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What should Comox Valley residents think about the BC Attorney General’s office arguing two different sides of similar cases?
The attorney general of BC announced last week that it would take the district of West Vancouver to court because the municipality allegedly broke an agreement with two residents who had bequeathed their property to the district.
But in the Comox Valley, the Attorney General’s office is defending the Town of Comox for breaking its agreement with Hamilton Mack Laing.
And it gets more interesting. The lead counsel for the AG’s office in both cases is Sointula Kirkpatrick.
FURTHER READING: More on Mack Laing
According to a report from Glacier Media, which publishes several BC newspapers including the North Shore News, the AG’s lawsuit asks the BC Supreme Court to rule that West Vancouver is in breach of the trust.
Pearley and Noreen Berissenden gave their property to the district of West Vancouver in the late 1980s. The couple specified that the property was “to be used and maintained by it (the district) for public park purposes.”
When Mack Laing died in 1982, he left the town his waterfront property, his home named Shakesides, and the residue cash from his estate “for the improvement and development of my home as a natural history museum.”
The district of West Vancouver never followed through on their agreement with the Berissendens, and instead rented out the couple’s home on the property from 2001 to 2018. And in 2017, the district applied to vary the trust to subdivide about half of the property into building lots.
The Town of Comox likewise never followed through on the terms of its trust agreement with Laing, and also rented out Laing’s home for almost 30 years. In 2017, the town applied to vary the trust in order to demolish Shakesides.
AG lawyer Kirkpatrick alleges West Vancouver is in breach of the Berissenden’s trust for failing to make their property a park and for profiting from the rent, according to the Glacier Media report. Kirkpatrick has asked for an accounting of all all rent money received and that it be put back into the trust.
As well, Kirkpatrick, on behalf of the AG’s office, wants the court to order West Vancouver to make the property a park.
But Kirkpatrick has taken the exact opposite view when it comes to the Town of Comox versus Mack Laing.
In the Comox Valley case, Kirkpatrick has defended the town’s failure to make Laing’s home a natural history museum for public enjoyment and for profiting from renting out Shakesides, even though there hasn’t been an independent accounting of those funds and not all of the rent money has been returned to the trust, according to the Mack Laing Heritage Society.
Kirkpatrick has not responded to an email request asking her to explain the differences in the two cases.
She did, however, request a nearly five-month delay for the Supreme Court trial that will determine the fate of Shakesides. Kirkpatrick requested the delay in early May, well before filing the lawsuit against West Vancouver.
At the time, members of the Mack Laing society said they hoped the delay meant the Attorney General’s office was less certain about the merits of the town’s application to alter the trust and that it had new concerns about how Comox councils and staff have mishandled Laing’s gifts to the community.
Now they hope the West Vancouver lawsuit signals a change in direction at the AG’s office over municipal applications to vary citizen trusts. It is part of the Attorney General’s mandate to provide oversight of charitable purpose trusts.
No court date to hear the Shakesides case has been scheduled.
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George Le Masurier photo
There’s a classic ironic saying — “We’re from the government, and we’re here to help you” — that seems to describe the Town of Comox’s aloof and often confrontational attitude toward some of its constituency. It’s a peculiar mindset that the town has developed in recent times.
There’s no better example than the story of Ken McDonald and Golf Creek, which Decafnation first reported back in January when it was a simple Small Claims Court case. This week, we broke the news on Tuesday that a civil court judge granted an escalation of the law to the BC Supreme Court and multiplied the amount of damages tenfold.
Read the full story here, and the original story here
The town could have settled this matter for $25,000 or less three years ago just by taking a helpful and sympathetic approach to a resident’s problem. But instead of trying to assist this taxpayer, the town basically told him to buzz off, and then actually added to his financial burden by paying high-priced lawyers to fight him in court.
By the time this case is resolved, the town will have spent tens of thousands more of taxpayers’ money than if they had empathy for one of their own citizens and helped him out. And the bill will grow to hundreds of thousands more if the town loses the case.
The good news out of this example of the town’s pitiful proclivity for bullying people is that this citizen has the means to fight back. And because of McDonald’s refusal to just let it go, some of the town’s other sins have come to light: flushing toxic stormwater into the harbor, repeatedly ignoring warnings from more than one professional consultant, failing to monitor water quality in the creeks it abuses and more.
It’s hard to ignore the irony of Comox hosting a week-long seafood festival that starts today, knowing that the town bears a huge responsibility for the pollution of Comox Bay that has killed aquatic life and closes the area to shellfish harvesting.
Comox is also embroiled in another legal case that could also cost its taxpayers hundreds of thousands of dollars, this one over the mishandling of the Mack Laing Trust and the fate of his heritage home, Shakesides. Instead of sitting down face-to-face and working out a solution, the town again has taken a confrontational approach, spending large amounts of money on lawyers to prevent Mack Laing’s supporters from having a voice in court.
There are good examples of local governments — in Cumberland and Courtenay — that when faced with citizen-based problems, municipal staff and elected officials actually try to resolve them in a win-win manner, rather than attempt to beat a citizen into submission. But Comox is apparently not that kind of town.
One of the frustrating aspects of the Town of Comox’s current legal battles is that elected officials refuse to talk about them. Mayor Russ Arnott is famous for hiding behind the words, “It’s before the courts, so I can’t talk about it.”
Literally, that’s not true. Elected officials have the freedom to talk about court cases, and defendants and prosecutors do it all the time. There is no law against this.
What Arnott really means is that he’s afraid to say something that could hurt the town’s legal case.
Municipal insurance companies have a big thumb on freedom of speech. So instead of transparency, we usually get silence based on a fear of liability.
Here’s some good news: the City of Courtenay has received $227,655 from the provincial BikeBC program to expand its cycling network on both sides of the river. The grant amounts to about half of the cost of projects on Fitzgerald Avenue and the Hobson Neighborhood.
Courtenay is really pushing toward a cycle-friendly community.
For its next step, we humbly suggest some kind of infrastructure — overpasses?, physically separated lanes? — that would allow students of Vanier and Isfeld secondary schools to cycle more safety from their homes on the west side of the river.
There is an excellent recent story in the online publication, The Narwhal, about how clearcut logging is driving a water crisis in some interior communities.
While the story focuses on the Okanagan region, there’s a similar story about logging in the Comox Lake Watershed, the drinking water source for most Comox Valley residents. And the results of this practice are similar.
Due to upstream logging, large quantities of sediment flow into Peachland Creek and eventually wash into Okanagan Lake. That has forced the town of Peachland to spend $24 million on a new water treatment plant to filter out the fine sediments, disinfect it with chlorine and ultraviolet light.
Sound familiar? That’s exactly what’s happening in the Comox Lake Watershed. Because the BC government allows logging in the watershed, sediment flows into all the little creeks and streams, and into the bigger rivers, such as the Cruikshank, causing turbidity.
The Comox Valley’s $110 million price tag for water treatment is more than four times higher than Peachland’s.
Why doesn’t the province only permit selective logging in watersheds? Why does the province prioritize logging over drinking water? And one wonders how much of the watershed the Comox Valley could have purchased for the cost of its water treatment plant.
A little hypocrisy surfaces at the Courtenay-Comox Sewage Commission. Where’s the bike racks? Unplug the stoplight. Cumberland leads again. And, some fine journalism from the National Post
The Week: Today’s parents cope with new dangers for their children, where’s the new zoning bylaw? and, you aren’t elected until I say you are
The Week: Courtenay Councillor whimpers about taxes, but Comox has a higher increase; there’s a climate emergency but the Valley is slow on the draw
It’s reasonable to compensate rural areas for hosting city infrastructure, especially when it stinks. Notre Dame vs. Old Growth Trees. And, looking at the big picture of the Comox Lake Watershed
Good morning, it’s a great day in the Comox Valley. Let’s praise the Comox Strathcona Regional Hospital Board for finally standing up to Island Health’s steady march toward privatization of health care
Good morning. We’re writing about the tragic backstory of a water valve, the state of happiness in Comox, new (and thankfully) long-term sewerage plans and the strength of women like Jody Wilson-Raybould speaking truth to power
Comox Mayor Russ Arnott casts lone vote against out of court conversations to settle dispute over the Mack Laing Trust. But the town must apologize for its historic wrongdoing.
The Comox Valley has housing affordability issues, but a recent study sensationalizing our problems by an obscure website is so seriously flawed that it amounts to nonsense
It's hard to see the forest for the trees sometimes / George Le Masurier photo By George Le Masurier he silence of Comox Town Council members for the plight of Mariner apartment dwellers is deafening. A...
You do the math: Did we get 151 “new” long-term care beds, or 130, or just 60? Who wanted a bridge at 29th Street anyway. And, what is Rod Nichol up to?
One of the few remaining daylight sections of Golf Creek at the Comox Golf Course / George Le Masurier
What started as a simple request three years ago for the Town of Comox to help defray a homeowner’s expense to remediate a creek bank has since uncovered a litany of town-related problems and, as of last week, turned into a BC Supreme Court case valued at nearly a quarter-million dollars.
As reported by Decafnation in January, Norine and Ken McDonald launched a BC Small Claims Court action in June of 2016 to recover some of the $30,000 they spent to shore up a portion of Golf Creek that flows through their Jane Place property.
They took the legal action after discovering the erosion was caused by excessive municipal stormwater flowing into the creek, and because the town refused to take responsibility for the damage.
For three years, the McDonalds and the Town of Comox have been locked in a legal battle to settle the matter. The McDonalds have requested meetings to negotiate a resolution, and have been turned down. The town has responded by trying to have the case dismissed, and were denied in court.
FURTHER READING: Stormwater: it’s killing our water
But in the process of preparing their case against the town, the McDonalds have learned that Golf Creek is not only plagued by high volumes of stormwater flowing into the creek, but that the water is highly polluted with heavy metals and fecal coliform counts up to 230 times higher than the provincial water quality standards. E Coli counts have exceeded provincial maximums by 500 percent.
For the McDonalds, the toxic water in their backyard created a new financial problem.
According to section 5-13 of the rules of the Real Estate Council of BC (enforced under the BC Real Estate Act), a homeowner must disclose a material latent defect that renders the property “dangerous or potentially dangerous to the occupants” or “a defect that would involve great expense to remedy.”
“Now that we are aware of the pollution problem, we are obligated to disclose that problem to any prospective future buyer as well,” Ken McDonald told Decafnation. “That disclosure will certainly impact property value.”
So the McDonalds recently asked the court to amend the compensation they are seeking to nearly $250,000, the value of the portion of their property affected by the Creek (about 29 percent), and to move their case to the BC Supreme Court.
On Friday, May 31, Civil Court Judge Hutcheson granted the McDonald’s request.
This ruling escalates the financial risk for Town of Comox taxpayers.
In a letter to the town and to the attention of Mayor Russ Arnott, the McDonalds lawyer wrote that “… other property owners and occupants in the Town of Comox may have suffered similar damages, and are considering the potential for a class action lawsuit to hold the town accountable….”
McDonald also believes the case might have province-wide significance for other property owners near urban streams.
The McDonalds’ house at the end of the Jane Place cul de sac was originally built by John and Christine Robertsen in 1991. The Robertsens commissioned BBT Hardy Engineering to do a geotechnical study to determine the feasibility of building on property that included the Golf Creek ravine, and were issued a building permit and final occupancy permit by the town even though no erosion control measures were undertaken, as recommended in the study.
In 1992, the town commissioned a study by KPA Engineering that recommended four erosion control options — including a detention pond on the Comox Golf Course — to protect properties along Golf Creek. None were implemented, according to documents supplied by Ken McDonald.
Ken McDonald stands in front of his $30,000 geotextile wall to prevent further erosion from Golf Creek. The Town of Comox’s refusal to help him pay for the remediation has turned into a nearly $250,000 BC Supreme Court lawsuit
Seven years later, a 1999 a KPA Engineering study gave Golf Creek the highest environmental sensitivity rating in their investigation and recommended remedial action and water quality monitoring. Neither were implemented, accord to McDonald’s documents.
From 1991 to 2005, Town of Comox population grew by 70 percent, increasing stormwater flows into Golf Creek.
In 2005, the Robertsens communicated concerns about increased erosion of their property, and the town denied responsibility. The Robertsens then paid for a second geotechnical study — this one by Lewkowich Engineering — that repeated the need for “some preventative measures.” None were implemented.
A 2013 assessment by McElhanney Engineering raised concerns about increased stormwater volumes and recommended the town “mitigate the impacts of discharging stormwater into sensitive receiving environments.” The town did not implement the recommendations in the McElhanney report, according to McDonald.
When the Robertsens decided to sell their house in 2014, they commissioned a third geotechnical study, which reaffirmed the need for creek bank remediation.
After purchasing the house, the McDonalds hired a contractor to do the creek bank remediation, and were told by the town that erosion damage was entirely their own responsibility.
McDonald says he did not realize Golf Creek was no longer a natural waterway until June 2016 when a downstream neighbor mentioned his erosion problems and the old engineering reports indicating the creek was a key component of the town’s stormwater management system. The neighbor told McDonald that the town had installed a five meter-long rock wall along his creek bank.
So the McDonalds started a BC Small Claims Court action to recover some of the cost of remediating their own section of the creek.
Two years into that legal action, McDonald had the water quality in the creek tested. The test results showed fecal coliform levels nearing that of raw sewage and concentrations of heavy metals, including mercury, that exceeded provincial guidelines.
In many cases, the level of contaminants exceeded government guidelines by more than 1,000 percent.
Last month, McDonald had the creek’s water retested. While the fecal coliform tested down to 150 times provincial standards, the results showed the more dangerous E Coli levels at 2,000 Fecal Coliform Units per 100 ml. BC and Health Canada guidelines put the maximum safe level for human recreational contact with E Coli in a single sample at 400 FCU/100 ml.
E Coli in Golf Creek registered 500 percent over the BC maximum.
McDonald said the provincial environment ministry has also recently tested the creek’s water, but has not yet released their results.
McDonald says that litigation is not his preferred approach to resolving the issue, but that repeated attempts to meet with town staff and the mayor and council have been rebuffed by the town.
Prior to last fall’s municipal election, McDonald filed an application to the court requesting postponement of a trial date so that he could present his case to the new mayor and council. The town opposed the postponement, but it was granted. No meeting has taken place.
In October, before the election, McDonald asked candidate Russ Arnott if council would entertain a meeting. Arnott declined in an email message.
“I did bring it up with Richard (Kanigan, the town’s Chief Administrative Officer) and was advised it was in the hands of their insurance people and that it best not to engage at this particular time,” Arnott replied to McDonald via email.
McDonald said two subsequent informal encounters with Arnott met with the same response.
The McDonalds are now in the process of preparing their case for the Supreme Court.
“Our object is to solve a major environmental problem that has destroyed the fresh water streams in Comox and is contaminating our marine environment,” McDonald told Decafnation. “There are practical solutions to the problem. What is needed is an administration and a council that acknowledges that there is a problem and is willing to change their stormwater management practices.”
Decafnation briefed Comox Mayor Russ Arnott and CAO Richard Kanigan on the content of this story prior to publication, but neither responded to an invitation to comment or provide additional information.
FECAL COLIFORM — Microscopic organisms that live in the intestines of warm-blooded animals. They also live in the waste material, or feces, excreted from the intestinal tract. Although not necessarily agents of disease, fecal coliform bacteria may indicate the presence of disease-carrying organisms, which live in the same environment as the fecal coliform bacteria. Swimming in waters with high levels of fecal coliform bacteria increases the chance of developing illness (fever, nausea or stomach cramps) from pathogens entering the body through the mouth, nose, ears, or cuts in the skin. Diseases and illnesses that can be contracted in water with high fecal coliform counts include typhoid fever, hepatitis, gastroenteritis, dysentery and ear infections. Read more here and here
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File photo of Shakesides / George Le Masurier photo
In a surprising new development, the BC Attorney General has requested a delay in the Supreme Court trial that will determine the fate of Shakesides, the heritage home of Comox pioneer Hamilton Mack Laing.
The Town of Comox had hoped to get its petition to alter Laing’s Trust and tear down his house before the court during its June session. The new delay means the case likely won’t be heard until October.
The town has already requested two three-month delays. The first came after the 2018 municipal election and pushed any possible court date to after Feb. 6, 2019. Then, Town Council asked for another three-month “abeyance,” which expires May 22.
Now, the Attorney General’s office is asking for a further delay of about five months.
A letter to the town and the Mack Laing Heritage Society, which is an opposing party to the case, announced the delay, but gave no specific reason or purpose for it.
Members of the Laing society hope it means the Attorney General’s office is less certain about the merits of the town’s application to alter the trust, and have new concerns about how Comox councils and staff have mishandled Laing’s gifts to the community.
It’s also not known what role the K’omoks First Nations intends to play in this controversy, which has pitted the town against voices for heritage preservation, moral obligation and civil law issues surrounding how local governments should handle citizen’s endowments.
Last month, K’omoks Chief Nicole Rempel expressed her disappointment that the Town Council had made plans for the Shakesides site, which is traditional and sacred land for First Nation’s people, “without prior consultation.” Rempel asked for a halt to all planning and other work until “meaningful consultation has taken place.”
But the town proceeded to refine its plan to replace the house with a viewing platform, which it finally approved this week.
According to the new deadlines for the Supreme Court trial, the heritage society has until Aug. 7 to submit any final documents into evidence. They have already submitted more than 500 pages of affidavits and other documents.
The town and the Attorney General then have until Sept. 4 to respond to those documents.
Another issue that might be weighing on the Attorney General’s office is how a judgement in the Shakesides case could affect other municipalities and other charitable purpose trusts across the province.
Have other municipalities mishandled trusts? How has the Attorney General’s office dealt with those issues, if they were aware of them? How widespread is the altering of trusts freely agreed to by generous citizens and local governments?
Because there is no provincial registry of charitable purpose trusts, the Attorney General’s office may not have known about the Laing Trust until the town petitioned to alter it, some 35 years later.
It is part of the Attorney General’s mandate to provide oversight of such trusts.
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Shakesides
Comox Town Council voted 5-2 this week to continue designing a viewing platform to replace naturalist Mack Laing’s heritage home, rejecting any other proposals for the property, as it prepares to head back to the BC Supreme Court.
The town has petitioned the court to alter the 37-year old trust left by one of the community’s pioneers, even though it has done nothing over nearly four decades to live up to the terms of the trust.
The recent vote at this week’s regular council meeting was on a motion by Councillor Ken Grant to proceed with one of three options presented to council by Chief Administrative Officer Richard Kanigan.
The option referred to in Grant’s motion was to send comment sheets from the March 27 public workshop back to the designers of the viewing platform and to request a redesign. It was amended to include input from K’omoks First Nation and the Mack Laing Heritage Society.
The other two options were to approve the original concept and, lastly, to “consider a completely different proposal as decided by council.”
By rejecting the last option, Town Council has effectively abandoned any thoughts of saving Shakesides, and will eventually pursue its original petition to the court with a slightly different platform design.
Councillors Nicole Minions and Stephanie McGowan cast the only two votes opposing the motion.
“Councillor McGowan and I voted against moving forward with the platform as we want to explore options around Shakesides,” Minions told Decafnation via email after the meeting.
Councillor Alex Bissinger, who voted with the majority to approve the motion, said her understanding of the vote was “that it will be up to the AG (Attorney General’s office) to decide whether or not saving Shakesides is in the books.”
All three councillors — Minions, McGowan and Bissinger — voiced their frustration with the public workshop process, which they felt was unfairly manipulated in favor of a viewing platform. Mayor Russ Arnott did not present workshop participants with any option other than a viewing platform.
The Mack Laing Heritage Society wanted workshop participants to consider its proposal for saving Shakesides as a community volunteer project, but town staff, with the Arnott’s support, denied the MLHS workshop participation as well as a later request to host a table outside of the workshop meeting room.
The three councillors also refuted Arnott’s characterization of a March 6 council decision as affirming that saving Shakesides was no longer an option.
The three councillors said they did not vote at that meeting to demolish Shakesides, only that whether the house was saved or not, some details of the trust couldn’t be honored and needed court approval to forego them.
Arnott became combative as each councillor spoke in turn, often interrupting each speaker. He interrupted Councillor Minions often, once to admonish her for saying council voted on Feb. 6 to put the matter into abeyance for three months.
Arnott said the abeyance wasn’t for three months, rather for “up to three months.” Yet, he did not bother to correct CAO Kanigan’s report, which they were discussing at the time, that also stated “the three month abeyance ….”
Under normal codes of conduct, only one councillor or director of a municipal government has the floor at any one time, and other councillors or directors show respect by refraining from interrupting or calling out comments during that time.
Arnott appeared to be debating each of the three women as they voiced their concerns.
The day after the Town Council meeting, Arnott reached out via email to MLHS President Kris Nielsen to invite him or another representative of the society to participate in last-minute design changes to the platform.
Nielsen declined the offer because he said spending time on the design of a viewing platform was premature, referring to possible outcomes of the now inevitable Supreme Court trial that might deny the town’s petition.
“So for me to entertain some speculative designs/problems is just not in the cards,” Nielsen wrote to Arnott. “I could point out the image of the cart way out in front of the horse picture, but I will refrain from that.”
The town’s petition was first heard by a Supreme Court Justice last April.
A court ruling on the town’s petition could have been made nearly a year ago, but the three Supreme Court dates held so far have been consumed with attempts by the town to deny the MLHS an ability to present its evidence to the court.
The town eventually lost that battle and the upcoming trial will hear evidence from the town and the Attorney General’s office, as well as the Mack Laing Heritage Society.
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Electoral Area C respondents’ comments in Decafnation’s Local Government Performance Review