P.E.I. developer's suit against environmental groups leads to call for protective law

CBC
·6 min read
In his lawsuit, developer Tim Banks alleges the defendants conspired with each other to slander his title to his Greenwich properties and took direct action to 'actively impede and confound' his efforts to develop and/or sell the land. (Rick Gibbs/CBC - image credit)
In his lawsuit, developer Tim Banks alleges the defendants conspired with each other to slander his title to his Greenwich properties and took direct action to 'actively impede and confound' his efforts to develop and/or sell the land. (Rick Gibbs/CBC - image credit)

Developer Tim Banks is suing the Environmental Coalition of P.E.I. and three other defendants over what his court filings describe as a conspiracy to "impede and confound" his efforts to develop or sell land he owns in the middle of a P.E.I. National Park site at Greenwich.

The action has led to a call from ECOPEI for Prince Edward Island to enact legislation to protect the right of individuals and organizations to participate in public discourse without facing what the group has characterized as a "frivolous" lawsuit.

"ECOPEI is concerned that this type of litigation will discourage others from expressing their views on important government land-use decisions that could negatively impact the environment," the group said in a media release dated Dec. 3.

B.C., Ontario and Quebec, as well as dozens of U.S. states, have enacted anti-SLAPP legislation, with "SLAPP" standing for "strategic lawsuit against public participation."

According to the Centre for Free Expression, a Canadian organization that advocates for free speech and academic freedom, SLAPPs "are lawsuits used by wealthy individuals and corporations to intimidate and silence public critics by forcing them into legal battles they cannot afford until they cease their criticism or opposition."

The planned subdivision property can be seen at right, next to the road that leads to the sand dunes and beach at Greenwich.
The planned subdivision property can be seen at right, next to the road that leads to the sand dunes and beach at Greenwich.

The planned subdivision property can be seen at right, next to the road that leads to the sand dunes and beach at Greenwich. (Kerry Campbell/CBC)

ECOPEI filed an appeal with the Island Regulatory and Appeals Commission (IRAC) in August questioning the province's decision to grant Banks a development permit to build on land he owns in Greenwich.

Just over two months later, on Oct. 30, Banks filed a statement of claim naming ECOPEI and others, including a representative of Island Nature Trust.

Banks is seeking an undisclosed amount of general damages along with punitive, exemplary and aggravated damages.

The suit alleges the defendants "conspired with each other to slander Mr. Banks' title to the subject properties and took direct action to actively impede and confound Mr. Banks' efforts to develop and/or sell the subject properties."

Tim Banks received a development permit for the lot marked here in orange, next to the parking lot that leads to the beach at Greenwich.
Tim Banks received a development permit for the lot marked here in orange, next to the parking lot that leads to the beach at Greenwich.

Tim Banks received a development permit for the lot marked here in orange, next to the parking lot that leads to the beach at Greenwich. (Province of P.E.I.)

According to the claim, the "predominant purposes and concerns" of the defendants "were to harm Mr. Banks by preventing him from successfully developing the subject properties, as is his right."

'Abuse of process,' defendants say

In its statement of defence, ECOPEI denies the allegations, calling Banks's claim "an abuse of process, and an improper use of civil litigation to intimidate and harass a non-profit public interest organization."

As such, ECOPEI's lawyer argues Banks's statement of claim "is scandalous, frivolous, or vexatious, and should be struck."

In July, the province issued Banks a development permit to build a single-unit dwelling on a lot surrounded by the P.E.I. National Park in Greenwich.

Back in 2005, Banks had bought four lots in what was then a new subdivision called St. Peters Estates. But no development has ever occurred there. In recent years, most of the lots have been purchased by Parks Canada.

A Parks Canada image of its park property at Greenwich on the North Shore of P.E.I. The line showing in the middle of the inland body of water is the park's well-known boardwalk.
A Parks Canada image of its park property at Greenwich on the North Shore of P.E.I. The line showing in the middle of the inland body of water is the park's well-known boardwalk.

A Parks Canada image of its Greenwich site on the North Shore of P.E.I. The line showing in the middle of the inland body of water is the park's well-known boardwalk. (Parks Canada/Twitter)

Banks told CBC News in August, and reiterated this week, that the offer Parks Canada made to him to purchase his property fell well below the value his own appraiser put on the land.

The permit issued by the province is conditional on the site being serviced by a central water system, a condition put on the original subdivision in 2004.

In a filing with IRAC in October, the province said that condition had not been fulfilled, and no approvals had been granted for an environmental management plan or human use management plan for the subdivision, which were also conditions for development.

No other permits filed

The province also clarified a statement that it had never denied other development permit applications in the subdivision, saying Banks's application was the first that was ever processed.

The province said staff in the minister's office have received informal inquiries from other landowners who still own lots in the subdivision; "however, no other permit applications have been filed."

In a separate court filing, Banks is suing the original developer of the subdivision and Parks Canada, seeking $900,000 in damages from each defendant and asking the court for orders requiring them to install a central water system in the subdivision and to service the lots with electricity.

Man with grey hair standing in field.
Man with grey hair standing in field.

Gary Schneider says ECOPEI, which operates MacPhail Woods Ecological Forestry Project in Orwell, has a lawyer working pro bono and will fight the lawsuit. (Laura Meader/CBC)

ECOPEI, which operates MacPhail Woods Ecological Forestry Project in Orwell, said it has a lawyer working pro bono and will fight the lawsuit. But co-chair Gary Schneider said those efforts will still come with a cost.

"We have limited resources and limited time," he said. "So they have to go toward this [rather] than a lot of the other work we feel is way more important and that we're supposed to be doing."

ECOPEI is pointing to another controversial project, the development of a large private vacation home on the coastline at Point Deroche, as an example of the province failing to uphold environmental protections.

Schneider said for the group to give up now would give the impression that with enough lawyers, a developer "can do stuff like this and the public will be afraid to participate — and I think that's the last thing we want to have happen in this province."

Previous suit led to censure from IRAC

In 2010, Banks's company Pan American Properties filed a million-dollar lawsuit against two Charlottetown residents who had appealed a permit to allow a hotel to be built in downtown Charlottetown.

IRAC ruled the permit for the hotel could stand, but had harsh words for the company regarding the lawsuit.

The commission said Pan American "showed disrespect for the legislated role and mandate of the Commission as a quasi-judicial body, [which] may have constituted contempt, and will result in the Commission revisiting its current practices to strengthen and further protect the appeal process for all parties," the decision noted.

There was no update available from the commission Monday as to what changes if any IRAC made to its appeal process at the time.

Banks told CBC News on Monday he was not available for an interview.