If you have been wondering what ever happened to the $18 Million lawsuit against the former Mayor, Bob Bentley, and two of his co-defendants regarding the Biodigester, then you might be interested in this latest episode of the “Hydro Files”. The Ombudsman’s report and Council discussion of lawyers back in April, helped put together some pieces of that puzzle.
Niagara Power Incorporated et al v. Bentley et al
Back in mid-2019, Council gave the go ahead for the Town to file suit against former Mayor Bentley and two other defendants, who were involved with the contentious “Biodigester” project. The suit requested damages to the tune of $18 million dollars, which would be later reduced due to the Town proceeds from the Biodgester’s sale. You can read more details about the initial suit in this previous post.
The case was opened on July 15, 2019 at the Ontario Superior Court of Justice in Toronto (University Avenue). The basic details of the filing are as below:
So What Has Happened Since July 2019?
Apparently nothing of any real substance. Although this case was filed more than 3 years ago, little to nothing has been heard of the case, let alone it even coming to trial.
As seen in the case summary at the top, there is no “Last Order Date” or “Type” on this case. Unfortunately electronic court records in Ontario are in their infancy, but fortunately one does not have to make a trip all the way to downtown Toronto to find out what is happening (or not) in this case.
A quick call to the Civil Scheduling Unit (Records) at the University Avenue courthouse provided vital information:
1. The last filing action on the case was for the defendants (Bentley et al), stating a change of lawyers (Ellen Snow) and Affidavit of Service in December 2020.
2. There has been no Trial Record filed by the plaintiff (Niagara Power, Town of Grimsby et al).
A Trial Record is an important document that “sets down” the action for trial. The fact this has not been filed in more than 3 years since the case was lodged, makes it evident that the case has been on hold for quite some time.
Special Council Meeting of April 25, 2022 (Ombudsman’s Report)
Like most Special Council agendas, it was a short one with the only public item being the Ombudsman report. However, also like many Council agendas it included a closed session, this one described as “Personal matters arising from the office of the Ontario Ombudsman report and Legal Update”.
Given how much Councillor Ritchie talked about the “lawyer” in open session and that the Biodigester suit appears to be the only active and major litigation initiated by the Town, you do not need to be an Osgoode Hall graduate to figure out what constituted part of that closed session.
Out of the closed session, a rather bland open session motion was put forth that stated “Resolved that the confidential report TC 22-09 be received and that staff and legal proceed with the direction provided therein.” A recorded vote was requested by Mayor Jordan. If you could not guess the result, here it is:
| YEAS - YES TO CLOSED LEGAL DIRECTION | ||
|---|---|---|
 Councillor Ritchie Ward 1 |  Councillor Kadwell Ward 2 |  Councillor Dunstall Ward 3 |
 Councillor Vaine Ward 3 |  Councillor Sharpe Ward 4 | |
| NAYS - NO TO CLOSED LEGAL DIRECTION | ||
|---|---|---|
 Mayor Jordan |  Councillor Freake Ward 1 |  Councillor Vardy Ward 2 |
 Councillor Bothwell Ward 4 | ||
Concluding Remarks
While the courts as recently as today have confirmed the case is still active, they also have the last recorded action on file for the lawsuit as occurring in December 2020. So clearly whatever the direction(s) given in that April 2022 closed session were, and passed by the G5, did nothing to move the case along, but rather hold it in a state of suspended animation. The case has simply not progressed.
Most court actions have a limited lifespan so that if a plaintiff (ie. the Town) does not move along with proceedings, a defendant does not have a case hanging over their heads in perpetuity. Given the unnatural delay in moving this to trial, it would not be surprising if this case eventually times out or the defendants simply make a “Dismissal of Action for Delay” motion for it to be dismissed based on no movement in the courts.
The clock is clearly ticking on this matter, so when casting your ballot in this election, consider whether your candidate of choice is espousing the transparency and accountability you are hoping for, not only of themselves, but those who were involved with the multi-million dollar Bio-Disaster.