Comox Mayor no longer interested in Mack Laing talks

At this week’s Comox Town Council meeting, a friend of the late Hamilton Mack Laing will present a business plan to restore the famous naturalist’s home, called Shakesides. He’s going to talk about how the town and the Mack Laing Heritage Society can work together to avoid big legal bills and obtain heritage status for the house as a pathway to grant funding.

He’s going to suggest that the town and the society, pitted as adversaries for several years, move forward one step at a time toward resolution.

And he believes the Shakesides restoration business plan provides a foundation from which to build a partnership.

The plan includes support from 18 individual Comox Valley construction companies willing to share expertise, labor and, in some cases, materials for the restoration of Shakesides. A real community service project, according to Olsen.

Olsen says the plan offers proof that “Shakesides can be converted at reasonable cost into a Nature House with a low environmental footprint and with modest operating budget.”

The business plan is part of a mountain of documents that the Mack Laing Heritage Society will enter into evidence, should the town continue to pursue its BC Supreme Court petition to demolish the house. The society hopes the town will abandon this costly legal action and negotiate directly with them to resolve the issue.

The previous Town Council voted to petition the court to alter the terms of the Mack Laing Trust to demolish Shakesides and replace it with a viewing platform. The MLHS believes that would constitute a breach of trust, one of several they say the town has committed since Laing died in 1982.

The society also distributed a 13-page summary of annotated documents to councillors that attempts to summarize the convoluted ways the town has mishandled its trust agreement with Mack Laing.

Mayor no longer onside

A negotiation to settle the case out of court seemed likely after last fall’s municipal elections when a majority of new councillors expressed interest in talking directly with the Mack Laing society. And that included, according to Kris Nielsen, president of the MLHS, a handshake deal with new Mayor Russ Arnott to not let the matter go back to court.

But Nielsen says Arnott has now reneged on that agreement.

At a coffee meeting on Friday, Jan. 11, Nielsen said the mayor told him that unless the MLHS would agree to Shakesides’ demolition and replacement with a viewing platform — in other words capitulating to the town’s position — he wasn’t interested in talking.

Arnott did not respond to Decafnation’s invitation to confirm or deny Nielsen’s version of events.

So unless a majority of Comox councillors vote to engage the MLHS in meaningful discussions toward a solution, it appears the town’s taxpayers will continue to fund an expensive legal process that is speculated to have topped $100,000 to date.

“The Supreme Court gave us the opportunity to speak for Mack Laing’s intent and to demonstrate how past Councils reneged on the terms of the trust from the start and continued doing so for decades,” Nielsen said in a press release from the society. “The charitable purpose of any trust has to be taken seriously. That Comox taxpayers are paying large legal fees … I find (that) particularly disturbing.”

What will council do

In one of its first meetings after the municipal elections, the new Town Council discussed three possible paths forward:

— Continue with the court action
— Negotiate with the Mack Laing Heritage Society
— Suspend the petition entirely

The council voted to delay any decision until February, although Nielsen says the mayor has already decided to press forward with its two-year old court case.

The town spent most of last year and three separate BC Supreme Court appearances trying to prevent the Mack Laing society from participating as an intervenor in the court case. But justices in all three hearings attempted to steer the town and the BC Attorney General’s office in that direction, and the town resisted.

“What evidence do you not want the court to hear,” Justice Thompson asked the town’s lawyer at one point.

Finally, Justice Thompson ordered the town to consent to intervenor status at an Oct. 16, 2018 hearing.

There is no court date scheduled to hear the case, as an out-of-court settlement was preferred.

Breaches of trust

In a package of documents distributed to councillors late last year, the Mack Laing Heritage Society pulled 13 documents from the more than 400 submitted as affidavits that they hope will clarify their case.

Here are some the highlights of the annotated documents.

The first document, from March 17, 1982, shows the Town Council chose to ignore the trust agreement by renting it as housing within 32 days of Laing’s death. And by August of that year had started spending Laing’s money inappropriately.

It wasn’t until Feb. 5, 2003 that the town’s relatively new finance director, Don Jacquest, discovered a possible breach of trust in failing to reinvestLaing’s trust fund earnings, or rental income.

Jacquest reported this discovery to Mayor Paul Ives, CAO Richard Kanigan and council. But the council of the day did nothing to correct the trust fund abuses prior to 2001.

In March of 2015, town staff recommended demolishing Shakesides and Laing’s former home, called Baybrook. Council had previously discussed removing Baybrook, but not Shakesides. In its court filings, the town has not offered any legal opinion at the time regarding their right to tear down Shakesides. The society says this is another breach of trust.

But In June 2015, the society sought a legal opinion from an independent and experienced jurist, William Pearce QC on whether the town had the authority to demolish Shakesides and Baybrook. Peace advised the town to seek court direction before any demolition occured.

“The face that the terms of the trust were breached (financially) does not detract from the fact that the home (Shakesdies) is still subject to the trust and to demolish the home those officials who approved of same could be held to account for damages caused to the home,” Pearce wrote.

He continued, “In addition I note that s122 of the Criminal code makes it an offence for an official … to commit a breach of trust. I offer no opinion whether such officials could be prosecuted for their actions but one would hope the councilors (sic) and the mayor would take legal advice before proceeding with the demolition.”

Peace also noted that if the town felt Shakesides was beyond repair, a legal doctrine known as “cy pres” — meaning a purpose which is as near as possible to the original purpose — would apply to use Laing’s first home, Baybrook, as a substitute.

But town staff did not share Pearce’s legal opinion with council — which should have known about their individual criminal accountability — until its Oct. 7, 2015 meeting — nearly three-and-a-half months later.

By then, the town had already torn down Baybrook on Aug. 6, 2015.