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Niagara-on-the-Lake
Sunday, October 2, 2022
Solmar, Two Sisters suit claims violations of Charter rights
A truck hauls off logs from the Rand Estate in November 2018 the cutting of dozens of trees.
A truck hauls off logs from the Rand Estate in November 2018 the cutting of dozens of trees. Judith Barnes

A ruling in a legal action by Two Sisters Resorts Corp. and Solmar (Niagara) 2 Inc. against the Town of Niagara-on-the-Lake will be delivered on Oct. 5, just weeks before the parties are due in court again over the 2018 clear-cutting of trees on NOTL’s historic Rand Estate.

The first part of the saga is a Charter suit by the companies, claiming the town is violating their rights in two ways.

First, the suit asks the court to stay the proceedings entirely, claiming too much time has passed since the charges were laid.

A factum filed with the court by Solmar and Two Sisters calculates the time since the charges at 50 months.

It claims the timeframe is well past the “presumptive ceiling” of 18 months set by a 2016 Supreme Court of Canada ruling.

The second part calls into question the methods used to obtain evidence against the companies and asks the court to exclude the evidence in question.

The factum says town officials contacted Giuseppe Paolicelli, a representative of the companies, to obtain access to the property during the clear-cutting, which saw residents filing complaints and holding a protest outside the walls of the Rand Estate.

Complaints from residents alleged key heritage attributes of the property were destroyed in the process of removing the trees.

The filing claims that on two occasions the town communicated that its sole purpose of accessing the property was to exonerate the companies of wrongdoing — Benny Marotta, who owns both companies, maintains that they had the proper permissions from the Niagara Peninsula Conservation Authority to cut the trees down.

The town ended up being given permission to access the sites on Nov. 7 and 12, 2018, for thoose purposes.

However, the suit claims the town’s communications were deceitful and that the town actually suspected heritage aspects had been destroyed, and sent the email as a guise to gain access to the property for an investigation.

In Welland provincial court, Patrick Maloney, a lawyer for Two Sisters and Solmar, argued this contravenes the Charter right to informed consent from an enforcement body.

He said if the town was going to collect evidence as part of an investigation to lay a charge, that information should have been clearly communicated to the companies.

He relied on case law and legal framework examples, citing a case where a blatant plea from a murder was withdrawn from evidence after it was found to be obtained illegally.

The suit asks the court to disallow any evidence collected on Nov. 7 and 12, 2018, for being obtained illegally.

The town’s lawyer, Terrence Hill, argued the email’s contents are largely semantics and not nefarious.

He said that when the email mentioned complaints and requesting access, it would logically be assumed there would be some form of inspection.

If town officials suspected nothing was wrong, they would still be obligated to report if they found evidence contrary to their initial belief, he added.