Richmond Hill Naturalists told to pay developer court costs over observatory battle
Naturalists’ concerns could have been solved through mediation: OMB

YorkRegion.com
Sept. 21, 2015
Kim Zarzour

The Ontario Municipal Board has ruled that Richmond Hill Naturalists must pay developers $100,000 in court costs after the non-profit group lost its protracted battle to protect the David Dunlap Observatory lands.

DG Group, formerly known as Metrus/Corsica, sued the Naturalists for $200,000 in legal costs after the developer successfully defeated the group’s court challenge in December of 2014.

Five entities, including Corsica, the Town of Richmond Hill, the DDO Defenders, Region of York and Toronto and Region Conservation Authority, had hammered out a deal at the OMB in 2012 to protect about 60 per cent of the woodland and heritage observatory buildings on Bavyiew Avenue, north of 16th Avenue.

Naturalists carried on the battle to preserve the entire 189 acres.

Board member Joseph Sniezek found the conduct of Naturalists “clearly unreasonable and may also be described as frivolous, vexatious and bad faith”.

Sniezek is requiring the group pay $100,000 — half of what the developer sought — because, he said, the Naturalists were “not an unsophisticated party”, having launched previous litigation and been party to many days of OMB deliberations.

As well, the group did not bring any substantive evidence to the hearing, Sniezek said in the decision released late last week.

The planner for the Naturalists, Steven Rowe, could not conclusively point to a policy he felt was being contravened by the development and, in fact, admitted that the Naturalists’ concerns could have been dealt with through discussion and mediation, he added.

For pushing the matter “beyond the bounds of reasonableness”, Sniezek said, the Naturalists should pay half the costs.

The Naturalists made a public appeal for support earlier this year, in advance of the April 30 OMB hearing, warning the decision could have a silencing effect on all non-governmental organizations.

A spokesperson from the Naturalists has not yet responded to request for comment on the latest ruling, but past president Marianne Yake said last spring that a loss would be devastating.

“Who can afford hundreds of thousands of dollars to support the protection position and then face hundreds of thousands more dollars to pay the developer’s bills when the OMB rules against us?”

Toomas Karmo, a former scientist who worked at the observatory, said the news brought him shock and grief.

As the self-described “principal donor” for the Naturalists, he said he has given his life savings of $500,000 in support of the David Dunlap land battles — but the buck stops here.

“I am too poor to pay the $100,000, and I do not think that there is any case in ethics (in morality) for it being appropriate, much less for it being obligatory, that I pay even a small part,” he said today.

Any donation from him to help pay the developer would be unethical, he says, because he would be helping a company that is hurting national heritage at the Dunlap lands and destroying a “respected, six-decades-old conservationist organization”.

He admits his involvement in the DDO has been personally “ruinous” and he would not have made the donations had “any authoritative person” warned him that the 2014 OMB case was unreasonable.

As for the Naturalists, he said the ruling spells potential destruction for the local environmental group and he calls on the developer to refrain from pressing its $100,000 claim.

Regional Councillor Brenda Hogg said the ruling will have an impact on grassroots, non-governmental agencies, but it should not be a “chilling” one.

Instead, she said it shows “that there should be limits to the number of times anyone can refuse to accept a court order.

“Frivolous and vexatious lawsuits, bargaining in bad faith, litigating beyond the bounds of reasonableness come at a steep price for a local, not-for-profit environmental group,” she said, but “fair bargaining practices and accepting the rulings of the court are the democratic rules which we live by…Appeals are not endless.”