Mississippi Mills asking judge to declare homebuilder a ‘vexatious’ litigant in decade-long dispute over industrial land
The billboards posted along March Road leading into the quaint mill town of Almonte seem almost too good to be true.
Brylin Homes is advertising affordable townhouse units starting at $299,900 with the designs featuring complete floor plans and photos of model homes with names like the “Goldfinch” (two-bedroom bungalow), the “Blue Jay” and the deluxe “Killdeer” model, boasting three bedrooms, two storeys, a garage and solar power.
The Killdeer billboard comes with the attractive tagline: “Use your labour for down payment!”
Trouble is, neither Brylin Homes nor its owner, Bryant Cougle, have the township’s blessing to rezone the industrial lands into a split residential and commercial sector, as Cougle’s designs would demand.
A series of long-running disputes between Cougle and the municipality of Mississippi Mills have trudged their way through municipal land tribunals, small claims courts, the Ontario Municipal Board, and finally elevating to Superior Court when the township’s lawyers served Cougle notice of a “vexatious litigant” lawsuit in February.
Mississippi Mills is currently engaged in a similar but separate civil lawsuit against another man, Steve Maynard, a former mayoral candidate who the township is also seeking to have the courts brand as “vexatious.”
Mississippi Mills officials — and Maynard — are currently awaiting a judge’s decision on whether that case can proceed in Superior Court.
Maynard has argued to dismiss the township’s case against him as a so-called SLAPP (strategic lawsuit against public participation) designed to silence public dissent.
The township’s vexatious litigant application against Cougle, however, is an altogether different story.
The court filings detail protracted legal wrangling over the development of Cougle’s land, beginning with his initial application in January 2010, and quickly escalating into — in the words of township lawyers — “a concerning pattern of vexatious conduct.”
Cougle already owns 22 acres of the industrial land on the west side of County Road 29 in Almonte, just around the spot where Hope Street ends.
He’s tendered an offer to buy a partition of the adjacent municipal property for the sum of one dollar. The land — 35 acres currently being used as part of the wastewater treatment plant — is central to his plan.
And Cougle has grand plans.
He envisions a 48-unit motel with a small service mall and a coffee shop facing onto the main road, while extending Hope Street to branch out into a complex of affordable multi-unit dwellings, all to be built around an indoor pool, spa and fitness centre.
“The demand is incredible… I have 300 tenants all lined up and ready to go,” Cougle says during a recent tour of the site. “Some have waited for over nine, ten years to buy a home. I’ve encouraged my interested parties to contact the town, and that’s what they’ve done…
“We are in a crisis here,” Cougle says. “We need affordable housing. And my tenants don’t want to rent. They want to own a home.”
A key sticking point in Cougle’s plan, from the township’s perspective, is the proximity to the water treatment facility. His proposal would require two of the five ponds to be drained, but he claims town council imposed a 500-metre setback, or “buffer” area around the facility in 2014, which now impacts his property.
Cougle says the lagoons can be drained and filled over, and he comes armed with a list of other municipalities that have followed the same course.
But according to Mississippi Mills Mayor Christa Lowry — and as outlined in the township’s lawsuit — municipal officials met with Cougle years ago to discuss the required environmental assessment, and have yet to see any meaningful studies or supporting documentation for such an undertaking.
“Anyone proposing development within the buffer area or adjacent to a landfill or wastewater treatment facility must provide supporting studies to determine the impact of the proposed development on these types of facilities,” Lowry said. “This is good planning practice and, frankly, common sense when we are discussing residential development in particular.
“While Mr. Cougle was made aware of the required studies several years ago, he has failed to provide any documentation that speaks to these issues.”
Cougle countered by saying he did have a phase-one environmental site assessment completed by Paterson Group in May 2011.
According to the report submitted by Paterson Group, the local consulting engineering firm concluded that a phase-two environmental assessment was needed.
Cougle performed that work himself, digging up samples and sending them away for laboratory testing.
“They came back with zero pollution,” Cougle said in an interview.
Cougle said the municipality allowed another construction company to build a home within that 500-metre buffer, and believes he is being unfairly excluded.
“It’s just me,” Cougle said. “They’ll work with other builders. It’s just that they don’t like me, they don’t want to work with me.”
Court documents filed by the municipality in February illustrate a decade-long chronology of litigation over the property through various levels of courts and tribunals. The municipality is now seeking to have both Cougle and his construction business, Brylin Homes, declared vexatious litigants.
The town’s application record includes numerous exhibits, most of them emails from Cougle over the years containing a litany of allegations, from his accusations of “covering up fraud,” to “allegations of conspiracy” against him, to “numerous allegations of bribery… (and) of obstruction of justice.”
Township lawyers deny any wrongdoing in the application, and are seeking a judicial order that would bar Cougle or his business from pursuing any further litigation without first obtaining permission from a judge.
Cougle and Brylin Homes, according to the township’s lawsuit, have commenced “numerous claims and applications in Superior Court, Small Claims Court and before other administrative bodies against the municipality and its employees in their individual and private capacities, all of which have been discontinued or dismissed with costs payable to the municipality.”
Cougle and Brylin have “continually (sought) to re-litigate the same issue or issues,” and have initiated “an excessive number of proceedings containing disparaging allegations that are without merit,” the statement of claim reads.
The municipality “fears (Cougle) will continue to pursue them legally as an improper reaction to a perceived undesired judicial outcome.”
Along with dozens of Cougle’s emails filed as exhibits, the municipality’s case also relies on a detailed affidavit sworn by the township’s chief administrative officer, Ken Kelly.
Kelly swore a similar affidavit in the municipality’s ongoing lawsuit against Maynard.
According to Kelly’s affidavit, Cougle first applied to alter his property’s zoning from industrial to residential in September 2010. That application was quickly denied on the basis that Cougle had “failed to complete the requisite background studies,” the lawsuit reads.
“Since then, Mr. Cougle has developed a concerning pattern of litigious action and vexatious conduct towards the municipality. Mr. Cougle has repeatedly written and stated that his issues with the municipality arose in 1976.”
Cougle has also alleged that municipal employees have, for the past 46 years, “been involved in perpetrating and then covering up various frauds and conspiracies targeting Mr. Cougle.”
Cougle’s appeals against the township were heard at the Ontario Municipal Board, then in small claims court in 2012 with two claims that were dismissed, then elevated to a civil lawsuit in 2018 where Cougle sought $8.2 million in punitive damages from the township.
Cougle “pleaded the same facts” in each action, according to the township’s lawsuit. “Namely, that the municipality and its employees were engaged in a ‘conspiracy’ against Mr. Cougle and his development plans.”
It cost the municipality at least $10,500 in legal fees to defend that lawsuit, which was eventually settled with costs awarded to Mississippi Mills.
According to the township’s recent lawsuit, the municipality “agreed to suspend its collection of these costs on the understanding that Mr. Cougle would not commence further claims against the municipality or its employees on the same facts… Notwithstanding the terms of the (settlement), Mr. Cougle commenced two further actions against the municipality in 2019 on the same facts, this time using his corporation, Brylin Construction Ltd., as a litigation vehicle.”
The affidavit from Kelly goes on to chronicle dozens of court actions and appeals Cougle has launched in the years since, and details the numerous letters Cougle sent to municipal employees with “allegations of obstruction of justice, perjury, and bribery against (Kelly) and several other municipal employees.”
It also contains letters Cougle sent to Premier Doug Ford in 2020, “demanding” the provincial officials “direct the municipality to reverse its zoning,” and seeking the premier’s “intervention” in the affair.
The affidavit also details a letter Cougle sent to several municipal employees in July 2020, “advising that he would be seeking to ‘prosecute’ the municipality criminally.”
Kelly says in his affidavit that he believes Cougle “is abusing the court system and is systematically using it to threaten and intimidate people with frivolous and vexatious lawsuits.”
Kelly further says that Cougle’s claims are “retributive reactions to a perceived undesired planning outcome.
“They are not serious or legitimate claims that ought to be before the court, particularly since these same claims were disposed of by the court in Mr. Cougle’s 2012, 2018, and 2019 actions.”
As for Cougle’s concerns over the availability of affordable housing in Almonte, Mayor Lowry said Mississippi Mills is already taking a “proactive” approach.
Lowry said she plays an active role on the Association of Municipalities of Ontario (AMO) and on the Rural Ontario Municipal Association (ROMA) boards, and represents rural Eastern Ontario on two affordable housing task forces.
Town council approved se
ven initiatives earlier this year, Lowry said, “to help remove barriers to affordable housing development, increase housing stock and reduce the upfront costs.”
Those initiatives include exemptions on permit fees for not-for-profit housing developments and an affordable housing grant program.
“Affordable housing is something the municipality has been working to address,” Lowry said, and the municipal government “has taken a proactive approach to support the development of both market and not-for-profit affordable housing in our community.”