to County council by developer Tecumseth Estates Inc. in violation of previously stated rules that no new evidence would be allowed.

– He says that the irregularities we highlighted, some of which were admitted to by the County, would have had no effect on the outcome of the Beeton Woods decision because of the final vote count. As stated above, our decision was not based on the vote count, but on issues of fairness in the process.

Ian Rowe argues that there was overwhelming scientific evidence contrary to the AWARE Simcoe position in support of the environmental significance of the Beeton woodlands. That’s not true. Documents that we will post from the MNRF and the NVCA both point to its importance – the problem was that the Ministry and the NVCA were misled into thinking that agriculture was the only outcome being considered for the property.

To decide to extract the fees from AWARE Simcoe has the potential for discouraging citizen engagement. If that happens, the effects will be far-reaching and damaging. Politicians who want to do the best for their communities need aware and involved residents so they can resist the many pressures from those who seek to exploit and take advantage of rural Ontario.

It’s Thanksgiving weekend – we have so much to be thankful for in this beautiful part of the world. Let’s protect it.

Thank you.

Don Morgan
AWARE Simcoe Chair

Latest: Tuesday October 13: County Council debates legal action against AWARE Simcoe