Huron County Needs To Base Its Decisions On Law, Not Just An Opinion by John Schwartzentruber

Published March 1, 2017

When Bev Hill recently questioned county council about the lawfulness of the Huron Natural Heritage Plan, Warden Ginn claimed that they “absolutely have the right” to make any regulations the county wants for private property. (Note: We recognize that a municipality has complete autonomy to regulate public property. That authority ends where private property begins. That’s the law.)

The warden drew support for his view from a legal brief that was clearly labeled as “Legal Opinion…” It began with these words, “Summary: Our firm has been asked to provide an opinion…” And that is exactly what the county got – the opinion that past Warden Gowing solicited from law firm Garrod and Pickfield whose practice is in “Environmental, Municipal and Planning Law”. The presenter, Peter Pickfield, did a good job of delivering what the county asked for. However, for those who examined the content of his presentation, it was clear that what he delivered was “an opinion” – just as advertised on its cover.

So, that is why some were amused when the warden then dismissed a solid rebuttal (for Pickfield’s brief) by Elizabeth Marshall of All Rights Research as “…well, just an opinion”. Ms. Marshall may well be one of Ontario’s most knowledgeable experts on property law, and anyone familiar with her work knows better than to dismiss it as “…well, just an opinion”. Where Pickfield compiled a suitable collection of loosely-related case law, Marshall outlined and explained the actual laws which delineate the limitations on the powers of municipal government.

Think of it this way: suppose we were to ask two people to explain how a car works. The first, a professional racer, jumps into his machine and squeals off in a cloud of blue smoke, shouting “That’s how it works!” The other is an automotive engineer who explains the function of the engine and its connection to the wheels through the drive train. Volume vs. clarity. Which one taught you the most?

THE STRONGEST CRITIQUE of the warden’s words, “…well, just an opinion” might come from within county council. By his leave, I refer to the published words of one of county council’s respected members, Councillor Jim Donnelly. Although now retired, many will recognize and remember him as the Honorable James M. Donnelly, a highly-acclaimed lawyer and retired Ontario Supreme Court judge. We are all enriched to have available to us an autobiographic record of his past work.

In his book “Donnelly on Law, Vol III”, he states “It is incontrovertible that opinions are for hire”, followed by the observation that such occasionally “can be exposed for the chicanery that it is.” (p.263). Donnelly then refers to the amusing character in legal lore – “Nickolodian Charlie”, where you “Plug in a nickel and get any song you want”. Violà, Donnelly’s wisdom borne of experience shows the folly of hiring an “advocate” opinion, an opinion based on a predetermined bias rather than on the foundation of underlying fact or law. The county plugged in our nickel, bought the song they wanted, and are telling us to dance to their tune.

In summary, we know that there is no stronger judgment to which one can be subjected than that which is passed upon us by a respected peer, unless maybe that of an actual judge.

The County needs to base its decisions on law, not “…just an opinion”.

Landowner Voices

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