A city engineer whose dogged defiance of his supervisors helped expose a botched flooding model for the Carp River has kept fighting in defiance of logic and decency, argues a lawyer for a major Kanata developer.
That means Ted Cooper should start having to pay the legal costs he's created with his "frivolous and vexatious" appeals of development plans, says Richcraft's lawyer Alan Cohen.
Cooper's lawyer argues it's a case of a developer trying to intimidate a citizen sticking up for good planning.
Cooper, a staff engineer for the city who specializes in water issues in the west end, was vindicated in 2008 after years of battling his own employer over models of the Carp River, which runs north to the Ottawa River just east of Scotiabank Place, on land where multiple developers are planning to build houses and commercial space. The problem, first detected by Cooper's fellow city engineer Darlene Conway, was that the model didn't take into account the extra water that would flow off new buildings, roads and parking lots and into the river. In a bad rainstorm, that could have meant buildings constructed too close to the riverbank would be flooded.
The result was a provincially ordered freeze on the development plans for hundreds of hectares of land until the model could be fixed, the numbers rerun and the plans adjusted to contend with about 85 million more litres of water, an amount equivalent to about 35 Olympic swimming pools.
In the years since, Cooper hasn't stopped, to the irritation of both the city and of developers like Richcraft, whose 1,250-unit subdivision by the Carp, north of Hazeldean Road, Cooper has been under appeal since 2007 to the Ontario Municipal Board.
Cooper argues that even with the new flood model, there hasn't been enough followup work to be certain that four to six hectares of land closest to the Carp won't be at risk of flooding.
It's time for him to give it up, said Cohen, in a day-long OMB hearing on Monday in a tribunal room at City Hall. It's time to close Cooper's appeal and - more to the point - order Cooper to personally pay Richcraft's four-plus years of legal bills, Cohen argued.
In concert with Tim Marc, the City of Ottawa's own top planning lawyer, Cohen argued that all of Cooper's environmental concerns have been dealt with - and indeed the provincial environment ministry has signed off on the new flooding model for the Carp and said development can go ahead - and now Cooper is abusing the provincial Planning Act to try to get his way.
"There is no substantial land-use planning ground for why this subdivision should not receive draft approval," Marc told the OMB's adjudicator, Marc Denhez.
Cooper, who partly argued on his own behalf, said the city has jumped the gun. Part of cleaning up the mess from the bad flood model involved figuring out how to move water through the Carp River faster and passing an amendment to the city's official landuse plan, with sign-off from the Mississippi Valley Conservation Authority. Cooper offered up an email from the authority itself saying that as of mid-February, it hadn't signed off.
"What's happening here is that a developer, we submit, is trying to intimidate a private citizen, an individual -," said Cooper's lawyer Paul Champ. Beginning with serving Cooper with notice of the hearing at the last legally allowable moment 10 days ago, he said, Richcraft and the city have done everything they can to get in Cooper's way.
Champ is ordinarily a human-rights lawyer better known for his work for Amnesty International and torture victim Maher Arar. Cooper had trouble finding a lawyer until the last minute. "Unfortunately, land planning in Ottawa, all counsel that he tried to retain before approaching me, were conflicted out, because of dealings with the city or with Richcraft," Champ said.
Denhez said it didn't sound to him as though Cooper's appeal was frivolous, particularly when it was launched in 2007. But since Cohen agreed that Richcraft can't build on land that's now marked as flood-prone until the conservation authority signs off, the grounds seemed pretty thin. He dismissed Cooper's appeal.
"I don't have a real problem with whistleblowers," Denhez said. "But there has to be some element of public interest at the end of the day, because that's the flag that you're wrapping yourself in."
Denhez left open the question of costs, though, put off to a conference call sometime in the future. Denhez signalled that he's not likely to give Richcraft everything Cohen was looking for ("The board's rules on costs specify that the factor of unreasonableness is, to use the colloquial, 'frontrow centre.' Awards of costs are highly rare," he said) but Cooper will probably be on the hook for some expenses Richcraft incurred for a meeting that the two sides scheduled but Cooper cancelled.
Cooper denied he definitively agreed to attend, though Denhez found otherwise.
In the end, Denhez - who was frequently irritated by the two sides' squabbling over technicalities - split the difference.
Even if Cooper didn't know he wasn't automatically required to go to the questioning session, Denhez said, he had agreed and it had cost Cohen money to arrange a room with a transcription service for the session.
"The appellant's counsel may have thought it technically unwise to have made that commitment to appear for cross-examination, but the fact remains that he made that commitment," Denhez said. "It's going to take some fairly compelling argument to avoid the conclusion that there shouldn't be some costs thrown away on last Friday."
Asked outside the hearing room how much compensation Richcraft wants from Cooper, Cohen said: "Not sure yet, quite frankly. Don't know."