June can’t have been a particularly happy month, litigation-wise, for the Town of Rothesay. Among the cases winding their way through the Court system are three involving property owners apparently unable to resolve issues with the Town in a less adversarial way.
In one case, Justice Glennie awarded costs to Mr. Michael Butler of French Village. Butler took the town to Court in order to have the town release a report on flooding on his property. The Butlers’ battle began six years ago when the town refused to make the report, done by an outside adjuster and with the cooperation of Mr. Butler, available after his property was repeatedly flooded. Perhaps coincidentally the flooding began after the town had done some re-grading involving a drainage ditch on the Butler property. The report apparently suggested a cause for the flooding as well as the route to a solution.
After repeated and unsuccessful attempts to obtain the report, Mr. Butler filed a Right to information request in January of last year. Town staff also refused his RTI request. His next step was to file a complaint with the Privacy Commissioner who, after a lengthy investigation, recommended that the Town release the report to Mr. Butler as it did not have the legal authority to withhold it.
Incredibly, the town did not respond to the Privacy Commissioner’s report and continued to withhold its own report from Mr. Butler. So at the end of his options, Butler went to Court this spring seeking the courts help in obtaining the report on his property. The court proceedings spanned April, May, and June of this year. Before this process was concluded, and with mounting legal costs, town staff abruptly released the report to Mr. Butler in late May. The matter didn’t end there, however, as Mr. Butler sought legal costs from the Town and were subsequently awarded in a judgement on June 17th.
Justice Glennie appeared at times to be critical of how this issue had been handled. I attended the June hearing and found his comments pertaining to the actions (or lack of them) of town staff to be quite instructive. In his judgement Justice Glennie refers to statements made in the Rothesay Town Manager’s affidavit stating that while the test of bad faith was not met, “However, it is clear the Town manager was misleading,…”
If the current Rothesay Council is remotely interested in accepting its legal obligations or simply concerned about how it is perceived within the community, it should read Justice Glennie’s judgment and obtain a transcript of proceedings. Clearly there are lessons to be learned from this case and Councillors should become familiar with them. A council that doesn’t take responsibility for the behaviour of its staff will quickly become part of the problem.
A second case involved two Rothesay homeowners. It was reported in Monday’s Telegraph Journal. The MacDermott’s built a fence approximately 14 inches too close to their property line. That is to say they built the fence on their own property, but not far enough inside their property line to satisfy the one metre setback rule of the town of Rothesay. On the face of it, this doesn’t seem to represent the kind of high crime that would warrant tying up the valuable time of a busy court to say nothing of the cost of lawyers and surveyors to make the town’s case. As it turned out, the Town lost this because they took too long to lay charges. Beyond that, the town’s handling of this matter hasn’t been put under the microscope.
Surely there is a better, less confrontational, less costly and more effective way to deal with such a minor dispute especially in Rothesay where, when the Town acts as a developer, it routinely ignores its own bylaws with nary a care in the world! This double standard is breathtakingly hypocritical.
One only has to look at the planning nightmares created by the Commons development that could have been avoided had the town taken their development to the Planning Advisory Committee for review. (As the McDermotts did). If due process had been followed, I believe it would have become obvious that the Common’s Development did not comply with Rothesay’s zoning bylaws.
Another matter that has lawyers busy this month is the Town’s insurer’s appeal of a small claims court finding against the Town of Rothesay for cutting down trees on private property without the permission of the property owner. The Small Claims Court awarded Mr. Mike Lewis the maximum $12,500 in damages that, according to reports, Rothesay’s insurer is appealing. According to the TJ story, now that the legal venue has changed, Mr. Lewis is asking for an additional $8,500 to cover costs. Depending on the Town’s insurance deductible, this may all be at taxpayers expense.
Whether or not the Town of Rothesay is driving the appeal of the Lewis case is less important than the fact that this case exists because a resident had issues with something done by or on behalf of the town of Rothesay. The resident wanted the town held accountable for its actions. We’ll find out how this plays out when it returns to court on July 20th.
What do these three cases say about the way Rothesay manages its relationship with the public it is supposed to serve? To what extent is Council involved before staff take matters down the expensive route of lawyers and courts instead of finding a compromise? Who is responsible to taxpayers for the expenditure of public money when litigation is pursued? Is the Town of Rothesay using its access to seemingly unlimited financial resources as a hammer to prevent public accountability? How can there be accountability when Rothesay doesn’t even report the annual total of what it spends on the many legal skirmishes with citizens? – Many unanswered questions.
The few cases we’ve been following suggest that the Town of Rothesay is clearly not infallible. If the town continues to expose itself in the courts eventually a reputation will emerge. That should be a concern for a Council on whose watch this is happening. A reputation, once established is hard to remake. If Council, as we suspect, is not as involved in these matters as it should be, then it had better get things under control before much more public money is wasted and ill will created.
If it turns out that Rothesay’s default position is to avoid responsibility for its actions by mounting a vigorous and chilling legal defence, then that strategy will not sit well with voters any more than it does now with those who have legitimate issues in need of thoughtful and responsible solution.
As a general rule, the public interest is well served when public servants and politicians take responsibility for their actions. While that should be obvious to most, some have raised the dodging of accountability to an art form. That’s a pity because the prospect of public accountability creates an impetus for better decision making in the first place.
Independent audits, annual performance reviews, public hearing processes, public advisory committees, public Council meetings (When the public is not excluded), appeal tribunals, the court system and the ballot box should all deliver accountability. But they can’t if they are habitually gamed or manipulated.
Accountability is certainly not served by throwing mountains of cash into the legal system. While it might send a message that only those with money should fight city hall, it might also send a signal that a badly run town is a poor place to live and invest.
As we’ve seen with the Rothesay Common fiasco, the town spent eye-watering amounts to defend its actions. In that single planning appeal case, one that was brought by a private citizen, Rothesay spent more than $143,000.00 on legal costs. Citizens of ordinary means are no match for that kind of spending. In the Butler case, the citizen represented himself. Not one single town decision-maker bothered to appear in court to face Mr. Butler. His local government was represented by a very well qualified and experienced lawyer, but not those who should have been accountable. Is this open and transparent Government? It is not.
Rothesay can fix this situation very quickly and in doing so potentially return to a time where disputes could be dealt with more effectively and constructively. Rothesay Council need only follow its own cash. By returning control of spending on legal matters directly to Council, councillors can force accountability on the system and save money by moving the default position from litigation to a more conciliatory environment. Who knows, without the hammer to bludgeon opponents perhaps costly, acrimonious disagreements might be avoided altogether.
Council should look at what other municipalities have done in resolving disputes before the involvement of courts. Perhaps the Mayor’s Committee on Transparency and Openness should have a look at this. Perhaps a discussion with the current bumper crop of resident litigants might be a good starting point. A careful look at Rothesay’s performance under the microscope of the judicial process would also provide an insight that is clearly lacking on Council at present.