Decision on fate of woodlot in Beeton by August 28

New Tecumseh Free Press Online 

A hearing seeking a temporary injunction to prevent the clearing of 30 acres of woodlot on the Tecumseth Estates’ property on the 9th Line in Beeton ended today without a decision.

Instead, the three parties – AWARE Simcoe, the applicant; and the respondants, Tecumseth Estates and Simcoe County – were advised a decision will be issued no later than Aug. 28.

That’s a key timeline because Tecumseth Estates will otherwise be in position to resume cutting as the nesting season ends at the end of this month.
“Between the advocacy of the other counsel, questions from the judge, and my own submissions, the issues in dispute for the injunction hearing were fully explored and analyzed,” Michael Fleichsmann, counsel for AWARE Simcoe told Free Press Online tonight via email. “We eagerly await Justice Eberhard’s decision.”

‘Tecumseth Estates requests that the applicant’s motion be dismissed with costs’

New Tecumseh Free Press Online August 18, 2015
Lawyers representing AWARE Simcoe (Applicant), Tecumseth Estates, and Simcoe County, will be in a Barrie courtroom tomorrow morning seeking on one side, an immediate injunction to suspend the special permit issued by Simcoe County to Tecumseth Estates pending the outcome of application for a judicial review. And on the other, arguing for a motion to quash the appeal “with costs.”
Ian Rowe, counsel for Tecumseth Estates (Rizzardo), and County of Simcoe solicitor Marshall Green, HGR Graham Partners, filed their replies yesterday to the application for Judicial Review served August 6 by Michael Fleischmann, counsel for AWARE Simcoe.
Despite winning its appeal to lift the County’s stop work order, in May, Tecumseth Estates has not been permitted to cut any trees under the Migratory Birds Regulations. It is obligated instead to wait for the end of the nesting season before resumption as per its special permit conditions. According to Mr. Rowe’s submissions, Chad Boyko a Wildlife Officer with the Wildlife Enforcement Directorate for the Ontario Region of Environment Canada was on site and “advised that the end of August would be the appropriate end of the nesting season.”
If the interim injunction is granted, it’s expected the judicial review will last beyond the January 27, 2016 permit expiry. “Although there are provisions in the Bylaw for an extension, an extension is a future uncertain event over which Tecumseth Estates has no control.”
Mr. Rowe and Mr. Green will argue AWARE Simcoe “has not challenged the substance of the Decision and has no legal rights or interest in the substance of the Decision or in Tecumseth Estates’ property.”
At the core of Mr. Fleischmann’s position is the notion Simcoe County councillors accepted additional evidence after the April stop work order appeal hearing was closed, despite direction from the Warden “that no new evidence would be admitted and that their determination would be made solely based on the evidence from the Hearing. … The substance of the Impermissible Evidence was that Tecumseth Estates Inc. was withdrawing the Development Application. This unchallenged evidence was relied upon by Simcoe County in the reasons for the Decision.”
In the County’s reply, Mr. Green argues, “Council did not accept any “further evidence” as has been asserted, but rather, Council considered answers provided to specific questions raised at the April 14th hearing, which could not be addressed at that time.”
“It would be unfair and a denial of natural justice to the Owner if, in a proceeding for which there were no pre-hearing processes that its property rights would be impacted by the need for answers to specific questions for which its counsel was required to obtain further information from his client. ….. Critically, the Applicant has attempted to portray the clarifying information provided by Mr. Rowe to Council as ‘impermissible evidence’, which, in the County’s submission, is a flagrant misnomer. …Mr. Rowe, in providing information to the Council, was answering questions specifically raised by the Council, this act of clarification is not akin to new evidence, as the Applicant has suggested.”
Mr. Rowe notes that Tecumseth Estates’ property is not part of any conservation area, has no status within the County Forest system and is zoned Agriculture (A1), not Environmental Protection (EP).
“Notably, the applicant has not appealed Council’s decision on its merits, but rather is seeking to stay that decision pending judicial review for alleged procedural unfairness.
“There is no evidence to support the applicant’s contention that the so-called Beeton Woods ‘is a fixture of environmental heritage and ecological significance.’ The overwhelming evidence, including from the regulatory bodies tasked with protecting the environment, is that the tree cutting allowed by Tecumseth Estates’ Special Permit will not be environmentally harmful. There was no environmental concern that constrained the issuance of the Special Permit. The stop work order, which prompted the appeal to Council, was not based on any environmental concerns.
“The Special Permit is time limited. If the stay is granted, Tecumseth Estates will be prevented from cutting the trees, and renting the land for agriculture, until a new permit or an extension can be obtained. It is uncertain whether an extension or new permit could be obtained. Tecumseth Estates will lose the potential revenue from its lands and will be faced with the cost and uncertainty of obtaining an extension of the existing permit or a new permit. Given that the applicant is a not-for profit corporation, it is unlikely to have any assets with which to compensate Tecumseth Estates for its losses if the stay is granted.

Judicial review of County’s Beeton Woods decision to be heard August 19

New Tecumseh Free Press Online August 7 2015

A bid to quash a special permit issued to Tecumseth Estates by Simcoe County allowing the clear-cut of more than 30 acres of private woodlot on its 9th Line property in Beeton, will be heard in divisional court in Barrie on August 19, according to the Application for a Judicial Review filed Thursday on behalf of AWARE Simcoe: Environmental and Social Solutions Inc.

The group’s lawyer, Michael Fleischmann, will seek an interim injunction “staying the ‘Decision’ pending the determination of this application on the merits and thereby preserving the status quo.”

The application names Simcoe County and Tecumseth Estates as respondents, suggesting “Simcoe County denied natural justice in reaching the Decision … to lift stop work order 2015-035” calling it “unlawful and invalid.”

Mr. Fleischmann’s central arguments involve the period after the April 14 hearing which was adjudicated by Simcoe County council sitting as a quasi-judicial body to hear an appeal by Tecumseth Estates seeking to lift the Stop Work Order that suspended the special permit while a review of the approvals process undertaken by the County.
There was a deprivation of natural justice in this case for two independently sufficient reasons. First, councillors absent from the Hearing voted in the Decision. Second, in direct contravention to Simcoe County’s own rules established under the SPPA, it permitted the consideration of additional evidence from Tecumseth Estates Inc. after the Hearing was concluded;
Simcoe County directed that no new evidence would be admitted and that their determination would be made solely based on the evidence from the Hearing. Further, council members that attended the Hearing were directed not to speak amongst each other or to members of the public about the evidence;
Contrary to these explicit directions, counsel for Tecumseth Estates Inc. sent three letters to Simcoe County that included additional evidence …Two of the letters were dated April 29, 2015 and one was dated May 4, 2015;
Without any debate, notice, or further submissions from any parties, Simcoe County admitted the Impermissible Evidence into the documentary record. When the Impermissible Evidence was challenged by members of the Applicant, they were informed that Tecumseth Estates Inc. was “responding to questions” posed at the hearing and the evidence was admitted on this basis. No opportunity to respond was granted to parties that were adverse in interest to the appeal brought by Tecumseth Estates Inc.;
When the Applicant submitted additional materials to answer questions posed at the Hearing, the materials were refused;
There was no request or permission granted at the Hearing for Tecumseth Estates Inc. counsel to provide additional information following the Hearing;
The substance of the Impermissible Evidence was that Tecumseth Estates Inc. was withdrawing the Development Application. This unchallenged evidence was relied upon by Simcoe County in the reasons for the Decision; An additional, independently sufficient reason for this Honourable Court to conclude that there was a deprivation of natural justice, was that two council members that did not attend the Hearing, Brian Smith and Anita Dubeau (the” Absent Councillors”), nevertheless voted in favour of the Decision that was reached;
Simcoe County deemed it necessary to have oral testimony. By permitting the Absent Councillors to vote without hearing any testimony, there has been a breach of the principle that “He who hears must decide”. Breach of this principle tainted the Decision;
“Had a litigant with a dispute before the Ontario Superior Court of Justice sent a letter to the judge enclosing new evidence after the hearing and before the decision, such an intrusion would have been categorically rebuffed. The situation here should be no different,” according to Mr. Fleischmann’s pleadings. “There is no juridical reason that Tecumseth Estates Inc. should have been able to influence Simcoe County Council with the Impermissible Evidence. To the extent possible, the Impermissible Evidence should be struck from the evidentiary record and the parties should be returned to the position they would have been in had the Impermissible Evidence not been distributed.”

Because “Simcoe County Council cannot unlearn that to which it has improperly become privy,” or “no differently constituted council that can hear this matter”… “The By-Law does not provide for an appeal or reconsideration of this matter; To ensure that justice is not only done, but seen to be done, this Honourable Court ought to exercise its inherent jurisdiction and, if called upon, decide upon the merits of any appeal under the By-Law without reference to the Impermissible Evidence. In other words, the court ought to decide whether the Special Permit should be confirmed and the Stop Work Order should be lifted.”