First Nation and Residents United in Opposition to Development

September 13, 2016 marked Day 1 of a four-week hearing at the Ontario Municipal Board. Donnelly Law represents Curve Lake First Nation and the Friends of the Fraser Wetlands Inc. ("FFW"). Curve Lake First Nation and FFW are united in their opposition to the proposed development on the 200+ hectare property near Burleigh Falls, which is connected to the Teaching Rocks (Petroglyphs Provincial Park), an international sacred site.

A first: the OMB will move on to the Curve Lake First Nation for evidence from Elders and a professor of cultural landscapes/archaeology from Trent University. Donnelly Law successfully argued a motion to move the hearing on-reserve, so those most impacted by the Aboriginal cultural heritage issues can attend and give evidence.

The protection of an Aboriginal cultural heritage landscape and natural is at stake.  The OMB will hear from Curve Lake First Nation Elders, ecologists, First Nation botanist, land use planners, a professor of archaeology and others over the 19-day hearing.  The Township of North Kawartha is opposed to the application, and will call its land use planner. Read about the issues for the hearing here.

Economic Benefits Questioned at OMB Hearing

On the sixth day of the Ontario Municipal Board ("OMB") hearing regarding the Burl's Creek Event Grounds the OMB heard the opinions of both Mr. Arthur Churchyard, a policy advisor with the Ontario Ministry of Agriculture, Food and Rural Affairs ("OMAFRA"), and Dr. Peter Tomlinson regarding the temporary use by-law proposed for Burl's Creek and the economic impact of the events happening there. Mr. Churchyard's analysis focused at length on Section 2.3.6 of the Provincial Policy Statement, which lays out a number of tests any proposal would need to meet to get a green light from OMAFRA.

“There needs to be an actual land-use argument about whether there is a demand for a site,” Churchyard said. “I would not be able to support this proposed use as being consistent with (Section) 2.3.6.”

Mr. Churchyard challenged Burl's Creek's market analysis in that it did not go far enough to assess the demand for such uses beyond ticket sales for the events and that it did not go far enough to look for alternative sites for such events.

When Dr. Tomlinson took the stand he began his testimony by telling the board the camping and parking being considered under the temporary use by-law were actually a drain on the local economy, when looked at on their own.

“The concerts provide the economic benefits,” he said. “The camping on-site is probably — considered on its own — a negative economic impact ... simply because of the on-site camping penning the attendees in the event grounds, where there are no in-and-out privileges and where they're compelled to buy their food and beverages the organizers bring onto the event grounds.”

The hearing adjourned at the conclusion of Dr. Tomlinson's testimony, with a resumption date to be determined.

Read the news coverage here.

Noise focus of Burl's Creek OMB testimony on Tuesday

Week two of the Ontario Municipal Board ("OMB") hearing regarding the Burl's Creek Event Grounds opened with the testimony of three lay witnesses called to testify by SaveOro and West Oro Ratepayers' Association ("WORA"). The lay witnesses were followed by John Coulter, an acoustical engineer for SaveOro and WORA.

Read the news coverage here.

Week 1 of Burl's Creek OMB hearing wraps up

Despite assurances and best intentions, the Ontario Municipal Board ("OMB") hearing into the temporary zoning by-law proposed by Burl's Creek Event Grounds ended its first week of testimony far away from a resolution. Darren Vella, founder of Innovative Planning Services and the land-use planner retained by Burl's Creek, resumed his testimony to close out the Burl's Creek case. His testimony was designed to tie together the evidence given by the proponent's other expert witnesses.

It was assumed Vella would be cross-examined Friday as well, bringing a close to the Burl's Creek case. However, given the length of the Vella's testimony and the depth of the information he was presenting, the session ended while he was still in chief. Given Vella's prior commitments outside of the country next week, accommodating a cross-examination was not going to be simple.

“We keep adding time,” Chair Richard Makuch said. “When I saw this (as) three days ... I'm not pointing the finger at anybody; I'm just saying it was totally unrealistic.”

“I'm the only one in the room who can say 'I agree with you' with a straight face,” Donnelly added.

Read the news coverage here.

Participants tell OMB how they feel about Burl's Creek

Numerous stakeholders got their chance to officially tell the Ontario Municipal Board ("OMB") just how they feel about the proposed temporary use by-law for Burl's Creek Event Grounds Wednesday night. Participant statements were heard by the board at the conclusion of a marathon session Wednesday, which lasted approximately 12 hours, including lunch and dinner breaks.

Read the news coverage here.

Day 3: First Nation call for more studies of Burl's Creek surfaces at OMB hearing

On the third day of the Ontario Municipal Board ("OMB") hearing regarding the Burl's Creek Event Grounds arguments surrounding archaeological issues and First Nation concerns continued. The letters from the Huron-Wendat and the Ministry of Tourism, Culture and Sport were brought up again Thursday morning, as Paul Racher, the expert archaeologist for the Montagnais Métis First Nation, testified in front of the board.

During cross-examination, Save Oro and West Oro Ratepayers' Association lawyer David Donnelly led Racher through the letters, asking his professional opinion on their contents.

"The potential for disturbance is a risk the nation simply cannot take," Donnelly read from the letter. "Sir, is it clear to you, an archaeologist, that the Huron-Wendat Nation is withholding consent for the temporary use by-law to proceed before the proper archaeological assessments occur?"

"Absolutely," Racher replied.

The concern of the Huron-Wendat, Montagnais Métis and other like-minded individuals, such as Racher, is the compaction of the soil from camping and parking could damage any artifacts found underground, particularly in such a rich archaeological area as Oro-Medonte Township. Regardless, Racher said, most lands in the province are presumed to house archaeological artifacts until proven otherwise.

Read the news coverage here.

Land use, First Nation concerns on display during Day 2 of Burl's Creek OMB hearing

On the second day of the Ontario Municipal Board ("OMB") hearing regarding the Burl's Creek Event Grounds archaeological issues and First Nations concerns were explored by Chief Keith Doxsee representing the Montagnais Metis First Nation, and David Donnelly, counsel for SaveOro and West Oro Ratepayers' Association ("WORA"). Under cross-examination, Jamie Lemon, who prepared a Stage 1 archeological assessment for Burl's Creek, said both the Huron-Wendat Nation and Ministry of Tourism, Sport and Culture wrote in separate letters dated May 19 saying the temporary zoning by-law should not go forward until after a Stage 2 assessment is complete.

Mr. Dave Hogson, an agrologist for Burl's Creek, and Mr. Gord Miller, former Environmental Commissioner for Ontario and econologist for SaveOro and WORA, also took the stand.

A significant portion of David Donnelly's cross-examination of Hodgson was based on the latter's change of opinion regarding the type of buffer required via a minimum distance separation zone. Hodgson had previously considered a Type A buffer, which is substantially larger than a Type B buffer. Hodgson's opinion changed because he didn't consider the events occurring on the subject lands as “high intensity” recreational use.

Miller disagreed with Hodgson's classification.  “The density is far in excess of what you see in any normal campground situation,” Miller said. “All this is on the highest impact of camping, as it were. This is hardly camping in a normal sense of the word. This is an intensive use of the land more akin to a box store parking lot than camping.

Read the news coverage here.

Lengthy opening day at Burl's Creek OMB climaxes with tense cross examination

On Tuesday May 24, 2016 the Ontario Municipal Board ("OMB") hearing on the temporary use by-law application for Burl's Creek Event Grounds begun. The hearing began with Burl's Creek calling Mr. Henry Regelink, an Oro-Medonte farmer, Sgt. Guiseppe Pileggi, an OPP Officer summonsed by Burl's Creek, a brief introduction by Mr. Darren Vella, a land-use planner for Burl's Creek, and Mr. Peter Thoma, a land economist and market expert.

Most notably, Mr. Thoma had told the board it was not reasonable to put the Wayhome and Boots & Hearts festivals anywhere else besides Burl's Creek. He came to this realization by both examining other concert festival sites in the province, including Canadian Tire Motor Sports Park in Clarington and Downsview Park in Toronto.

Mr. David Donnelly didn't think Thoma had looked hard – or far – enough. If the majority of the concert goers were coming from points south of the Holland Marsh, he said, why have them travel so far north?

“It would have been actually more convenient for people to come to a festival in King City than it would be all the way up here in Orillia?” Donnelly opined. “That's where they live.”

The cross-examination of Thoma was at times tense, with the land economist often appearing unamused with Donnelly's line of questioning.

Read the news coverage here.

The Fight to Protect Agricultural Land in Oro-Medonte Continues

On April 29, 2016, Donnelly Law represented WORA and SaveOro at the third prehearing conference for the Burl's Creek Event Grounds Inc. et al. temporary use by-law application.  Donnelly Law brought a motion requesting a prohibition order, amendments to the procedural order on the basis of procedural fairness, and the recusal of the Board Member.  The Orillia Packet & Times reported on the prehearing.  

Read the news coverage here.

Private Prosecution of Republic Live Continues

Donnelly Law represents a private informant in a private prosecution, now against Republic Live Inc. only, for charges related to the WayHome Music and Arts Festival and Boots and Hearts Music Festival.  We appeared in court on Monday, March 14, 2016.  Read the Orillia Packet and Times article here. The next scheduled court appearance is April 11, 2016.

Donnelly Law Begins Private Prosecution of Burls' Creek and Republic Live

  Four charges have been laid against  each Burl's Creek Event Grounds Inc., Republic Live Inc. and related companies alleging illegal use of Agricultural/Rural lands for the 2015 WayHome and Boots & Hearts Festivals.  David Donnelly is acting as the prosecutor on behalf of a private informant, a Director of SaveOro.

February 10, 2016 was the first appearance for the companies charged.  Read the Orillia Packet article here.

We will be back in court in mid-March 2016.

David Donnelly Speaks at Simcoe County Greenbelt Townhall

David Donnelly was invited to speak at a meeting sponsored by the Simcoe County Greenbelt Coalition and AWARE Simcoe, along with Barrie Mayor Jeff Lehman, Liberal Barrie MPP Ann Hoggarth, Conservative MPs John Brassard (Barrie-Innisfil) and Alex Nuttall (Barrie-Springwater-Oro-Medonte), and Oakville Mayor Rob Burton. Lawyer David Donnelly noted that, according to land economists at the provincial Ministry of Municipal and Housing, Ontario has designated enough land to accommodate its projected employment and residential needs until 2041.

“There is no danger of running out of developable land,” Donnelly said. So the logical conclusion is that “we need to protect what we have in a natural cover state.”

Read about the event and discussion here.

Donnelly Law Client: SaveOro and West Oro Ratepayers' Association

On Tuesday, July 14, Oro-Medonte Council denied Burl's Creek Event Grounds’ special event permit application to allow camping and parking on mostly prime agricultural land.  Council did, however, issue a special event permit for the 92-acre concert site. David attended a rally against the special event, organized by SaveOro, reminding residents the proposed special events on prime agricultural land are illegal.

Read more here: http://www.orilliapacket.com/2015/07/14/large-festivals-will-have-to-be-restricted-to-92-acres

Donnelly Law Client Featured in Radio Canada Story

Donnelly Law represents Ms Gillian Evans and Mr. David Toyne, residents of Upper Cold Creek in Vaughan, Ontario.  On May 22, 2015, Radio Canada covered Ms Evans and Mr. Toyne's appeal to the Ontario Municipal Board, where they are seeking an appropriate buffer to protect the ongoing operation of their multi-generation family farm from residential development adjacent to the farm. Read about it and watch the video here.

Preservation of Agricultural Lands Society (“PALS”) and Ms Jean Grandoni

Successfully represented both PALS and Ms Grandoni in a thirteen-day OMB hearing challenging the City of Niagara Falls’ approval of a major urban boundary expansion onto prime agricultural land (suitable for grape, apple and pear production) adjacent to the Greenbelt.  The OMB denied the application. Argued successfully against the City's subsequent Ontario Court of Justice judicial review application to overturn the OMB decision, with costs against the City.

David Donnelly on Anti-SLAPP Bill 52 Controversy

Bill 52, the Protection of Public Participation Act, was debated at Queen's Park again this week. Bill 52 is designed to prevent SLAPP suits (Strategic Litigation Against Public Participation), where deep-pocketed corporations bring frivolous lawsuits against grassroots critics (often citizen’s groups and environmental groups) in order to intimidate and silence them. MPP Jagmeet Singh (Bramalea-Gore-Malton) began the debate, commenting:

“It’s my pleasure to continue debate on this important piece of legislation. What I discussed earlier was how important this bill was in terms of protecting public participation. It’s, again, a hallmark of our society that people need to be able to participate in discourse, particularly on matters that impact their communities, so it should go without saying that people should be encouraged, not discouraged, from participating in issues that affect where they live and how they live. This law will address that.”  (http://ow.ly/KUkeW)

Although Bill 52 has wide support across all political parties, controversy has arisen over whether the Bill should protect all alleged SLAPP suit victims currently before the Courts.

If enacted as written, the anti-SLAPP “freeze” provision (reproduced below) applies only to potential SLAPP suits started on or after December 1, 2014.  The previous version of this Bill, which died in the House when the June 2014 election was called, would have applied to ongoing litigation.

David Donnelly was asked for his take on this issue by Brian Platt of QP Briefing.  While David`s preference is for Bill 52 to apply to ongoing lawsuits, the opposing view can be justified too:

“It’s not a black-and-white issue, because if you brought a lawsuit under one set of assumptions, I think you can make the claim that you should be able to see the action through under the law of the day, but any disappointment we feel over the retroactivity change is more than made up for in the euphoria that this bill is finally going to start protecting people.”

Read Platt’s March 26, 2015 article “Concerns of favouritism raised after retroactive provision scrubbed from nuisance-lawsuit bill” at http://www.qpbriefing.com/2015/03/25/concerns-of-favouritism-raised-after-retroactive-provision-scrubbed-from-nuisance-lawsuit-bill/.  (Subscription service)

Want to learn more about anti-SLAPP legislation? Read Donnelly Law’s summary of Bill 52.

Donnelly Law Comments on Ontario's Municipal Class Environmental Assessments

On January 23, 2015, Donnelly Law submitted comments to the Ministry of the Environment and Climate Change (“MOECC”) suggesting how to improve the environmental assessment process for municipal infrastructure works, known as the Municipal Class Environmental Assessment (“MCEA”).   The MCEA is a critical document that establishes a planning and approval process for a wide range of municipal infrastructure works e.g.  road widenings, bridge replacements, water and sewage works, etc. In summary, Donnelly Law’s recommendations are:

• Require all Class EAs to consider climate change. From the evaluation of preferred alternatives to the later detailed design, climate change impacts, mitigation and adaptation should be required;
• Require municipalities to publish their rationale for the choice of Class EA process (known as the project schedule) that dictates, among other thing, how rigorous the EA, and if public consultation should occur at all;
• Require municipalities to post the entire Class EA Project File online prior to the comment period. Why should members of the public need to wait to receive a copy, pay the municipality for a copy, or have to spend hours at the library to view the EA documents, which have likely been provided to the municipality in electronic format?
• Remove the unfounded MCEA restriction on bump-up requests to the Minister. The MCEA states there is no ability for the public to request a bump-up on “minor” Class EAs i.e. Schedule A/A+. In our opinion, this is contrary to the Environmental Assessment Act. Why does this matter? Reading the MCEA may prevent an individual from requesting a more stringent EA e.g. where they believe a municipality has misclassified proposed infrastructure works;
• Give more weight to identified and proposed cultural heritage resources in the selection of preferred alternatives. In our experience, heritage resources e.g. First Nation burial sites, pioneer homes, etc. are not given enough weight in the selection of preferred alternatives. New road works should fit into a designated/proposed heritage area, not detract from it; and
• Protect recognized planning areas and natural heritage features e.g. Oak Ridges Moraine or Niagara Escarpment, by simultaneously requiring the completion of technical work specific to the planning area, as anticipated to be done with the Clean Water Act.

These comments were submitted to the MOECC through the Environmental Registry to put the MOECC on notice that the Class EA process requires more than the changes recommended by the Municipal Engineers Association, which do not address the changes the Class EA process requires.

Anti-SLAPP Bill Reintroduced in Legislature

On December 1, 2014, Minister Madeleine Meilleur reintroduced legislation to protect public participation and freedom of expression from SLAPP lawsuits, Strategic Litigation Against Public Participation.  Bill 52, the Protection of Public Participation Act, is an important bill designed to prevent SLAPP suits, where deep-pocketed corporations and developers bring frivolous lawsuits against grassroots critics (often citizen’s groups and environmental groups) in order to intimidate and silence them.   Ontario’s previous Attorney General, the Honourable John Gerretsen, introduced a nearly identical bill in June 2013. On introducing Bill 52 to the Legislative Assembly, Minister Meilleur stated “As members will recall, the proposed Protection of Public Participation Act seeks to balance the protection of public participation and freedom of expression and the protection of reputation and economic interests.”

Bill 52 is designed to stop potential SLAPP suits dead in their tracks.  The key section is the “freeze” provision in section 137.4, which gives the target of a potential SLAPP suit the power to automatically stop related proceedings e.g. a development application before the Ontario Municipal Board:

 "If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal." [Emphasis added]

This means the alleged SLAPP suit must be resolved before the administrative tribunal proceeding is resumed, thereby delaying the issuance of approvals to a developer using SLAPPs to prevent people from speaking out.  This section of the Bill should discourage potential SLAPP suits.  While the party that filed the potential SLAPP suit can ask the Court by way of motion to lift the freeze on the administrative tribunal proceeding so it can proceed, this motion requires extra time and money, and removing the freeze is not guaranteed (subsection 137.4(4)).

If the Court finds a law suit is indeed a SLAPP suit, the court can order the costs of the SLAPP suit victim e.g. lawyer’s fees be covered by the other party under section 137.1 of the bill, as follows:

Costs on dismissal

(7)  If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.

Costs if motion to dismiss denied

(8)  If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

Damages

(9)  If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.

 If passed as currently drafted, Bill 52 will apply to potential SLAPP suits started on or after December 1, 2014.

Background

Four years ago, the Ontario government empanelled the anti-SLAPP Advisory Committee to advise it on how to address SLAPP suits. The Advisory Committee produced a report to the Attorney General that is reflected in Bill 52.  If Bill 52 is enacted, Ontario will join Quebec, the only other province with anti-SLAPP legislation.

Since then, over 60 municipalities, academics, the Ontario Bar Association, Environmental Defence and over 150 other environmental organizations have expressed support for anti-SLAPP legislation.

Read the Environmental Defence Blog here.

View the Attorney General's Press Release here.

Greenbelting Halifax: One Step Closer to Reality

On November 17, 2014, Halifax Regional Municipality (“HRM”) issued a Request for Proposal (“RFP”) for a qualified firm to “go beyond the conventional parks planning approach” to develop HRM’s Greenbelting and Open Spaces Priorities Plan.  Donnelly Law will review the Greenbelting RFP to ensure HRM Staff is ambitious with its plan to protect and connect HRM’s natural heritage, cultural landscapes, open spaces, and agricultural lands. Our HRM Alliance, a group of organizations from the Halifax area, envisions a Greenbelt that establishes a permanent development boundary around Halifax to control sprawl, reduce servicing and infrastructure costs, connect green spaces and provide public access to the coastline. Over the past several years, David Donnelly and Donnelly Law have been supporting the terrific work of Our HRM Alliance and the Halifax Ecology Action Centre (“EAC”) in advocating for the establishment of a Greenbelt for Halifax.

As part of the Greenbelt planning exercise, David Donnelly and Bruce Lourie (President, Ivey Foundation) were invited to deliver the 2011 Carmichael Lecture, the premier civic discussion of policy and urban design for Halifax. David has also presented at Our HRM Alliance workshops, sharing his experience on establishing Ontario’s Greenbelt Plan, which will mark its 10^th Anniversary next year.

Private Member’s Bill to Repeal the Niagara Escarpment Planning and Development Act Defeated on Second Reading

On October 21, 2014, MPP Jack MacLaren (Carleton-Mississippi Mills) introduced Bill 32, the Bob Mackie Act¸ 2014, into the Ontario Legislature.  The purpose of Bill 32 is to repeal Ontario’s Niagara Escarpment Planning and Development Act (“NEPDA”).  The NEPDA was passed in 1973 by the Progressive Conservative government of Premier Bill Davis.  The Niagara Escarpment Plan (“NEP”) was approved by Premier Frank Miller’s (Progressive Conservative) Cabinet on June 12, 1985. The NEPDA and NEP “provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a natural environment, and to ensure only such development occurs as  compatible with that natural environment.” (s. 1, NEPDA)  The NEP regulates a range of development, from residential housing to aggregate extraction to recreational uses.  Ontario’s Niagara Escarpment is a UNESCO World Biosphere Reserve, significant landform and working countryside recognized as a significant landscape provincially and internationally.

The NEP is subject to a formal review in 2015.  The Niagara Escarpment Commission and Ministry of Natural Resources have begun their preparations for the formal review.  The 2015 NEP Review will be coordinated with the provincial review of the Greenbelt Plan, Oak Ridges Moraine Conservation Plan and the Growth Plan for the Greater Golden Horseshoe Review.

Bill 32 is named after Mr. Bob Mackie (now deceased), a past governor of the Ontario Landowners Association and president of the Niagara Landowners Association.

On November 6, 2014, MPP MacLaren (Progressive Conservative) moved second reading of Bill 32, Bill Mackie Act, 2014, repeal the Niagara Escarpment Planning and Act Development the Ontario Legislature.   Bill 32 was defeated on second reading by a vote of one for and 44 against, including Conservative MPPs.