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?
