By Pepper Parr
June 12- 2014
BURLINGTON, ON.
The bigger picture of the Burlington Air Park Inc., appeal of a lower court decision is now becoming clearer.
There are losses and there are losses – this one was a trouncing.
In the Appeal Court process has each side giving oral arguments based on the documents that were prepared beforehand. That collection of documents is called a Factum.
The appellant, in this case the Burlington Air Park Inc., proceeds first. At any point during the oral arguments either of the three appeal court judges can intercede and ask questions.
Peter Wells spoke for more than two hours and delved into all the reasons why the lower court ruling, the one given by Justice Murray in Milton should not stand. They ranged from inter jurisdictional immunity to the argument that the court case was never about the content of the landfill – which came as a surprise to the 11 Burlingtonians in the court room.
One of the judges asked Wells if the air park could faithfully obey federal laws why could they not obey municipal laws?
Wells later said that Justice Murray misunderstood what the real issues were. Several in the court reported later they they believed this was the point at which Wells lost his case. Several of the observers felt Wells glossed over the environment issues and one appeal court judge asked Wells directly if he thought Justice Murray was wrong. Wells said he believed Justice Murray was wrong.
Prior to the hearing Burlington Air Park Inc., filed a motion to have new evidence submitted. The court accepted the new evidence and then asked Wells what any of this had to do with the Murray decision.
The new evidence was related to an action the city had brought against King Paving that was later dropped; discussions about King Paving being able to bid on future city contracts and the Pinchin Environmental report dated April 7, relating to a “groundwater monitoring program limited environmental site assessment. Terrapex is currently reviewing that report for the city. It is a very, very complex detailed report .
The judges didn’t see it as relevant.
They took another short break, returned to the courtroom and advised Mr. Wells that they were deciding to dismiss his appeal.
Ian Blue didn’t have to say a word. He didn’t have to defend his Factum. The appeal court judges didn’t see a case to be argued and everyone was dismissed. The moment the judges were out of the court room the Burlington crowd burst into spontaneous applause.
It was over
The justices also awarded the city $22,000 in costs. These court cases are fast becoming a profit centre for the city.
The city put out its press release saying the “Court of Appeal for Ontario has upheld the decision that the City of Burlington’s site alteration bylaw applies to the Burlington Executive Airport.
“The city’s bylaw is valid and binding on the Burlington Airpark and the city is able to enforce its bylaw.”
The Mayor is a happy camper: “The city has shown its commitment to the residents of Burlington in keeping the site alteration bylaw in effect, even in challenging circumstances. He congratulated city staff who persevered in doing the right thing for our residents in ensuring that fill does not continue to pile up on the site and that there are some controls in place to help our community when affected by operations such as the airpark.”
Many of those residents are wondering why the land fill was allowed on the site in the first place.
Ward 6 Councillor Blair Lancaster, who has had her problems with the residents directly impacted by the land fill dumping, said “I am pleased for the people who live near the Burlington Airpark that this decision has been upheld by the Court of Appeal. This is an important moment for those residents, and I am hopeful that things will improve for them.”
The city will meet with legal counsel to determine next steps.
The site alteration bylaw allows the city to regulate how a piece of land can be altered, such as through filling, grading or excavation. The city is updating its site alteration bylaw, which regulates how a piece of land can be altered through filling, grading or excavation, and is hosting a public information meeting to review the new version on Thursday, June 19 from 7 to 9 p.m. at City Hall, 426 Brant St., Room 247.
The really critical question is – which version of the bylaw will be used to bring the air park to heel – and are we done with the appeals?
Barbara Sheldon, who has suffered the most damage at this point – but there are neighbouring farms that will not know for years if they will suffer damages and who knows when whatever is in that fill is going to work its way into the water table, has become the “poster girl” for the movement opposed to the air park work. She has done a CBC News interview as well as a CFRB radio interview and is seldom at a loss for words had this to say about the appeal dismissal: “The verdict of the Appellate Judges, upholding Justice Murray’s ruling that the City can enforce its site alteration by-laws, may be the first, real turning point to the restoration of the properties and lives that Rossi has willfully and deliberately damaged since he bought the Airpark.
“Unfortunately, Mr. Rossi’s proven history with this community has destroyed any possible belief from me that Mr. Rossi will ever comply with the City or respect his neighbors.
“What I do have hope for, is that the pilots will now take back their ‘club’ and restore it to the wonderful, recreational airpark that was built and operated for 60+ years by the Kovachiks’, and that it once again co-exists in harmony within the community and the City of Burlington, as it did under their ownership.”
Vince Rossi does not make himself available to the Gazette. He is currently suing this newspaper on a web site along with two north Burlington residents for damaging his reputation and has asked the court to award him $100,000 in exemplary damages.
Defences are being prepared – a court date has yet to be determined.
Rossi said he will be meeting with his legal team to determine how to proceed with the planned expansion of the air park. He apparently expressed hopes that the city ““might be more conciliatory.” Rossi is reported to have said: “We’ve been conciliatory with the city all along up until this recent situation. It’s not like we did anything the city was not aware of.”
City general manager Scott Stewart talks to members of the Rural Burlington Greenbelt Coalition during a council meeting break. On the far right sits Monte Dennis, of of the people being sued by the air park; in the row behind sits Vanessa Warren who is also one of the defendants in the libel suit with the air park. On the left, standing is Blake Hurley, the city legal staffer who handed the air park file for the city. Seated on the left is Ian Blue the lawyer who has done some very good work for the city.
Vanessa Warren, founder of the Rural Burlington Greenbelt Coalition and a candidate for the ward 6 council seat in the October municipal election, hopes that this decision will open up the blockages on getting environmentally based information from the province and that the Ministry of the Environment might soon be able to go on site and test the soil “which is the problem.”.
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”..
Right now the city and the MOE are battling over Freedom of Information FOI requests that have been made and denied. They city is either at the mediation or adjudication level on several of these FOI requests.
Where is all this going? It probably isn’t over yet. The air park has a very significant $4.5 million investment and they aren’t just going to walk away from it.
Ideally for the community the land fill will eventually get tested – and if it found to be damaging – then it has to come out.
Who pays for that? The people who own the land. Right now Vince Rossi own the air park and no one can see his bank foreclosing on the mortgage they hold – they don’t want title to the land.
There is a 200 acre piece of prime land up there – at some point someone is going to have to come up with an idea for the property. Vince Rossi believed he had a great idea but he has not managed to sell that idea to anyone.
Don’t expect any innovative ideas from the council you are going to elect in October
I must comment on the virtual absence of MP Lisa Raitt throughout this entire process. Guess she just did not want to get her hands dirty.
Henri – you’ve said it all and said it well.
But as I understand it, there are two other properties that have also been damaged by Rossi’s fill operation, perhaps not as severely as Barbara Sheldon’s, but damaged nonetheless. These properties need to be restored as well.
I believe City Hall staff need to meet with all the property owners whose lands have been impacted directly – NOW – and tell them what they intend to do for them and in what time frame.
(and if those property owners haven’t lawyered up, it’s probably time they did so now)
I can’t see an appeal as this appeal was so thoroughly and quickly put aside.
The City’s Lawyer, Ian Blue was asked one question. He responded the City has said repeatedly it’s not interested in interfering in construction of airport – it simply wants the fill to be clean.
It would be good for the City to get ahead of the game and let the public know what the process is for the airpark to go ahead with it’s expansion plan. Maybe they already have and we aren’t privy to that information, or maybe I missed it. So to stop the guessing, if there is a process, let’s see it.
In that process, item one should be a plan to remedy Barbara Sheldon’s issues. Item two would be how to verify clean fill. Item 3 would be to see a business plan, including airpark configurations and elevations. These items should be addressed concurrently.
There are gaps in oversight from the municipal, provincial and federal levels. Hopefully they will get their governance issues lined up to protect the people and the land. This will also give strong parameters for other developers, so they can stay within the letter and spirit of the law.