Judge rules What's the Scoop can remain open, but with
conditions to comply
Posted May 11,
New Tecumseth lost its bid to shut down What's the Scoop for bylaw
infractions Ontario Superior Court Justice Cary Boswell concluded
"are relatively minor and easily resolved."
"They do not call for the ultimate, extinction level, remedy sought by
the Town," according to Justice Boswell's ruling which was released
last night stemming from the April 27 hearing in Barrie between the
applicant, New Tecumseth, represented by Colleen Butler, and Norman
Dallard, the business and property owner at 5 Downey Avenue,
represented by Kevin Kemp.
But the Town did claim partial victory in that Justice Boswell has
ordered What's the Scoop "into compliance with the zoning bylaw."
Specifically, Mr. Dallard is to:
(a) Remove all signage save for the two signs specifically approved by
(b)Remove all patio furniture accessible by patrons of the ice cream
parlour including, again without limitation, any Muskoka chairs, any
patio chairs and tables; and the pentagonal picnic table;
(c) Fence off, or otherwise barricade, the entry into the expanded
patio area at the rear of his yard, to the east of the entry doors into
the parlour; and,
(d) Ensure that, with the exception of one employee, all employees are
residents of 5 Downey Avenue;
Mr. Dallard is also to pay the Town's costs associated with this
application fixed in the sum of $7,500 within 60 days, which was less
than what Ms. Butler was seeking.
"This is an application that was brought as a result of Mr. Dallard's
refusal to comply with the Bylaw. The Town has been largely successful.
They sought $10,000 in costs," wrote Justice Boswell. "I have awarded a
little less than what was sought given that they were not wholly
successful on the application and because they are, to some limited
extent at least, the authors of their own misfortune in this case. In
my view, $7,500 is a fair, reasonable and proportionate sum for costs
in the circumstances of this application."
In a separate action, Mr. Dallard has launched a $500,000 lawsuit against the Town for "abuse of process" and "a wanton and outrageous disregard" of his "rights."
"I concede that there are some peculiar aspects to this case," wrote Justice Boswell. "For instance, I find it unusual that the Town would approve an ice cream parlour in this residential location, then raise concerns about parking. It is also puzzling that they continue to assert that parking is a problematic issue in the face of their own evidence to the contrary .... Having said that, on the record before me, I am satisfied that the Town officials have acted reasonably and in good faith in their dealings with Mr. Dallard."
UPDATED from original post Mr. Kemp said this afternoon in a statement that his client "is very pleased that the court rejected the "extinction level remedy" sought by the Town to close down What's the Scoop Ice Cream Store."
"Given the many pressing issues in our community, including Tottenham's deplorable water condition and the possibility of contaminated fill being dumped at the Aerodrome," said Mr. Kemp, "it is unfortunate that the Town chose to expend tens of thousands of dollars in legal fees and hundreds of hours of staff time in an effort to shut down What’s the Scoop when the issues ought to have been readily resolved between the parties.”