Adam Prudhomme
Editor
A mediator has ruled no costs will be awarded to either Tomlinson Construction Ltd. or the non-profit group Keep Napanee Great (KNG) following an Ontario Land Tribunal held earlier this month.
Tomlinson had sought upwards of $31,000, claiming KNG had filed a Leave Application pertaining to a mobile ready-mix cement facility, located at the Tomlinson Quarry, to the Environmental Compliance Approval (ECA) in bad faith.
“In summary, the grounds for Tomlinson’s claim for costs are that KNG’s conduct, both in bringing the Leave Application and throughout the process, was unreasonable and made in bad faith. More specifically, Tomlinson firstly contends that it was forced to address the preliminary issue (admissibility of improper reply submissions) unnecessarily, and secondly that the entire Leave Application was improper and unnecessary since KNG was opposing Tomlinson’s operations generally,” reads the tribunal’s report.
Tomlinson’s affidavit also makes reference to a Facebook group known as ‘Greater Napanee Residents Against the Asphalt Plant’, citing comments made about unpleasant effects by the addition of the plant and concrete batching plant and ‘encourages membership, volunteers, advocates and donations to its cause. Another exhibit shows a posting dated July 20, 2021, with an update on KNG’s appeal of the “Portable Concrete Batching Plant” as well as the asphalt plant proposal,’ reads the report.
In his final decision, arbitrator Warren Morris ruled KNG’s conduct did not warrant any award for cost towards Tomlinson, dismissing the company’s motion.
“The Tribunal acknowledges the difficult situation that Tomlinson found itself in,” reads the report. “It had spent significant time, effort and money wading through the regulatory process to successfully obtain an ECA for their mobile concrete unit. It did everything correctly, only then to be faced with the Leave Application that did not appear to have any merit. Responding to the Leave Application had added costs since KNG was not an experienced litigant and misunderstood parts of the legal process. But what added fuel to this dispute was Tomlinson’s interpretation of social media posts that led Tomlinson to believe KNG was in fact receiving legal advice, deceiving the Tribunal, and deliberately prolonging the Leave Application process in an attempt to make gains in a bigger dispute with Tomlinson. If this were all true, Tomlinson may well have been awarded costs. It is important to look at the context. The original Leave Application contained abundant material about the harmful emissions from mobile ready-mix concrete plants. Based on the material provided by KNG, there is no doubt that the mobile plants emit several toxins that pose a serious and substantial risk of harm to both humans and the environment. The concerns of KNG did not come from nowhere. Had the Ministry not placed the appropriate conditions on the ECA, the Leave Application may well have been successful. The Ministry is in place to oversee regulation and the EBR provides the public with some further opportunity of scrutiny, in this potentially harmful industry. Regulation and scrutiny is simply an increasing fact of life in the industry that Tomlinson operates in.”
A counter motion made by KNG seeking $2,000 from Tomlinson was also dismissed.
“The Tribunal notes that there is an appearance of bad faith on the part of Tomlinson in that bringing the motion for costs against a community group has the 19 OLT-21-001014 affect of “litigation chill”. However, even if the Tribunal were to award costs, KNG has not provided sufficient evidence to support the quantum claimed. KNG merely made a bold claim for $2,000 without any supporting detail. As such, the counter motion for costs is dismissed,” reads the report.
Casey Wells of KNG said the results of the tribunal were a relief to him and the group.
“We lost a few nights sleep and it did cause quite a bit of stress,” Wells said of being up against the notion of having to pay $32,000. “That was why our group went private. When they start citing your Facebook posts…it’s not like anything too extreme was said there.”
Wells added the non-profit group is already operating on an extremely limited budget, having resorted to a series of fundraisers over the last year-everything from yard sales to selling masks-to fund their quest to block Tomlinson’s bid to build a permanent asphalt plant at 8205 County Rd. 2 in Napanee.
Wells said the group had a lot of learning on the fly when it came to filing to Leave Application. Wells credited Elson Advocacy for their support.
“Trying to get a lawyer was incredibly difficult because the way the timelines work it all happens really quickly,” Wells said. “(Elson Advocacy) were a godsend. We tried to do the process as much as we could ourselves and obviously got lost in the process.”
The tribunal was just another chapter in the now year long saga of KNG’s efforts to have the town deny Tomlinson’s proposed asphalt plant. A public open house on the issue is set to take place online on Feb. 24, starting at 5 p.m. The meeting will be streamed live on the town’s YouTube channel.
“I hope to see people engaged and looking out for the beautiful community of Napanee,” Wells said of what he hopes to see at the meeting. “It’s not a political question, it’s a question about the quality of life for the residents that live in Greater Napanee.”
A request for comment on the tribunal from Tomlinson was not immediately returned.