‘It’s totally unacceptable’: Residents sue Town for damages over Lake Drive land dispute

By: Mike Anderson

A group of Lake Drive property owners have filed small claims suits against the Town of Georgina and its lawyer for lost property values.

They say their property values have been impacted by the ongoing ownership dispute over the waterfront lots along Lake Simcoe’s southern shoreline.

According to the Town’s solicitor Andrew Biggart, the waterfront lots, located across the road from nearly 300 indirect lakeside property owners along Lake Drive North and East, are part of the Town’s 66-foot road allowance.

Mr. Biggart has also stated that the Town owns the land — beyond the road allowance — that extends to the water’s edge.

This claim is based on a legal opinion provided by Rusty Russell, a lawyer hired by the Town in the 1990s, who was regarded as an expert on municipal road allowances.

However, the plaintiffs are disputing the Town’s position.

“The Town of Georgina, through council, deliberately used the flawed opinion of Mr. Biggart as a rationale for ignoring and denying the rights of hundreds of property owners,” the plaintiff’s claim reads.

“This council is legally and morally obligated to consider the rights of all parties involved in any set of circumstances as past councils have done. Council hides behind Mr. Biggart’s unilateral proclamation of ownership as the justification of the denial of people’s rights. It is totally unacceptable. It’s legally and morally wrong and cannot be allowed to stand.”

Tim Danbrook, a spokesperson for the plaintiffs, said that Rusty Russell had acknowledged at the time that his legal opinion might not stand up to a judicial review, and stressed that a solution needed to be worked out with all parties involved.

“The man who wrote the opinion that Biggart is supposed to be relying on himself said, you know, you’re gonna need to work this out because there’s no legislation that applies,” said Mr. Danbrook.

“This is at its core an expropriation proceeding. They are trying to explain the expropriation of properties that they’ve already identified that they don’t need, so that they can sell them back to the people they are expropriating them off.”

“They are making declarations that they can’t prove legally. In the absence of a judge’s decision, who can say who owns what?”

The eight plaintiffs seek up to $35,000 in damages per claim, which is the maximum that can be awarded in small claims court.

They allege that the “actions and public representations” of the Town and Mr. Biggart have “diminished” the value of their lakefront properties.

Mr. Danbrook is particularly upset over statements made by Mr. Biggart during a July 24, 2019, special council session held on the Town’s Lake Drive Jurisdiction Action Plan (LDSJC), which currently recommends that the Town divest itself of the waterfront lots by potentially selling or leasing them back to the adjacent indirect lakeside property owners.

During that session, Mr. Biggart said that if the Lake Drive property owners did not agree to the Town’s terms, the Town was within its rights to remove their docks and boathouses, whether or not they had acquired legal permits for them, and erect a fence preventing them from accessing the lake.

“It was reckless and irresponsible. And it’s not legally possible,” Mr. Danbrook said of Mr. Biggart’s statements. “Over my dead body at the steps of the Supreme Court of Canada, will that ever happen.”

Kenny Stockman, another plaintiff, wants the Town to stop what he calls “bully tactics” and start negotiating in good faith.

“I want them to stop stating publicly that they own the land unless they can prove it with title,” he said.

“And if not, then we go back to where we were two years ago with the committee negotiating on how we can solve this issue.”

Mr. Stockman added the uncertainty is impacting property values along Lake Drive.

“The Town has gone on publicly stating that they own the land,” he said.

“If we wanted to put up our house for sale, it’s difficult for me to put it up and say we have the right of way or use of the water.”

“In my opinion, right now would be the worst time to sell any of these properties. Because without this getting resolved, you’re not going to get the top dollar for waterfront property.”

While the Town’s CAO David Reddon declined to comment on the legal action, the Town recently submitted its 57-page Statement of Defence against the plaintiff’s claims.

The Town denies all allegations in the claim and argues the plaintiffs have not suffered any damages.

“The Town has not finalized its decision on how to address the waterside land, and, as such, there can be no diminished property value for the Plantiff’s property,” the statement reads.

The Town adds that the plaintiff has “no cause of action against it” and requests that the claim be dismissed with the Town’s costs paid by the plaintiff.

According to the Newmarket filing office, there are no in-person settlement conference dates scheduled during the lockdown. However, if the parties agree, a remote hearing could be set.