There are several lessons to be learned in this ongoing story about a five year (and counting) legal battle over whether or not a café inside a now defunct bookstore needs to have a grease trap installed. But, probably the most important lesson to be learned is “You can’t fight City Hall.”
This relatively minor legal skirmish has grown into a judicial nightmare and contributed to court backlogs that probably shouldn’t have taken more than a few months to resolve. But, it has turned into a protracted legal standoff that’s still ongoing today.
Even the top court in the Canadian province has weighed in, saying in a recent ruling that the case has taken on a life of its own.
“A relatively minor offense notice issued by the City against The Neighbourhood Bookstore and Café has blossomed into a complex legal argument involving concerns related to jurisdiction and conflict of interest,” wrote Manitoba Court of Appeal Justice Freda Steel in her ruling. “The matter has turned into a time-consuming and costly exercise for all parties.”
It all started when the Neighbourhood Bookstore and Café was fined for not having a grease trap in its establishment. Grease interceptors prevent grease from entering the sewage system. But the café argued it didn’t generate enough grease to warrant having one. And so, the fight began.
The story had a David and Goliath aspect to it. City officials, too inflexible to see past the strict interpretation of their bylaws, were cast as the villains. And the much-loved café was seen as the victim of an overzealous government bureaucracy.
The story took several twists and turns over the years, with the city at one point giving the bookstore an exemption if it promised to use only disposable dishes and cutlery. The cafe appealed and lost. They closed, opened again and kept fighting. They eventually did install a grease trap. But last year they closed again, this time for good.
Throughout, though, the Neighbourhood Bookstore and Café remained locked in a seemingly endless legal battle with the city – appealing court rulings, defending conflict of interest accusations and fighting over court jurisdictions.
It’s a legal war that continues today, five years after this tiny business was served with an offense notice under the city’s grease trap regulations in January of 2014. Part of that legal drama made it all the way to Manitoba’s Court of Appeal, which lamented in last month’s ruling how such a simple case could chew up so much court time.
“This is particularly relevant now when courts are struggling with balancing access to the justice system with delay and increased costs to the litigants,” wrote Steel. “The Supreme Court of Canada has recently indicated that delay has reached unacceptable levels.”
The latest development in the bookstore case arose when the city demanded that lawyer Markus Buchart, a former Manitoba Green Party leader, be removed as the café’s legal counsel because he’s a former city hall lawyer. Buchart worked for the city’s legal services department from 2009 to 2014 and was involved in prosecuting violations.
Two months after he left the city, he started representing the bookstore, a move the city said put him in a conflict of interest. A provincial court judge agreed and ordered him removed from the case. The bookstore appealed to the Court of Queen’s Bench, which upheld the lower court’s “interlocutory” decision. But the café appealed again, this time to the top court, which also upheld the decision.
Buchart argued the two convictions against the café should be quashed because a special constable delivered the original offense notices to the store’s owner. He said that renders the offenses invalid because, by law, only peace officers can issue offense notices, not special constables.
The city claimed that Buchart was only aware of that legal loophole because he worked in the city’s legal department. The city filed affidavits that showed Buchart, while working for the city, took part in discussions and did research on the issue of whether special constables could legally issue offense notices.
Who knew a fight over grease traps could take on such legal complexity?
“Solicitor/client privilege protects more than simply information,” the court of appeal wrote. “It also protects knowledge of tactics or strategies. It is the fact that Buchart had knowledge of the city’s position on these issues that essentially rendered the information confidential.”
So Buchart was removed from the case and the top court dismissed the appeal. But the case, now going into its sixth year, is still ongoing and the convictions at hand still haven’t been resolved.
“Instead, this matter has traveled on an expensive and time-consuming journey through the courts as Neighbourhood has appealed the decision of the application judge to disqualify its counsel from acting on its behalf and the city has defended that appeal, as well as filing cross-appeals,” Steel wrote. “The matter has been ongoing for more than four years and has consumed vast quantities of legal and judicial resources.”
All this over a grease trap. Is it the principle that really matters? Or at some point, does one need to cut their losses and move on with their lives? No one can answer that question for someone else, but the simple truth is that these types of grease trap ordinances aren’t going away.
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