March 16th, 2017
The issue of land fill dumped on the Air Park on Appleby Line back in 2013 will become part of the news cycle on March 28th when the Ontario Court of Appeal hears arguments from Burlington Air Park Inc. to overturn the decision of Justice M.R. Gibson who heard a case in which the city of Burlington asked the Ontario Superior Court to compel the Air Park to file a site plan. It is this second Superior Court decision that was appealed
In an earlier court case the city sued the Air Park for allowing land fill to be dumped on their property and the Air Park sued the city saying they had no right to sue the Air Park because they were regulated by the federal Department of Transportation and did not have to comply with city bylaws.
Justice Murphy ruled in favour of the city on that case. The Air Park appealed that decision and lost the appeal in one of the shortest hearings heard in some time.
Justice Murphy decided that the Air Park had to comply with city bylaws except for that part of the aerodrome that was a runway or a taxiway. That called for the Air Park to provide the city with a site plan. The Air Park hired consultants to put together a site plan but a document never got to city hall.
After numerous delays the city decided it would ask the Courts to compel the Air Park to file a site Plan. That court case was heard by Justice Gibson who decided for the city. The decision was not all that clear cut however the intention was evident.
The Air Park didn’t like the decision and they took Justice Gibson’s decision to the appeal Court of Ontario.
That appeal will be heard at Osgoode Hall in Toronto on March 28th.
Three Burlington residents and the publisher of the Burlington Gazette were sued for Libel by the Air Park.
That case has yet to get to the doors of a court room
Several weeks ago, Parr, Dennis and Warren along with the Burlington Gazette were sent an Offer to Settle by the Air Park.
The offer made to Parr and the Gazette had several element.
One was payment of $2500 to the Air Park, an apology and a settlement offer.
The apology was to read as follows:
I wish to express my sincere apology for having published material suggesting that the manner in which fill was placed by Burlington Airpark Inc. (“Airpark”) at its aerodrome in the City of Burlington raised issues of environmental concern. In part this arose from my reliance on a report commissioned by the City of Burlington based upon a review of soil test data obtained by the City from Airpark. I now understand that these data included data for soil that was rejected by the Airpark’s contractors as it did not satisfy the applicable Ontario guidelines and that there is no basis for the concerns that I expressed.
Yours truly [Settling defendant]
The Offer to settle was worded as follows: (it is filled with dense language; Shakespeare may have made a point when in Henry VI, Part2, Act IV, Scene 2 he wrote “Let’s kill all the lawyers“.)
TO: [the Settling Defendant] and each of his/her/its employees, partners, associates, agents, affiliates, attorneys, insurers and representatives and beneficiaries, heirs, executors, devises, personal representatives and administrators, successors and assigns, as the case may be;
FROM: BURLINGTON AIR PARK INC. on behalf of itself and its present and former officers, directors, shareholders, beneficiaries, employees, servants, agents, attorneys, insurers, heirs, executors, devises, personal representatives and administrators, successors and assigns as the case may be, and any parties who they represent or who claim a right or interest through it or them (collectively, the “Burlington Airpark”)
In consideration of the payment of TWO THOUSAND AND FIVE HUNDRED DOLLARS ($2,500) by the [Settling Defendant], and in consideration of the terms and conditions of the Rule 49 offer to settle that was made by Burlington Airpark Inc. in an action commenced in the Ontario Superior Court of Justice under Court File No. CV-14- 2290-SR (the “Action”) (together, the “Settlement”), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
1. Burlington Airpark hereby releases [the Settling Defendant] of and from all manner of action, causes of action, demands, suits, debts, dues, accounts, bonds, covenants, contracts, invoices, orders, complaints, claims, counterclaims, third party actions or proceedings of whatsoever kind or nature that Burlington Airpark now has or has ever had by reason of any cause, matter or thing whatsoever, without exception or limitation, whether in law, equity, contract, tort or by virtue of any statute, for any and all remedies, damages, monies, charges, losses, indemnity, costs, expenses, disbursements, fees of any kind whatsoever (including without limitation, legal, accounting, tax or any other professional advisory fees), controversies, set-offs, taxes, penalties, interest or injuries which hereto may have been or may hereafter be sustained by the Burlington Airpark or any one or all of them (collectively, “injuries, losses, or damages”) arising from the defamatory statements that are the basis for the Action (collectively, the “Released Matters”).
2. Burlington Airpark further agrees not to make any claims or take any proceedings against any other person or corporation who might claim, in any manner or forum, contribution or indemnity against the persons discharged by this release in connection with the Released Matters. In the event that [the Settling Defendant] is added to any such claim or proceeding commenced by any Burlington Airpark, Burlington Airpark agrees to immediately discontinue or have dismissed that claim or proceeding and shall fully indemnify [the Settling Defendant] for any legal costs incurred in respect of said claim or proceeding pending its dismissal or discontinuance.
3. This Release shall be binding upon Burlington Airpark and [the Settling Defendant’s] and each of their respective successors and assigns and shall inure to Burlington Airpark and [the Settling Defendant’s] benefit and to the benefit of their respective successors and assigns.
4. The Burlington Airpark and [The Settling Defendant] acknowledge having had an opportunity to review this release and seek independent legal advice prior to signing it, and acknowledges that they fully understand all of the terms contained in it, are signing voluntarily and of their own free will and without duress or compulsion, and that the only consideration for this Release is as referred to above.
5. [The Settling Defendant] agrees to hold the existence and terms of this Release and the Settlement underlying it in the strictest of confidence and that this Release and the Settlement will receive no publication either oral or in writing, directly or indirectly by them, and agrees that neither [the Settling Defendant] nor his/her/their lawyer shall disclose, reveal, confirm or otherwise communicate the terms and conditions of the Settlement (except that the Action has been dismissed) or the amount of the consideration paid for this Settlement in general or specific terms, it being the intent and purpose of Burlington Airpark to prevent and avoid any publicity regarding the Settlement. Violation of this provision constitutes a material breach of this Release and Settlement, subject only to any disclosure required by law or deemed essential on auditors’ or accountants’ written advice for financial statement or income tax purposes. For greater certainty, the publication of the Apology Letters as required under the Settlement is not prohibited by this Release.
6. [The Settling Defendant] agrees not to negatively comment on, criticize, denigrate or disparage any the Burlington Airpark of any of its directors, officers, employees, representatives, agents or lawyers (either orally or in writing). The bold letters were added.
7. This Release and the Settlement shall be construed in accordance with and governed by the laws of the Province of Ontario and the laws of Canada applicable therein. Burlington Airpark and [the Settling Defendant] irrevocably attorn to the exclusive jurisdiction of the Ontario Superior Court of Justice in respect of any dispute arising in respect hereto and/or in respect of any of the underlying claims that are resolved by this Release and Settlement.
8. Burlington Airpark and [the Settling Defendant] acknowledge that they have obtained independent legal advice and are represented by counsel concerning the negotiation and entry into and subject matter of this Release and the Settlement. This Release and the Settlement embody and reflect the entire agreement by and between Burlington Airpark on the one hand, and [the Settling Defendant] on the other, and supercedes all prior negotiations and agreements, whether written or oral, relating to the Released Matters. This Release and Settlement may not be altered, amended, modified, or otherwise changed in any respect except by an instrument in writing duly executed by authorized representatives of each of the Burlington Airpark and [the Settling Defendant]. Burlington Airpark and [the Settling Defendant] each acknowledge that no statement, promise or inducement that is not contained herein was made or is relied upon, nor shall any subsequently alleged statement, promise or inducement be valid and binding. If any provision of this Release is held invalid, void or unenforceable under any applicable rule of common law or statute or in equity, only that provision or portion thereof shall be deemed omitted from this Release and only to the extent to which it is held invalid, and the remainder of the Release shall remain in full force and effect.
9. This Release may be executed in multiple counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same agreement. This Release may be executed and delivered by facsimile or .pdf (via email) and it is agreed that such facsimile or .pdf email execution and delivery will have the same force and effect as delivery of an original document with original signatures, and that each signatory may use such facsimile or .pdf signatures as evidence of the execution and delivery of this Release to the same extent that an original signature could be used.
SIGNED, SEALED AND DELIVERED this day of , 2017.
Witness [SETTLING DEFENDANT]
BURLINGTON AIR PARK INC.
We did warn you about the language.
What this does is basically expunge from the public record anything the Air Park has done and requires the Gazette to seal their lips and never mention their Air Park again, at least not in a negative or disparaging way. Is reporting that the Air Park lost two court cases and to date one appeal negative … or disparaging?
Not reporting is not what accountability or transparency is about.
Sometime after the Air Park sued Parr, Warren, Dennis and the Gazette for libel the province introduced SLAPP – Strategic Litigation Against Public Participation. It came a little too late for Dennison, Warren or Parr – the legislation would not cover the Gazette.
A panel of experts convened by the Ontario government in 2010 found that the threat of abusive lawsuits claiming massive damages, especially for defamation, is deterring “significant numbers” of Ontarians from speaking out on issues of important public interest.
Known as SLAPPs (Strategic Litigation Against Public Participation), these dubious lawsuits are often brought by deep-pocketed companies with the specific aim of silencing resource-poor defendants. And they are very effective. The defendants, usually ordinary citizens or public interest groups, naturally feel threatened by the prospect of massive legal fees, disruption of their activities and the possibility of large damage awards. Even when the lawsuits have no merit whatsoever, they often result in a chill on free speech.
Comments on a wide range of public interest issues have attracted SLAPP suits in the past. These include reporting on environmental violations by large companies, exposing corruption and other forms of wrongdoing, and criticizing the behaviour of powerful individuals. In other words, SLAPPs are an attack on democracy. They undermine the ability of civil society and private individuals to act as watchdogs over the powerful.
A solution was found when the province’s political parties found themselves in rare agreement that it was high time to deal with this threat through strong legislation. The SLAPP legislation is now in place and it is being tested in the Courts
The Gazette and Parr are very clear on what they are going to do with this offer to settle. Dennison and Warren will make up their minds in the fullness of time.
An interesting and important point with the Monte Dennis situation. He wrote a Letter to the Editor of the Spectator. They published that letter – they are the organization that made Dennison’s view public – but the Spectator wasn’t sued. The Air Park wasn’t about to take on the Torstar Corporation, owners of the Spectator.
The Gazette has published more than 45 stories on this matter; they first broke the story in 2013 and it is far from over.