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Final costs still undecided in Rainbow Park lawsuit

Scheduled court proceedings adjourned as parties discuss settlement



A decades-long lawsuit against the municipality continues to drag on this year as the ultimate financial blow to taxpayers remains up in the air.

The final costs of the Rainbow Park expropriation suit, which began after the Resort Municipality of Whistler (RMOW) expropriated 44 hectares of land from the Saxton family in 1987, were set to be resolved in court this week.

The dates, however, have been adjourned, according to the Saxton family's lawyer George Macintosh.

In answer as to why the case was adjourned, Macintosh emailed simply: "To discuss possible settlement."

Though asked directly if settlement talks were underway, the RMOW did not confirm that in its emailed statement to the Pique this week.

At the end of March last year a B.C. Court of Appeal judgment finally put an end to the legal matter of whether or not the municipality paid the Saxtons too little for the land in the late 80s. The judge upheld the decision that $367,000 was not enough. It was, in fact, a million dollars short and the court awarded the family $1.3 million.

Now the matter at hand is the issue of interests and costs.

It is not clear where Whistler will find the money to pay for the costs. An emailed statement issued from the communications department said:

"Funding of this liability has been considered but no specific amount has been set out in the current financial plan."

The expropriation lawsuit has dragged on in the courts over the years as the Saxton family refused to give up its battle.

In an added twist, last year the municipality's legal team failed to perform and meet its legal requirements in a timely manner, forcing a judge to dismiss the RMOW's appeal.

At the time, Justice Kenneth Mackenzie wrote:

"Given the inordinate delay and the explanation given by counsel for the delay, which essentially was that he was too busy on other matters to attend to this matter, and given the circumstances of Ms. Saxton's ill health, I consider that it is in the interests of justice that this matter finally be resolved and that she not be put through the further stress and anxiety of a continuing appeal in which it is apparent that no active interest has been displayed for such a long time."

The judge concluded that Whistler would not have won the appeal anyway.

At the time, RMOW council discussed ending its long-standing relationship with the law firm Young Anderson, which represented them in this case. But in an email the RMOW said its legal advice was to continue with the same firm, though a different lawyer.

"...The RMOW does continue to use Young Anderson for other matters," said an RMOW spokesperson in an email, adding that there are ongoing discussions with council about the provision of legal and other contract services.

"Young Anderson continues to represent the RMOW in this case as the hearing is a continuation of the trial," said the RMOW's emailed statement.

Council also at the time decided to issue a Request For Proposals (RFP) for new law firms. The municipality confirmed this week that no RFP for legal services has been undertaken.

At the time, Councillor Ted Milner said it was a "tremendous lapse" that the lawyers for the municipality did not file the factum in order to advance the appeal.

"I think they didn't file what they should have filed, and I think they should inform their insurance company of possible losses," he said at the time.

If the two sides cannot agree to a settlement of the financial terms in the coming months, a future court date has been set for April.