Link to Inside Ottawa Valley "Tay Valley likely to begin superior court legal action against blueberry creek school" May 17, 2018
- Reid Mulcahy
- Nov 4
- 6 min read
Updated: Nov 10
Tay Valley Township appears ready to launch a Superior Court action against the Blueberry Creek Forest School, according to lawyer letters obtained by The Perth Courier.
In a letter to the school’s owner, Robyn Mulcahy, dated May 14, the township’s lawyer, Kingston-based Tony E. Fleming, wrote that he would “now act on my instructions from council to commence an application in the Superior Court to obtain an order prohibiting any use of the property that does not comply with zoning.”
Paper Trail
The township letter is the latest in an ongoing flurry of letters between the school’s lawyers (Barker Wilson, based in Perth), and the township’s lawyers (Cunningham Swan, based in Kingston).
When we last reported on this story in March, the township had put out a press release on the issue on March 9.
“We will not endeavour, at this time, to undertake a critical analysis of the press release or to address several inaccuracies within it,” wrote Mulcahy’s lawyer Craig Halpenny in a letter dated March 11 to Fleming. Instead, Halpenny said he would reiterate Mulcahy’s position, that “the Blueberry Creek Forest School is not a school as that term is defined in the Education Act … This is clear and cannot be refuted.” Halpenny restated that the school is, in fact, “a community service,” and, as such, “is a permitted use in the current zoning,” whereas a school would not be allowed in this area under town law.
Halpenny stated that Mulcahy “will not make application for an amendment to the zoning bylaw and takes the position that its current and proposed uses of the property are compliant.”
As for the stop work order that was issued, which saw work on the proposed art studio come to a halt, those “deficiencies … have been corrected,” wrote Halpenny. “On that basis, the township is obliged to lift the stop work order and order to comply. Unless the township is able to provide us with specific legislative authority for maintain these order(s) when the deficiencies have been corrected, then my client will direct their contractors to recommence work on the property.”
Halpenny also asserted that the Rideau Valley Conservation Authority “has no authority to make any demands regarding the use of the property.”
The township’s lawyer, Tony E. Fleming, of the Cunningham Swan firm in Kingston, replied to Halpenny’s letter on March 28.
“We discussed the issues with the land use planners for the township and it is our opinion that the use of the property for a school as proposed contravenes the zoning bylaw,” wrote Fleming. “We are also satisfied that the stop work order and order to comply were issued appropriately. Even if the technical non-compliance with the building code has been rectified (a claim for which we have no corroboration), the use of the property is non-compliant and as such the construction cannot be completed. It is apparent that the basis for the application was not accurate and therefore the permit was issued in error. The township has not revoked the permit at this time, but is not ruling out that option.”
Fleming added that he was instructed to write this letter on the instructions of the township council, and that council “is not prepared to condone the non-compliant use of the property. Council does want to work with your client to permit a use of the property that is compliant with township bylaws and to that end encourages your client to retain a land use planner to consider their options.”
Fleming warned that if he did not receive a proposal from Mulachy and/or her lawyers within 30 days of his letter, “setting out how the use of the property can be made compliant, I am instructed to commence an application in the Superior Court to obtain an order prohibiting any use of the property that does not comply with zoning.” He did add though that “the township sincerely hopes that this will not be required.”
Warnings and questions
Halpenny’s response, written on April 6, was brief, seeking clarification before proceeding. Halpenny wished to ascertain whether the township considers the school to be a school, under its bylaws.
“The zoning bylaw very clearly defines ‘school’ as ‘an educational establishment under the jurisdiction of a board as defined in the Education Act,’” wrote Halpenny. “If the answer is yes, then is the township taking the position that Blueberry Creek Forest School is, or ought to be, under the jurisdiction of a school board?”
Another short, follow-up letter from Halpenny to Fleming, dated May 3, further stated that “Blueberry Creek Forest School is a not-for-profit, non-commercial entity.” He noted that a forest school “is both a pedagogy and a physical entity, with the use often being interchanged. The use of the buildings and the land by Blueberry Creek Forest School is consistent in practice with its mission statement. Is it, then, the township’s position that the use on the property is not a ‘community service’ and, if so, on what basis?”
Fleming’s latest reply came was dated on May 14. Referring to Halpenny’s May 3 letter, Fleming asserted that “it appears that your client is not prepared to provide a constructive proposal and instead wishes to continue to argue that its use is not prohibited.” He again reiterated his position from his April 26 letter that “the use as a private school is non-compliant with zoning. The township and its land use planners considered the ‘community service’ use in arriving at this position, and nothing has changed.”
Fleming also disagreed with Halpenny, stating that the school “is a commercial entity. They operate a private school and charge students for providing that service. Whether your client turns a profit or not, in and of itself, is not germane to whether the use conforms to the bylaw.” A community service, by Fleming’s definition, applies to groups like service clubs or charitable organizations – “which does not describe your client,” wrote Fleming. “This should be the end of the assessment; your client is not a service organization.” Even if the “service organization” label could be applied in this case, “the school is not ‘promoting’ an education, it is delivering education, as a private school. The common meaning of ‘promote’ is to advance or support, not to deliver the actual service. It is clear that your client does not ‘promote’ education, they deliver that service, for a fee.”
Fleming added that it was “equally relevant … that a private school is not a permitted use in the commercial zone. On this basis alone, the use is not permitted.”
Stating that he found Halpenny’s previous letters to be a delaying tactic, falling outside of the 30-day period, “I will now act on my instructions from council to commence an application in the Superior Court to obtain an order prohibiting any use of the property that does not comply with zoning.”
He added that “the township had hoped that this would not be necessary … It is unfortunate that your clients appear unwilling to work with the township to determine if a resolution is possible.”
Next steps
In an email from British Columbia to this newspaper dated May 15, Mulcahy wrote that “we have all plans in place to raise the bridge (on the property) by one metre (18 inches higher than the highest water level is ever expected to rise) to the tune of $71,000,” but this is not possible, due to the stop work order, she claimed.
Mulcahy said she has a $200,000 mortgage on the house, and has invested an additional $175,000 “in materials and renovations since the spring of 2017.” As for being called a commercial entity, she pointed out that one of her teachers “makes a small salary, and most expenses are covered through the air B and B (sic). We have six families who don’t pay any fees, and many families that pay in kind with baking and gardening help … we are not making a profit.”
In an earlier May 14 email, Mulcahy wrote that “we are shocked and saddened (that) they continue to pour the township’s resources into something that has been such a benefit to our little community,” she wrote. “It looks like Tay Valley Township is going to pursue closing down our school through legal action.”
This newspaper has reached out to Tay Valley Township for comment.
Access to Information
Further to this anticipated legal action, the township is also requesting at least $3,000 from the Blueberry Creek Forest School to access public documents.
The school put in a request for documents that mentioned itself, co-owner Robin Mulcahy, township chief administrative officer Larry Donaldson, Reeve Keith Kerr, and several councillors and town staffers, under the Municipal Freedom of Information and Protection of Privacy Act.
Township clerk Amanda Mabo wrote back to Mulcahy, the wife of Lanark-Frontenac-Kingston MP Scott Reid, on May 2, informing her that her request would cost and estimated $3,339. Mabo then broke that amount down:
• $789 for a manual search;
• $250 for other costs (i.e. Photocopying at 25 cents per page, $2 per colour photocopy);
• $100 for shipping costs;
• $1,200 for staff time and other costs;
• $1,000 for a requested deposit.
“This shows a pattern of making it impossible for most people to access their own private information with Tay Valley Township,” Mulcahy wrote in an email to this newspaper on May 15.
Mabo did add that Mulcahy could make a “request for a review of the amount of the fee or the decision not to waive the fee may be made to the Information and Privacy Commissioner of Ontario.” It is now up to Mulcahy if she wishes to proceed.
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