File photo of Shakesides / George Le Masurier photo
AG delays Shakesides court date by nearly five months
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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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Council vote sends Mack Laing Trust issue back to court
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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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Town creates confusion, rift over Mack Laing process
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Rather than create a period of community reconciliation over the 37-year mishandling of the Mack Laing Trust, the Town of Comox has used its self-imposed 90-day abeyance of legal action to ignore opposing visions for the famed naturalist’s park and heritage home.
In doing so, the town has also created a rift within the Town Council.
It now appears that, despite the expectations of the public and some council members, the Town of Comox never intended to discuss options for saving the famous naturalist’s home, called Shakesides, during the abeyance.
Since the Feb. 6 Town Council meeting when the abeyance was passed on a 6-1 vote, the town has not entertained any ideas other than its original plan to demolish the house and erect a viewing platform.
The town has not held any good faith discussions with the Mack Laing Heritage Society to search for mutually agreeable ideas that could avert a lengthy and costly trial at the B.C. Supreme Court. Nor has it called for an external, independent audit to determine an accurate accounting of the trust’s current value.
This approach appears to be driven primarily by Mayor Russ Arnott, who cast the only vote against creating the 90-day abeyance.
In public communications, the office of Arnott and town Chief Administrative Officer Richard Kanigan has suggested that because council voted on March 6 to continue “with the modification of the trust in its current format or a modified proposal,” that, therefore, saving Shakesides is no longer an option.
Arnott reinforced that interpretation at last week’s Committee of the Whole meeting and public engagement workshop on visions for Mack Laing Park. Arnott was asked by a Comox resident why the workshop was limited to considering only a single vision — the viewing platform.
“Council voted for modifying the trust. We’re moving forward, not going backwards,” Arnott said.
But not all council members agree with Arnott’s interpretation.
“Speaking for myself, that is not what I voted in support of,” Councillor Alex Bissinger said in an email response to Decafnation.
“My intent with that motion was from the understanding that anything that defers from 1. restoring the house and converting it to a nature museum 2. having an onsite caretaker 3. having the property in that exact location and 4. storing (Mack Laing) artifacts in said museum, would require modifications to the trust, therefore needing to proceed with the court action,” she said.
Bissinger brought the motion forward to council.
“I am still of the opinion and mindset that saving Shakesides is an option, and from the workshop held last week an interesting option came to light, which was to handle it all as a community project. I have emailed the CAO and Council such that this option be discussed in our RCM (regular council meeting) Wednesday,” she said.
Councillor Stephanie has a similar perspective.
“Due to the specifics of the trust, I believe it is going to have to be modified in some way as I don’t believe archives and certain things are feasible and safe to keep on site without risk of damage. However, this vote, in my mind, did not mean Shakesides being restored was not an option,” she said in an email response.
“There seems to be some confusion, however, and as a team, (we) will need to clarify, both with each other and the public,” McGowan said.
Councillor Nicole Minions declined to comment, but did say, “We will be discussing Mack Laing and the Public Session during our upcoming Regular Council meeting this Wednesday, April 3rd, which will open communication of our Council business in the public.”
Arnott did not respond to a request to comment for this story.
What is the value of Laing’s trust?
The exact current value of the financial trust Mack Laing left to the Town of Comox has never been conclusively determined by an external audit.
The town claims Laing left $48,000, an amount disputed by by the Mack Laing Heritage Society. They say the amount was about $60,000.
After the town confessed to spending trust money inappropriately since the world-renowned naturalist died in 1982, they added funds that brought the total to $261,474. But according to an independent audit commissioned by Comox resident Gordon Olsen several years ago, the trust should be valued closer to $500,000.
The discrepancies stem from how the money was invested, the revenue received from renting the house for more than 30 years, missing funds from the sale of Laing artwork and donations to a never established Art Trust, unrecognized inappropriate expenditures and other miscellaneous items.
Only an external audit by an external accounting firm, such as Deloitte or KPMG, could bring closure to that issue.
Is the building worth saving?
Those who support tearing down Shakesides and replacing it with a viewing stand believe the building is not worth restoring. The Mack Laing society disagrees.
At last week’s public workshop, Comox Resident John Tayless noted there was an assumption being made at the meeting that Shakesides could not be saved.
“But other engineers say it can and that the building is recoverable,” he said.
Asked how the town determined the building wasn’t restorable, Comox Parks Manager Al Fraser said a “cursory report” was done, but he admitted it was “not comprehensive.” Fraser preferred to call the report a “soft pass.”
“Let’s say there’s still considerable work to be done in that regard,” Fraser told the audience.
And later when MLHS President Kris Nielsen asked if the town had commissioned any professional assessments of the heritage value of Shakesides, Fraser said, “no.”
The Mack Laing society has organized more than two dozen community volunteers from the construction industry and created a business plan for restoring Shakesides as a community project.
Comox Heritage Register
Councillor Stephanie McGowan gave notice of a motion expected at this week’s council meeting to establish a Comox Heritage Register. Comox is the only municipality in the Mid- and North Island that doesn’t already have a heritage register.
Registering buildings with heritage value opens up a broad range of potential funding for maintenance and capital improvements. Heritage sites like the Filberg Lodge and The Little Red Church could benefit.
The Mack Laing Heritage Society has already paid a provincial heritage consultant to complete a Statement of Significance for Shakesides and Heritage BC has promised substantial grant funding for its restoration.
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 also offered its assistance, at no charge, to the Town of Comox, for the duration of the process to repurpose Shakesides, and has all but guaranteed a provincial grant through the Heritage Legacy Fund Heritage Conservation program.
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The Mack Laing Heritage Society this morning issued an open letter to the Town of Comox mayor and council. Here is their letter:
We, the Mack Laing Heritage Society of the Comox Valley (MLHS), wish to take this opportunity to thank Comox Council. Their decision to postpone any decision related to the Mack Laing Shakesides house Trust property, for three months, is to be commended.
We are encouraged that Comox appears willing to discuss their duties and obligations, as trustees of the Mack Laing Trust. We fully support an open, public, and transparent discussion between the MLHS, Council, and others.
Expert and accurate estimates of time, materials and cost should be sought regarding the conversion of Shakesides into a nature museum/house, as outlined in Mack Laing’s Will and Trust. The MLHS has found many interested local companies and individuals willing to support and assist in all aspects of this project. There are undoubtedly many more who would come forward, if a true community project is approved by Council. Cost to the taxpayer could therefore be minimal.
The MLHS will shortly issue a public position paper. We have always stated that close adherence to the terms of Mack Laing’s Will and Trust is necessary for the success of a modest nature house or museum. Therefore, we support a community-funded and supported Shakesides facility.
Soon, Shakesides could realistically become what Mack Laing intended on his death in 1982 – a small public education facility in the quiet nature park he loved, and which he donated to the citizens of Comox.
The Mack Laing Heritage Society can be contacted at macklaingsociety@gmail.com
Comox by-election candidate Steve Blacklock says the solution for making housing more affordable is to increase the supply. Comox needs more houses, quicker. He also advocates for smaller lot sizes and smaller houses to increase density.
A Town of Comox infrastructure failure could have spilled raw sewage into Brooklyn Creek for a long time, according to nearby residents who have noticed unusual plant growth and sewage-type odours for nearly 24 months. Mayor and councilors say they didn’t know about it
A broken pipe has spilled raw sewage into Brooklyn Creek and it appears that efforts to mitigate the damage have created a high level of turbidity, a double whammy for fish as well as a potential public health concern. But the Town of Comox has not yet formally informed the public.
The Cannabis Innovation Centre in Comox, founded by Vanier grad Jon Page and now called Aurora Coast, has produced its first new strains of cannabis and will release them to consumers later this month
The Campbell River Environmental Committee has kept North Island residents aware of environmental risks and promoted awareness of potential concerns to help government and industry make informed decisions
Millions of people concerned about our planet launched Earth Day 51 years ago when environmentalism was about a cleaner world, not the matter of human survival that it is today. But has anything really changed? For Decafnation, Earth Day 2021 marks the start of a new direction.
Premier John Horgan should keep his promise to implement the recommendation of the Old-Growth Review Panel and place a moratorium on logging old-growth trees in British Columbia, say participants in the BC Forest March
Comox must apologize for breaches of Mack Laing Trust
By
Thanks to four brave new councillors, there is an opportunity to draw to a close the Town of Comox’s long history of breaching the trust of Hamilton Mack Laing and misappropriating the funds the famous naturalist left in his Last Will for the community that he loved.
Comox Town Council voted against Mayor Russ Arnott this week and set aside court proceedings to modify Mack Laing’s trust “for up to three months so that council may have discussions with all interested parties.”
Arnott cast the lone vote against the motion, contradicting statements he made during the fall municipal election campaign promising to settle this matter out of court. But new councillors Alex Bissinger, Patrick McKenna, Nicole Minions and Stephanie McGowan all spoke in favor of giving out of court discussions a chance.
Once it was clear the vote for negotiation would win, councillors Ken Grant and Maureen Swift got on board, despite voting for the court action during their previous terms.
That left Arnott alone in wanting to proceed toward an expensive court trial.
The Mack Laing Heritage Society has garnered broad community support for restoring Shakesides as a unifying and heritage-based town project. Some of those supporters believe the town will lose in court, at a minimum being ordered to submit to a forensic audit of the financial matters and forced into mediation.
The vote also put Arnott at odds with the new majority of councillors, who had campaigned for a negotiated settlement out of court.
But the question facing council is how to stop bleeding money on legal expenses — estimated by one observer to have neared or topped $100,000 — with a plan that satisfies the Laing society and is financially sustainable.
Finding that way forward won’t be easy, and yet that’s the task to accomplish in the next 90 days.
But nothing good will happen if council appoints another flawed advisory committee like former mayor Paul Ives did several years ago. That group failed to follow its own terms of reference. The outcome was so incomplete that two members of the committee wrote opposing minority reports.
And that’s why Arnott’s lone vote against at least trying to negotiate a win-win resolution is disappointing. The mayor is obviously entrenched in his position. He has now stated so for the record.
How is that going to help facilitate any open-minded and meaningful conversations over the next three months? At least returning councillors Grant and Swift had the decency to support an opportunity for positive discussions.
Here’s the problem.
Laing left money and his property to the town in a trust that specified the gifts be used to create a publicly accessible natural history museum at his home, called Shakesides.
If the CVLT had existed in 1982, they would have had legal power via a covenant to compel the Town of Comox to keep up its end of the bargain. Mack Laing deserves the same respect as Father Charles Brandt
But now, 37 years after Laing’s death in February of 1982, the town has done nothing to fulfill Laing’s wishes, even though they accepted the terms of the trust when they took his money and property. Over a year ago, the town admitted that it spent Laing’s money inappropriately for years, but only because the Mack Laing Heritage Society had amassed a mountain of evidence detailing the town’s mishandling.
Undaunted, the previous Town Council applied to the BC Supreme Court to tear down Shakesides and spend Laing’s money elsewhere. But the outcome of court actions are always uncertain. And, based on the comments of two Justices so far, the court believes the Laing society has an important case to make.
To prevent further dividing the community, the town needs to make a formal and public apology of its historic wrongdoings. Why? Answer: Because this is a moral issue.
If the town had no intention of abiding the terms of Laing’s trust, it should never have accepted the money and property. But once it did, the town had a moral obligation to follow through. And if the town can behave fast and loose with Laing’s money, what reasonable person would leave the town any gift in the future?
Comox has, so far, proven itself untrustworthy.
The Comox Valley Land Trust, and other similar conservancy organizations, were created to address this exact problem. And the CVLT is currently creating security for the wishes of Father Charles Brandt, who plans to leave his house and property on the Oyster River for a regional district public park.
If the CVLT had existed in 1982, they would have had legal power via a covenant to compel the Town of Comox to keep up its end of the bargain. Mack Laing deserves the same respect as Father Charles.
Can you imagine if the Comox Valley Regional District someday tries to alter the terms of the Father Charles covenant? The public outcry would be overwhelming. There should be no less of a voice in protest against the Town of Comox, if it follows Mayor Arnott’s example and pushes this case through the courts.
Everyone in the Comox Valley who values heritage, and honorable actions by locally-elected governments, should support a negotiated settlement.
That doesn’t mean the solution is simple. But it is possible if everyone comes to the table with an open mind and good intentions.
Mayor Arnott was asked for comment for this opinion article at 3:45 pm PST, but had not responded by 8:35 PST when it was posted.
WHO WAS HAMILTON MACK LAING?
Hamilton Mack Laing was an important Canadian naturalist, photographer and writer. He 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. He bequeathed the waterfront property to the Town of Comox and it became Mack Laing Nature Park
— excerpted from content on the Mack Laing Heritage Society‘s website
Comox by-election candidate Steve Blacklock says the solution for making housing more affordable is to increase the supply. Comox needs more houses, quicker. He also advocates for smaller lot sizes and smaller houses to increase density.
A Town of Comox infrastructure failure could have spilled raw sewage into Brooklyn Creek for a long time, according to nearby residents who have noticed unusual plant growth and sewage-type odours for nearly 24 months. Mayor and councilors say they didn’t know about it
A broken pipe has spilled raw sewage into Brooklyn Creek and it appears that efforts to mitigate the damage have created a high level of turbidity, a double whammy for fish as well as a potential public health concern. But the Town of Comox has not yet formally informed the public.
The Cannabis Innovation Centre in Comox, founded by Vanier grad Jon Page and now called Aurora Coast, has produced its first new strains of cannabis and will release them to consumers later this month
The Campbell River Environmental Committee has kept North Island residents aware of environmental risks and promoted awareness of potential concerns to help government and industry make informed decisions
Millions of people concerned about our planet launched Earth Day 51 years ago when environmentalism was about a cleaner world, not the matter of human survival that it is today. But has anything really changed? For Decafnation, Earth Day 2021 marks the start of a new direction.
Premier John Horgan should keep his promise to implement the recommendation of the Old-Growth Review Panel and place a moratorium on logging old-growth trees in British Columbia, say participants in the BC Forest March
