Wednesday, February 16, 2011
Just goes to show you perspective is everything. Yesterday I wrote about Ontario Superior Court Master Calum MacLeod's decision on three pre-hearing motions related to the Lansdowne Legal Challenge. The group fighting the redevelopment, Friends of Lansdowne, hailed the ruling as a victory. City clerk and solicitor Rick O'Connor takes a somewhat different view. Here's his memo to the mayor and councillors, sent today:
Sent on behalf of M. Rick O'Connor, City Clerk and Solicitor:
The purpose of this memo is to clarify the outcome of the procedural ruling issued by the Court late on Monday, February 14, 2011, in the Friends of Lansdowne Inc. ("Applicants") litigation against the City of Ottawa.
For the reasons set out below, the Court ruling was actually very favourable for the City and confirmed that the City's actions to date in the litigation have been reasonable and appropriate.
Briefly, in this latest procedural motion before the Court, the Applicants sought the following:
(1) the production of a large number of documents that would have taken six months and cost over $500,000.00 for the City to produce;
(2) immunity from any costs order for the individual Applicants; and
(3) to file two expert affidavits which the City claimed were filed contrary to the Court's earlier case management order.
In response to these requests, the Court, in its latest procedural ruling, ordered the City to produce only a small group of the requested documents, which should be able to be done in a reasonable timeframe for relatively little cost to the City. Second, in response to an offer which had been made publicly by the City in December 2010, the individual Applicants accepted the City's offer to let them remove their names as Applicants in the litigation without cost consequences. Third, the Court agreed with the City that the two expert affidavits were not filed in accordance with the earlier Court Order but allowed them to be filed with the proviso that the City would be able to file additional evidence responding to these affidavits. Lastly, the Court commented on the ultimate issue in the litigation and the burden of proof that the applicants will have to satisfy as follows:
"It is important to understand the small piece of this large public debate that is now before the court. The applicant, Friends of Lansdowne Inc., seeks to overturn the decision on the basis that it is "illegal". Section 273(1) of the Municipal Act provides that the superior court may quash a by-law of the municipality in whole or in part for "illegality". This cannot involve the court in sweeping policy debates about the future of Lansdowne Park.
It is not necessary that the plan be perfect or results guaranteed. The court is not to second guess the wisdom of city council. It is surely not enough to render a by-law illegal or convert a plan into a bonus if it could work out badly or less well than hoped. No plan based on assumptions about future revenue or expenses can be ironclad."
I trust that the above is helpful in clarifying the practical outcome of the recent procedural ruling by the Court which is attached for convenience.