by George Le Masurier | Apr 19, 2018
The Mack Laing Heritage Society has won a major legal battle to force the Town of Comox to honor trust agreements with the famous naturalist
AB.C. Supreme Court judge has facilitated an agreement so the Mack Laing Heritage Society can present its evidence in a case that will decide the future of the famous ornithologist’s iconic home and clarify the status of his trust agreements.
In a hearing in Nanaimo this week (April 17), Justice Douglas W. Thompson asked lawyers for the town and the B.C. Attorney General’s office why they objected to the court hearing the “armful of evidence” submitted by the Mack Laing Heritage Society (MLHS).
Justice Thompson then pointedly asked the Attorney General’s representative how she could fulfill her obligations as a “defender of public trusts” without all the information in the case.
And he asked the town’s lawyer, of the Vancouver-bassed Young Anderson law firm, what questions the town did not want MLHS to ask in court.
By the end of the five-hour court session, the town’s lawyer and the AG’s office had agreed to grant intervenor status to the MLHS with “no restrictions whatsoever” on the evidence the society can introduce into the proceedings, which will be held in late May.
It was a major win for the MLHS and a defeat in round one for the Town of Comox.
FURTHER READING: Town of Comox confesses: we misspent Laing’s money; Link to all Shakesides stories
The town has petitioned the court to vary the terms of the Mack Laing trusts — there are three — in order to demolish Laing’s heritage home, which he willed to the town, and use the money Laing also left for purposes other than those the acclaimed naturalists intended.
The MLHS had sought official standing in the case. “Standing” meant that the society could introduce nine affidavits totally about 500 pages of evidence that purport to negate the basis of the town’s petition, and, if successful, could have recovered its legal costs from the town.
Local builder Bunker Killam, who rented Shakesides for the first nine years after Laing’s death, sets up croquet in the front yard. Killam said the house was in good condition while he lived there.
By granting the MLHS intervenor status with “no restrictions,” Justice Thompson has cleared the way for the court to consider all of the society’s evidence. But if MLHS succeeds in defeating the town’s petition, it will not be able recover its court costs.
MLHS President J-Kris Nielsen said, “”Had we been offered this deal months ago, we would gladly have taken it. All we wanted was the chance to present the evidence we have collected from a wide array of sources and individuals, together with the historical facts from these sources, seen through different eyes, plus ask questions in order to get answers from town officials.
“The justice recognized the value of these different documents early, and made it clear that he did not see why this information should not be at the disposal of the court?,” Nielsen said. “Now our 11 affidavits and 120 or so exhibits are fully vested in the upcoming Supreme Court Hearing.”
According to Nielsen, the “genius of Justice Thompson” showed up in the last half hour of the April 17 court session, when he maneuvered the proceedings around with “carrot and stick tactics” to bring about a conclusion, surely saving a full day of court time from playing out.
“It was all done with one question (to the Town of Comox and the AG representative),” Nielsen said. “What question is it you want the society NOT to ask?”
Asked if he cared to comment on the outcome of the court session, Comox Mayor Paul Ives said, “Not really — the matter has been adjourned to the week of May 28 in Nanaimo.”
There could still be a mediated settlement in the case if the town decides to cap its incurred legal expenses — speculated to be heading toward $75,000.
And it’s still unclear whether the MLHS, or other community organizations or individuals, could file civil lawsuits against the town for breaches of trust.
Background of the case
The town has petitioned the court, under a specific section of the Community Charter, to vary the “terms applicable to money held in trust if a municipal council considers the terms or trust to no longer be in the best interests of the municipality.”
MLHS wants the court to see painstakingly detail how the town has misspent Laing’s money, disregarded the intention of his three trusts over a 36-year period and misstated facts to the court corroborated by its own documents.
The town passed a resolution 32 days after Laing’s death in February of 1982 to rent Shakesides and several months later, in August, started spending the rent money and interest earned on Laing’s cash gift on items beyond the scope of the trust agreements.
One pressing issue is whether the town can demolish Laing’s home, which he gave to the Comox community for the purpose of establishing a natural history museum.
But MLHS also wants the court to order a forensic audit of the Laing trusts.
MLHS contends the town has misstated the amount of cash Laing left them after his death in February of 1982 and that the trust today should be worth up to nearly $500,000.
Can Shakesides be restored?
According to Guerdon “Bunker” Killam, a developer and home builder, who lived in Shakesides for nine years, from 1982 to 1990, the house was in good condition when he moved in and he continued to improve it during his tenure.
Killam said Shakesides is “a very well built small house in excellent condition.”
But during the town’s 36-year stewardship, the house’s conditions has declined. The town even rejected an offer by MLHS to provide free labor to install a waterproof covering over the leaking roof until the court is settled.
Meanwhile, a number of Comox Valley businesses have added their names to the list of those willing to donate time and/or services to renovate Shakesides.
According to Gordon Olson, a friend of Laing in his latter years, Lacasse Construction has committed to donating some work to restoring the house. Comox Valley architect Tom Dishlevoy will donate some design work, and Three Oaks Flooring will donate labor for refinishing the house’s wood floors.
Masonry trades people and window specialists have also made commitments.
by George Le Masurier | Mar 14, 2018
PHOTO: Mack Laing cutting a Douglas fir with a Wee McGregor, a mechanical bucker, on the Comox waterfront in September 1925. — B.C. Archives
NOTE: This article was updated at 2 p.m. on Thursday, March 15
Shakesides supporters encouraged, court hearing adjourned to April
A B.C. Supreme Court hearing scheduled for this morning (March 15) to determine whether to grant standing to the Mack Laing Heritage Society (MLHS) in the Town of Comox’s application to vary one of the famous ornithologist’s trusts has been adjourned until April.
MLHS lawyer Patrick Canning had a medical emergency and could not attend. In a written statement to Supreme Court Justice Robin Baird, Canning asked for the case to be adjourned. Lawyers for the Town of Comox and the B.C. Attorney General’s office wanted to proceed anyway.
But saying he had spent time reading much of the nine affidavits submitted by Comox Valley citizens and organizations, such as Comox Valley Nature, Justice Baird said “the society has an arguable case and it should be heard.”
“I’m not pre-judging the case, I’ve just read the materials,” Justice Baird said. “There are serious issues at stake; it’s been 36 years; and, the vindication of a will.”
Justice Baird seemed to encourage the town’s counsel and the AG lawyer not to oppose standing for MLHS.
“Obviously, there has to be a hearing,” Justice Baird said. “Unless counsels can decide, upon reflection, that it’s not necessary … we can get to the merits of the case sooner.”
And later while discussing a date for the adjourned hearing, Justice Baird said again “but if counsel can come to terms (about granting standing to MLHS), let the trial coordinator know (in order to cancel time for a hearing on standing).”
When all parties agreed to adjourn to April 16 in Nanaimo, Justice Baird left with what may or may not have been an intentional whimiscal comment.
“We’ll let nature takes its course; it has been 36 years,” he said.
Supporters and opponents of the town’s petition attended the court hearing, as did four member of Comox Town Council: Mayor Paul Ives and councillors Russ Arnott, Marg Grant and Maureen Swift.
ORIGINAL STORY: B.C. Supreme Court to hear Shakesides arguments today
The B.C. Supreme Court will hear arguments this morning (March 15) in Courtenay whether to grant “standing” to the Mack Laing Heritage Society (MLHS) in a case that will decide the future of Laing’s historic home, Shakesides.
MLHS lawyer Patrick Canning will argue that nine affidavits totalling nearly 500 pages of evidence compiled by Comox Valley citizens and organizations, negate the basis of the Town of Comox’s petition to vary one of three trusts given by Laing to the community.
The Town of Comox has opposed standing for MLHS. The town hopes to shield the citizen’s evidence and exhibits from the court.
FURTHER READING: What is “standing?”
The town wants to demolish Laing’s iconic home, which he willed to the town, and use the money he also left for purposes other than those the acclaimed ornithologist intended.
The town has petitioned the court, under a specific section of the Community Charter, to vary the “terms applicable to money held in trust if a municipal council considers the terms or trust to no longer be in the best interests of the municipality.”
J-Kris Nielsen, president of MLHS, said “justice would only be served” if the court considers all the facts and evidence.
Nielsen said the nine affidavits that MLHS wants the court to see painstakingly detail how the town has misspent Laing’s money, disregarded the intention of his three trusts over a 36-year period and misstated facts to the court corroborated by its own documents.
Granting “standing” would mean the MLHS lawyer could present the affidavits to the court to consider in ruling on the town’s petition.
But, if the Supreme Court does not directly grant standing to MLHS, the affidavits may still be considered by the court.
MLHS filed a counter-petition this week challenging many of the facts in the town’s original petition, and the town must respond. Nielsen said that could get the most critical information before the court.
It’s possible the court will not rule on the town’s petition or the MLHS’s counter-petition at this sitting. It could put the matter over until its next session in July.
At issue is whether the town can demolish Laing’s home, which he gave to the Comox community for the purpose of establishing a natural history museum.
The MLHS wants the town to preserve Shakesides as a heritage site, and to create some form of a natural history museum, as Laing wished.
The town wants to build a viewing platform, despite having already built a viewing platform just footsteps aways from Shakesides, on the site of Laing’s original home, called Baybrook. The town tore down that house in 2015.
MLHS also wants the Supreme Court to order a forensic audit of the Laing trusts.
MLHS contends the town has misstated the amount of cash Laing left them after his death in February of 1982 and that the trust today should be worth up to nearly $500,000.
FURTHER READING: Town of Comox confesses, we misspent Laing’s money!; More Mack Laing articles
Comox Council and staff admitted in December to misspending Laing’s money, and have put funds back into the trust. It is now worth $256, 305.98, according to the town’s petition.
That’s a significant increase in the trust’s value from the $70,000 the town told a 2016 citizens advisory committee. The committee eventually recommended demolition, although several members disagreed and presented a contrary minority report to the Town Council.
It’s likely the committee would have made a different recommendation if it had known there was more than a quarter-million dollars available for restoration and fulfillment of Laing’s trust. And that money could have been leveraged up, including an offer of funds from Heritage B.C., which has urged the town to preserve the building.
Who was Hamilton “Mack” Laing?
Hamilton Mack Laing was a naturalist, photographer, writer and noted ornithologist, whose work from the Comox waterfront from 1922 through 1982 earned him worldwide recognition.
Laing gave his waterfront property, his home, substantial cash and personal papers from his estate to the Town of Comox “for the improvement and development of my home as a natural history museum.” The town accepted the money and, therefore, the terms of the trust.
But 36 years later, the Town of Comox has done nothing to satisfy his last wishes and mishandled the money Laing left, raising serious ethical and legal questions, which the B.C. Supreme Court may ultimate answer.
Laing moved to Comox in 1922, cleared his land and built his home from a “Stanhope” Aladdin Ready-Cut kit. In 1927, he married Ethel Hart of Portland and they established a successful and commercial orchard which included walnut, pecan, filbert, hazelnut, apple and plum trees. They also grew mushrooms and vegetables.
After his wife, Ethel, died in 1944, he sold his original home, Baybrook, and built a new home, Shakesides, on the adjoining lot.
Shakesides’ heritage value
An independent and nationally recognized heritage consulting firm issued a Statement of Significance regarding the former home of naturalist Mack Laing — known as “Shakesides.” They said the building is of national importance and that it should be saved for its historic value and for the enjoyment of future generations.
The chairman of Heritage B.C., a provincial agency committed to “conservation and tourism, economic and environmental sustainability, community pride and an appreciation of our common history,” believes the heritage value of Shakesides demands that Laing’s former home should be “conserved for … future generations” and that the Town of Comox should “use the building in ways that will conserve its heritage value.”
Heritage B.C. has offered its assistance, at no charge, to the Town of Comox, for the duration of the process to repurpose Shakesides, and pretty much guaranteed the town a provincial grant through the Heritage Legacy Fund Heritage Conservation program.
The town has ignored Heritage B.C.’s offer.
FURTHER READING: Who are the B.C. Supreme Court justices?
by George Le Masurier | Jan 10, 2018
The Town of Comox has finally confessed that it inappropriately spent funds from the Hamilton Mack Laing trust.
At its Dec. 6, 2017, meeting, the Town Council approved paying $103,000 into the trust, a sum that town staff has classified as misspent prior to 2001, plus interest those funds would have earned.
In a report to Town Council, Comox Chief Administrative Officer Richard Kanigan characterized the misuse of funds as:
“These expenditures may not have been in strict accordance with the terms of the trust, which required the town to use the funds to convert Shakesides into a museum.”
It was an understatement. Some of those expenditures included repairing the Brooklyn Creek stairs, which aren’t even located on Mack Laing’s property.
It’s the first time the town has admitted spending Laing’s trust funds improperly.
And it’s unclear whether the confession is simply posturing for an upcoming B.C. Supreme Court hearing, or a genuine acknowledgement that the town mishandled a binding trust agreement with an important literary and ornithological benefactor.
In any case, the admission makes a start toward reparations for 36 years of disrespecting the Last Wishes of one of the community’s most widely admired citizens.
But not everyone agrees the town has fully owned up to the totality of expenditures disallowed by the trust. And there are other unresolved questions about the town’s accounting and handling of the Laing trust.
These issues are raised in at least a half-dozen affidavits that oppose the town’s court application to tear down Laing’s house.
Mack Laing vs. Town of Comox
Laing was a prolific naturalist, photographer, writer, artist and noted ornithologist, whose work from the Comox waterfront since 1922 earned him worldwide recognition.
Prior to his death, Laing left his waterfront property and his second home (named Shakesides) to the town. After his death, he left the town the residue cash from his estate “for the improvement and development of my home as a natural history museum,” and to support its ongoing operation.
But nearly 36 years later, the town has done nothing to satisfy Laing’s last wishes.
Instead, the town applied to the court last February to alter the terms of Laing’s Last Will, namely to demolish his house and use his trust fund to construct a viewing platform.
To finance the project, the town now proposes to use the $103,000 of misspent money, $75,000 previously allocated, and the balance remaining in the Laing Trust, estimated at around $70,000.
Any money left over would be placed in a reserve fund to maintain the new platform.
But to critics, such as the Mack Laing Heritage Society, the town’s $178,000 deposit into the trust is a hollow gesture because the town had already committed itself to building a viewing platform in its court filing to tear the house down.
The town appears to be simply moving the money it has promised to spend, if the court allows, from general revenue into the Laing Trust. Not so, says the town. They maintain their action was to make Laing’s trust whole.
Accounting disparities
According to several affidavits submitted to the Attorney General’s office, which is charged with defending trusts made to public institutions, the town’s calculation of misspent funds doesn’t square with its own ledger entries.
Gordon Olsen, who has filed one of those affidavits, was a friend of Laing. He says the documents he has compiled show the town is “way short of making the Laing trust whole.” But he said the details of his claim is in the AG’s hands and will ultimately be made public.
In 2016, Olsen hired a Campbell River accounting firm to review publicly available financial records of the Town of Comox. The review showed the trust fund should be worth in excess of $480,000 today. The firm used figures released by the town and used conservatively calculated interest rates.
The independent analysis suggested that if the town had immediately invested all of Laing’s bequeathed cash plus the income it derived from renting the house for 30-some years, it would have nearly a half-million dollars in the trust fund.
Olsen believes the great disparity in accounting demands a court-ordered forensic audit of the town’s financial records.
A forensic audit is a specialization within the accounting profession to determine negligence or other financial irregularities for use as evidence in court. Most major accounting firms have a forensic auditing department.
The Attorney General’s office doesn’t discuss active cases.
In response to an enquiry from Decafnation about the number and content of affidavits it has received in this case, the Ministry of Attorney General sent this statement:
“The Legal Services Branch of the Ministry of Attorney General is responsible for this case. Applications made to the B.C. Supreme Court will be decided by the Court. As this case is before the courts, we cannot comment further.”
Comox Mayor Paul Ives declined to comment for this story, referring enquiries to town staff.
by George Le Masurier | Mar 29, 2017
With new organizations and high-profile individuals joining the movement to preserve the waterfront home of internationally known naturalist and Town of Comox benefactor Hamilton Mack Laing, there are rumors that some Comox Council members might reconsider the town’s plan to demolish the house, known as Shakesides.
Robert Bateman, Canada’s most famous naturalist and painter, is the latest individual to support saving Shakesides.
In a March 23 message to town officials, Bateman wrote, “I have spent my life since the 1960s battling to hold back the destruction of our human and natural heritage … it is your job to protect this property and honour the wishes of its owner ….”
Laing, who died in 1982 at the age of 99, gave his waterfront property, his home, substantial cash and personal papers from his estate to the Town of Comox “for the improvement and development of my home as a natural history museum.” The town accepted the money and, therefore, the terms of the trust.
But 35 years later, the Town of Comox has done little to satisfy his last wishes and apparently mishandled the Laing trust funds. The current Town Council has voted twice to demolish Shakesides, raising serious ethical and legal questions. The demolition was stopped in 2016 by the B.C. Attorney General.
Top Photo: Laing with spring salmon, April 26, 1929. Above: Shakesides today
Comox Council voted unanimously in February to ask the B.C. Supreme Court to release the town from its obligations under the terms of Laing’s trust, which required it to use 25 percent of his money to develop a natural history museum in Shakesides and to invest the other 75 percent to fund ongoing operations.
But at least three Comox Valley groups plan to seek intervenor status in opposition to the town’s application.
The latest to join the movement is the Comox Valley Naturalists Society, commonly know as Comox Valley Nature. In a letter to the Provincial Ministry of Justice, the group asks for a 12-month to 18-month freeze on demolition so it can work with “Heritage B.C. and the National Trust of Canada to prepare a heritage management plan.”
It also requests an independent forensic audit of the town’s handling of the trust’s money. Documents collected by other intervenors show the town spent trust money on improvements outside the park, and that none of the investment income was spent in accordance with the terms of the trust until the early 2000s. The more than $100,000 in rental income from Shakesides was funneled into the town’s general ledger.
Comox Valley Nature also asks the Attorney General to remove Mack Laing Park property, including the Shakesides house, and the trust funds from the town, and place them “in more trustworthy and capable hands.” The group intends to create a consortium of community and provincial groups to take responsibility for the house and park.
Besides Comox Valley Nature, support for Shakesides has also come from B.C. Nature, Heritage B.C., the Comox Valley Conservation Strategy Partnership, Project Watershed and dozens of well-known individuals, including Bateman, author Robert Mackie and columnist Stephen Hume.
This mounting support has at least one council member questioning whether the town should proceed with its Supreme Court application, which could cost more than $100,000. If council was permitted to proceed with demolition, taxpayers would pay an estimated $250,000 in legal costs, demolition and remediation of the site into a viewing platform.
Surely other council members are also wondering if it might create more goodwill and community cohesion to direct that amount toward living up to the terms of Laing’s trust.
An unfavorable Supreme Court decision could be even costlier for Comox taxpayers.
Comox resident Gord Olsen commissioned an independent analysis of the Laing trust by Kent Moeller, CPA, of Moeller Matthews in Campbell River. It showed the trust fund could be worth $481,548 today. He used figures released by the town and conservatively calculated interest rates and added in the investment of rental income.
Moeller’s analysis suggests that if the town had immediately invested all of Laing’s bequeathed cash plus the rental income, it would have nearly a half-million dollars in the trust fund.
Laing left the town about $60,000 in 1942 (note: the price of a newly built similar-sized home in Courtenay in 1982 sold for about $50,000).
According to Bunker Killam, who rented the house, and Richard Mackie who lived there after Laing died to sort and organize his personal papers and belongings, Shakesides was in good condition at the time the town took possession. A nationally recognized heritage consulting firm recently examined the house and determined it is still structurally sound, and are prepared to write a conservation strategy.
No date has been set for the town’s court application to modify the terms of Laing’s trust. Comox Council should recognize this as a grace period to reconsider their decision and save a public relations disaster with just over a year before the next municipal elections.
