The Environmental Commissioner of Ontario is urging the provincial government to pass legislation to prohibit developers from using so-called SLAPP suits to discourage local opposition to their projects. Anti-SLAPP (Strategic Lawsuits Against Public Participation) laws are already in place in British Columbia and Quebec and several U.S. states.

"Every year, the Environmental Commission of Ontario (ECO) receives many inquiries from Ontario residents and neighbourhood groups who are concerned about development proposals in their communities," says the report, Building Resilience. "Unfortunately, those concerned residents and ratepayer organizations often lack the resources and specialized knowledge necessary to navigate the complex planning approval process. The system is hugely weighted in favour of those in the development industry, who have the resources, knowledge and experience … to skillfully argue their case before the Ontario Municipal Board," says the report.

ECO Gord Miller cites a recent case involving a proposed $1 billion luxury resort project. Despite opposition from a residents' group, the developer was able to get its required approvals. It then launched a $3.2 million lawsuit against the residents' group, claiming they had engaged in unreasonable, frivolous and vexatious conduct, in bad faith and without regard to cost.

The residents' group said the claim for costs was intended to silence public opposition to the project. In January, the Ontario Municipal Board denied the claim. The OMB ruled the developer's motivation for the claim was not for an improper purpose, but it said the public interest should be considered and that an award of this magnitude would have a chilling effect on opposition. However, the costs incurred by the residents' group to defend the claim were substantial, says the report.

"The ECO sees a need for provincial legislation that would put both sides of development disputes on equal footing," says the report. "Such legislation could serve to halt SLAPP suits in their tracks. It also could provide a means for the public to access financial and other resources in order to exercise their participatory rights in planning approvals and other contexts that have a significant bearing on the environment."

Reacting to the report, Municipal Affairs Minister Jim Watson said the track record of the OMB has been "very positive" and that there is no need for anti-SLAPP legislation.

The Environmental Commissioner of Ontario is the province's independent environmental watchdog, appointed by the Legislative Assembly. The ECO report is also critical of the province's policies when it comes to protecting wetlands and woodlands. It says "insufficient weight" is given to environmental planning.

The report says laws such as the Oak Ridges Moraine Conservation Act, which restricts development on an environmental sensitive moraine north of Toronto, "reflect a disturbing trend to protect notable natural heritage features on an individual basis rather than implement broader-based safeguards." This trend is "both reactionary and problematic," says the report.

Miller says the province's current planning policy "provides insufficient measures to prevent the continued degradation and loss of natural features, such as wetlands, woodlands, and the habitat of native species."

The report says about 80 per cent of Southern Ontario's original woodland cover has been lost, and that current provincial policies do not have an explicit requirement to protect woodlands.

"We have talked for many years about the need for 'sustainable development' or, more recently, just 'sustainability' – since we seem to have the 'development' part figured out," says Miller. "But the path to sustainability often seems to have eluded us. Perhaps this is because our paradigm has been wrong.

"We have been so consumed by the idea that 'growth' is essential that our efforts at sustainability have been toward building new sustainable stuff so we can grow. Maybe this is not the right way to look at it. We already have an elaborate infrastructure operating within a number of complex social-ecological systems. It's not about making it all new; it's about building resilience into what we have and what we do," says Miller.

Published: October 13, 2009

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Jim Adair is editor of REM: Canada's Real Estate Magazine, a business publication for real estate agents and brokers. He has been writing about Canadian real estate, home building and renovation issues for more than 30 years. You can contact Jim at .