OMB finds Bay Street partner’s conduct was abuse of process

The Ontario Municipal Board has found that the conduct of a senior partner at a Bay Street firm in a zoning dispute constituted an abuse of process.

The board found that Jean DeMarco, of Osler Hoskin & Harcourt LLP, looked to subvert its requirements in proceedings that involved whether a developer could operate a trailer park on a property in Georgian Bay — a development that DeMarco opposed.

The OMB found that DeMarco, who owns property in the area, had clearly attempted to have an expert witness mislead the board in the proceedings. While DeMarco is not experienced in planning law, the OMB found that “conduct and respect for procedure are not determined by the particular area of law in which the lawyer is expert.”

“The Board finds that Ms. DeMarco has attempted to subvert the Board’s requirements that are designed to ensure a fair and efficient hearing and has interfered with the evidence of a witness the Board qualified to provide independent expert opinion evidence in these proceedings,” wrote OMB member Sylvia Sutherland in the decision.

“Ms. DeMarco’s actions constitute an abuse of the Board’s procedures and a clear attempt to have an expert witness mislead the Board.”

At issue in the proceedings was whether Macey Bay Developments Corp. was permitted to operate a trailer park, including 180 trailer units and other facilities, on a property that previously served as a seasonal trailer park and campground.

DeMarco argued on behalf of a group of residents, as well as herself, that commercial use was not permitted at the site in question.

The OMB granted the developer’s appeal in part, modifying the township of Georgian Bay’s Official Plan and amending a certain zoning bylaw.

The board withheld its decision with respect to how much of the developer’s property fell on a provincial wetland. The developers will still need to obtain site plan approval from the township, as well as approval from the provincial Ministry of Environment and Climate Change and the Ministry of Natural Resources and Forestry.

A whole section of the OMB’s decision was dedicated to DeMarco’s conduct during the proceedings. The decision said two experts called by DeMarco testified that she told them they “should not agree to reduce the issues at hearing.”

One of the experts, Michael Varty, testified that DeMarco instructed him to strike out most of the items in the Agreed Statement of Facts, to which he had already agreed.

At the hearing, the decision said Varty acknowledged his evidence was in relation to the original statement of facts, “despite Ms. DeMarco’s attempt to interfere.”

Mary Bull, the lawyer who represented the developer, says what transpired with witness testimony at the OMB proceedings was something she had not encountered before. She says that the public has to be able to rely on the board’s decisions, which are based on the expert evidence they hear.

“Their opinion evidence is their opinion, and if it doesn’t agree with what your client wants, then it’s kind of too bad. So that was very troubling, because it undermines the whole process,” Bull says.

Bull also submitted a list of examples of conduct on DeMarco’s part in the proceedings that Bull said were unreasonable.

Bull submitted that DeMarco had failed to adequately answer reasonable requests in the proceedings and that DeMarco had made a last-minute suggestion that the hearing be adjourned without bringing a formal motion.

“For somebody with her experience, I don’t think it was necessary to behave like that,” Bull says.

Bull expressed concern that DeMarco had made a specific reference to discussions that took place in a board-led mediation in her opening statement.

“This is simply unacceptable,” Sutherland wrote in the decision.

 DeMarco told Law Times the board’s findings concerning her conduct and Bull’s submissions are completely unfounded.

“When Ms. Bull was alleging that I had told them they couldn’t agree to anything, that was just simply untrue,” she says.

DeMarco says that she told one of the expert witnesses, Patricia Chow-Fraser, not to agree to something if she was uncomfortable without having her “check it over.”

“But I had absolutely never at any time said that she shouldn’t agree to reduce the issues at the hearing,” she says.

“So that submission by Mary Bull was complete and utter nonsense.”

DeMarco says Varty testified at the hearing that he had misunderstood what she had said to him. After Varty had sent her his reply report, his counterpart had put another reply document to him and wanted him to agree to that, DeMarco says.

She then told Varty that the second reply document would be redundant and that the first one was sufficient.

“He just misunderstood and crossed out most of the second one,” she says.

DeMarco says the examples Bull submitted of unreasonable conduct were “complete baloney.”

DeMarco says she also did not give any specific references to what had happened at the board-led mediation in her opening statement. She says she referred to the date of the mediation and the surroundings but not to something that happened during the mediation.

A spokeswoman for the Law Society of Upper Canada would not confirm whether the provincial regulator would investigate DeMarco’s conduct in the matter, saying “complaints and investigations are confidential until or unless a matter results in a regulatory hearing.”

In the OMB decision, Sutherland asked the parties to make submissions for costs, which lawyers say is rare in such proceedings.

Bull would not say whether she is pursuing costs and says she is seeking instructions from her client.

Leo Longo, a municipal and land use planning lawyer, says it’s rare for the OMB to order costs against a lawyer personally for how they have conducted themselves at a hearing.

“It sounds like the board concluded that she being a lawyer she should know better and obviously is going to potentially sanction her for her behaviour,” he says.

He added that “the board has to have the ability to control its process and if it believes a lawyer is abusing that process or taking unreasonable steps to frustrate its process, it’s going to say something about it.”

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