I write to urge County Council to say “No” to a settlement with Picton Terminals.

Settling at this point, essentially before litigation has even started and before Picton Terminals has incurred any significant expense, is premature and strategically imprudent.  Settlement is an option that will be available throughout the legal process and there is little, if anything, for Picton Terminals to offer at this time that the County and its residents need or want.  Settling simply to avoid the costs of defending the County’s jurisdiction and authority to enforce its bylaws sets a bad and very dangerous precedent that effectively says “if you threaten to sue the County and say you are willing to force the County to spend money, you can do whatever you want.”  That feels more like extortion than settlement, and the Council should not be endorsing or condoning such conduct.

It is a very bad image for the County to sue someone and then settle without any, or very limited, concessions simply because the County has had second thoughts about the legal fees associated with the lawsuit it chose to bring.  And whose idea was it to bring the lawsuit in the first place?  Was it the very same people who are now encouraging the Council to settle despite having stronger legal arguments than Picton Terminals?

Moreover, to the extent a settlement addresses the issue of whether Picton Terminals is permitted to store and ship containers, which County staff had indicated was on the table, the Planning Act and County’s own bylaws set forth how bylaws are to be amended and grants residents the right to participate in such a process.  Accordingly, any attempt by Picton Terminals and the Council to unilaterally circumvent that process would raise significant concerns about denial of due process and both the County and councillors could face litigation.  Have the County’s attorneys looked into the legal exposure the County and Councillors individually could face if a court found that there is a denial of due process under the Planning Act and the Constitution?

Finally, the Council should reject any settlement at this time and direct staff to immediately pursue enforcement proceedings against Picton Terminals for violating the County’s bylaws.  Picton Terminals’ shipping and storage of containers on its properties is a direct and blatant challenge to the Council’s prior decision clearly denying its application to allow that very use, and even more egregious given the County’s notice to Picton Terminals that it is in violation of the bylaws.  The penalties Picton Terminals faces already could be over $1 million (up to $25,000 for the first day and $10,000 each day thereafter).  Pursuing such penalties is clearly in the interest of the County both because it is the right thing to do and because such penalties will send a clear message that all County property owners must abide by the bylaws.

Sincerely,

Ryan Wallach

Hallowell