By Mike Williscraft
The Town of Grimsby’s has opted to seek a third-party legal opinion regarding the Feb. 11 Ontario Municipal Board decision which awarded Jordan Greenhouses $115,000.
The decision was the result of an action brought by Jordan Greenhouses seeking damages from a major 2010 construction project which spanned the front of Jordan’s greenhouse and retail operation on Main Street West in Grimsby for about three months.
Town solicitor Tom Richardson appeared before council at its regular meeting Monday night and gave an overview of how the case progressed.
Jeff and Rebecca Jordan, who were in attendance at council, said after Richardson’s presentation that they did not believe all the circumstance around Richardson’s comments was given to council.
In Richardson’s statement, he said the Jordans refused an opportunity to have a chartered accountant review the file and offer a possible settlement figure. The Jordans noted after the meeting it was stipulated in the Town’s offer that it was to be the Town’s CA and the finding would be final and binding.
They said they would have agreed if it could have gone to a third-party CA.
Also, Richardson noted the Jordans “would not or could not specify its costs”, which, along with damages would comprise any possible settlement figure.
Richardson said that was ultimately what pushed the matter to the two-week OMB hearing last October.
Richardson noted that he saw two keys in the OMB officer’s finding for the Jordans:
1) the decision was critical of town staff and noted insufficient notice was provided despite, Richardson noted, notice did fall within guidelines and;
2) there was a failure on the town’s part to have its contractor follow a suitable timeline for the project.
These factors, in the mind of the OMB officers, constituted a “nuisance” being created – Richardson noted that is the term noted in the legislation – and the finding went in favour of the Jordans.
There were a couple of questions asked by councillors, one being from Ald. Dave Kadwell who queried Richardson about any possible pursuit of the contractor as the OMB decision also noted several issues with the contractor’s performance.
“That was not pursued,” said Richardson.
The Jordans vehemently disagreed with Richardson’s claim that they were not forthcoming with whatever was asked to help reach a possible settlement. Rebecca Jordan said there were different points of contention with each settlement offer, no matter which side made the offer. Richardson had noted the Town made two offers, while the Jordans made one.
After the meeting, town manager Keith Vogl said, in the end, that council “does want to do the right thing”.
Council opted for a third party consult because town staff are almost too close to the situation, he said.
“We went through the process thinking we were doing the right thing for the Town,” said Vogl.
“From the Board decision, clearly that is not the case.”
Council discussed the notion of whether to appeal or not in closed session and, after rising from the incamera talks, passed a motion which read, “Resolved that the Council of the Town of Grimsby direct legal counsel to contact an independent law firm for a second opinion regarding the Jordan Greenhouse Limited Ontario Municipal Board hearing.”
Vogl said the reasoning behind the third party review of the file is to allow Town officials to step back and get an external view of the case.
“Nobody wants this to go on and on and on,” said Vogl noting the matter is not one being dealt with on a personal level but one which takes into account the taxpayer.
Vogl said there is a six-week window for an appeal. Rebecca Jordan said they were notified through their lawyer that a “leave to appeal” had been served on them last week.
Vogl said, with about three weeks left in the window, a special meeting of council may be called to review the third-party opinion and then determine how it wants to proceed.
“Council wants to feel they are doing things right and have the best advice,” said Vogl.