Metcalfe Realty and the City of Ottawa had a first court date about the treecutting in Kanata North on July 17. The day before, Councillor El-Chantiry had forwarded an email from staff providing background and factual perspective. At Provincial Court, the parties were represented by Messrs. Michael Polowin for Metcalfe and Stuart Huxley, a senior legal counsel at the City. The case was put over to September 18.
Mr. Polowin predicted that his client would plead not guilty if the case proceeds, arguing that the contractor was under explicit instruction not to cut any trees that were larger than 10 cm in diameter. The Justice of the Peace denied his request for an Order that the City immediately disclose the facts supporting the charge, saying she is confident that the City will do so as soon as possible.
Here is a report in the Ottawa Citizen by Carys Mills published the following day.
E.D. 22 July 2014
At its meeting of 13 April 2011, Council asked Legal Services to review the policy on seeking costs from public interest litigants that was adopted in February 2009. The direction to staff was: "That the City Solicitor review the policy on seeking cost awards as it relates to various cases, including the Friends of Lansdowne litigation, and provide Council with available options." A report came to the Finance and Economic Development Committee (FEDCO) on 6 September, recommending that the 2009 policy be repealed.
The Policy as adopted in 2009 ended up being:
The staff report is here. FEDCO spent nearly 2 hours on this item. Listen to the seven public delegations (all arguing against repeal of the policy) and Councillors' debate here (the item starts at mark 6:41). Then on 14 September Council spent another good half hour on the matter. (The Federation of Citizens' Associations intervened prior to the Council meeting but that is nowhere discernible on the record; here is their letter.) You can see the video of the Council debate here (the item starts at 32:25). At Committee the vote was 10 to 1, with only Councillor Deans objecting. At Council, the vote was 21 to 3, with only Councillors Deans, Holmes and Chernushenko dissenting. (Excerpts of the written Minutes are here. )
Listening to the tape and watching the video, it is amazing how unfocussed and ill-informed the debates often were, including whether this was or was not "all about Lansdowne." (The debate took place after the Friends of Lansdowne's defeat at Superior Court and just after they applied for Leave to appeal; the City claimed to have incurred $1.25 million in litigation cost so far.) A staff report that was not always factual and to the point -- as some intervenors did not hesitate to point out -- did not help. (No costs would be asked for the Lansdowne litigation to date but if the 2009 policy is repealed then appeal costs could be claimed.)
The main persuasive point seemed to be that the 2009 policy pre-empts what is dutifully the prerogative of a court to determine: Is it a public interest litigant? is the action vexatious, etc.? and what is an appropriate cost award if any.
Besides fine words about extensive consultation in any given case before asking a court to award costs, the repeal of the policy essentially leaves doing so or not to the discretion of the City's Solicitor.
Few heeded the words of Bob Brocklebank, one of the intervenors (his notes are here), that whether the policy is repealed or not will matter not one whit as far as Council protecting the taxpayer by recovering costs: A community group is typically incorporated and typically has few if any assets. You can't get blood out of a stone.
If it's not about money, what is it about then? As the dissenting Councillors pointed out, the answer is chill -- yet another risk a public interest litigant must run, in addition to incurring its own cost of pursuing the court route.
Instead of making up its own mind on whether a litigant is acting in the public interest (only if it does not would the City ask a court of costs) or is vexatious, frivolous, acting in bad faith or abusing the process (only if it is would the City ask a court for costs), Council policy now is to leave it all to the discretion of the court, leaving the conditions for asking costs to Legal Services. More governance by bureaucracy, not democracy.
E.D. - 20 July 2014
Shortly before the start of the hearings, the Alliance withdrew its participation based on Terms of Settlement which guaranteed that the City would conduct a Natural Linkages Analysis, incorporate any findings in the next round of Official Plan review and amend the methodology for new urban designations by taking account of such linkages.
For a story about what transpired in the subsequent phases of the appeal on urban boundaries -- how it came to be that an original decision by Council to expand the urban area by 230 ha ended up as a 1,104 ha expansion -- please go to an article by Erwin Dreessen in the Jan.-Mar. 2013 issue of Trail and Landscape ("How City bungling ballooned Ottawa’s new urban area to nearly five times the original intent", 1 MB).