Gilmor vs. Goliath: Conservation groups seek to overturn precedent-setting court decision allowing family to build home
By Graeme Frisque
A precedent-setting court decision that could affect anyone in the province owning property in environmentally protected areas is currently making its way through the Ontario Court of Appeals.
It all started in 2009 when Alex and Tania Gilmor began the permit process to build a home on their property in Amaranth, a small community of roughly 4,000 residents about 15 minutes northwest of Orangeville.
The Nottawasaga Valley Conservation Authority denied that application and a proceeding appeal, and for the last seven years the Gilmors have been fighting for permission to build on their land.
After another appeal to the Ontario Ministry of Natural Resources and Forestry (MNRF) was denied via tribunal in July 2013, the Gilmors appealed that decision in Ontario Superior Court, finally winning the right to build their home in September 2015.
But the story doesn’t end there. The respondents — NVCA and the Township of Amaranth — have decided to appeal the court’s decision through an intervener.
Conservation Ontario, a not-for-profit lobby group that represents all 36 of Ontario’s conservation authorities, was approved as intervener by the court and a leave for appeal from the NVCA and Conservation Ontario was granted in February 2016, sending the matter back to the courts.
A portion of the Gilmor’s lot, located at 555106 Mono-Amaranth Townline Road, is part of a designated floodplain and therefore falls under the jurisdiction of the NVCA.
According to court records, the area was designated an environmentally protected area many years after it was originally subdivided into 10-acre lots in the 1960s, and very few lots in the area remain vacant. There are existing houses on either side of the Gilmor’s property and across the road.
The area was deemed an environmentally protected area due to a small drainage ditch called “Buttrey Drain”, which crosses the Gilmor’s lot behind the proposed build site.
The drainage ditch also passes through a neighbour’s property — where a house already exists — and then proceeds to a culvert under the public road, eventually connecting to a creek, part of the Nottawasaga River system.
When they first purchased the land there was an existing driveway, shed and garden on the property and neighbours had been allowed to build houses prior to their application to do so.
Despite the proposed house being in an area on the property where flooding poses no risk, the Gilmor’s application to build was denied on the basis of flooding and safety concerns.
“Unfortunately, we cannot provide any detail about the NVCA’s position as this matter is before the courts, other than we are confident the NVCA has upheld its responsibilities as required by the Conservation Authorities Act,” said Doug Lougheed, NVCA Chair and Innisfil town councillor.
Justice Sean F. Dunphy disagreed after hearing the Gilmor’s appeal, overturning the NVCA and tribunal decisions on the matter to refuse the appropriate permits.
In his decision, Justice Dunphy pointed out an expert analysis undertaken as part of the permit process showed little-to-no flood or safety risk, even in the event of a “hypothetical extreme event” such as the “Timmins Storm” — a standard comparable used by the NVCA when assessing risk in the event of a worst-case scenario regional storm.
“(The Gilmors) provided extensive expert evidence establishing the lack of any adverse effects impact (on) their proposed building on flood control,” said Justice Dunphy.
“The methodology and quality of their expert evidence has not been challenged. Indeed, the NVCA utilized the data produced by the Gilmors’ experts in preparing their own studies,” he added.
Furthermore, the judge ruled the tribunal who originally upheld the NVCA’s decision erred by judging the case on the basis of a general ban on development in environmentally protected areas, which is not the case.
Conservation authorities routinely allow construction and development in floodplains and other environmentally sensitive areas they oversee, as long as additional mandated steps are taken to address any environmental concerns.
However, the concerns the NVCA had with Gilmor’s application is not of an environmental nature, but of public safety — namely, flood safety — and the judge found those concerns to be baseless.
The NVCA appears to have no problem with construction on the site, as their proposed resolution was to have the Gilmors build a 600-metre driveway to the back of the property outside of the flood plain. Something Justice Dunphy called “ironic”.
“The proposed driveway would be approximately 600 metres long and proceed over the existing drainage ditch and across wetlands to the rear of the Gilmor’s property to higher land,” he said.
“Further, the fill necessary to build up the required road that distance would have a much more significant impact on the ability of the land to handle a flood and thus create still more regulatory approval challenges,” added Justice Dunphy.
Justice Dunphy concluded the NVCA acted outside of its legislated powers by denying the Gilmor’s permit application and interpreted its own internal standards as matters of law.
“A general prohibition on developments without consideration of the impact, if any, of such developments on flood control in the particular circumstances of each case, would have been beyond the jurisdiction of the NVCA to enact … and it cannot acquire such jurisdiction by misinterpreting its own regulation,” he said.
And it appears it is on this basis — and not the Gilmor’s safety or right to build on their land — that the NVCA and the now intervening Conservation Ontario have chosen to so vigorously oppose the court’s decision.
“As this matter deals with a provincial priority for flood protection, NVCA has vigorously pursued leave to appeal before the Ontario Court of Appeal,” said NCVA Chair Lougheed.
“Conservation Ontario has sought intervener status as this appeal to the Ontario Court of Appeal has implications for all of Ontario’s 36 Conservation Authorities, as it may affect how certain provisions of the Conservation Authorities Act are interpreted,” added Lougheed.
As for the Gilmors, according to Elizabeth Marshall of the Ontario Landowners Association (OLA), after seven years of wrangling and legal fees, the family is giving up the fight.
“They aren’t speaking to anyone anymore. They have chosen not to get a lawyer for the appeal. They are at the point where they are ready to throw themselves at the mercy of the court,” she said.
As a result, OLA president Tom Black said the group sought intervener status on the Gilmors’ behalf in order to keep up the fight — which was denied.
“The win was rather historic and we thought it should be defended,” said Black, who added the group continues to seek an intervener they would support willing to pick up the mantle.
In the meantime — at least in the opinion of one Ontario Superior Court Justice — the Gilmors continue to have their rights trampled.