Mayor seeks court judgement against Nishikawa

The Mayor of Muskoka Lakes claims a member of his council has breached the municipal Conflict of Interest Act and he’s now seeking a court judgement in the matter.

Muskoka News Watch has obtained papers filed at the Bracebridge courthouse which show Mayor Don Furniss has launched a civil proceeding against Councillor Ruth Nishikawa.

According to the Mayor’s affidavit, Nishikawa’s conduct at a September 16th council meeting during council discussions about whether she should pay costs after being found guilty of defaming former councillor Ron Brent, was in conflict with Section 5 of the Municipal Conflict of Interest Act.

The affidavit, filed by MacDonald Law on Friday, reads, in part: “Prior to consideration of the resolution on September 16, 2016, the Respondent was cautioned by the Clerk of the Township of Muskoka Lakes Cheryl Mortimer that she should consider whether or not she had a conflict of interest. The Respondent refused to declare a conflict of interest and took part in the discussion with respect to the resolution (in breach of section 5 (1) (b)). She continued to sit at the council table, but abstained from voting. By abstaining, by operation of the rules of Council, her vote was recorded as a “No” vote, such that abstaining deliberately constituted a “No” vote, contrary to section 5 (1) (b) and (c).”

The matter is slated to be heard in the Superior Court of Justice on December 12th.

Related Links: 

Breaking News: Muskoka District Councillor found guilty of defamation

Fellow councilors order Nishikawa to pay part of defamation judgment

 

Fellow councilors order Nishikawa to pay part of defamation judgment

Township of Muskoka Lakes Council wants Councilor Ruth Nishikawa to pay up after a judge found her guilty of defaming former Councilor Ron Brent.

At Friday’s council meeting, Councilors voted 5-4 to resolve that Nishikawa should pay the Township’s $25,000 deductible on its insurance policy – instead of sticking the Township, and in turn, taxpayers, with the entire bill for the judgment against her. A judge previously ordered Nishikawa to pay $30,000 in damages plus court costs, but until now, it was believed Township insurance would cover the entire bill, less the $25,000 deductible the Township would have to pay.

All Councilors, including Nishikawa, voted on the resolution. Nishikawa voted to abstain on the matter. A vote to abstain is counted as a ‘no’ vote.

Councilors Harding, Currie and Kruckel also voted not to penalize Nishikawa.

Brent says he feels justified now on two fronts.

“I’m glad a judge agreed with me and now a majority of councilors have agreed that I was wronged and she should pay.”  – Ron Brent

He adds he thinks the decision to first cover Nishikawa with Township insurance was mishandled and never even voted on by the previous council, giving her free rein to not have to apologize. Before taking her to court, Brent asked Nishikawa to apologize for sending a defamatory email to a private individual and Township and District Councilors. In the email, Nishikawa claimed Brent had divulged confidential closed session information.

“They [the past council and administration] should never have covered her in the first place. If she had thought she might be on the hook for money for damages, perhaps she would have simply apologized as I had asked,” continued Brent.

Brent says he will donate money received to Andy’s House Hospice.

Municipal Election: Muskoka Lakes Ward A Candidates for District Council; One to be elected

Knight and Nishikawa seek single District Council position for Muskoka Lakes Ward A

Muskoka News Watch requested self-written, 450-word submissions along with a photo that would not be edited. Only one of the two candidates provided a submission. We thank all candidates who took time to provide information for voters in Ward A. As with all candidate information, MNW presents the candidates in alphabetical order. Ward A voters can only vote for one of these two candidates.

GREG KNIGHT: Like many of us who have made Muskoka home, I fell in love with Muskoka as a child.

Greg Knight, Ward A District Council
Greg Knight

I completed an undergraduate degree in Geography, a law degree at Osgoode Hall, and a Schulich M.B.A. before founding a development company focused on socially and environmentally responsible development projects throughout central Ontario.

During the last municipal term, I also served as a member of the District of Muskoka Attainable Housing Advisory Table.

As a developer and a volunteer, I have worked closely with several municipalities to create award winning development plans to achieve environmental conservation, heritage preservation and affordable housing initiatives. Exposure to many different Councils and senior staff has provided considerable experience that I look forward to bringing to Council.

I value long term visioning at the municipal level. Environmental conservation must be a focus of our local government. Muskoka’s natural environment is what we all love and cherish. It’s why we’ve put down roots here and why our children follow in our footsteps.

Environmental conservation is good for business.   Muskoka’s natural heritage is what draws visitors, new residents, and cottagers here. It’s what defines our brand and is what drives local investment.

Finally, environmental conservation is imperative to ensuring future water quality and a healthy ecosystem. It is our only means of ensuring we will leave our grandchildren the same stable environment our grandparents enjoyed.

We must create a friendly atmosphere that supports local businesses and the year round population. It is the restaurants, arts, culture, retail, recreation and personal service shops located here that complete the traditional Muskoka experience…all without eroding the natural heritage on our lakes.

In order to maintain and encourage vibrant towns, we must support the development of appropriate and attainable housing to create growth and foster a stronger sense of pride within our communities.

We must endeavor to implement these initiatives with a renewed, higher standard of governance, respecting township’s professional staff to implement policy in a responsible and cost effective manner while evaluating further efficiencies within our two tier municipal government system.

Finally, as is the case with the Bala Falls, we must have the courage to recognize when our ability to implement an environmental conservation policy is limited by matters beyond our immediate control. We must work collaboratively and be willing to negotiate for the benefit of our citizens.

As an experienced affordable housing developer, lawyer, and local small businessperson, I have the skills and knowledge necessary to help improve our community, particularly as it applies to water quality, stewardship, conservation, good governance, and fair taxation. I ask for your support as the new Muskoka Lakes Ward A District Councillor.

Website: http://www.gregknight.ca/  Email: Greg@GregKnight.ca Tel: 705-706-3199

Greg Knight, Candidate, Ward A District Council

RUTH NISHIKAWA: No response.

Note: Previously, Nishikawa has informed she will not conduct business by phone or by email.

Nishikawa to fight defamation charges by fellow councillor Brent

Lawyers for Nishikawa file intent to defend Brent allegations

Published September 17, 2pm: Lawyers representing Muskoka Lakes Councillor Ruth-Ellen Nishikawa have filed a Notice of Intent to Defend allegations she defamed a fellow Councillor.

A statement of defense is expected to follow from law firm Paterson MacDougall in Toronto in the next few days as the Notice was filed September 4 (under the Rules of Civil Procedure, a Notice of Intent normally provides the defence another ten days to file and serve a statement of defence).

The Notice is in response to a claim made against Nishikawa by Ron Brent, also a Muskoka Lakes Councillor, filed August 12th in which he alleges she defamed him by:

a) accusing him of disclosed Closed Session information of Council; and,

b) by questioning a potential conflict of interest. The allegations were made in connection with an email regarding the Bala Falls controversy. See Related Articles for more information.

Brent’s Statement of Claim states Nishikawa was originally given an opportunity to retract and apologize for her comments. The Intent to Defend suggests a day in court could be on the horizon for the two Councillors, who are also candidates in the 2014 municipal election.

Related Articles:

Muskoka Lakes Township hears Swift River alternate construction offer

SREL offers $100K to use Township lands other than park owned by Crown

Published April 21, 10pm: Bala United Church wants it. According to a survey, 79% of respondents want it. The president of the Moon River Property Owner’s Association doesn’t want it. But will the Township of Muskoka Lakes bite?

The ‘it’ is an alternative construction plan that would potentially protect public use of Margaret Burgess Park during the construction of the controversial hydro plant at north Bala Falls. It would also generate revenue for the Township.

On Thursday, Swift River Energy Limited (SREL), the developer for the proposed North Bala small hydro project, spelled out alternate construction plans for the project that would leave Margaret Burgess Park, beside the Church, untouched.

Instead of using the park and building a bridge across the falls, the developer proposes to use the Township lands beside the planned hydro building site (directly on the south side of the north Bala Falls), along with the Precambrian Shield parking lot diagonally across from the site.

“I am authorized today to offer $100,000 as a lump sum payment,” SREL Project Manager Karen McGhee told Council, “in return for leasing the Township land and using the parking lot during the expected 14-18 month construction period.”

Bala United Church delegates to council, asks park to be left alone; MRPOA president asks Council to not allow the use of other lands

McGhee’s offer came after a presentation by the Bala United Church in which church trustee Ian Croft said the church membership wanted to ensure the park beside the church would not be used during construction. Moon River Property Owner’s Association President (MRPOA) Sandy Currie stated he did not want to see the Township lands or parking lot (the alternate plan) used. (For more on Croft’s presentation, as well as presentations by Currie and Mitchell Shnier, see Bala United Church asks Council to accept alternative hydro build plan).

Orange is Margaret Burgess Park, Green is Crown Land-Hydro Plant Site. Blue land beside green is Township land and Blue across highway is the Shield Parking Lot. SREL proposes using the blue areas instead of the orange (the Park).
Orange is Margaret Burgess Park, Green is Crown Land-Hydro Plant Site. Blue land beside green is Township land and Blue across highway is the Shield Parking Lot. SREL proposes using the blue areas instead of the orange (the Park).

“Essentially,” explained McGhee to Council, “we would stay out of the ‘orange’ areas and they would remain open for public use during construction.  There would be no need to remove trees in the Park, no bridge over the falls, and no crane in front of the falls and there would be reduced truck traffic through town.”

She added part of the proposal could be to re-grade and rehabilitate the Township lands used after construction. McGhee wrapped up by saying she had a problem with the flow diagrams shown by the presenters who came before her. “Those flows shown are from the spring freshet, and not from the summer season so they are misleading.” Finally she said SREL would like the opportunity to discuss and help consult on local bylaws that “we see unfairly targeting the project, such as half load and blasting [bylaws].

This is not the first time Swift River has tried to spell out alternate construction plans to the Township. SREL Vice President Frank Belerique wanted to talk mitigation plans at a Council meeting on October 18th but the Mayor told him he couldn’t talk about that. A discussion about safety ensued with McGhee answering questions she claims have been answered previously and repeatedly. All Councillors were present at that meeting.

SREL asked to talk mitigation plans with Council but meeting never happened

Ahead of that October 18 meeting, McGhee says Township and all Councillors were sent an email describing the mitigation plans and the desire to discuss a potential lease offer.  Read receipts attached to that email showed at least five Councillors did receive the email on October 15, says McGhee. She says she also met with two Councillors in person to discuss the alternate plans and one other Councillor did respond directly to the email. Yet on March 10, Councillor Phil Harding sent an email to CAO Chris Wray and Clerk Cheryl Mortimer asking. “Have we actually received a formal request that we have denied?”. He

Water crashing behind MNR public notice sign shows plant site on south side of north Bala Falls
Water crashing behind MNR public notice sign shows plant site on south side of north Bala Falls and powerful effect of spring freshet, April 21, 2013

was asking the question in response to a constituent who had requested he consider the alternative construction plans in order to “Save Burgess Park”. Harding had been in the October 18 meeting when SREL’s Belerique raised the desire for a meeting to discuss mitigation plans (as a follow up to SREL’s written request). Minutes from the meeting read:

‘Belerique reviewed the current status of the project and requested an opportunity to meet with municipal staff  to discuss options to reduce impacts to the community during the project construction.”

That request was never granted. Some Councillors have told Muskoka News Watch (MNW) and others that they can not have any discussion regarding the hydro plant because of a pending defamation lawsuit, yet that didn’t stop Council from discussing the project in a public meeting on January 21 — which focused on a design concept survey that included SREL’s mitigation plans.

Mitigation plan offered up in January survey asking for public input; survey likened to ‘blackmail’, says Councillor Nishikawa

Council included a discussion about the SREL Design Concept Survey under New and Unfinished Business in its January 21, 2014 meeting. The survey seeking public input was advertised widely in local newspapers (and also on MNW) in January to gather potential plant design preferences. In it, Swift River showed a map of the Crown lands it has been provided by the Ministry of Natural Resources to use for construction purposes. These lands include the areas in Bala known as Diver’s Point, Margaret Burgess Park, and the proposed hydro plant site. The survey asked people to say whether they would prefer other lands be used as opposed to the park for such activities as trucks driving through the park and equipment being on the site, blocking the popular park for public use during construction. During the January 21 meeting, Councillor Don Furniss said he had completed the survey himself.

Councillor Ruth Nishikawa shared what she thought about the survey. “The conversation that is happening says this [the survey] is blackmail,” said Nishikawa. “This council has not made a decision. People are asking if they are going to take the park away. They already have the lease on it. It’s misinformation again.” Mayor Alice Murphy complained that “there was no place in the survey to say you didn’t want it [the plant]” and that “in order to have option one, they want land from option two to dump all the dirt and mud so we’ll lose access and portage, and this is all to be done to protect the park.” Councillor Harding added he felt the survey was biased, saying “a decision could not be based on this survey, and Council’s responsibility is to listen to the taxpayers’ voices.” Furniss countered the survey wasn’t blackmail; rather, it was a choice.

Once the survey deadline passed and results tabulated, McGhee says the survey showed 79% of respondents would prefer the park NOT be used, and 21% chose the existing construction plan. She shared this information with council on Thursday (it has been public on SREL’s web site since early February). When asked by MNW about any comments provided with the survey, McGhee said that some who said they should go ahead and use the park expressed a lack of confidence that the Township would be willing to collaborate with the company. In fact, one comment stated: “good luck getting permission [from the Township].” Another stated they wanted the vacant Township lands protected, adds McGhee, noting there was opportunity for public input from anyone with any position on the proposed site. (You can view highlights of the Design Concept Survey by clicking here).

Entrance permit request back at District this Wednesday

Next step for Swift River is to meet with the District of Muskoka Public Works committee regarding its Entrance Permit application to access the proposed hydro plant site. The Township is represented on that committee by Councillor Harding. The legal representative for the Township is also on the agenda – an appearance four Councillors and one staff member have said was never discussed at Council, nor was any direction given for lawyer Harold Elston to appear this Wednesday. Elston has been the legal mind hired to continue to block the hydro plant so it is widely believed he will try and quash SREL’s request for a District entrance permit. SREL had been asked by District to give Township the opportunity to comment, which it did in February. According to McGhee, the item has never appeared on a Township Council agenda; and the answer she says she has received from Township Public Works is that it is ‘too premature’ to comment. An entrance permit on to District land off Muskoka Road 169 is up to District only to grant.

“Swift River eager to sit down with Council…share savings with Township”: Excerpt from October 15, 2013 letter to all Councillors

Below is a condensed version of the October 15 letter requesting a meeting with Council to discuss a mitigation proposal with Council before seeking further public input. To read the entire letter in PDF form, please see References after the letter.

Township of Muskoka Lakes, Attn: Mr. Chris Wray, CAO

Re: North Bala Falls Small Hydro Project – Request for Closed Door Meeting with Mayor and Council

Dear Chris:

This letter is in response to your emails outlining the pre-requisites for attaining a closed meeting with the Mayor and Council to discuss the North Bala Small Hydro Project. {Note that there will be no discussion regarding any pending lawsuit(s) or any topics under consideration of those lawsuits}.

As the Township is aware, Swift River is in the process of completing the construction drawings and attaining the required permits for construction. As the Township is also aware, the amount of land available for the construction of the project is somewhat limited. Our design engineers have, however, managed to devise a workable plan using the lands available that is financially viable.

That said, they have also noted that should Swift River be afforded the use of certain parcels of Township lands, the construction could be somewhat simplified.

Swift River has therefore requested to meet with the Council to discuss some options that may be available for construction that could be seen as win-win-win solutions for Swift River, the Township, and the community.

In particular, the lands we are interested in using include (see attached map):

1. The parcel of land immediately adjacent to the Project site that was transferred to the Township from the District in 2011 (PIN 48029-0638);

2. The Shield Parking Lot (PIN 48029-0634); and

3. The Township’s portion of the Portage Landing Parking Lot (PIN 48154-0628) and / or permission to use the MNR portion of this lot that is currently leased by the Township. Land parcels 2 and 3 would only be used for storage of trailers, equipment (including any equipment typically found on a construction site) and construction materials. There would be a requirement to fence the area to be used. Other than fencing, the lands would not be disturbed in any way. Any disturbances, including from fence posts, would be repaired prior to leaving the site at the end of construction. The use of these parcels of land for the Project would effectively reduce the requirements of storage in other areas in and around town such as the Crown land north of the North Dam commonly referred to as Margaret Burgess Park.

There are several options for use of land Parcel 1 that we would like to discuss at the proposed meeting. These would include site access, storage of materials, installation of tower crane, etc.

These activities would require tree removal and earthworks. It is also proposed that the Township consider working with SREL to deposit the rock from the Project excavation on this parcel of land for possible re-grading and landscaping. The use of this parcel of land for the Project would reduce the requirements of storage in other areas in and around town such as at Margaret Burgess Park. If permission was granted to re-grade Parcel 1 with rock from the excavation, it would also eliminate the requirement to install a bridge over the North Channel, install the tower crane downstream of the dam and truck materials through Margaret Burgess Park. Parcel 1 would be restored prior to leaving the site at the end of construction.

Compensation ideas are welcome. Possibilities include:

1. Lump sum lease payment for duration of construction based on number of months on site.

2. Construction work completed in lieu of cash i.e. the contractor could perform a construction task(s) for the Township as payment for the lease. This could include full re-grading and professional landscaping of Parcel 3.

3. A combination of 1 and 2.

4. Alternative proposed by Township.

With respect to the Township’s requirement to address the matters contained in CouncilResolution SC-18-28/07/11: This resolution is out of date. It was written over 2 years ago when Swift River was still pursuing Option 2 and awaiting an MOE decision on the elevation requests. Since that time there has been significant progress in the development of the Project, in particular:

· The MOE Minister denied all appeal requests for the Option 2 plan;

· The facility was moved, redesigned and re-evaluated. Ultimately Swift River issued an addendum to the original Environmental Screening Review Report (ESRR) for the Option 1 plan;

· The MOE Director denied all elevation requests made for the Option 1 plan;

· The MOE Minister denied all appeal requests for the Option 1 plan;

· The federal Canadian Environmental Assessment was cancelled by CEAA;

· The Department of Fisheries and Oceans has confirmed no permit is required;

· Swift River has undertaken further heritage studies on the area;

· The upstream booms have been moved and fencing has been erected around the dams by MNR; and

· Swift River has received Location Approval from MNR.

Swift River therefore respectfully submits that it has already fulfilled the requirements of the resolution in so far as they apply to the newly designed project with the exception of a few outstanding approvals, and a decision will need to be made on the leasing of these lands prior to us applying for these final approvals.

Swift River Energy is eager to sit down with the Township and discuss how to make theconstruction of this facility as smooth as possible. It is our firm belief that the use of these lands will significantly reduce the impacts to the community. In addition, it would make our work easier. Therefore, we are open to sharing some of the savings that could be realized with the Township.

It has been a long 8 years and we are nearing the end of this Project. Now is the time to start working together on the finer details to ensure we “get it right” for everyone involved.

We await your written confirmation of a closed door meeting with the Mayor and Council on October 18th. Please let us know before noon on the 17th so we can make the appropriate arrangements.

Karen McGhee, North Bala Small Hydro Project Manager

cc: Township of Muskoka Lakes Mayor and Council

References and Related Articles:

MNW April 21, Bala United Church asks Township to accept alternative hydro plant build

October 15, 2013 Letter requesting meeting from SREL to Township: 2013-10-15 Request for closed meeting with TML

April 8, 2013 Letter from SREL to Township re ongoing issues: SREL_Letter_to_Township_re_ongoing_issues

Bracebridge Examiner, January 22, 2014: Swift River Survey Irks Muskoka Lakes Mayor

Moose FM, January 13, 2014: Swift River launches stage one of design survey

Moose FM, April 9, 2014: Court of Appeal will hear Township portage argument

MNW, April 9, 2014: Legal leap forward: Township wins right to appeal

MNW, August 20, 2013: Exclusive: Superior Court says public safety trumps other parts of Public Lands Act

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