 By Pepper Parr
June 10, 10, 2014
BURLINGTON, ON.
It could not have come at a better time for the north Burlington residents who are looking forward to a second day in court where they hope what they see as an errant, illegal land fill operation finally have the boots put to it.
The Gazette has followed this story since we first got word of the truck rumbling up and down Appleby Line with landfill from quite where no one knew.
Three notices of libel during which we were given an opportunity to retract what we had published, notices to two other north Burlington residents as well and then finally a Statement of Claim from the Burlington Air Park Inc., that we had damaged their reputations and needed to be punished to the tune of $100,000 by way of exemplary damages, And this isn`t over yet.
CBC National News has picked up the story which will broadcast this evening on the national network. The following is a transcript of what the CBC will run.
Rural Ontario residents fear contents of soil dumped near their properties
Anger over some landowners accepting millions of dollars worth of soil dug up in Toronto
Jun 10, 2014 11:43 AM ET
Marnie Luke, CBC News
Residents living in rural communities near Toronto are demanding to know what’s in the thousands of truckloads of soil being dumped on property near them.
 Barbara Sheldon’s farmland is located on the edge of Burlington, Ont., and is now walled in by a three-storey berm of dirt brought in by her neighbour, who owns the small Burlington Executive Airport next door.
She is worried about what might be in the muddy mix.
“We’re sitting ducks waiting for the contaminants to leach,” she said.
Sheldon told CBC’s Diana Swain that anyone in the country could face the same problem.
“They could lose everything. That is what happened to me. I lost everything,” she said.
“I’ve lost my property value. For five years I’ve lost the use of my land, I’ve lost the use of my home. I mean, from sun up to sun down and sometimes at night and on weekends we’re talking back-up beepers, we’re talking about dump trucks surrounding me,” Sheldon said.
Need for places to dump dirt will increase
Rural residents are angry that some landowners are taking in millions of dollars worth of soil dug up from Toronto-area construction sites with little oversight. The City of Toronto estimates nearly four million cubic metres of soil will be dug up in the next 10 years for Toronto water and transit projects alone.
With more and more soil being displaced to make room for condos, transit, Pan Am Games venues and other urban development projects, the need for places to dump that dirt is only going to increase.
Some municipalities have bylaws about using private property for landfill, but rules around soil testing and the amount of dirt that can be dumped are muddy.
Ontario environmental commissioner Gord Miller said it’s time for tougher rules as well as clarification on who has jurisdiction.
“We don’t have security on piles, on areas where we know there is contaminated soil … and it can be removed and sort of mixed in and how would we know? So there is legitimate concern when large volumes of soil are being deposited in rural areas with very little checking,” he said.
‘Disingenuously raising concerns’
Sheldon said every level of government she contacted for help since the dumping began five years ago said it wasn’t their responsibility.
 Court documents obtained by CBC News show Vince Rossi, owner of the Burlington Executive Airport, earned more than $855,000 accepting fill at the Burlington airport between the years 2011 to 2013.
In a statement to CBC News, Rossi accused his neighbours of “disingenuously raising environmental concerns.”
Rossi said the Ministry of the Environment has not found a problem with the fill he is using.
He also said that municipal bylaws don’t apply to his property.
“As for the issue of jurisdiction, our view is that only Transport Canada has a say over the nation’s airports,” he wrote.
The City of Burlington took the airport to court last year and got the dumping stopped. An appeal of that decision will be heard on June 11.
Similar disputes are playing out in other rural communities, like New Tecumseth in Simcoe County, which sits on the environmentally protected Oak Ridges Moraine about an hour north of Toronto.
A caravan of trucks began dumping dirt on the local air strip there four years ago, and concerned residents say they haven’t been able to get answers about what’s in the soil or the potential impact to well water.
Voluntary guidelines
Ontario’s Ministry of the Environment issued voluntary industry guidelines last year on testing and disposing of soil. But a report by the City of Toronto’s chief planner raises concerns that the guidelines do not deal with excess soil moved across jurisdictional boundaries.
“As a result, there continues to be a policy and regulatory gap in this area,” the report says.
Concerned citizens and environmental groups have formed the Ontario Soil Regulation Task Force, and are calling on the province to create an enforceable Clean Soil Act.
“That fill has to go somewhere. Somebody’s going to find a place for it, because it’s got money attached to it,” Sheldon said. “Until that money is removed from the fill, they should charge people. You want to put it here? OK, you pay us, developers. The whole system’s broken from the start.”
Miller, Ontario’s environmental commissioner, said to tackle the problem, you have to start at the source.
“The people who dig the holes should be responsible cradle to grave to making sure that soil is not only going somewhere where it’s safe, but somewhere where it’s wanted, and deposited in a manner that’s acceptable to the receiving municipality and the local residents,” Miller said.
The CBC is understood to be planning a series of television features on the problem. The natives north of Dundas will be beating their drums wildly tonight as they prepare for the appeal hearing tomorrow.
 By Pepper Parr
June10, 2014
BURLINGTON, ON The structure is majestic. The hallways are grand; the court rooms ooze of power and authority. The library is magnificent. Within the volumes on the shelves is the legal foundation of the province; the decisions the courts have issued which define us as a society that lives by the rule of law that is applied to everyone equally.
 View of Osgoode Hal;l from Queen Street West The building was named to honour of the province’s first chief justice, William Osgoode
It is here that maybe 20 or so people from Burlington will travel Tuesday morning to hear Ian Blue, QC argue the city’s side of an appeal made by Burlington Air Park Inc., against Justice John Murray’s earlier decision that the air park did have to comply with city bylaws, specifically the site alteration bylaw.
The six-acre (24,000 m²) site at the corner of Lot Street (Queen Street West today) and College Avenue (University Avenue today) was acquired by the Law Society in 1828. The original 2 1⁄2-storey building was started in 1829 and finished in 1832 from a design by John Ewart and W. W. Baldwin.
Between 1838 and 1843, the hall was turned into troop barracks. When the Law Society regained possession in 1844, an expansion was designed by Henry Bowyer Lane; the West Wing and Library were built, with two domes (later removed) over the library to connect the two wings.[5] In 1846 the Law Society entered into an agreement with the government to house the province’s Superior Court at the hall. Today, the building is jointly owned by the Law Society and the Government of Ontario.
 Main law library – there is another reserved for judges.  The belief once was that the wrought iron gates were put in place to keep cattle off the grounds. Not so – but the grounds are truly something to appreciate. Two libraries are housed within Osgoode Hall: the Great Library of the Law Society of Upper Canada and a smaller library for judges. The Great Library was designed by Cumberland and Storm (1857–1860) and features an ornate plaster ceiling, cork floors, and etched glass windows. A War Memorial by Frances Norma Loring (1887–1968), sculpted in 1928, was added to the Library in honor of Ontario lawyers and law students killed during the First World War. Behind the Great Library (and accessible through it) is the American Room, designed by Burke and Horwood in 1895, a more intimate room with a spiral staircase.
 A five judge appeal court panel. Ian Blue and Peter E. J. Wells will argue their case before a three member panel. There is the belief in the minds of some that this case will be appealed to the Supreme Court of Canada For those able to make the trip, I am reluctantly not with that crowd today, soak up the splendour of the setting and the history that literally pervades the walls and know that you are in a building where the rule of law prevails.
Be prepared for an experience.
 By Pepper Parr
June 8, 2104
BURLINGTON, ON.
Odd how things sometime work out.
Pat Moyle is driving home in his car, wife with him. He takes the call.
Burlington’s Mayor Rick Goldring is on the line.
 Pat Moyle believes he knows why Goldring is calling. Burlington needs a city manager – the one we had found that Calgary was more to his liking. Moyle had recently retired as the Chief Administrative Officer of Halton Region and he knew everyone over there with municipal administrative skills. Moyle thought Goldring was looking for some names of people that might be available as interim city managers until the municipal election is over and a new council is sworn in.
Goldring wanted a little more than a recommendation –he wanted to be able to put Moyle’s name on a business card and have him serve as the interim city manager for as much as a year.
Apparently the Mrs. Moyle wasn’t ecstatic about the idea but Pat wasn’t taking to the Florida retirement stuff all that well – he still had harness he had not worn out and wanted to stay in the game. Pat said he would get back to Goldring but as one listened to Moyle explain the sequence this was a done deal.
Pat Moyle certainly knew what Burlington was all about – perhaps better than many at the “director level” in the city. He knew what the long term issues were, he was more than likeable and had worked with the top line people in the past. And he was certainly no slouch during the six years he served as the Regional CAO. This was going to be a good fit
Then there was that nice little $50,000 plus bonus for the city. Traditionally the municipal sector hires outside consultants who run an add and collect resumes. The tab fir that task comes in at around $50,000 each time.
The bonus for Burlington was that Moyle was going to be attending the annual meeting of the Canadian Association of Municipal Administrators, taking place just down the road in Niagara Falls. Moyle just took a bigger brief case and began to collect resumes – and get a clear sense as to who might find themselves wanting to move up the food chain and enjoy better beef.
Moyle might manage to clean up some of the problems at the city’s General Manager level as well.
That is the easy part of the job Pat Moyle took on as interim city manager. The rest of June is going to keep him humping. The Burlington Air Park appeal of Justice John Murray’s decision requiring the air park to comply with city bylaws will be heard next week. It will take a few months for a decision to work its way into the hands of the public but by the end of the appeal hearing the city will have a sense as to where this might go. Wise people do not attempt to think through how an appeal court might decide. The decision could be handed down right smack in the middle of the waning days of the municipal election.
There are some very positive upsides to the appeal court decision for the city. Once the legal problems are solved the city can get on with the business of getting it right for the rural part of the city. That may mean different ownership of the air park property.
Less than a week after the Air Park appeal is heard Moyle will have to take part in the mediation of just who owes what for the construction of the pier – which is about to celebrate its first official year of existence.
The median will stretch over several days at the end of which a settlement will have been reached or the case goes to trial. Going to trial would probably be the better thing for this council. At this point no one knows what each of the five parties wants from the other. The numbers get put on the table the first day – which is when jaws we are told will drop.
The financial and emotional damage done to Harm Schilthuis and Sons Ltd., (HSS) has been absorbed – now they want their money and an apology that will make the past four years easier to have had to live with just a little easier.
When Jeff Fielding was managing the financial and legal side of the pier file he frequently used the phrase “everyone is going to have to give a little”. Fielding had a way at times of being very persuasive – but Jeff Fielding is no longer on the city payroll and his approach won’t work without him.
Moyle is for the most part on his own with a legal team that no longer has an upper hand. HSS is very clear on want they want; AECOM, the project managers have always been in this for the long haul. PV&V , an insurance brokerage may not have to pay a price for siding with someone other than their client. But it is the city that stands to lose the most.
If there is a settlement the public is going to want to know how much the city settled for – and that isn’t a number they will want to put on the table – so the city ensures that a gag order is included in the minutes of settlement.
 Steel re bar being put in place on the pier deck for the second time. First attempt got stripped back to the original beams But if HSS digs in their heels and demands that they finally get paid and be given the level of apology they feel they deserve – and they are the ones who have been trashed by most members of this city council and gotten by without payment of invoice that were approved for payment for more than three years – then the city has a tough one in front of them. The days of everyone having to give a little are long gone.
Assuming the pier becomes a campaign issue – and it should – there is an opportunity for every Councillor and the Mayor to reflect on what they could have done differently
Pat Moyle has been with us as interim city manager barely month – he might be a significantly different man by the end of June. The Senior management team he leads might be quite a bit different before he turns in his keys as well. We got lucky with Moyle and if the idea to sound him out was Mayor Goldring’s – great, finally, some leadership.
 By Pepper Parr
June 5, 2014
BURLINGTON, ON.
First it was the provincial election debate, then it was the Stanley Cup games, now it’s the Meltdown in Moncton and with the cup still not won yet – hockey is back in the picture.
Tough for a small town like Burlington to get any air time on national television but it appears that the he CBC National News program on air park problems across Ontario and the Burlington Air Park In., in particular will now be a multi-part effort that will run over a period of time.
The CBC News crew was on site last week recording the damage done, as well as the pristine view the owner of one Appleby Line used to have.
The purpose of the series is to take a look at just what has been happening across the province where small air parks are using their sites to dump fill on – the premise being that they are “improving” their property which they claim is not subject to municipal bylaws but only the dictates of the federal aeronautics legislation.
The situation with the air park in Burlington is a little more advanced than it is in other municipalities. The city won its first court case, which has been appealed and will be heard June 11.
Ian Blue, the lawyer retained by the city to argue the appeal, will be on the air for part of the series which at this point in time is scheduled for June 10th – but every Canadian knows that when the Stanley Cup playoffs are taking place – everything has to adjust that that schedule.
In a note the area residents CBC said: “This is a heads-up to inform you that I have been advised that CBC National News will be airing a report on the fill operations currently underway at various airparks in Ontario – including the Burlington Airpark – and the impacts these have had on the local citizens and the environment.”
They plan to lead the story with footage of the citizens’ rally planned for tomorrow at the Volk Airpark near Tottenham.
 It might take more than a year for the problems with the air park to get resolved – but the noose is now getting tighter and tighter. The city and its citizens along with the hundreds of pilots who make legitimate use of the runways now need to begin thinking what could and should be done with that 200 acres of land. Properly approached by a developer that is prepared to follow the rules and adjust to changing conditions. The end game will soon be upon us. The story was scheduled to be aired Wednesday June 4th, but that got bumped)
CBC had planned to roll them out on Wednesday but The National’s lineup is heavy and the show is delayed because of hockey so we’re holding it until next week.
CBC added that ”we were only able to skim the surface of some of the issues in this first bit of coverage, and there are many issues we’ve either not yet touched on, or have not had time to fully explain. We plan to keep looking into various issues and story lines that came up over the course of gathering elements for this initial coverage, so I will likely be back in touch again in the near future with more questions.”
Burlington is finally going to get coverage of a critical community event from an organization that has much more in the way of resources than the Gazette will ever have.
By Pepper Parr
May 30, 2014
BURLINGTON, ON.
While the CBC News crew was doing its interview on the Sheldon property on Appleby Line, construction equipment and work crews along with what were believed to be crew managers were seen.
Once it became evident to them that camera crews were on the property filming they retreated but the equipment remained on the site
There is a very solid community in north Burlington that watches what goes on like a bunch of hawks. Their objective is to document and photograph as much as they can; including run off from the air park site where tonne upon tonne of partially inspected fill was dumped without the required sit plan alteration permit.
A Superior Court judge has ruled that the air park must comply with municipal bylaws. Burlington Air Park Inc., has appealed that decision. The appeal will be heard in Toronto June 11, 2014
 Appleby Line property owner does a CBC News interview with view of the landfill dumped without a site alteration permit.  Construction crews skulk away in the background. They appeared not to be available for an interview.  Construction crews continue their work just out of site of news camera crews.
By Pepper Parr
May 29, 2014
BURLINGTON, ON.
The weather was great; fine day to be working outside – but it didn’t work out quite that way for a couple of King Paving workers.
 CBC News crew was on site at one of the Appleby Line properties destroyed by the air park site alteration work being done without benefit of a permit. Program to be aired early in June.  King Paving work crew has difficulty digging a small trench with a backhoe on the south side of the air park. The work was being done on air park property.
The trenching problems just happened to take place the day a CBC National News team was on site to film a portion of a show that will air later in the month on development problems in both Burlington and elsewhere in the province.
The CBC crew appears to want to interview Mr. Rossi but was not able to do so today. Good luck with that effort. Vince Rossi, owner of the air park that is in the middle of a legal dispute with the city, is very choosy about who he gives interviews to. The appeal of the court case the air park lost a number of months ago is to be heard June 11th.
Given both the complexity and significance of this case for both the air park community and the municipal world it might be after Labour Day before a decision is handed down.
A few days after the hearing the city team overseeing this file will review what they heard in the court room and determine as best they can the city’s “plan B”.
Should a decision be available before the October municipal election that may well change the temperature and the tone of whatever the prime election issue is going to be.
 By Pepper Parr
May 28, 2014
BURLINGTON, ON. You have to understand Ron Foxcroft and his affinity with the world of sports. He has been around every game that is played and while he can, on occasion, get the ball in the basket – that isn’t what he is known for.
 The whistle business all started on the floor of a basketball court. Earlier in the week there was a need to talk with Ron Foxcroft – getting to him is not easy – he is on the go from just after seven to late into the evening most days.
But get through we did – and started our conversation asking if he had caught the game – that being the one where the Habs took a hockey game in the direction it was meant to go – 7-4 with a hat trick for the Canadiens too boot. “Of course I got to the game – I had to rush out of the Burlington Sports Hall of Fame inductee event but I saw that game.”
 The Official Whistle of the NHL with a logoed edition for the Stanley Cup finals provided by a high school dropout who lives in Aldershot.  Then he adds – “did you know that Foxcroft International made the whistles – the logoed whistles for the NHL final?
No we did not know that – would you send us a picture? And here it is. Another Foxcroft product.
We chatted about the stupendous game goalie Dustin Tokarski is putting in as he stands between the pipes. Of course we all know the kid used to play for the Hamilton Bulldogs – which at one point was owned by Ron Foxcroft.
What matters of course are those whistles – will they blow at the right time? For the right team?
We will be watching the two remaining games and hopefully the cup – the Stanley Cup, will rest where it belongs – in the head office of the Le Club de Hockey Canadien. It really should be at the Forum, just along St. Catherine Street in Montreal – half a block from the Toe Blake Tavern.
That was a different era – but the hockey then was still the same – great! Jean Beliveau, Maurice Richard, Guy Lafleur – the dream goes on.
Background links:
Foxcroft on his own court.
By Staff
May 27, 2014
BURLINGTON, ON.
For the record:
In the Update to city council on matters relating to the Air Park staff said:
FOI (Freedom of Information requests) to MOE for Monitoring Plan and Details:
In May 2014 staff spoke with the Mediator from the Office of the Information and Privacy  Commissioner of Ontario. The Mediator has begun the process of contacting the third party (i.e. the Airpark) to inform them of the City’s scoped request to try and obtain information that pertains strictly to the proposed groundwater monitoring program at the Airpark, and any associated reports, studies and results. The Mediator is also continuing discussions with the MOE. At this point, staff will wait for further correspondence from the Mediator with respect to the possibility of receiving all or some of the requested information or whether additional discussion or mediation is necessary.
 Drill holes into the tonnes of landfill dumped on the air park property during the last five years. Very little of the landfill was inspected and it was put in place without an approved site plan. A Judge has already told the Air Park that they must comply with the city’s bylaw. The Air Park has appealed that decision which is their right.
What the Air Park cannot do however do is maintain that they are cooperating and have been transparent. The city’s most recent update does not square with what Vince Rossi is saying. Someone isn’t telling the truth here.
In a Letter to the Editor of the Hamilton Spectator Vince Rossi said:
To be clear, every test of neighbouring streams and wells has met or surpassed federal and provincial environmental standards. There have been six inspections, studies and/or tests carried out since 2009. None have indicated a problem with the fill or an adverse impact on local water. Further, after discussions with the Ontario Ministry of the Environment, the airpark is in the process of voluntarily completing the most comprehensive study to date by carrying out a test well program
 By Pepper Parr
May 26, 2014
Burlington, ON.
Well we kind of expected it would come to this.
The Burlington Gazette, it’s publisher Pepper Parr, Monte Dennis and Vanesa Warren were served with Notices of Libel during the month of April, three for the Gazette, two each for Dennis and Warren.
 These are the lands that are described as the Burlington Air Park upon which tonnes of uni-nspected landfill were dumped without a city site alteration approval. None of the parties served libel notices chose to apologize and the Gazette decided the articles were not libelous and let them remain on the web site.
The air park lawyers then sued the three people, Parr, Dennis and Warren asking for $100,000 in exemplary damages. The air park set out 23 points in their Statement of Claim. They are set out below along with links to the articles they took offence to
1: The plaintiff claims:
(a) compensatory and exemplary damages for libel of $100,000
(b) prejudgment interest on the compensatory damages and post judgment interest on all the damages;
(c) an injunction restraining the defendants and each of them from alleging that the plaintiff has created an environmental hazard by bringing fill onto its lands that has or may adversely impact the groundwater or surrounding watercourses ;
(d) costs together with HST.
The plaintiff
- The writ describes the plaintiff; Burlington Air Park Inc.,who they are and where they are located. This is the Burlington Air Park Inc.
The defendants
- The defendants are described in sections 3,4,5,6 and 7. This is the Gazette, Parr, Dennis and Warren.
The defamatory publications.
Editor’s note: Links to each of the articles are set out at the end of this piece.
Describes an article: “A “fishy” story – people are being hurt and a part of rural Burlington may have a badly contaminated water supply.
- Our Burlington posted the following concerning the plaintiff on its website https://www .burlingtongazette .ca/:
On or about April 16, 2014 Our Burlington posted the following concerning the plaintiff on its website https://www .burlingtongazette.ca/ :
“North Burlington residents petition the MOE – but they don’t make their demands public.
There were four reader comments attached to that piece; they read as follows
Bob says on April 16, 2014 at 11:37 am
(the Bob comment is not set out in the writ)
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Vanessa Warren says on April 17, 2014 at 11:39 am
 Vince Rossi, president of the Burlington Executive Air Park and believed to be the sole shareholder of the private company was sued by the city for failing to comply with a city bylaw. The Court found in favour of the city. The Air Park has appealed. The appeal is to be heard June 11, in Toronto at Osgoode Hall. Mr. Rossi.
The Kovachik family opened the airpark in 1962, and for 44 years operated in harmony with its neighbours and its rural surroundings . You are not allowed to capitalize on that history. The history that you ‘re accountable for is amounting to an environmental disaster in our pristine protected countryside, and you may not manipulate that truth unchallenged anymore.
This is not an airpark improvement issue. This is a landfill issue, a water protection issue, a storm water management issue, a truck entrance and road use issue, and a property destruction and flooding issue.
Are we to celebrate that you ‘ve spent money to improve your for-profi t business? Who doesn ‘t do that? You say you ‘ve spent 4 million in improvements , but what about the income you ‘ve made from charging for untold hundreds of thousands of tons of unregulated fill? What about the protected watercourse you ‘ve destroyed? What about the regionally significant woodlot you gutted? The cost to the environment, the community and the City for your ‘improvements ‘ has been too high to bear.
Ask your immediate neighbours – none of whom have “recently purchased their homes” – bow things have improved for them? Flooded fields are unfarmable. Backyards and septic beds are underwater from silted run off. Sight lines and property enjoyment are destroyed. Anxiety about well water safety is high, and you will not permit the MOE to release on-site testing data. Writing that you ‘ve “always respected your neighbours .. .” is more than untrue; it’s cruel.
There are no unsubstantiated claims. Terrapex Environmental found unacceptably high levels of contaminants like hydrocarbons and heavy metals in the paltry 52 soil reports you were able to provide. Off-site water testing may be fine to date (again, where’s the data?), but how long might it talce for those contaminants to leach into wells?
The City of Burlington legally won the right to impose it‘s Site Alteration Bylaw on airpark property , and yet you still will not comply. The community would truly love to know that your property is NOT full of contaminated fill – why don‘t you give us the verified, third-party data to prove it?
We are all so weary of your attempts to manipulate . Standing up to you and stopping the trucks was never political , it was ethical, and you have no ethical credibility left.
Vanessa Warren Aside:
Hamilton Spectator, please don‘t publish this man ‘s letters anymore. The community around this airpark has been under siege since 2007 and the negative psychological impact of unbalanced coverage like this is enormous.
Ford Motor Company, Mercedes-Benz Canada, Evertz Microsystems, L- 3 Communications , Big Brothers and Big Sisters and PwC Epic Tour Halton – are you comfortable being cited in this letter?
reply
Rob Narejko says on April 16, 2014 at 1:44 pm
It is hard to believe that our legal system allows an individual or a corporation ‘s right to privacy to be intact, when the actions of that individual I corporation are detrimental to the quality of life of others.
The tests were paid for by our government and the government is empowered on our behalf to look after the interests of the citizens. The materials from the land fill I dump are more than likely leaching onto other people’s property. The information from the MOE study should be made public without having to resort to Freedom of Information requests .
I give the City credit for jumping on this issue and for their approach. The rights of one person or corporation should not trump the community‘s rights to know what is there. Without knowing what is there, how will it ever be re-mediated? And what happens to the environmental concerns and the adjacent owner’s property value?
PS Check out the ‘scenic’ asphalt piles dumped in the field on the west side of Walker ‘s Line, just north of the 407 overpass. It will be interesting to see why this road waste material was allowed to be dumped in an agricultural field. Or was it?
Editor’s note: We understand that Mr. Narejko has not been sued.
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Roger says on April 16, 2014 at 5:10 pm
Bob could not have gotten it any better . The article in the Spec as self serving and deficent on fact.
reply
 The owner of a property on Appleby Line stands at her property line. Plans submitted to the Region at one point had a large helicopter pad sitting atop the 30 foot pile of earth. The owner of the property on which the heliport was to be built claimed he did not have to get site plan approval from Burlington. A Judge disagreed with him. That decision is being appealed. Stephanie Cooper-Smyth says April 16, 2014 at 3:32 pm
Vincenzo Rossi – we know you follow this website, you ‘ve even posted on it. So if you can see this now, which may be difficult considering how exponentially your nose grew while crafting that exceptional ‘tale ‘ for the Spectator, get this:
You have accepted hundreds of thousands of truckloads of (contaminated) fill since 2008, and all you’ve got to show for ‘improvements ‘ is: you paved over a grass runway, you ‘ve done some alterations to your main runway, you ‘ve built a few hangers.
Really?? Hundreds of thousands of truckloads of fill every year since 2008 . ..for just that?? How much longer are you going to try and dupe the good folks of Burlington?
And one more thing, Vincenzo Rossi: According to the information submitted to Hizzoner at the hearing last year, the income from the hundreds of thousands of trucks to which you sold dumping rights, (last figure released was $85.00 per truck) for ‘improving ‘ your airpark”, doesn ‘t even appear on the Airpark ‘s financial statements in 2011, 2012 or 2013. (Hello CRA?)
As for the legacy of the airpark, (“it’s long and accomplished history in Halton”), which you are attempting to claim: How dare you hijack the reputation and relations that the Kovachik ‘s built!
Since you bought the airpark, Vincenzo Rossi, all you have done is destroyed the environment , misled and deceived the authorities, ruined the lives and threatened the safety of the neighboring community. That is YOUR legacy.
Why don‘t you just go to where ever you sent all the money you earned from accepting all that toxic landfill – you are neither believed nor wanted here by citizens of Burlington.
Editor’s note: We do not know if Stephanie Cooper-Smyth has been sued
reply
Joan says on April 17, 2014 at 2:32 pm
Mabe someone should seek advice from Erin Brockovic.
- On or about April 24, 2014 Our Burlington posted the following concerning the plaintiff on its website.
“Letter to the Spectator editor altered on Air Park web site: still a “lousy neighbour“
The publication by Our Burlington and Parr on April 11, 2014 set out in paragraph 7 above was actuated by actual malice, in that it was published knowing it to be untrue, or reckless as to its truth. In an article dated April 9, 2014 Our Burlington and Parr republished allegations from an earlier posting dated July 16, 2013 that was, at April 16, 2014, still available on the http ://www.burlingtongazette .ca/ website, that the fill on the plaintiff s land was “toxic” and that the plaintiff had been running “an unlicensed landfill operation.” It also republished allegations from an August 5, 2013 posting that was, at April 16, 2014, still available on the http ://www .burlingtongazette.ca/ website, falsely claiming that a Terrapex report established that contaminants were migrating from the plaintiff s property. The August 5, 2013 posting reported that testing was being done of neighbouring wells. When this posting was emphasized on April 9 2014, the City of Burlington had reported on those results in its Burlington Executive Airport Update #6 dated September 9, 2013 as follows: “On August 23, city staff were sent an email by the Region of Halton regarding testing of wells on several properties adjacent to the airport. The email indicated that the MOE and the Halton Region Health Department were working together to sample and analyze the drinking water wells of homes located immediately adjacent to where the fill was placed on the airport site. Well water samples were collected by MOE staff from two properties . The samples were being analyzed for inorganics, volatile organic compounds, polycyclic aromatic hydrocarbons and petroleum hydrocarbons.
Results of this testing were provided to the Health Department. The results were then compared to the health-based Ontario Drinking Water Quality Standards and the Ministry of Environment Table 2 Brownfields standards. The Region has indicated that no exceedances were reported . These results have been shared with the property owners. Permission was given by these property owners for the Health Department to share the results with city staff.”
Further, the publications referred to in paragraphs 7, 8 and 9 were actuated by malice as Our Burlington and Parr published a letter on May 19, 2014 that made the following allegations concerning the plaintiff s president: “… Are his victims, or anyone who ‘s objected to his fill business soon to be ‘buried ‘ as well?
I think the residents of Rural Burlington better start using the buddy system whenever they leave their homes. And I suggest a telephonic head count every morning, and include Pepper Parr’s…”
On May 2, 2014 Dennis published the following letter to the editor m the Hamilton Spectator:
“Tainted Airpark fill a threat to neighbours’ wells.
Improvements to airpark up in the air (Opinion, April 16)
The recent article by Burlington Airpark owner Vince Rossi leaves out important, relevant facts.
The Burlington Airpark’s own soil analysis data, provided to the City of Burlington’s soil specialists, showed that much of the imported fill is chemically contaminated , and represented only a portion of the imported fill. The tens of thousands of loads of fill dumped onto the airpark were spread throughout the site and will require a grid-work of soil sampling to fmd and quantify.
Depending on imported soil types, conditions, groundwater mobility, precipitation amounts and other factors, the negative impacts could take years to be detected in area wells .
Although the dumping has stopped, the concern is that toxic materials will sooner or later leach into neighbours’ wells. The immediate neighbours have experienced excessive water run-off due to the altered drainage. Some of the land is too wet for farming. Some of the wells are silted, making the water undrinkable.
While waiting for a court settlement and the Ministry of Environment research results, residents are suffering from the stress of an uncertain future. The clean up and rectification of this mess could take years and cost millions. Why won’t the Burlington Airpark share the soil and groundwater test results? The airpark claims the data is private and confidential.
The Ministry of Transport directive asks the airparks to comply with provincial and local regulations that do not affect aviation . Federal legislation regulates the safe movement of aircraft. The airpark lost the court case on the validity of the Burlington fill bylaw and plans to appeal in June. In the case of Scugog Airpark, a judgment decreed that fill operations must comply with Scugog’s municipal fill bylaws, which should be the case with all municipalities. This would result in lawfu l, responsible and environmentally sustainable development.
Monte Dennis on behalf of the Rural Burlington Greenbelt Coalition”
Rural Burlington Greenbelt Coalition is not a corporation, nor is it a registered charity. If it exists, it is an unincorporated association of individuals.
Editors note: The cheek, the unmitigated cheek. Both Mr. Rossi and his legal counsel are fully aware of the existence of the Rural Burlington Greenbelt Coalition who delegated very effectively at both the city of Burlington and the Region of Halton.
The republications
On April 22, 2014 Our Burlington published the libel notice i t received with respect to the publication described in paragraph 7 above on its website https://www.burlingtongazette.ca/ and Twitter account https://twitter.com/OurBur . Such publication of the libel notice amounts to a republication of the original libel. On or about April 22, 2014 Warren posted the following on her website https://vanessawarren .ca/ and Twitter account https ://twitter.com/VanessaAWarren “Vince Rossi threatens to sue @OurBur for libel. Wonder who is next? #BurlON
#BurlingtonAirpark https:// www .burlingtongazette .ca/air-park-lawyer -threaten-to-sue for-libel-gazette-considering-its-options .. .” The links in the postings amount to republication by Warren of the libel described in paragraph 7 above. Having read the article on Our Burlington ‘s website, Warren knew that the plaintiff was asserting that the original publication was defamatory, yet she maliciously chose to draw it to the attention of persons who might not otherwise have been aware of that publication.
Warren republished the comment referred to in paragraph 8 above on her website http ://vanessawarren.ca/ on or before April 23, 2014. The precise date of posting is not known to the plaintiff , but is known to Warren.
Further, on May 2, 2014 Warren made the following post on her Twitter account: vanessaawarren as follows: “Vanessa Warren @VanessaAWarren •May 2 Thank you Hamilton Spectator for balancing the dialogue and bravo RBGC – well said! https://m.thespec.com/opinion-story /4494486-tainted-airpark-fill-a-threat-to-neighbours wells/” The link in that tweet took a reader to the letter set out in paragraph 12 above.
The links referred to in paragraphs 14, 15 and 16 did not simply make reference to the existence and location of content, they also repeated the sting of the libel in the articles to which reference was made, and encouraged viewers of her posts to visit those sites.
The articles and comments are defamatory and were calculated to injure the plaintiff
In addition to the plain meaning of the words so published , by these words the defendants meant, and were understood to mean that the plaintiff was putting the community as well as groundwater, streams and ponds in the community at risk, or causing members of the community actual harm by having brought onto its land toxic fill that was adversely affecting the groundwater , streams and ponds and the fish living in such streams and ponds . They further meant, and were understood to mean that the plaintiff was preventing the Ontario Ministry of the Environment (“MOE”) from publishing test data in the possession of the MOE. They further meant and were understood to mean that the plaintiff has caused flooding and silted runoff onto neighbouring lands. The defendants meant and were understood to mean that Terrapex had actually performed testing in connection with the plaintiff s lands. They further meant and were understood to mean that the plaintiff had posted on its website an altered version of a document that it had already published in the Hamilton Spectator.
The words printed in the foregoing articles and comments were and are defamatory. The addition of photographs and commentary in the publication referred to in paragraph 9 were not part of the letter published by the plaintiff in the Hamilton Spectator, and would have misled readers into believing that they had been. The allegations that the plaintiff brought contaminated fill onto its property and is putting groundwater, neighbouring streams and ponds and the environment generally at risk are calculated to injure the plaintiff in an effort to delay or prevent the further development of the Burlington Executive Airport. By reason of the publication of these defamatory statements, the plaintiff has suffered damages.
The words published by Warren were also false and misleading in a material respect and were knowingly or recklessly made by her for the purpose of promoting directly or indirectly her business interest in Capstone Farms, contrary to s. 52(1) of the Competition Act, RSC 1985, c. C-34, as amended .
The republications described in paragraphs 14 through 17 above were done with callous disregard of the plaintiff s rights and are deserving of an award of exemplary damages which are necessary to dissuade the defendants from engaging is such conduct in future. The protection of a party’s reputation arising from the publication of false and injurious statements must be effective. The most effective means of protection will be supplied by the knowledge that fines in the form of exemplary damages may be awarded in cases where the defendants ‘ conduct is truly outrageous, as it has been in the present case.
So there you have it. This is what will get presented to a Judge who will decide if we libeled or defamed Mr. Rossi.
We do know this – the city of Burlington and the and the Burlington Air Park sued each other and Justice Murray found in favour of the city. He also awarded the city costs of $40,000.
In asking for exemplary damages of $100,00 from the Gazette, Parr, Dennis and Warren, Mr Rossi appears to be attempting to recover from the defendants the amount he had to pay the city.
We have yet to decide what we will ask the Judge who hears this case what the defendants will seek for the vexatious, egregious and whatever big word lawyers use to say what they mean, in the way of damages from Mr. Rossi.
What we would like most is for Mr. Rossi to follow and adhere to the rule of law that he is now using to hammer two citizens who were exercising their right to speak their minds. As for the Gazette, we can take care of ourselves.
Links to past editorial content:
The “fishy” story.
North Burlington residents petition MOE
Letter to the editor.
 By Pepper Parr
May 19, 2014
BURLINGTON, ON.
We wrote a piece based on what we were told by our readers; ordinary people with strong convictions and a desire to get all the facts on the table.
Different readers had different search experiences (isn’t technology great?) for news about the Air Park which is a hot topic for people in Burlington.
The first hint we got was that everything about the air park had disappeared from the insidehalton web site was this: “I have been tracking for any coverage on the Burlington Airpark / Airport on Metro Media site (Spec and insideHalton) for some time. This weekend, all past articles on the Airpark have disappeared (there used to be a number of articles), and the return message shows that no search result found. What gives?”
That user got back to us with: , “I will continue to perform the search every day…“burlington airpark” airport on the whole Spec / Metro Media site. My searches today give me the following message…
We were unable to find results for “burlington airpark” in Burlington
That was followed by a comment from a reader who said everything after 2013 was no longer on the site.
That was followed by a comment from a reader who seemed to get a little panicky: “The article that Tina Depko-Denver won her recent award for (best rural story in Ontario community paper) no longer comes up on searches. This is freaking me right out.
“Here’s the link to the artcile (that I had to re-find via twitter) – see if you can find it by searching on insideHalton. https://m.insidehalton.com/news-story/3844524-airpark-neighbours-call-on-government-for-help/
That was followed by: “It came up for me.”
That was followed by this:
“The articles are all there…they come up in different order – by date or relevance – based on how you search for them.
“I get a different list based on how I search: searching by “rossi” as in Vince pulls up some, searching by “warren” as in Vanessa pulls them up in a different order of “relevance.”
“The best search is by “Burlington Executive Airport” it pulled up the most comprehensive list. It has them mostly sorted by date – since the article “neighbours call on government for help” as almost a year ago, it will appear lower down on the list, on page two.
“Here’s the list with that search function enabled:
https://www.insidehalton.com/search/news/?q=burlington%20executive%20airport&location=halton&sort=rel
Here are just some of the articles I found on the website dealing with the airpark.
https://www.insidehalton.com/news-story/4417902-appeal-date-set-for-burlington-airpark-case/
https://www.insidehalton.com/news-story/4220726-burlington-airpark-launches-appeal-of-landfill-ruling/
https://www.insidehalton.com/news-story/4219079-burlington-wins-airpark-landfill-dispute/
https://www.insidehalton.com/news-story/4252426-airpark-paying-city-40k-for-legal-fees/
https://www.insidehalton.com/news-story/3839981-neighbours-of-burlington-airport-complain-of-ongoing-fill-activity/
https://www.insidehalton.com/news-story/3907517-burlington-airport-city-hall-seeking-court-injunctions/
https://www.insidehalton.com/news-story/3870812-leaders-speak-out-against-burlington-airport-expansion/
https://www.insidehalton.com/news-story/3844524-airpark-neighbours-call-on-government-for-help/
“I think this is a question of digital technology: what search words are being used, and the search tool pulling up information based on chronology and relevance.”
The Gazette has been very deliberate in not using the names of people who send in comments. The libel chill is still in the air.
It would appear that the information on the insidehalton web site is still in place. Finding it requires one to use the most effective search terms. Should it be easier? We suppose so but one cannot blame the people who run the insidehalton web site for the search terms their readers use.
It is all their and we expect it will continue to remain on the site. We had planned on trying to reach the operators of the insidehalton site – but the holiday schedule meant no one was picking up their telephones.
We were perhaps a little too quick to call shame on the Metromedia papers and for that we apologize. There are a lot of frightened people in Burlington – and they have every reason to be frightened.
Background links:
The first we heard of editorial material disappearing.
Air Park legal counsel sending out libel notices
 By Pepper Parr
April 24, 2014
BURLINGTON, ON.
It will not be news to our regular readers that we are involved with a potential lawsuit with the Air Park Inc. They have taken the position that the Gazette libeled them in a number of articles we wrote recently. We don’t believe we did any such thing.
The Gazette has covered this issue since June, 2013 when an Appleby Line resident alerted us to the number of trucks taking landfill onto the Air Park property.
We have recorded and reported as well as we could the various stages this situation has gone through from the point at which the Air Park said they were federally regulated and did not have to heed municipal bylaws through to the court case which resulted a decision from Justice John Murray that said the Air Park was required to comply with municipal by laws.
When a corporation or an individual for that matter is ‘under the gun’ they begin to focus on the public perception of what they are doing. There was a time when Vince Rossi had very little time, if any, for senior people at city hall. “We got ‘the finger’ frequently” was the way one senior city hall bureaucrat put it.
With an appeal due to be heard in less than a month Mr. Rossi has begun to work on his image.
We recently saw a piece he wrote in the Spectator, which we have set out below.
By Vince Rossi
As the owner of the Burlington Executive Airpark, I am proud of our long and accomplished history in Halton Region.
Vince Rossi, president of the Burlington Executive Air Park and believed to be the sole shareholder of the private company, met with north Burlington residents. He took all the comments made “under advisement”. Councillor Craven wanted to know why he was such a lousy neighbour. The airpark opened in 1962. Since that time, it has served as a flight training centre, an aircraft maintenance base, a recreational flying facility and a key transportation hub for Halton residents and businesses.
Thousands of pilots have received their training at Burlington Airpark, many of whom are now airline pilots who safely transport thousands of Canadians every day. The training and maintenance facilities, along with the charter services, are independently owned and provide skilled employment opportunities for our community. In addition, there are jobs for those who provide services to the airpark and the businesses located there.
Many leading companies, including Ford Motor Company, Mercedes-Benz Canada, Evertz Microsystems and L-3 Communications, use the airpark for the transportation of people and key materials.
… every test of neighbouring streams and wells has met or surpassed federal and provincial environmental standards.
The airpark is also used for patient transfers and organ donation flights, given its proximity to medical institutions that serve Burlington, Milton, Oakville, Mississauga and Hamilton.
Ontario’s air ambulance service uses special facilities installed at the airpark for advanced training.
The airpark is also used for law enforcement, search and rescue, military and ambulance flights.
Finally, the airpark is home to a thriving recreational aviation community. It is the host of community service events such as educational flights for school groups, the semi-annual Big Brothers Big Sisters Airlift and serves as a partner and rest stop in the PwC Epic Tour Halton, a regional biking event.
There is a shortage of smaller general aviation airports in southern Ontario with reasonable proximity to cities. The airpark is a unique and essential asset for Halton Region.
But we want to improve and do more.
I purchased the airpark from the Kovachik family in 2006, having done my own flight training here.
Since then, I have invested more than $4 million in infrastructure improvements. I have not received financial assistance from any level of government. This has included widening and improving both runways, adding taxiways, improving the refuelling facilities and building additional hangars.
We have always been open about our plans and goals to improve the airpark. Over the years, we have posted plans on our website and we have held a yearly reception as well several open houses and barbecues that have been attended by neighbours, airpark users and politicians of every level. At these events, we have shown our improvements and plans for the future.
Our efforts to improve the airpark were halted in July of last year, after complaints were raised by a few of our neighbours, some of whom had only recently purchased their homes. They made unsubstantiated claims that the fill being imported to level the remaining airpark lands was waste, which, of course, it was not.
The situation then became political. City of Burlington councillors repeated the unsubstantiated rumours of contamination. The City of Burlington, citing its site-alteration bylaw, took steps to stop the improvements. Despite the fact the airpark is federally regulated, we met with the councillors, city officials and our neighbours to try to address everyone’s concerns reasonably. Notwithstanding, the mayor of Burlington publicly vowed to take whatever steps the city could to stop the infilling.
To be clear, every test of neighbouring streams and wells has met or surpassed federal and provincial environmental standards. There have been six inspections, studies and/or tests carried out since 2009. None have indicated a problem with the fill or an adverse impact on local water. Further, after discussions with the Ontario Ministry of the Environment, the airpark is in the process of voluntarily completing the most comprehensive study to date by carrying out a test well program.
Sadly, we and the city are spending time and money in court to find out whether the city is entitled to control improvements at the airpark. During the past 60 years, courts across this country have held that the federal government has exclusive jurisdiction over the location, design and materials used to build and improve airports. There are more than 1,400 airports across Canada. It would be chaos if each one was subjected to different municipal standards, which is what the courts have consistently held. We hope for a resolution in June.
 Airpark dumped more than 30 feet of landfill without a Site Plan. Owner of the adjacent property stands on her property line and wonders why anyone can build a “small mountain” next to her property without getting approval. She wonders where the respect for her property rights is in all this. I’ve always respected our neighbours and the City of Burlington and was hopeful that we could have reached a compromise that protected and enhanced the interests of all parties.
In the meantime, the Burlington Executive Airpark will continue to serve the interests of our community, and our region. We’re here for the long term and look forward to moving forward with our neighbours.
Vince Rossi is the owner of Burlington Airpark Inc.
Before the “I have always respected …” paragraph, Rossi has added the sentence: “I am saddened the situation has come to this” and after the paragraph he added the words: “I’m an optimist. I still believe it can happen.”
It is this changing the record and adding comments to suit his purposes that have resulted in the very deep mistrust between Vince Rossi and his neighbours. This distrust has been evident from the very first delegation at city council when lawyer Glen Grenier was speaking and ward 1 Councillor Rick Craven asked: “Why is your client such a lousy neighbour?’
The relationship between the city and the Air Park didn’t get any better for some time. It appears that the Justice Murray decision and the pending appeal have persuaded Mr. Rossi to begin talking in terms of “a compromise that protects and enhances the interests of all parties.”
Many people in rural Burlington feel it is a little too late for that. They want the landfill out and tomorrow won’t be soon enough. Justice Murray said what north Burlington residents wanted to hear: “This court has determined that the by-law is valid and binding on Burlington Air Park Inc. The issue of enforcement is left to the municipal authorities.
One observant reader passed along information on the Air Park web site and described it as “highly selective and manipulated information”. That is where we came across the different version of the piece that appeared in the Spectator. Any detail of the Justice Murray decision is hard to fond on the Air Park website.
Background links:
This battle has been going on since June of 2013
 By Staff
April 23, 2014
BURLINGTON, ON.
The Pythons are back. This annual event created by the Rotary Clubs of Burlington is an occasion for entrepreneurs in the commercial world and students at high schools who think they have good commercial ideas to get some of the technical help they need as well as some capital to grow the business idea.
Pythons’ Pit provides an avenue for creative, entrepreneurial residents and students of Halton Region and beyond to pitch their business concepts and product ideas in front of a live audience and a panel of real business moguls from the community. Open Category applicants can win up to $150,000 in start-up capital and a package of in-kind professional services to help launch the business. High School applicants can win cash prizes up to $2,500 or a bursary of up to $5,000.
 The Pythons look for that person will a bold idea and a vision; those that step forward and show initiative and drive. These are the people that keep an economy growing. There are two categories Open and High school students.
The Open Category entries this year are:
GymChum – Aydin Betez
Country Basics – Ted & Lisa West
V.M. Enterprises – Vincent Marchese
Tetra Biologicals Inc. – Bruce Robinson & Thurkathipana Navaneethan
Ranggo – Noha Abdelaziz & Peter Basil
Finalists in the High School Category are:
NORSAF Technologies – Jack Greenburg, Garth Webb Secondary School
Smart Tasks – Jennifer Palfi: Bishop Reding High School
Smart Tap – Jessy Kang; Abbey Park Secondary School
Fashion on Wheels – Nita Stranaghan & Katie Henderson; Georgetown District High School
Cyclo-Charger – Mark Suan: Corpus Christi Catholic Secondary School
Leading the event as Emcee this year is Connie Smith, well know local television personality. The program is brought to the community by McMaster’s DeGroote School of Business. Presenting sponsors are: Royal Bank and the MNP Group
Students winners last year were:
Ryan Muil, a Grade 12 student at Christ the King Catholic Secondary School in Georgetown, won first place and $2,500 for his already successful company Muil-E’s Hot Sauce, that Ryan founded when he was just twelve years old.
Jasmine Mercer, a Grade 11 student at Corpus Christi Catholic Secondary School in Burlington, won second place and $1,000 for her Mobilization of Restaurant Software – an application she developed, which offers solutions to problems Jasmine encountered while working in the restaurant industry.
 By Staff
April 22, 2014
BURLINGTON ON
We received the following recently.
Burlington Gazette
Burlington, Ontario
Dear Sirs:
Re: Burlington Airpark Inc. -Libel Notice to Burlington Gazette
We are the solicitors for Burlington Airpark Inc., the operator of the Burlington Executive Airport (collectively “Airport”). This letter is to serve as notice pursuant to s. 5(1) of the Libel and Slander Act R.S .O. 1990 Chap. L.12.
Under the date of April 11, 2014 the following appeared on the website https://www.burlingtongazette .ca/:
“Was it the cold winter that resulted in hundreds of dead fish floating on the pond of the Appleby Line property that is surrounded on three sides by the Air Park land fill or is the death of the fish the result of toxic and silt filled water now in the pond?
The argument as to whether the land fill was going to do any real damage has been simmering in the background. Some testing was done but the
A spring fed pond with hundreds of fish – normally. Today wasn’t a normal day on the Appleby Line property. Hundreds of dead fish were floating n the water this morning
Ministry of the Environment got involved in a struggle over who was entitled to the information from their testing results -privacy issues came into play and the privacy officers at every level of government seem to be taking the time they feel they needed to determine just who can see what.
The spring fed pond is yards away from a mountain of landfill that was never properly tested when it was dumped on the property.
Runoff from the landfill is now getting to the water table -dead fish are showing up in the pond.
Some of the evidence may have come to the surface – literally, for one resident. Hundreds of dead fish were found floating on her pond this morning . That pond is yards away from a 30 foot high pile of landfill that is in place in violation of the city’s site alteration bylaw.
The property owner advises that the Ministry of the Environment will be on her property later today to test for contamination in the pond.”
These publications are false and misleading in at least the following respects:
1. The soil was tested. Results to date in 2009 were reviewed by Region of Halton which reported to the City of Burlington: “The results for all criteria meet the Regional and Provincial standards (potable) as required in Table 2 of the Soil, Ground Water and Sediment Standards for Use Under Part XV.1 of the Environmental Protection Act.”
2. The Airport is not contaminating the groundwater. Multiple tests by Environment Canada, the Ontario Ministry of the Environment (“MOE”) and Halton Region have shown no impact on groundwater.
3. When the City of Burlington reported the results of the Halton Region testing of wells on properties bordering the Airport in its Burlington Executive Airport Update #6- September 9, 2013: “On August 23, city staff were sent an email by the Region of Halton regarding testing of wells on several properties adjacent to the airport. The email indicated that the MOE and the Halton Region Health Department were working together to sample and analyze the drinking water wells of homes located immediately adjacent to where the fill was placed on the airport site. Well water samples were collected by MOE staff from two properties. The samples were being analyzed for inorganics, volatile organic compounds, polycyclic aromatic hydrocarbons and petroleum hydrocarbons.
Results of this testing were provided to the Health Department. The results were then compared to the health-based Ontario Drinking Water Quality Standards and the Ministry of Environment Table 2 Brownfields standards. The Region has indicated that no exceedances were reported. These results have been shared with the property owners. Permission was given by these property owners for the Health Department to share the results with city staff.”
4. These results were also discussed at the Burlington Development and Infrastructure Committee meeting on September 9, 2013 where it was reported: “On to Environmental matters on page 3 -the well testing. You can see the correspondence that’s come in from your CEO over at the Region of Halton. That work is being done in co operation with the Health Unit. That’s flowing through the good Doctor [Nosal], so the results will , continue; they have been shared with the property owners and the Health Department and we’ll get that information as it comes forward. Nothing negative at this stage and that is not unusual to see that there isn’t anything negative that would migrate from the site and be into any wells anyway, at this stage.”
The publication was actuated by malice justifying an award of punitive or exemplary damages, in that you caused these words to be published knowing them to be untrue, or being reckless as to their truth. In particular the Airport will rely on:
1. The publication of an article dated April 9 2014 reporting on the filing of nomination papers by Vanessa Warren. The article, when fairly read, is an endorsement of her candidacy. The article repeats earlier defamatory claims that the Airport was importing “toxic landfill” and was running an “unlicensed landfill operation”. Both these allegations are untrue. The July 16, 2013 article in which these claims were made is still available on the Burlington Gazette website, and the Airport claims with respect to these statements as well having been made less than one year prior to April 11, 2014.
2. The Burlington Gazette reported on the testing of neighbouring wells on August 5, 2013. This report is also inaccurate in claiming that the Terrapex study established that any contaminants were migrating from the Airport property. Terrapex did not comment on off-site impacts as that was not part of the scope of work assigned to it by the City of Burlington. In addition, it bad not done any testing that would have been required to comment on off-site impacts. The August 5, 2013 article in which the false claim that the Terrapex report was evidence of off-site impacts by the Airport is still available on the Burlington Gazette website, and the Airport claims with respect to that statement as well, having been made less than one year prior to April 11, 2014.Nevertheless , as a result of the reports by the City as set out in paragraphs 3 and 4 above, you knew or ought to have known that the tests of neighbouring wells showed no adverse impact due to the Airport and that the City of Burlington had advised the community that there wasn’t anything negative that would migrate from the site and be in any wells anyway. The failure to report these results was selective reporting intended to maintain the fiction that the Airport land was adversely impacting the neighbours, when the tests specifically performed to determine whether that was so were to the contrary.
Our instructions are to pursue legal proceedings unless the defamatory statements in the articles of April 11, 2014, July 16, 2013 and August 5, 2013 are retracted and a full and fair apology satisfactory to our clients is published in the same fashion and in an equally prominent way as the statements specified in this notice.
The notice was signed by Peter West, solicitor for Air Park Inc., carrying on business at the Burlington Executive Air Park. The Air Park is currently in litigation with the city. The cases were first heard at the Ontario Superior Court in Milton where Justice Murray found for the city. The Air Park immediately filed an appeal that is to be heard in Toronto June 11, 2014
Background links:
April 14, 2014 article
July 15, 2013 article July 16, 2013 article August 5, 2013 article April 11, 2014 article Libel chill Justice Murray decision
By Staff
April 22, 2104
BURLINGTON, ON.
In an issue of the Ryerson Review of Journalism there was the following article which we have excerpted.
The journalist’s badge. That’s how Ron Adams, host of CBC Radio’s Media File, referred to getting sued. He was questioning Jock Ferguson of The Globe and Mail about libel chill. Lawsuit phobia, if you prefer-the notion that the threat of fighting legal actions, with their high costs in time and money, often inhibits aggressive reporting. For some journalists, getting sued may well be a badge, a testament to their profession. For many others, including those who make the final decisions, the possibility can be intimidating in the extreme.
 Though there is nothing like a consensus on how pervasive libel chill is in Canada, it has nevertheless become the basis of a movement to liberalize our libel laws, particularly their onus on the media to prove the truth of what they publish or broadcast. American law, under which the burden of proof is on the plaintiff, is looked to as a model.
The current libel laws “certainly didn’t hinder the Globe last fall when it ran “Behind the Boom,” an eight-part series exposing the corruption surrounding land development in York Region, a formerly rural municipality north of Toronto. Ferguson and co-writer Dawn King spent 10 months interviewing over 200 people, working closely with lawyers and even allowing counsel to meet three controversial sources, all so they could get the story straight. For their efforts, the Globe has been served with a libel notice to the tune of some $20 million.”
“But the story had another more important effect. After reading about the close ties between city councillors and developers, and about the conflicts of interest, voters were able to bring their outrage to the polls. The result: Allan Duffy, the mayor of Richmond Hill, and Carole Bell, the mayor of Markham, were defeated. Now both face investigation by York Regional and Ontario Provincial Police.”
“Under the threat of litigation, the Globe made sure its stories were airtight. “We wrote only what we could prove. There were a number of things we were close to proving, but we wrote only what we could prove,” says Paul Palango, the paper’s city editor. And that, as far as Palango is concerned, is as it should be. Being able to back up what’~ printed is a given. It doesn’t have to limit reporting. The “Behind the Boom” series is proof that the media can do their job within the existing legal framework. As for the Globe, it’s confident that if it should go to court it will win. Palango feels strongly that this kind of aggressive, thorough reporting is the best way to fight the chill. It all comes down to getting the goods, being determined and publishing the stories.”
“Many editors share this conviction. While those at large dailies such as The Montreal Gazette and The Toronto Star pride themselves that their own coverage is just as intense, others acknowledge that the chill is real.
“So does Stephen Bindman, president of the Centre for Investigative Journalism and national reporter at The Ottawa Citizen. “Libel chill is certainly out there,”he says. “I think most reporters can give you an instance of someone saying ‘Oh well, I’ll sue you,’ and if it doesn’t necessarily stop you from doing the story, it at least gives you cause for concern.”
“For its part, the Globe isn’t worried about the 130 notices it’s received over the past five years. And it’s unlikely that any of them will go to court. This situation is typical of Canadian libel actions. Although there are no statistics, most media law specialists agree that over 90 percent of all libel actions never go to trial.”
“The Supreme Court of Canada upheld the 1978 Quebec Superior Court award of $135,000 in the case of civic politician Gerald Snyder against The Montreal Gazette. Before the record Snyder suit, awards throughout the country usually ranged from under $1,000 to $75,000. But since there is no ceiling on damages, that could easily change pending the outcome of the Reichmann family’s action against Toronto Life.
“The billionaire Reichmanns are suing the magazine for $102 million. The dispute is over an article that ran in the November 1987 issue. In it, freelance writer Elaine Dewar traces the rise of the Reichmann family fortune. The Reichmanns claim the legitimacy of their business dealings is being questioned and the family honor is at stake.”
Toronto Life ended up apologizing to the Reichmann’s.
Jeffrey Shallit, a University of Waterloo computer scientist and a noted advocate for civil liberties on the Internet wrote a piece recently in which he argued: “It’s time to reform Canadian libel law”
“Environment Minister Tony Clement is suing Liberal leader Dalton McGuinty for remarks he made in a CBC radio interview. Jacques Parizeau and Lucien Bouchard are suing investment adviser Richard Lafferty for his comments in a 1993 financial newsletter. In 1997, former Prime Minister Brian Mulroney sued the Federal Government, asking $50 million in damages, over a letter naming him as a suspect in the Airbus case.
“What gives these powerful politicians the ability to shut down criticism and criminal investigations? The answer is Canadian libel law.
“Under the current legal regime, you can be sued for anything you say about another person that damages their reputation. If sued, the onus is on you to prove the truth of your statements; the fact that you genuinely believed them to be true is not good enough. Even truth is not an absolute defence — if the court finds you told the truth but your intent was malicious, you might lose anyway. Canadian libel law is so draconian that people come from all over the world to file libel suits in Ontario.
“The impact on freedom of expression, a core value of the Charter of Rights and Freedoms, is severe. There’s even a term for it: “libel chill”. Libel chill means that people are afraid to criticize powerful people who might bankrupt them with a costly suit. It means that commentators have to think twice before needling public figures — as cartoonist Josh Beutel learned when he was sued by controversial New Brunswick school teacher Malcolm Ross. Ever wonder why there’s so little investigative journalism in Canada? The reason is simple: libel chill.
“Stringent libel laws may have made sense five hundred years ago, when British royalty wanted to stop the nobility from dueling by giving them a legal remedy against character slurs. But we don’t live in the time of Henry VII any longer. Debate on political issues can’t be robust and wide-open if the threat of a libel suit hangs over you.
“Today, if someone tries to ruin your reputation, there are many avenues of redress. You can hold a news conference, take out an ad on radio or television, or set up an Internet web site to tell your side of the story. These methods are cheaper than a lawyer’s fees and certainly safer than a duel.
“It’s time for Canadian libel law to be brought in line with 21st century realities. A good first step would be to reverse the burden of proof in lawsuits involving public figures: the plaintiff, not the defendant, must prove the statements in question are false. Furthermore, let’s exempt statements of personal opinion or belief, and force the plaintiff to prove that the statements were made with malicious intent.
“If we don’t act, the likely result is millions of taxpayer dollars going to fund the legal bills of rich politicians who know how to dish out criticism, but can’t take it.”
Libel chill is very much a part of the Canadian media scene. Later this week we will tell you more about that chill and how it works.
By Pepper Parr
April 9, 2014
BURLINGTON, ON
The objective was $300,000 – more than $80,000 of that was raised in less than a month.
Don’t ever say that this community is not behind the Friends of Freeman Station (FoFS) and their objective to rehabilitate and refurbish the Burlington Junction train station originally built in 1906. Despite the full support of city council – the FoFS have persevered. Councillors Marianne Meed Ward and Blair Lancaster deserve all the council level credit for their work.
Brian Mello and artist David Harrington hold a painting of the Freeman Station in front of the site where the refurbishment of the build will be done when the foundation is in place and the weather is a little warmer.
It has been a struggle but when Mark Gillies was made chair of the membership and fundraising committee things began to happen.
The FoFS created a list of sponsorship opportunities and within a month most of the indoor locations were sponsored.
 John Mello on the right and David Harrington hold a painting Harrington did of the Freeman Station. Brian Aasgaard, president of FoFS advised us that it will not be very long before we see work crews on the site starting the work.
Right now they are waiting for a permit to begin putting in the foundation. The FoFS station had all their drawings but – this is almost funny, the engineer who provided the drawings made a mistake and put in the year of 2013 instead of 2014 and the city rejected the application – so back they had to go. Aasgaard said he will have the permit by the end of the week and the basement work can begin. As soon as that is done – work crews move in – and we should have some warmer weather as well.
There are a number of organizations that are waiting in the wings to announce their sponsorship which puts “DONE” to the task a group of citizens took on to save a piece of local history.
City council struggled for years to find a place to place the station and then have it refurbished – at one point they even had federal money to pay for the move and the refurbishment but they couldn’t agree on a home for the structure. Meanwhile it sat beside the fire station headquarters and began to slowly rot.
Those days will become part of the lore and history of the station – not one of the city’s best moments – but it is the citizens of a city that make a community what it is. City councils just get elected, make their mistakes and move on.
By Staff
April 5, 2014
BURLINGTON, ON.
HalTech is a provincial RIC, an association sponsored by the provincial government and is one of more than 20 such associations across the province to help local corporations and budding entrepreneurs develop and grow their businesses.
RIC: Research, Innovation, Commercialization or RIC Centre provides their clients with: personalized service, face to face support, comprehensive business advisory services with three C-suite level Entrepreneurs in Residence, access to capital and funding opportunities, entrepreneurship training and networking opportunities and an extensive mentor-ship program
Hal Tech is a member of the Ontario Network of Excellence (ONE). The ONE is a collaborative network of unique organizations across Ontario. These organizations are designed to help innovators, entrepreneurs and business leaders, commercialize technology- based, entrepreneurial business ideas.
Haltech is sponsoring a seminar on” Valuing ad structuring your company for success.
The presentation will be given by Brent Jackson from Grant Thornton LLP and Ted Maduri of Davis LLP.
They will take a close up look at both the financial and legal elements of your business. These are key ingredients that will make or break your company in today’s competitive world.
What is your company really worth? The gap between YOUR value and the real market value is something you need to know.
Most companies require investment. First you need to know what to pitch for and how to position your company for ultimate success.
The event takes place at the Ron Joyce Centre at the McMaster DeGroote School of Business on April 17th – runs from 9:00 am to 11:00. Might be worth looking into. For tickets – go to and register. There is no cost for the event.
By Staff
April 4, 2014
BURLINGTON, ON.
It’s hard to keep up with the different colours used by the corporate community and community organizations to signify interest in what they are doing. I think it all started with that American pop song: “Tie a yellow ribbon round the old oak tree” to celebrate the return of a person who wasn’t at all sure he would be welcome.
I thought that pink was taken by the CIBC bank people and their Run for the Cure to raise funds for cancer treatment but pink is also being used to recognize International Day of Pink
 Set in the east end of the city on New Street the Nelson Youth Centre has been serving youth since the 1980’s Each year on the second Wednesday of April, millions of people wear pink to remember that positive actions make a difference. On Wednesday April 9th, RBC will make a donation to the Nelson Youth Centre in Burlington to support their efforts to eliminate bullying and discrimination.
Nelson Youth Centre is an accredited Children’s Mental Health Centre that offers treatment programs for at-risk youth in Halton. Reconnecting Youth is a community based program focused on helping youth develop effective social/emotional skills, coping strategies and effective learning skills to transition into adulthood and become successful and independent. The program works with youth, families, schools and the community and provides mental treatment and support for youth between the ages of 14-17 who are experiencing moderate to severe mental health issues which significantly impacts their ability to cope.
Day of Pink is an international day against bullying and discrimination supported by RBC. Last year, more than 16,000 RBC employees wore pink to show support for this great cause; this year the bank is encouraging employees to wear pink and in Halton South we are also making a donation to the Nelson Youth Centre in Burlington.
The Nelson Youth Centre has a program called Reconnecting Youth that provides individual and group counseling for youth struggling with self-esteem, social/emotional issues and poor peer relationship issues.
Next week we will take a look at the people and programs at Nelson.
By Staff
April 4, 2014
BURLINGTON, ON.
While some think it isn’t yet a safe bet that there will be no more snow – if there is any it won’t stick around very long – which was enough motivation for the Friends of Freeman Station to begin checking their tool boxes and getting out their work books to troop over to the current location of what everyone calls the Freeman Station.
 It was a different Burlington at a much different time when it was not yet a town and the reason for being was to grow produce and ship it out from this station. Now we want to preserve the place. In 1856, the Great Western Railway completed the rail line. The first train station of the Great Western Railway line was built around 1854 near Brant Street close to where Plains Road is now located. The line itself, which ran between Hamilton and Toronto was completed in 1856.
The local area at the time was called Wellington Square.
In 1869, the Great Western Railway started to list the train station as “Wellington Square”, in their railway timetable schedules. A short time later, the station name “Wellington Square” was changed to “Burlington”, when the area became known as Burlington.
In 1877 on February 14th, the Hamilton & Northwestern Railway line opened from Hamilton to Burlington and on up to Georgetown. This created a junction between the GWR and H&NW railways, and it was at “Burlington”. The designation for the train station changed to “Burlington Junction”.
In 1882, the Great Western Railway and the Grand Trunk Railway amalgamated and the train station at “Burlington Junction” was of a Great Western Railway building style, and now it was part of the Grand Trunk Railway who used different styles for their train stations.
 The train station was a focal point for the city – train travel was how most people for to Burlington. In 1883, the “Burlington Junction” station was completely destroyed by a devastating fire. The station was rebuilt in 1888, and the Grand Trunk Railway continued to use the GWR design. There is an old photograph from this period that shows the station with signage that shows the station with the name “Burlington”.
In 1904, this second station also burned to the ground. It was not that uncommon to have fires at train stations. The locomotives were spewing embers as they entered into the station area, and on windy days, those burning embers often landed on the stations somewhere.
In 1906, the Grand Trunk Railway built a new station using their own classic design, which was known as “Type B2a”. This is the historic station design we are fortunate to have in Burlington, and now it will be preserved and renovated. As a side note, all three stations were built at the same location.
During the time that the stations were active, the signage changed three times. The names ‘Burlington Junction”, “Burlington”, & “Burlington West” were all in use. “Burlington West” was used for a very short time in the mid-1980s as Go Train Service was introduced and the new Fairview Street Station opened. For a brief time, both the Go station & the “Burlington West” station were in operation at the same time. The “Burlington West” sign was there only to distinguish between the two stops until the beautiful old train station was finally closed around 1988 by the Canadian National Railway.
 Burlington grew produce; pears, peppers and apples were some of what got shipped from the Burlington station. So why was it ever called “Freeman Station”? Contrary to popular belief, it was not named after the Freeman family who settled the area over 200 years ago. The station was located in the Village of Freeman, which was the area of Brant Street and Plains Road. The Freeman family has lived in and around the Village of Freeman for all of those years. The Village of Freeman was a thriving community with several factories, including a canning company and a basket making company, and a fair number of nearby houses. The Village of Freeman even had its own Post Office and a postal stamp designation up to 1952, when amalgamation finally brought the Village of Freeman together with the Town of Burlington. The name evolved from everyday usage by the local residents who affectionately called their train station, “Freeman Station”.
With this kind of local history one would have thought city council would have been all over themselves to save the place. The city couldn’t find a place to put it and the leadership to save the structure didn’t show up until the place was being offered for sale as kindling. The city just wanted to get rid of it.
 On the move – the station got moved a number of times – is there yet another move in its future? That is when Councillors Marianne Meed Ward and Blair Lancaster got together and pleaded with their colleagues to just give them some time and they would find a way to save the structure.
The Friends of Freeman Station was formed; the found a way to acquire charitable status and then they found a home for the building – that turned out to be yards away from where the station had been resting – standing on blocks beside the Fairview Fire Station.
The move took place before the winter set in. The building is still sitting on blocks and two large yellow steel beams. A foundation will be put in and then the structure lowered onto what will be its home while the restoration work gets done.
  With the warm weather about to arrive the renovators and refurbishes want to get at it. And that is going to cost – quite a bit – at least $300,000
They can’t sell tickets – yet, but the FoF board has decided they can sell naming rights and they have come up with an ambitious approach to sell naming rights for everything but the toilet that we assume the place is going to have.
Try these on for size:
1. The Station Master’s Office, $15,000
2. The Waiting Room, $12,500
3. The Portico, $10,000
4. The Baggage Room, $7,500
5. The Lower Level, $5,000
6. The Les Armstrong Main Entranceway, $2,500
7. The Lower Level Entranceway, $2,000
8. The Crew Room, $1,000
9. The Windows (14), $2,000 each
10. The Jane Irwin Oval Window, $2,000
11. The Interior/Exterior Main Level Doors (5), $2,000 each
12. Interior Furniture, Lights & Displays (20), $500 each
And that’s just the inside of the structure. Outside you can slap your name on:
1. The Burlington Junction Freeman Station Park, $60,000
2. The Train Platform, $10,000
3. The Parking Area, $5,000
4. The Original Baggage Cart, $2,500
5. The Landscaping, $2,000
6. Exterior Platform Accessories, (20.5) $1,000 each
7. Original 1000 whinstones, $100 each
The fund raisers come up with a total of $305,500
There are two sponsorship opportunities that need comment. The Les Armstrong Main Entranceway, $2,500 and the Jane Irwin Oval Window, $2,000. I’d up the price for those to $5000 each; Irwin and Armstrong were the two strongest advocates for saving the station –Les was the forming president of the Friends of Freeman and Jane the vice president – both are no longer with us.
 The signing of the Joint Venture agreement between the Friends of Freeman Station and the city – with the Friends raising most of the money. The hope is that the FoF board will exercise some discretion and not have the station looking like one of those NASCAR drivers with clothing that is a collection of corporate. Dignified and under-stated please.
Background links:
The station was saved.
Freeman station being prepped for a move.
 By Staff
April 2, 2014
BURLINGTON, ON.
Tracy MacCharles, Minister of Consumer Services and Consumer Protection Initiatives got herself out in front of a microphone earlier today and passed on what she thought was good news – and good news it was – assuming what she said is true, true, true.
 The Minister of Consumer Services and Consumer Protection Initiatives told us how we were going to be protected from cell phone contract abuse – from the offices of a cell phone provider. Which is a nice way of saying the prices aren’t coming down but you will know just how high – try sky high – those prices are going to be when you sign up.
That the Minister delivered her comment at the offices of Wind Mobil gives you a sense of who has the clout; had she been out on a street corner with people who had their phones next to their ears and talked to them about what works and doesn’t work – this might have been a different story.
So for now we have to go with what the Minister said in that controlled environment the politicians like.
Eight out of every 10 Ontario families have a wireless services agreement but most of us don’t really understand the contracts we sign: the terms and conditions, what’s included in the agreed upon monthly fee, and what will cost extra.
Thus the new Wireless Services Agreements Act now in effect, brings long-awaited improvements to the marketplace. Ontario consumers can now expect clearer, easier-to-understand information, and fewer surprises when they enter into, or amend, cell phone and wireless services contracts.
Requiring plain language contracts;
Requiring that contracts clearly outline which services come with the basic fee, and which would result in extra charges;
Requiring that providers get a customer’s explicit consent before amending, renewing or extending a fixed-term contract;
Enforcing a cap on cancellation fees, making it less expensive for consumers to walk away from contracts; and
Allowing a consumer to cancel a contract at no cost after two years.
 What can consumers do if they think their contract was not properly made — or they feel they are paying for services they didn’t contract for? Under our new law, providers who do not comply with the rules must give consumers who cancel their contracts a full refund for up to a year of service.
 If a provider charges for services after a contract is improperly amended, a consumer is entitled to get that money back.
The act also addresses advertising by wireless services providers. Providers must now show the minimum monthly costs in ads – if they are advertising any costs – and the most prominent price must be the all-inclusive price.
Keeping up with all these rules and the services being provided to protect us can be daunting. The government has launched a new program (yes, another one) called Consumer Protection Ontario; an awareness program that will link together all of the consumer protection activities of the Ontario government with a common identifier.
Provincially mandated administrative authorities – such as the Real Estate Council of Ontario, the Electrical Safety Authority, and Technical Standards and Safety Authority, will help the people of Ontario know where they can turn to get information about their consumer concerns.
The Stronger Protection for Ontario Consumers Act gave provides more effective rules to help people who have to deal with door-to-door transactions, dealing with debt settlement companies, or in real estate transactions.
The province is going to modernize Ontario’s Condominium Act, so that the 1.3 million people in this province who live in a condo will have up-to-date legislation that reflects the reality of condo life today – including proper qualifications for managers and increased consumer protection for owners.
They are also continuing to explore home inspector qualification to increase the level of confidence people have when they buy a home – they need to be sure that their pre-purchase inspection has been done by someone with appropriate credentials.
 Protection from tow truck drivers – now that is something useful. Do you get the sense that we have a government working hard to convince us that they are out there doing everything they can to protect us – which many of us wanted them to do when they were thinking through how to get out of those gas plants they decided not to complete – that was a $1 billion ouch.
 By Pepper Parr
March 31, 2014
BURLINGTON, ON.
We all know about insurance. We pay those premiums month after month convincing ourselves that we are “covered” and all too often when a catastrophe occurs we learn – the policy doesn’t cover that. It happens to households and it happens to the world of business as well – and when it happens in the construction industry – it can get messy.
 June 17th – 2013 – It will be seen as a great day in the history of the city. Despite a horrendous cost and new levels of mismanagement by people who are no longer with the city – the pier was a good idea. And if there was ever a messy construction project – look no further than The Pier at the foot of Brant Street. That situation is slowly working its way through the legal system. The next step is mediation – a process that is required before a case can be given a trial date.
Nancy Shea Nicol, the city solicitor has explained that at some point prior to any trial the Court will order that the parties engage in mediation to see if the issues can be resolved. Mediation does not make a determination of the legal rights of the parties; it is not binding and the mediator cannot impose a resolution on the parties. Mediation is a process where the people involved look for a way to see if they can agree on a settlement and avoid going to trial.
Mediation is a way to keep differences out of a court room. People involved in legal disputes – and in the pier situation there are five law suits – are required to at least attempt to mediate that dispute. It is useful to look at who is suing who:
Harm Schilthuis and Sons Limited (HSS) vs. City of Burlington
City of Burlington vs. Zurich Insurance Company (Bonding Company for HSS)
City of Burlington vs. HSS, EFCO, Aecom, Lombard, PV &V, Craneway (Insurance Claim)
City of Burlington vs. Aecom
HSS vs. Lombard, PV &V, City, Craneway (Insurance Claim)
What is instructive here is that HSS, the original contractor, is suing their insurance company and their insurance broker. You sue when you believe the service you bought was not delivered. HSS is also suing the city of Burlington – they believed they delivered and that the city has not paid for what was delivered.
The city is suing Zurich insurance – they are the company that provided the performance bond the contractor, HSS, was required to put in place.
 There was a time when the city didn’t have more than $14 million of taxpayers money sitting at the end of Brant Street. There are those who think it should have been left the way it was. The city called that performance bond, arguing that the contractor had not completed the job. The insurance company, Zurich, came back with a proposal to complete the pier – albeit at a higher cost – which the city didn’t like the look of and they declined the offer – pretty quickly it might be added – and went looking for a new contractor which they found, hired and paid. In June, 2013 the pier was officially opened.
 Steel beams that had been installed, found to be flawed were taken out – they sit in the construction yard at HSS The contract to build the pier was awarded in the summer of 2006. A new council was elected to office in October of 2006. Then there was the crane accident: August, 2008, during the first concrete pour, one of the main steel beams supporting the deck twisted. Two weeks later, a crane capsized onto the pier.
Fast forward to December 16, 2009, when HSS notified the city, in writing, that it was unwilling and unable to complete the pier construction contract. HSS then filed a construction lien against the city and issued a statement of claim in January 2010 – the gloves were off.
The city said at that time that it had a plan of action to complete the pier in a fiscally responsible manner and notified HSS’s bonding company, Zurich Insurance that HSS was in default. The city’s first recourse is to give the bonding company an opportunity to remedy HSS’s default and to follow the procedures as set out in the performance bond issued by the bonding company in favour of the city. Cam Jackson was still Mayor of Burlington at this time.
On June 18, 2010 HSS published a full-page advertisement in the Post to tell its story. The city issued a statement saying the “confidential, without prejudice discussions referred to by HSS,” in the advertisement, “contained significant new costs, which were not acceptable to taxpayers in the opinion of City Council, and additional conditions, which went against the advice of our legal counsel.”
The argument moved to a “he said”, “she said” stage where HSS said the company had not been paid by the city for invoices it had submitted and the city said it had already paid HSS $3.9 million of the total $6.5 million construction contract amounting to 60 per cent of the original contract.
 This Council didn’t create the pier problems – but they did manage to drop the ball on more than one occasion when there were opportunities to limit the financial damage. October 2010, a new city council gets elected; Cam Jackson is no longer the Mayor but the council still has three members, John Taylor, Jack Dennison and Rick Craven who were on council when the original contract was awarded.
In April 2011, the city received a proposal from Zurich Insurance Inc., the HSS bonding company, to settle the construction of the pier issues.
On May 11th, City Council, in a closed session was given an update on the proposal.
On May 24 city council decided not to consider the proposal. The public was never told what the proposal was or the reasons for rejecting it. We do know that the proposal did require the city to put more money into the construction of the pier but the public was never told how much more.
On September 26 council voted to hire Graham Infrastructure of Mississauga to complete the Brant Street Pier.
Graham Infrastructure’s bid was for a total contract price of $6,429,700, including full HST. Two optional items—a beach access ramp and additional concrete work for the waterfront promenade in Spencer Smith Park—were recommended for inclusion in the bid, bringing Graham Infrastructure’s contract price to $6,713,330.
The total project cost, including the nearly $5.98 million spent to date, would total $14.44 million.
 The city made the most of what will be seen as an historic occasion; the youth of today lay their hands on the pier plaque on opening day. On June 17th, 2013 the pier at the foot of Brant Street was officially opened.
But that is far from the end of the story. The pier ended up costing a lot more than anyone expected. The original contractor, HSS, has bills they sent the city before they left the construction site and which the city had approved for payment. But once the law suits were issued – everything was frozen. There were also invoices from the contractor that had been submitted but not yet approved. Those are still outstanding and the city is doing nothing about payment until the court case is settled.
These invoices, collectively are in excess of $1 million. HSS had bills to pay the trades that worked for them; they came perilously close to bankruptcy, which they believe many at city hall would have been quite happy to see happen. HSS has survived partly because the trades they have employed for more than 25 years stood by them and said they would wait for payment. When the court case is settled many believe HSS will be found to have been in compliance by walking off the job, their invoices will be paid, the tradesmen will get paid with interest that will come from the city of Burlington taxpayers.
The contractor, HSS is suing its insurance company and the broker who sold them the insurance policy. Lombard is believed to be the insurance carrier and PV&V Insurance, the broker who sold the policy to the contractor.
 There is nothing pretentious about the HSS operation. A general contractor with a solid reputation known for doing the extras.Henry S sits ay his desk working the numbers. Relationships are the foundation on which business people build trust. Henry Schilthuis, president of HSS, built relationships with his trades people who proved to be strong enough for them to wait for payment for the work they had done.
HSS is reported to have been dealing with PV&V for a considerable length of time and expected their insurance broker to defend their interests with the company carrying the insurance – in this case Lombard. Lombard apparently doesn’t think they have to pay on the policy claim HSS made. Messy.
While the contractor, HSS is unhappy with its broker and the insurance carrier – the city is unhappy as well and is going after the HSS the contractor, the contractors insurance company Lombard and the broker who sold the policy to the contractor PV&V and the project manager, AECOM.
This puts PV&V in a very awkward situation. They’ve got everyone coming after them, which doesn’t do much for credibility.
How does one mediate a mess like that? They look for a very skilled mediator – and the good ones are very much in demand. Finding one for this situation has been a challenge but it appears that a date for a mediation hearing has been set – June 19th, even though at least one of the parties is grumbling about the date chosen. Justice Fitzgerald, the judge handling this file has been pushing everyone on this.
In a document the city released before the mediation date of June 19th was set, the city said 17 days of examination for discovery had taken place which resulted in a considerable number of undertakings being given. An undertaking can be an obligation to find an answer to a question or produce further documents in response to questions.
Some undertakings were not agreed upon and required a court attendance for a determination as to whether or not the undertaking is valid. When one side doesn’t want to release information that is damaging to their case – it often requires a judge to tell them – give them the documents they are asking for.
Someone didn’t want to provide documents – our information is that it was the city that couldn’t find many of the documents and the project manager that seemed to require a lot of time to find documents.
The last time city solicitor Nancy Shea Nicol addressed council in open session she explained that there were another four to five days of examination for discovery and that up to that point more than 60,000 documents had been exchanged. At one point someone realized there was a collection of documents no one was fully aware of – it isn’t clear who it was who had the documents, the lawyers don’t talk about his stuff – they just send in their invoices and toil away.
The public has been asking for an accounting on those legal fees – they would like to know how much had been spent to date. The Post filed a Freedom of Information request asking how much had been spent on legal fees and was turned down by the city. The Post appealed that decision and the matter went to the Privacy Commissioner.
It didn’t take the city long to see the writing on the wall –they released the figures at a press conference on January 30th, – and said $1,349,952 had been spent to date.
 The city had argued that telling the public what they spent on legal fees would reveal some of their strategy. The figures are out and there doesn’t appear to be any harm done. I leave it to you to figure that one out.
The fear of course was that the public would be outraged and demand that the city quit the case. It is a very complex case – the real fear is that the city will settle during the mediation process, have a confidentiality clause put into the agreement and the public will never know just what the settlement amounted to and how much they had to pay out.
Did the contractor really screw up and will his insurance company have to pony up with a big cheque. Did the city provide the contractor with a plan for the pier that had major flaws leaving the original contractor with no option but to walk off the job?
Did the contractors insurance company come back with a proposal that would solve the technical construction problems and cost less than the city has spent so far on legal fees?
Why doesn’t city council walk their transparency talk and inform the public – the people who have to pay the bill when council gets it wrong.
The differences are both financial and technical. There were problems with the design of the pier and there are significant differences of opinion as to what an insurance policy covered and what it didn’t cover.
 Done – all the concrete is down – and the steel beams are holding it all in place. Now the railings get put in place. Earlier this week city manager Jeff Fielding advised council that he and city solicitor Nancy Shea Nicol had met with the lawyers representing the city and outlined the city’s position that was going to be put forward during the mediation sessions – which are not very long – hours rather than days.
The city will put forward its position and set out what they are prepared to settle for. It is not known yet precisely who will do the talking, the person representing the city has to have the authority to agree on a settlement figure. The lawyers representing the city will be in the room.
In the event that the mediation proves to be successful the city is going to have to tell its citizens that there is more money yet to be paid out. The contractor, HSS has a claim that many informed observers see as valid – money will move from city hall over to HSS.
How much money will move from AECOM, the project managers and the owners of TSH the company that designed the pier, to city hall is the question that matters most to this city council. If they can recover from AECOM more than they have to pay HSS – they will look like heroes. And in an election period that will matter.
The mess the city is in wasn’t created by this council – but there were several opportunities to settle the problems that the city took a pass on.
Councillors Taylor, Dennison, Craven and Goldring, led by former Mayor Cam Jackson, were part of the council that got the city into the contracts the city is now defending. The contracts weren’t the biggest part of the problem; it was the management of the contracts that have hurt Burlington taxpayers. When the full story is out – and it will come out – taxpayers will be livid.
Most of the people in the city’s engineering department that handled all the technical issues and the relationship with AECOM are no longer with the city. They have moved on to other municipalities.
 The idea for the pier came from a council led by former Mayor Rob MacIsaac, but he left town and went to Metrolinx, and then on to Mohawk College and has now settled as the president of Hamilton Health Services, the second largest health operation in the province with an annual salary of $542,000. With performance incentives that could rise to $650,000 excluding taxable benefits.
That virtually doubles his 2012 salary ($275,515 plus $47,210 taxable benefits) as president of Mohawk College. That is quite a step form the approximately $50,000 MacIsaac earned as mayor of Burlington. MacIsaac has a five years contract. While at Mohawk he had seven weeks of paid vacation; he gets just six weeks paid vacation with the Hamilton Health Services organization.
Of those who were on council when all this happened, only Mayor Goldring has filed nomination papers for re-election. Taylor, Dennison and Craven have yet to formally file.
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