Pointe Estates: Local developer wants legal costs covered

Yet another twist in the Pointe Estates subdivision development story.

Sault Ste. Marie lawyer Helen Scott will be in Ontario Superior Court of Justice Divisional Court in Sudbury Friday to object to a motion brought forward by project developer Jeff Avery against a group of concerned residents opposed to the subdivision, known collectively as the Pointes Protection Association.

Legal counsel for Avery, SooToday.com was informed by Scott, has brought forward a motion seeking an order for security for costs.

If successful, this means Pointes Protection Association would be required to pay a sum of money, to be determined by the Court, into a bank account where it would be held until these proceedings are completed.

At the end of these proceedings, if Avery's company wins and the Court decides that PPA should pay part of his legal costs, that money could be released to his company.

If, however, PPA wins or if the Court determines that a costs award is unjust given the facts, the money could be returned to PPA.

The problem, Scott told us, is that any money ordered to be paid as security for costs would not be available to fund PPA's own claim while this matter moves forward. 

Avery’s project calls for a 91-lot single detached rural estate subdivision south of Pointe Aux Pins Drive, west of Dalgleish Road, north of Alagash Drive and Pointe Louise Drive.

The area comprises 102 hectares (252 acres).

The project was approved, in a 3-2 recorded vote, by the Sault Ste. Marie Region Conservation Authority (SSMRCA) Board at its December 13, 2012 meeting.

That vote came despite reservations expressed by Conservation Authority staff and Pointes Protection Association members.

Pointes Protection Association members live near the area of proposed development.

Though the wetlands in the area are not officially considered “provincially significant wetlands” by the Ontario Ministry of Natural Resources (MNR), they are considered by many to be significant enough. 

Critics of the project feel the development would harm the quantity and quality of the water supply in the area.

Scott presented the SSMRCA Board, in March, with notice of a legal challenge to its December 2012 decision.

Legal documents filed by Scott in March state the Board “exceeded its jurisdiction (in its December decision) with no reasonable evidence to support its decision,” and that the Board has failed to meet its own bylaws (176/06) aimed at protecting wetlands.

Sault lawyer John Paul Paciocco is representing the Conservation Authority.

Representatives of Avery’s company, appearing in April in Ontario Superior Court in Sault Ste. Marie before Justice Edward Koke, successfully asked to be added, along with the SSMRCA, as a respondent to the motion presented by Scott.

It is not certain if Avery will be present in court in Sudbury Friday.

It is believed Sault lawyer Gord Action will be there to represent Avery.

A full hearing on the subdivision matter is scheduled for October at the Ontario Superior Court of Justice Divisional Court in Sudbury.

Running concurrently with this matter, Sault Ste. Marie City Council, in a 7-4 recorded vote, rejected Avery’s Pointe Estates subdivision application at its July 15 meeting.

City staff had recommended approval of the project providing Avery met 12 conditions. 

Avery was represented at that Council meeting by Sault lawyer Orlando Rosa.

Several environmental reports in favour of the proposal were provided by scientists at that meeting, while opposing reports were presented by the Pointes Protection group.  

Avery filed an appeal of Council’s decision with the Ontario Municipal Board (OMB) early this month.

It is not yet known when the OMB will consider the matter. 

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