Update on the Pieper Severance
As you know, there is a long history to your lake association's attempt to protect all four of our lakes from further development. In 2002, we were told that an attempt was being made to create 3 new lots on Lake Waseosa. The creation of new lots has been prohibited for decades on this lake. The first meeting at the Town of Huntsville took place in June 2003. In December 2005, the Town of Huntsville voted 7 to 2 to turn down the application. The owner, Ms. Pieper, took the case to the Ontario Municipal Board. We opposed her actions at a three day hearing in November 2006.
The Town of Huntsville - inexplicably and without notice to us - decided to attempt to settle with Pieper sometime during the summer (we assume) before this hearing. This happened in a secret session that we only heard about by accident days before the OMB hearing was scheduled to begin in November.
In any case, we won at the OMB in January 2007. Pieper's lawyer wrote to the OMB in February asking for a re-hearing. Without any contact with us, a re-hearing was ordered. We protested, but were forced to go to a 1-day hearing to decide whether a full re-hearing of all issues was justified. At this point, the District of Muskoka decided that they wanted to be a party to the proceedings. It was our view that the District had no interest in being a neutral party but was really supporting Pieper. At the hearing, the District argued in favour of Pieper's application. The OMB decided in August 2007 that a re-hearing was required.
We decided that the OMB had, among other things, not followed its own rules, and took the case to Divisional Court. The procedure for this is that first we had to be granted leave to appeal. The hearing on the leave application took place in January 2008. We opposed the involvement of the District since the District's lawyer was, in effect, arguing Pieper's case for her. We lost on that issue. By our calculation, more than half of the District's written submission to the Divisional Court consisted of arguments in favour of Pieper's application. It was difficult for us to see how the District's interest in protecting the lakes was being furthered by their argument. In any case, we won the right to appeal on the substantive issues and a date for arguing the actual case was set for 1 December 2008.
However, the District, consistent with its attempts to help Pieper with her severance, paid about $10,000 to a consultant in mid-2008 to re-examine the issue of whether Lake Waseosa was, indeed, "over threshold" with respect to phosphorus - one of the issues that has been argued throughout this proceedings. We were not surprised to find that the District's consultant, in effect, supported the district's position on this severance application and found that Lake Waseosa did not have as high a level of phosphorus as they had previously estimated, and, therefore was not over threshold. One could argue that this $10,000 contract was an attempt to ˜correct' the estimates from the District's 2005 report on lakes in the district. If that was the case it is notable that the same company that did the original report was, in effect, paid $10,000 more to correct its own errors.
After the District Council voted to re-classify Lake Waseosa as "under threshold" with respect to phosphorus, Pieper withdrew her request (in November 2008) for a re-hearing before the OMB. This left us, on 1 December, in a rather peculiar position. We had brought the original Divisional Court application. Normally to withdraw at the last minute would be seen as being abusive to the other parties. On the other hand, our case was no longer relevant, since the main party in question - Pieper - had, in effect, done what we wanted. She had withdrawn her request for a re-hearing before the OMB and, in effect, left the original January 2007 OMB decision as the ˜last word' (thus far) on this issue.
The issue left hanging was that of costs. But the Divisional Court had never heard the case on its merits. Often costs are awarded to the winner in these matters. But in this case nobody had won on the merits of the case, since the case had been rendered ˜moot' by events that the main party - Pieper - had no direct control of. In addition, our case for costs against the District were weakened by the fact that they had won the part of the case that allowed them to be a party.
Nevertheless because we had won at the ˜leave application' stage on all of the important issues (other than whether the District had the right to change its mind as to whether it wanted status as a party), we thought we had a good chance at getting some of our costs back from Pieper and/or the District.
Interestingly, however, the District of Muskoka asked the Divisional Court for "substantial indemnity" costs (essentially punitive costs) against us of $11,385 because the District's lawyer apparently felt that we had not been fair to him in recent weeks. As far as we can make out, David Royston, the District's counsel, was upset that our lawyer had questioned the propriety of a letter Mr. Royston wrote to the Divisional Court arguing the merits of the case. The result was that the District wanted us - a lake association - to pay $385 for Mr. Royston's travel costs to Toronto, $1000 for his time in preparing materials at the last moment, and $10,000 because we had not been nice to him.
In the end, the Divisional Court took what might be seen as the easy way out. They decided that everyone was responsible for their own costs. We are obviously disappointed. But courts do not like hypothetical cases to be argued, and given that the merits of our arguments were not formally heard by the court (other than to decide in January 2008 that a full hearing was warranted) the result is not terribly surprising.
So where does this leave us? We are, in effect, back where we were in January 2007. We have a copy of a letter from the District's staff lawyer advising Pieper to start the whole proceeding over again with the Town, arguing that the lake has changed and is no longer vulnerable and therefore, the lake should be open to her development interests. The original OMB decision of January 2007 was not, however, decided solely on the phosphorus issue as anyone who reads it to the end will know. We will just have to cross that bridge if and when we come to it.