County councillors press ahead for AWARE Simcoe costs decision

CORRECTION – An earlier version of this report stated New Tecumseth Deputy Mayor James Smith supported the motion not to seek costs from AWARE Simcoe. As is shown in How They Voted he did not. AWARE Simcoe regrets the error.

UPDATED – See below

AWARE News Network

Despite an appeal from New Tecumseth’s mayor to withdraw from seeking costs from AWARE Simcoe, Simcoe County Council decided yesterday to proceed.

AWARE Simcoe has sought a judicial review of the county’s decision to allow the clear-cutting of the Beeton Woods to proceed. The costs so far relate to AWARE Simcoe’s application for an injunction to stop the clear-cutting pending the outcome of the judicial review.

More background

The options outlined yesterday by lawyer Will Thomson of HGR Graham Partners were (1) to pursue costs; (2) pursue costs in court and come back to council for direction on whether to seek the full amount, waive them or have a lesser settlement; (3) withdraw the application to the court and not seek costs; (4) withdraw but reserve the right to reply to AWARE Simcoe submissions on costs, due on Oct. 15.

The following are excerpts of some councillors’ statements during the debate.

New Tecumseth Mayor Rick Milne — I would like to go with Option 3, withdraw. I don’t see any reason to go after the small group with regard to costs. It is a neigbourhood group trying to protect their neighbourhood and I hate the thought of taxpayers fighting taxpayers… I did have a meeting with the Rizzardo family, and the two ladies and me… They are going to save some trees, we are going down the road, I think we can come to some type of agreement.

(AS note: Beeton residents and AWARE Simcoe board members Stephanie MacLellan and Nicole Cox attended the meeting with the mayor)

Bradford West Gwillimbury Mayor Rob Keffer — I would like to second the option that Councillor Milne has put forward, that we withdraw cost considerations. I think as county councillors we should be encouraging and welcoming public participation and residents getting involved in what’s happening in their county, and I’d be afraid that if we pursued costs on this matter that it would put a chill on the residents to come forward. And I think as elected officials probably all of us have taken a stand at one time or another in our municipalities getting a point across, an option across. I think that we should realize that the group that did take the stand to try and save the forest were doing it with good intentions with the environment in mind and that we shouldn’t penalize them financially for looking at all options, for following what they thought was the right course of action.

Oro-Medonte Mayor Harry Hughes — I’d like to speak against the motion… One thing we have to understand is we need to separate the issue that we’ve talking about here from what in fact would take place normally in the courts. And it’s very clear that what took place here was that there was a process that took place here in Simcoe County… (AWARE) decided to challenge that. Now, it’s very clear when you read the (staff) report that before they challenged that in court New Tecumseth provided them with a legal opinion that said this is highly unlikely to have success. But the group went ahead anyway and what they ended up doing was costing taxpayers’ money… When any one takes someone else to court, both sides believe that they’re right. And if we decide that we’re going to entertain an objective process through the courts, that means that we as a county council are going to have to pick and choose who we think fits our values costing taxpayers’ money compared to those who don’t. The court decision is an objective one. It doesn’t get into that. And my question to anyone who is talking about waiving costs, what are you going to do if you do that, with the next group?

(AS note: New Tecumseth had a legal opinion addressing its specific situation; AWARE Simcoe sought its own legal advice)

Bradford West Gwillimbury Deputy Mayor James Leduc — I’m going to speak in favour of the motion that Councillor Milne and Councillor Keffer put on the floor. I believe the issue stems back to when we created the mistake… I’m going to support that for that reason. I don’t believe in taking taxpayers’ money and fighting other taxpayers with it. We’re $20,000 in the cost of this whole process and I think it’s time we just walk away and allow the residents – it’s great to have a group out there overseeing and being a watchdog for Simcoe County. When you look at the southern part of the county, I mean forest is very important to us… I wasn’t in favour of the application to cut the forest down in the first place.

Springwater Mayor Bill French — I find this entire issue very confusing. There’s a lot of errors and omissions to start with. Quite frankly, I don’t like fighting the ratepayers or citizens’ groups. I certainly find very offensive some of the emails from those residents and citizens, which are totally inappropriate. If they’re trying to gain the support of the council I’m not sure why they’re writing to me in that tone… I really do believe everyone has a right to speak. Yes, take a chance obviously of winning or losing. I don’t totally find the AWARE application frivolous and vexatious which is typically the comments that are made. Yes, we have a right to recover costs but I would just caution those that may have been here a long time, it might be interesting to have a report on what it cost to sue the people at Site 41 and then to kind of basically bail out at the last minute. I’d prefer not to go through with that exercise. And I’m hoping AWARE also learns from this experience and also its members – please do not write inflammatory and defamatory letters.

(AS note: AWARE Simcoe had no control over what people wrote to councillors – but we have examined the emails and while there are some misconceptions, we do not find them to be offensive or defamatory)

(UPDATE 15/10/15: We have been advised by the county clerk that there were some emails in addition to those released to us which were withheld by Simcoe County because they were considered defamatory. We are not able to address the content of these communications  – suffice it to say that AWARE Simcoe as an organization focuses on issues of public concern and does not engage in personal attacks)

Ramara Mayor Basil Clark –– I actually will not support the motion going forward. I’ve heard it said that we do not want to discourage groups, absolutely we do not. That’s why we had an open public hearing in this house where AWARE and many taxpayers came and got their say and we made the decision and we followed the rules. It’s a whole different type of thing to drag it to the court. Now we’re representing the taxpayers, we’re spending taxpayers’ money and so often we forget, because it’s not our money… This discussion would take 30 seconds in my home municipality. We always go for costs. We go to court, we ask for our costs back, when we win, it’s not up to us to decide whether we get it or not, it’s the judge who decides whether it’s frivolous or not. That’s a decision and a discussion we shouldn’t even be having here, let’s send it to the court. They’ll decide whether we’re even entitled to our costs, if we are, so be it, if we’re not, so be it.

Wasaga Beach Deputy Mayor Nina Bifolchi — This is a small special interest group that in my opinion does not represent the majority of Simcoe County residents. They went into the process with their eyes wide open and the rest of our taxpayers shouldn’t be footing the bill for their poor judgment, so I support going for full costs.

Innisfil Deputy Mayor Lynn Dollin — I do believe that every citizen has a right to appeal whatever decision that we make. However I have to agree with Councillor French that I was very disappointed and disillusioned by some of the emails that were sent to members of county council, particularly the one that considered the fact that the reason we were going for costs was so we could line our own pockets… If Option 3 is not successful, I’m prepared to move option 2. And finally, just that, whatever happens, I would urge perhaps our members from New Tecumseth to do some outreach to this community because there were so many false statements made in the emails about the land being environmentally protected and so on, that really it came to a point, where do I even start to answer these because there was so much misinformation.

(AS note: None of the emails on the public record suggested that councillors were trying to line their own pockets. As for environmental protection, New Tecumseth classifies the Beeton Woods as EP1 and EP2 and Simcoe County lists them as significant woodlands)

Deputy Warden and Essa Mayor Terry Dowdall — I for one would like to wait and see as well what the outcome is. And at that time it’s going to come back to us here in this house to make that decision and there’s going to be many options at that time, I’ve heard many times it’s taxpayers’ money. Maybe we as a county will be awarded some money, maybe we may not take that after the decision, or maybe we’ll take a small portion and do something environmental and plant trees. But I think at end of day we should wait it out, see where it goes and then come back to this house and something good might come out of it.

Midland Mayor Gord McKay — We seem to confuse the judicial process and the process of this council. And clearly the judge is seized with making an appropriate decision and none of us in this house wants to second guess the judge, that is her purview and she will decide not only the legalities and the merits but make a decision on the quantum and what’s appropriate in terms of costs. For some reason we decided to jump in ahead of the judge which is interesting. And the only basis I can think that we would do that is that we also have our own consideration, the public good, and over and above the legal matter before the court we also have to deal with the issue we’re dealing with a private group here, AWARE, their right to freedom of speech, intervention in what is appropriate public justice… So really the only question here is – would we dispense with the fees altogether?… If this house is of the opinion that no they wouldn’t seek them in any regard, then we wouldn’t need to vote on it. But anything else would have to await the matter before the court.

McKay then puts forward a motion for deferral. It is defeated 83-26 (vote weighted by population) Link to How They Voted.

County Warden and Penetanguishene Mayor Gerry Marshall — I’m in favour of Option 2, I think we need to look at our costs – and on the participation, I think we worked very hard in this determination, there was public engagement, we received emails, we had a full hearing here where people wrote to us, we received voicemails – a fully engaged process and so I’m with Councillor Hughes, I think this goes back to the judge, the judge has been involved with this from Day 1… She understands the case presented by the various lawyers, she’s in the best position to make a determination on those costs so I think we go back for to get Option no. 2 and then we discuss what we do about Option no. 2…

Vote on Milne / Leduc motion on Option 3, to withdraw the application costs. It is defeated 28-81. Link to How They Voted.

Dollin /Hughes move to adopt Option 2, to continue with the costs application and have the matter come back to council when the judge rules.

Wasaga Beach Mayor Brian Smith – I see no reason for us to sit here to discuss any further – if the justice decides there are no costs to be awarded, that we debate that any further, or if the justice awards costs to AWARE Simcoe, that we debate that any further. And certainly if Justice Eberhard awards costs to the County of Simcoe on behalf of the taxpayers, why would we debate that any further? If the justice feels it’s necessary or feels it’s right that AWARE pay costs then pay costs they should and to sit here and debate that award and whether or not we will determine that they should pay it or not, I think that’s completely wrong. So whatever the decision is, it’s the decision we should go with.

Smith moves an amendment to the Option 2 motion, that if costs are awarded to Simcoe County, 100 per cent of costs be collected. It is defeated 14-95. Link to How They Voted.

Councillors then vote on Option 2, to await the judge’s ruling and then decide. It passed 87-22. Link to How They Voted.

AWARE Simcoe lawyer Michael Fleischmann will file written submissions to the court by tomorrow. Simcoe County may then reply, Thomson said. The judge will then release a decision at a date to be determined by her.