The City of Barrie and its individual agents have been awarded more than $1 million in total costs from Correct Group Inc. (CGI) by the Ontario Superior Court of Justice relating to decade-long legal action linked to the Allandale Train Station land.
It comes after the city won a Superior Court of Justice summary judgment in January, which dismissed all claims by CGI against the city and its agents, beginning late 2011, including breach of contract and bad-faith bargaining, relating to a failed 2009 development and purchase deal on this property.
“There is no dispute that Barrie and the individual defendants were entirely successful in the summary judgment motion and hence the action,” Ontario Regional Senior Judge Leonard Ricchetti said in his April 19, 2022 ruling. “They are entitled to costs of the action and the summary judgment motion.”
“We are pleased that once again the court has ruled in favour of the city in the awarding of costs regarding the Allandale lands lawsuit,” said Acting Mayor Barry Ward. “I think the comments in the court decision speak for themselves.”
Court documents say CGI’s submission was that the amounts claimed by both the city and the individual defendants were excessive and unreasonable. CGI had sought costs for the summary judgment of $1,345,345.
CGI president Alan Furbacher said this isn’t finished.
“Based in part on discussions with two different Aboriginal chiefs who encouraged an appeal, our lawyers filed and served a notice of appeal (of the summary judgment) some time ago,” he said. “The costs are only payable if the appeal fails. So everything is stayed, as far as I understand it from the lawyers, until the appeal is heard.
“We are surprised Barrie did not publicly disclose the decision being appealed earlier," Furbacher added.
Ward told BarrieToday earlier this month the Jan. 25 decision has been appealed by CGI and it was published in an April 21 story.
In his decision, Ricchetti explained his ruling on costs.
“In my view, the claim against the individual defendants was a frivolous claim designed solely to exert litigation tactical pressure on Barrie by making claims against councillors and staff involved in the proposed sale of the lands,” he wrote. “It is clear there was no merit to the claims advanced against the individual defendants.
“There were allegations of fraud, conspiracy and bad faith against each of the individual defendants with no evidence to support such claims,” Ricchetti wrote. “I am satisfied… that CGI’s claim against the individual defendants constitutes egregious conduct deserving of sanctioning, by way of awarding a punitive scale of costs, is warranted.”
Ricchetti also gave a broader view of his reasons.
“Given that this total amount is approximately the same amount CGI sought for the summary judgment motion alone on a substantial indemnity (exemption) basis, it is an amount CGI should reasonably have expected to pay for the entire action, including the summary judgment motion,” he wrote.
“Costs of the action payable by CGI to Barrie and the individual defendants in the amount of $1,066,412.62, all inclusive, forthwith,” the judge wrote in conclusion.
Ricchetti also described the materials filed by CGI and the city/individuals.
“To say the materials filed by the parties was voluminous is an understatement; there being approximately 23,000 pages of materials, many affidavits, many transcripts of cross-examinations on the multitude of affidavits filed, expert reports, historical environmental and archeaological reports, extremely lengthy factums, and detailed oral submissions,” he wrote.
CGI entered into an agreement with the city in 2009 to develop the Allandale Train Station site, along with the YMCA of Simcoe-Muskoka. The ‘Y’ pulled out in 2010, citing high financial risks. By that time, there were also environmental concerns and the discovery of Indigenous remains on the property requiring investigation.
In late 2011, CGI’s first legal action against the city became public with a multi-million-dollar lawsuit alleging breach of contract and bad-faith bargaining. Others followed, but two remained before the courts involving both the city as well as current or former city employees, Barrie councillors and contractors.
According to court documents, CGI asserted having suffered damages as a result of relying upon negligent misrepresentations. It claimed city officials failed to disclose the presence of contamination on the land and the possible presence of an Indigenous burial site, impeding its development. CGI also claimed in the lawsuits to have invested a great deal of money and resources on the project because of the information received from the city. None of the allegations were proven in court.
“CGI and the aforementioned Aboriginal chiefs, Barrie’s own archaeologist and others feel Barrie was wrong to dig up a known or suspected Aboriginal burial ground — no matter what the reason was and no matter how much taxpayer money Barrie received,” Furbacher said. “This appeal is both for the City of Barrie and certain other defendants.”
Ricchetti, in his Jan. 25 Superior Court of Justice decision, gave his reasons why CGI’s claims were dismissed in their entirety.
“There is no evidence that any of the individual defendants were not acting in good faith or acting outside the scope of their duties or carried out their duties to Barrie for an improper or ulterior motive to deceive or harm CGI,” Ricchetti wrote in his decision. “There is no evidence that any of the individual defendants said or did anything contrary to what they believed was in Barrie’s best interests.
“At its highest, even if CGI’s allegations are accepted, CGI claims could at most be negligence, omission or recklessness — none of which I accept — in not disclosing the potential environmental/archeaological issues to CGI,” he wrote. “But more is required to establish a lack of good faith. That ‘more’ is entirely missing in this case.”
Ontario’s Ministry of the Attorney General says a summary judgment provides a mechanism in cases where there is "no genuine issue for trial" for all or part of a claim to be disposed of in a summary manner, without a full trial.
Ricchetti awarded costs of $1,066,412.62 on April 19 to the City of Barrie and a number of individuals. Those named are Barrie Mayor Jeff Lehman; former Barrie councillors Alex Nuttall, Jennifer Robinson, Jerry Moore and Michael Prowse (now the city’s chief administrative officer); former city employees Jon Babulic, Richard Forward, Janet Foster, Edward Archer and Deborah McKinnon; city employee Ingrid Peters; city agents Charles Magwood, Robert Stewart, Indicom Appraisal Associates and Metrolinx, and the Corporation of the City of Barrie, the defendants. CGI and the Correct Building Corporation, a company related to CGI, were the plaintiffs.
