Costs awarded in Save Picton Bay challenge, pending appeal

Save Picton Bay lawyer Eric Gillespie outlines the group's legal plans moving forward at a town hall meeting last month. (Chad Ibbotson/Gazette staff)



Superior Court Justice Wolf Tausendfreund has awarded costs in the matter of Save Picton Bay versus the Prince Edward County but no one is breaking out a cheque book just yet.

In a copy of Tausendfreund’s decision, which was issued Thursday, Sept 20, obtained by the Gazette, Tausendfreund awarded costs of $40,000 to be paid to Picton Terminals by the applicant Save Picton Bay.

The respondent in the matter, the County of Prince Edward, was not awarded costs nor was ordered to pay costs.

But as the Save Picton Bay group has filed a notice to appeal Tausendfreund’s original decision, no funds will change hands until after the Ontario Court of Appeals has examined the verdict and rendered a decision some time next year.

The  not-for-profit group Save Picton Bay  argued in a legal challenge earlier this spring that the comprehensive zoning put in place by the municipality in 2006 didn’t permit the deep water port activities that Picton Terminals have been carrying on at their facility located on White Chapel Road, just east of Picton.

Picton Terminals and the municipality argued that the operation could continue as a legal, non-conforming entity and Tausendfreund agreed, stating that at the time Prince Edward County enacted its present comprehensive zoning by-law in 2006, the portion of the property located in the former Hallowell Township became and remains a legal non-conforming use for transshipment of bulk commodities.

In his explanation, Tausendfreund did note that the applicant successfully argued Picton Terminals was storing industrial materials on a portion of land that did not permit the practice although that argument represented not more than 20 per cent of the issues in the application.

With Picton Terminals costs assessed by Tausendfreund at $50,000 all in, the justice arrived at $40,000 after he subtracted the 20 per cent.

Save Picton Bay lawyer Eric Gillespie told the Gazette with the decision on costs issued, his party would be able to move forward and appeal the decision.

After briefly examining Tausendfreund’s decision, Gillespie found a pair of points that would likely be challenged during the appeal process.

In the first instance, Tausendfreund found that, for reasons that were not explained during the hearing, when the County passed its first comprehensive zoning bylaw in 2006 it failed to recognize and specifically include trans-shipment as a permitted use for the site.

That failure generated an uncertainty which resulted in the filing and eventual hearing of this application,” Tausendfreund wrote in his decision.

Gillespie said his understanding upon reading the decision made by Tausendfreund is that the County’s failure lead to the rise of the legal challenge.

The court is saying it was the County’s failure that created this whole problem in the first place. If we apply that logic, shouldn’t the County be paying everybody’s costs here? When the appeal moves forward, I think we will be pointing to this decision and say that failure by the County to enact a clear compressive zoning bylaw generated uncertainty which resulted in this application so the County should be paying costs for every party,” Gillespie told the Gazette.

Another key in Tausendfreund’s findings is that the court accepts Save Picton Bay’s position they are a “public-interest litigant” and based that determination on a 2007 court case that saw a group called Citizens for Riverdale Hospital challenge Bridgepoint Health Services and the City of Toronto.

The group opposed the demolition of a hospital in East York and was deemed a public interest litigant.

Groups of citizenry that are deemed as such by the courts are typically not forced to pay costs in court proceedings such as these.

What the Riverdale case determined is that if you are found to be a public-interest litigant, you normally don’t have to pay any costs so there’s a very open question to how the court can make the finding that Save Picton Bay is a public interest litigant but then go on to award costs involving the same case,” Gillespie said. “That will be another point to be raised as we move through the court system.”

According to the cost decision issued by Tausendfreund, the applicant’s costs were submitted at $75,353 while the County’s legal bills and costs were $47,227.

The submission of costs by Picton Terminals was $57,698.

Reached by e-mail Monday, Picton Terminals owner/operator Ben Doornekamp said he had yet to see Tausendfreund’s decision and would reserve comment until a later date.