37 responses so far ↓

• 1 IanS // Aug 28, 2014 at 9:50 am

  “What is going on?”

  I expect you will receive the usual Rorschach test response to that question. Vision critics will blame it on Vision’s disregard for process and consultation; Vision apologists will blame it on a small group of “NPA hacks”, unwilling to accept Vision’s exercise of its democratically acquired mandate.

  I imagine that the truth lies somewhere in the middle, though I suppose that will be best judged in hindsight, once we see how all the lawsuits play out.

  At least, if one is a lawyer, it’s good for business!

• 2 Morven // Aug 28, 2014 at 9:52 am

  Due Process. Due Process.

  The City, Parks Board, and community centre associations should all know that it you ignore the niceties of due process, disclosure and fair and transparent process, the courts are quite likely to set decisions aside.

  Not because the decisions made no sense but because someone cut corners in the process.
  -30-

• 3 Mark Allerton // Aug 28, 2014 at 12:25 pm

  At the risk of being called a Vision apologist (the horror!), my pet theory combines two of Ian’s themes: how about ambulance chasing by politically connected lawyers with some new case law in hand?

  I’ll just leave this here: http://jonathan-baker.blogspot.ca/2013/07/how-to-set-aside-city-decision.html

• 4 IanS // Aug 28, 2014 at 1:13 pm

  @Mark Allerton #3:

  Thanks for the link. Mr. Baker is far more experienced than I on municipal law, so his comments are definitely worth a read.

• 5 teririch // Aug 28, 2014 at 1:21 pm

  After one lawsuit you would raise an eyebrow , after two, well, we’ll see – but after the third, fourth, fifth etc, one would think the (LED) lightbulb would finally click on and you would realize that what you are doing is NOT working and change your ways.

  Or, you can be Vision and just continue to ignore the citizens – which is the reason the lawsuits came about in the first place.

  Here is a question I keep asking: What is this costing taxpayers? The City has in-house legal counsel, but they are also using outside sources (I’ve heard Fasken is one) ….so how many hundreds of thousands is it costing taxpayers for the ‘City’ to fight its own citizens?

• 6 IanS // Aug 28, 2014 at 1:28 pm

  For anyone who’s interested, here is the Petition filed by the Vancouver Aquarium: https://www.documentcloud.org/documents/1280832-vancouver-aquarium-court-petition.html

• 7 Bella // Aug 28, 2014 at 2:06 pm

  Teririch, you should get a reward for helping Frances to understand why the City abounds in law suits. To paraphrase a Vision Park Commissioner (doesn’t matter which one) prior to a resulting law suit: “We’ve made a decision, this is it, we’re not changing.”

  Yes, they lost the lawsuit.

  And what’s our cost for all this? I suspect that it would be easier to find out how many staff and consultants work directly and in-directly in the Mayor’s Office and how much that is costing.

• 8 spartikus // Aug 28, 2014 at 2:13 pm

  Not being a lawyer I can’t comment with authority, but it strikes me the case cited in Baker’s post, Garowey v. Rural Municipality of Whitemouth, 2011 MBQB 87

  …really hinged on the following:

  Pursuant to s. 320(2) of the Municipal Act, a council may not approve a local improvement plan where two-thirds or more of potential ratepayers have objected under s. 319(1), nor can it propose a similar plan for a period of two years after sending the notices under s. 318(1).

  Where the court found…

  Although objections from two-thirds of the ratepayers had not been obtained at the time of the public hearing, it was conceded by counsel for the R.M. at the Board hearing that two-thirds of the ratepayers now objected to the local improvement plan.

  2/3’s of the town of the town of Whitemouth being 62 residents, while 2/3’s of the City of Vancouver being 396,000 residents.

  Which strikes me as a very high bar.

• 9 IanS // Aug 28, 2014 at 2:31 pm

  @spartikus #7:

  “…really hinged on the following:”

  I don’t claim to be commenting with authority, but it seems pretty clear from the judgment that the result in that decision was based on the Council member’s closed mind.

  That seems pretty clear if one reads the entirety of para. 62 of the judgment, not just the portion you quoted:

  “[62] At the time of the public hearing, did the Reeve and members of Council keep an open mind when considering the local improvement plan by-law? The evidence referred to at para. 11 herein supports Mr. Garowey’s position that the Reeve and/or Council were not open to persuasion in respect of the decision to pass the by-law. The statements and conduct of Council have not been disputed or explained by the Reeve or any of the Council members. Although objections from two-thirds of the ratepayers had not been obtained at the time of the public hearing, it was conceded by counsel for the R.M. at the Board hearing that two-thirds of the ratepayers now objected to the local improvement plan. Although the time had passed for the objectors to prevent the passage of the by-law pursuant to the Municipal Act, the course of conduct by Council for the R.M., and in particular the Reeve, before and after the hearing, suggests that it was not open to persuasion at the time of the public hearing. The Reeve’s statements suggest a lack of concern and an unwillingness to consider alternatives, despite ratepayers concerns and objections by at least two-thirds of the affected ratepayers, known to Council at the time of the Board hearing.”

  You should also take a look at para. 63.

• 10 Mark Allerton // Aug 28, 2014 at 2:52 pm

  Worth pointing out the comment to Baker’s post from one Marco Francesco Lilliu – who went on to represent the Cedar Party in their Hootsuit against the City.

  Which is just one of the coincidences here. For another, take a look at who is representing CANY.

• 11 IanS // Aug 28, 2014 at 2:57 pm

  @spartikus:

  Further to my comment #8, Hallsbury’s Canada cites Garoway as authority for the following “A council may be found to have acted in excess of its jurisdiction where it fails to comply with the duty of procedural fairness and pre-decides an issue without being open to persuasion.”

  I see where you were coming from in your take on the case, but I don’t think it is correct.

• 12 spartikus // Aug 28, 2014 at 2:57 pm

  Ok.

  But then, as this applies to Pt. Grey Road (which Baker was posting all this in relation to), one could point to the original proposal being nixed (extending the seawall below the cliffs) due to public concerns as being an example of “showing an open mind.”

  And para. 63 speaks of the “dire financial consequences” faced by ratepayers which doesn’t apply to Pt. Grey Rd either. Indeed most objectors point to property values going up there.

  Now there is no Pt. Grey lawsuit so this just shooting the breeze here. I just don’t know if Garowey v. Whitemouth is as good a fit as Mr. Baker seems to think.

• 13 Bill // Aug 28, 2014 at 3:01 pm

  @IanS #6

  Thank you for the reference regarding the Aquarium case. I am not qualified to assess the legal arguments but the fact that the Aquarium is undertaking a major expansion based on their agreement of 2006 and now the Parks Board is determined to change the ground rules should be of concern to everyone. This is just another example of poor decision making by the Parks Board and I tend to wonder if the prospect of being a Parks Board Commissioner just doesn’t attract quality people. Perhaps it is time to eliminate the Parks Board altogether.

• 14 IanS // Aug 28, 2014 at 3:06 pm

  @spartikus:

  “Now there is no Pt. Grey lawsuit so this just shooting the breeze here. I just don’t know if Garowey v. Whitemouth is as good a fit as Mr. Baker seems to think.”

  Understood.

  It’s often difficult to tell how a case will be applied and, as far as I am aware, Garowey has not subsequently been cited. It is possible that a court in the future will narrow Garowey to its facts or even read it as you did. These things are often result driven, even though expressed in terms of legal principle.

  I have no idea whether the “closed mind” argument would apply to the Point Grey decision, although it seems kind of moot at this point. From my understanding of the case which is currently being argued, concerning the rezoning on Helmecken, Garowey may be cited there. Perhaps we will see what Justice McEwan makes of Garowey.

• 15 spartikus // Aug 28, 2014 at 3:57 pm

  Frances is currently live-tweeting the Jubilee House case.

  https://twitter.com/fabulavancouver/with_replies

• 16 spartikus // Aug 28, 2014 at 4:07 pm

  Judge says he’s concerned Yaletown case is an effort to provide an opportunity for pple to make “far-fetched and untenable” arguments

  https://twitter.com/fabulavancouver/status/505128465860141057

  Ouch. Do judges often says things like this?

• 17 IanS // Aug 28, 2014 at 4:09 pm

  Some judges are very active while others are very passive.

  In my experience with him, Justice McEwan is a very active judge. If he disagrees with a point, he will let you know.

• 18 boohoo // Aug 28, 2014 at 4:48 pm

  Yeah this notion that a great number of law suits means they are doing something illegal doesn’t hold water. When and if they are found guilty a number of times, then you’re on to something. Otherwise it’s just noise.

• 19 JamieLee // Aug 28, 2014 at 4:59 pm

  Not so fast there Bill posting number 12. First in 1995 an NPA majority Park board passed a motion that any further Aquarium expansion plans must go to a referendum. Under the COPE 2002-2005 dominated board a motion was passed that an Aquarium referendum must be held in 2008. In 2006 an NPA majority board overtuned the two previous motions. An Aquarium review must be held in 2015. It seems to me that the Aquarium knows very well that the public has great concern with its operations. It is unfortunate that the Vision Board in 2008 didn’t rescind the NPA motion in 2006 and hold a referendum as the previous NPA board of 95 nd COPE board of 2002 demanded. The Aquarium should cool its jets and wait to see if the twice promised referendum will be required in 2015 before undertaking any expansion which was dubiously granted to them in 2006. Obviously this issue is a public interest issue and needs to be settled via a referendum. In November 2014 you can vote for candidates who favour a referendum (COPE and Greens) or vote for candidates who support an Aquarium expansion without referendum (Vision and NPA). The choice will be up to the public as it should be.

• 20 John Geddes // Aug 28, 2014 at 10:39 pm

  Back to Frances’ original question:
  “I have to say, I’ve been covering the city for 20 years as of this year and I’ve never seen such lawsuit mania as has erupted in the past year. What is going on?”

  I don’t pretend to be able to judge the merit of these cases, but I expect that launching a law suit takes considerable time and effort. So in my view, this is a pretty clear indication that Vision has really angered a number of people — so much so that they are willing to go to unusual lengths to oppose certain policies/decisions.

  To be fair to Vision, this may be the result of their success and the resulting lack of effective opposition on Council. While Affleck and Carr do their best, they are only two votes against a very strong majority. Vision has failed to build consensus in many cases.

  Personally I have taken this as a lesson and will change the way in which I vote — to avoid voting for slates. We need more diversity of views on Council.

• 21 IanS // Aug 29, 2014 at 8:41 am

  @John Geddes #19:

  I generally agree with your final paragraph.

  However, my concern is that, if those wanting a diversity of views on council split their votes and those wanting a single view on council vote according to a slate, we will inevitably end up with the latter, and not the former.

  In the current circumstances, voting a slate may assist in achieving more diversity on council.

• 22 Silly Season // Aug 29, 2014 at 11:12 am

  I’m going to go in a slightly different direction than many posters here.

  While some see political skullguggery behind all the lawsuits, I see a frustrated ‘common’ man and woman, who have genuine feelings of anxiety, and alienation from the process of city building. They could also feel that the city is moving too fast on issues of development—especially where it appears that a sitting party is apt to be rewarded by developers via election financing. And developers, being the…uhh…businesspeople that they are, are happy to pay and support those who support them, regardless of party.

  May I be so bold as to suggest that developers and their avid real estate supporters–while they do build stuff we all need—are in fact, a de facto party of their own, in this city? But, of course they are operating without the supposed restrictions that the average politicain is put under. Like, accountability and certainly, transparency.

  Two ways to deal with this: no more big money in elections (and yes, I’ll just go out and take some more hallucinogens…).

  Or…real civic engagement, on a neighbourhood by neighbourhood basis. Not the bogus ‘false choices’ one is almost always presented with by teams of internal city hall communications people and their hired outside pr pros.

  Do we really need oversight committees to oversee our politicians? Well, maybe not another layer at city hall, but it is coming from ‘street level’ . The natives, it appears, are very, very restless…

  We have seen via our neighbours to the South, that litigation can be a highly effective tool in revisiting/stalling projects.

  Is there a need to go to court, if there was ingrained in our own system a way to get neighbourhood ‘sign-offs’ prior to projects physically starting?

  As an example, I was told by Department of Transport people in NYC that Canada Line would NEVER have gotten to the state of mess it achieved if it had followed the the types of protocols they follow in getting ommercial and locals sign-offs. Yes, that is correct—before work starts on those types of projects, people who will be directly affected in a neighbourhood have to give it their blessing.

  Once that is achieved, voila!– no lawsuits.

  So, what’s wrong with really listening to your constituents, working out a plan and getting buy-in–beyond the ridiculous and seemingly ever meaningless 4 year vote cycle?

• 23 Lee // Aug 29, 2014 at 11:20 am

  The reason for all the lawsuits from community groups is The City has chosen to exclude citizens from participation in decisions about how their communities will grow. Lawsuits are the only way to get their attention.

• 24 Paul Tolnai // Aug 29, 2014 at 12:08 pm

  Silly Season…

  You’re absolutely correct that the lawsuits against the city are the result of an electorate that feels completely alienated by this administration.

  It’s really quite a shame.

  Municipal politics has always been a bit of a snore-fest for most. There’s something about this council that just makes people livid.

  Maybe it’s their attitude of righteousness. Maybe it’s their inability to hear contrary positions without labelling their opponents as “hacks”.
  Maybe it’s an over reliance on PR people instead of trained city planners.
  Maybe it’s the fact that services are at an all time low, while taxes are at an all time high.

  It could be so many reasons why people are mad enough to take every route possible to try to take Vision down.

  We’ll see if the anti-Vision momentum continues to grow into the fall.

• 25 Brilliant // Aug 29, 2014 at 1:54 pm

  Let’s see Gregor & Co are being sued over Jubilee House, Rize Alliances Mt Pleasant project and by the Aquarium. And they were successfully sued over their plan to bulldoze a bike lane thru a park. Pretty typical of an out of touch arrogant administration

• 26 spartikus // Aug 29, 2014 at 3:22 pm

  The audience at home will be shocked to discover our friend brilliant has confused voluntarily shelving plans for a bike path in face of local opposition with a successful lawsuit.

• 27 Chris Keam // Aug 29, 2014 at 4:47 pm

  The park that couldn’t possibly find room for a couple metre wide bike path, on a sunny Sunday afternoon last July:

  https://www.flickr.com/photos/47412806@N02/14740722176/

• 28 IanS // Aug 30, 2014 at 8:00 am

  @Spartikus #26:

  “… voluntarily shelving plans for a bike path in face of local opposition…”.

  Do you really believe that Vision would have shelved its plans to pave over a portion of the park had it not been for the covenant and the lawsuit? I don’t.

  While people will (obviously) disagree with the desirability of the outcome, this was definitely a win for the resistance by litigation approach.

• 29 spartikus // Aug 30, 2014 at 8:33 am

  Do you really believe that Vision would have shelved its plans to pave over a portion of the park had it not been for the covenant and the lawsuit?

  I have a sneaking suspicion this was a tactical, not strategic, retreat and we may see a new plan for a separated path introduced post-election.

  The anti-cyclist spokesperson promised on this blog to post the “binding agreement” between the filer of the suit and the City that would preclude that. But that hasn’t happened, to my knowledge.

• 30 Brilliant // Aug 30, 2014 at 8:50 am

  @Sparty 26-oops my bad. The threat of a successful lawsuit caused your Vision cronies to back off their park paving plans.

• 31 IanS // Aug 30, 2014 at 9:40 am

  @Spartikus #29:

  So, this ” voluntarily shelving plans for a bike path in face of local opposition” becomes this “we may see a new plan for a separated path introduced post-election.” Heh… and I thought I was cynical. Still, you may be right.

  “The anti-cyclist spokesperson promised on this blog to post the “binding agreement” between the filer of the suit and the City that would preclude that.”

  You mean the spokesperson for the people opposed to paving over a chunk of the park? Dumb promise to make, IMO. Settlement agreements are almost always confidential.

  @Spartikus @ Brilliant:

  You misunderstand what makes a lawsuit successful. The purpose of a lawsuit is not to go to court and get a favourable result. The purpose of a lawsuit is to achieve a particular goal. The most successful lawsuits are the ones where you get what you want without going to court.

  That certainly appears to be the case in this circumstance.

• 32 spartikus // Aug 30, 2014 at 12:04 pm

  It might be my cynicism or it might be my suspicion there is a strategy at work.

  I would think the City will eventually try and test the limits of this covenant in court. Megan Carvell Davis has already employed it twice: once against dog owners and, of course, cyclists. Who else will she try to get kicked out of Hadden Park?

• 33 Richard // Aug 30, 2014 at 12:39 pm

  @spartikus

  The deed language is broad enough to make a good argruement that the bike path would be fine. Even further, for people to argue that the path is against the wishes of the donor is a real stretch. It is really impossible for them to say that he would not want the path were he around today.

  There are lots of activities in the parks that do have impacts. It is not at all fair to exclude one with questionable lawsuits.

• 34 IanS // Aug 30, 2014 at 4:01 pm

  @spartikus #32:

  “It might be my cynicism or it might be my suspicion there is a strategy at work.”

  Or, perhaps, it’s both. Maybe it’s just a cynical strategy.

  In any event, I guess we’ll see. If there’s no settlement agreement in place, it’s open to the City to argue the issue in court one day.

• 35 spartikus // Aug 30, 2014 at 9:34 pm

  Even if the details are confidential, is there any reason for mere existence of a settlement agreement to be confidential?

  Because I can’t find confirmation of that online either.

• 36 Art Bomke // Aug 30, 2014 at 10:29 pm

  I would like to return to the message that initiated the discussion about the proliferation of lawsuits around Vancouver civic politics, that is What’s going on at the Riley Park Hillcrest Community Association?

  As a Riley Park Hillcrest Community Association member and one of the members being sued in the lawsuit referred to in Frances’ posting, I can assure the writer that indeed something “fishy” is going on. The case before the court totally revolved around the details of how we called an extraordinary general meeting to dismiss President Jesse Johl and his supporting cast of directors. The judge was not able to delve into the core issues that our group of members felt justified the dismissal of Johl. These are that he had not made financial statements or AGM minutes available to members since 2011. During this period the Association had gross revenues of approximately $2 million and was using facilities paid for by the taxpayers of the City of Vancouver.

  The notice of the September 4th AGM was not fairly voted upon by the reconstituted Board as per the instructions of Justice Warren and Mr. Johl has now sent out letters setting out a new AGM date of September 14th. We are challenging this as well since we still do not have a valid register of members. In addition, Johl has chosen to take the AGM out of our community to the Kensington Community Centre.

  Despite all of the maneuvering behind the scenes, one item in the notice is good advice. In order to be able to vote, please do renew your Riley Park Hillcrest Community Association membership as soon as possible. This can be done via the Association’s website, taking your check and the form from the website to the Hillcrest Centre desk and handing it to a staff person.

• 37 IanS // Aug 31, 2014 at 6:16 am

  @spartikus #35:

  “Even if the details are confidential, is there any reason for mere existence of a settlement agreement to be confidential?”

  Not that I can think of.

  One way to check would be to take a look at the court file. Typically, if there’s a settlement, there will be Notice of Discontinuance or a Consent Dismissal Order filed, terminating the action. If that has happened, there will be a settlement If not, then likely no settlement.