Beeton Woods: County, developer should pay own legal costs

AWARE News Network

AWARE Simcoe has acted in the public interest in seeking a judicial review of the county’s actions regarding Beeton Woods, its lawyer argues, opposing attempts by Simcoe County and Tecumseth Estates to collect legal costs from the non-profit group.

In a submission filed in Divisional Court on Thursday, lawyer Michael Fleischmann notes that county lawyer Marshall Green admits in his cost application that the county’s process was flawed.

“One of the County’s flaws was that it breached the maxim that “he who decides must hear”,’ Fleischmann writes, in reference to the fact that two county councillors who were not present at the evidence stage of the hearing nevertheless participated in the deciding vote.

“There is not a single case in Canadian jurisprudence where a decision-maker that breached this principle was excused, much less a finding that such a breach did not constitute a serious issue to be tried,” Fleischmann states.

Judge Margaret Eberhard, who ruled against AWARE Simcoe’s application for an injunction to prevent the clear-cutting of 30 acres of woodland pending the outcome of a judicial review, did find that the case was a “well-argued, compelling proceeding which engaged issues of environmental concern, the social value of protest, limitations on the right of ownership of private property, public influence over private property and who is the guardian of the public interest.”

AWARE Simcoe qualifies as a “public interest litigant” under five factors set out by the Ontario Law Reform Commission, Fleischmann submits. The factors are:

-That the matter involves issues the importance of which extends beyond the immediate interests of the parties involved

-That the litigant has no personal, proprietary or pecuniary interest in the outcome of the proceeding

-That the issues have not previously been determined by a court in a proceeding against the same defendants

-That the defendants have a clearly superior capacity to bear the costs of the proceeding

-That the litigant has not engaged in vexatious, frivolous or abusive conduct

While it is the normal rule that costs follow the event, in cases involving public interest litigants, the courts often exercise their discretion on whether or not to award costs.

Fleischmann argues that no costs be awarded against AWARE Simcoe: “To do otherwise would have a chilling effect on further bona fide efforts to bring forward targeted and direct litigation that is in the public interest. It would also put a severe strain on the ability of the Applicant to continue working towards its mandate and participating in the democratic process in Simcoe County.”

In a decision issued Wednesday in Ontario Superior Court, Justice Richard Lococo refused an application for costs by the Niagara District School Board. He found that Brett House, a citizen who attempted to stop demolition of a historic school, had acted reasonably and qualified as a public interest litigant.

“In all the circumstances, I see no reason to depart from the usual practice in public interest litigation by ordering costs against Mr. House,” Lococo ruled. “Accordingly, the parties shall bear their own costs.”

The AWARE Simcoe submission also takes issue with the amounts claimed by the lawyers for the county and the developer, which could potentially exceed $50,000.

Link to House ruling
Cost submissions AWARE Simcoe
Cost submissions County of Simcoe
Costs Submissions Tecumseth Estates
Costs Outline Tecumseth Estates

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County councillors press ahead for AWARE Simcoe costs decision
Simcoe County asks judge to award legal costs against AWARE Simcoe