County should not be acting as agent for developer in pursuing AWARE Simcoe

News release from AWARE Simcoe

Simcoe County should not be acting as an agent for a developer in pursuing a costs award, a spokesperson for AWARE Simcoe says.

“AWARE Simcoe believes it is totally inappropriate for County lawyer Marshall Green to be representing both the County and Tecumseth Estates in this action,” said Stephanie MacLellan, a member of the AWARE Simcoe Board.

A judge last year awarded a total of $32,000 in legal costs against AWARE Simcoe. The group was in court to try and save the Beeton Woods. The judge stipulated that Simcoe County would be second in line behind Tecumseth Estates when it came to recovering costs.

It appears that it is Simcoe County that is aggressively pushing the issue, by seeking to conduct an “Examination in Aid of Execution” with AWARE Simcoe chair Don Morgan, and obtaining permission from Tecumseth Estates to act as their agent.

MacLellan wants to know whether county councillors authorized this legal strategy in which the county is leading the charge against AWARE Simcoe.

“Simcoe County Council gave direction to Marshall Green to pursue costs, but where and when was Green given direction from County Council to use our tax dollars to assist the developer and act as his agent?” asked MacLellan, a Beeton resident. “Who, specifically, gave that direction?”

The purpose of the examination is to “determine the level of assets currently maintained by AWARE Simcoe,” Green told New Tecumseth Free Press Online, explaining his role acting for the County, and as “agent” for Tecumseth Estates, owned by the Rizzardo family.

“It is a common practice when there are multiple creditors of a party, that one of the lawyers for one of the parties undertakes an examination in aid of execution on behalf of all of them. The information is then shared, and joint decisions can be made as to future collection efforts. This is what is happening here. I will conduct the examination, as I was directed by Council to do, and I will share the information that I receive, with the lawyer for Tecumseth Estates. …. Tecumseth Estates would maintain their order of priority in the collection process should all parties proceed.”

Last November, AWARE Simcoe was ordered by Justice Margaret Eberhard to pay $27,000 to Tecumseth Estates and $5,000 to the county, after she denied the group’s application for an interim injunction. The action was to halt further clearcutting of approximately 35 acres of forest north of Beeton pending a judicial review of the county’s approvals process.

“Let’s not forget what brought AWARE Simcoe to where we are today,” MacLellan said.

“Simcoe County did not notify abutting landowners as they are required to do. Simcoe County issued a special permit to cut 30+ acres of mature forest through the Forestry Conservation by-law to a developer with an open planning application, something that’s almost unheard of.

“The overriding issue is that we are losing forests at an unprecedented rate and the south end of the county is particularly impoverished. Where protection is warranted, as was the case here, we feel it is incumbent on citizens to stand up and try to ensure the rules are applied so forests survive.”

MacLellan noted that Eberhard found that Simcoe County “floundered procedurally,” first in 2012 by not notifying abutting landowners, and then in 2015, at its quasi-judicial hearing. The procedural errors included allowing the developer to submit evidence after other parties were denied that same request and then not allowing comment from other parties regarding this new evidence. Another mistake was allowing the votes to be recorded of two Simcoe County Councillors who did not attend the hearing and hear the evidence.

“When Beeton residents raised these issues, they were told by the County Clerk their only recourse was to obtain legal advice,” MacLellan said. “At that point, AWARE Simcoe became involved.”

AWARE Simcoe withdrew its judicial review application in January, 2016. At the time of the court action, Green was the County’s lawyer through his private practice. He has since been hired by the County as a senior member of the upper tier’s new legal department.