Justice was served in Justice Patterson’s decision of January 29.
While affirming there is no prohibition against communicating with class members, Justice Patterson also determined the city’s opt-out campaign had a, “divide and conquer aspect to it” that, “pits taxpayers against each other” through, “misinformation,” concluding charitable organizations were not, “free from undue influence.”
The ruling can be viewed here.
Despite the decision, the city’s campaign, from its perspective, was a success on two fronts. On the first, despite its repugnance, the message was and will continue to be received, the ruling doesn’t change that fact. On the second, it tested existing case law and created some boundaries, albeit creating the potential for further costs against the city.
Considering the brain trust behind the city’s defense, in addition to a mayor being a member of the bar, a reasonable person would conclude they were aware of the case law preceding the city’s actions. That case law (among others) clearly indicates, “… communication that misinforms, threatens, intimidates, coerces, or has an improper purpose warrants court intervention.”
Any rational individual knows the difference between informing the public and attempting to persuade them with coercive intent. If one accepts the mayor and the city’s lawyers ought to have known their actions could be seen as undue influence, the opt-out campaign seems to be a case of act now, apologize later.
But there could be other consequences of the city’s campaign.
Warning in 2013 that a Superior Court ruling could “politicize” the opt-out process, Kirk Baert in Canadian Lawyer Magazine wrote, “[the] Ontario Court of Appeal upheld the validity of a class action opt-out process in which a group of class members engaged in a concerted attempt to pressure other class members to opt out of the action through the use of misinformation and pressure.”
Although Justice Patterson’s ruling was in favour of the charitable groups, it’s too late after the fact since the damage has been done.
With billboards, newspaper advertisements, radio interviews, and You Tube videos circulated on social media, the city’s message was heard loud and clear many times over. Furthermore, if the past is any indicator of the future, it will be a message replayed over and over by particular media outlets and their scribes.
As Baert wrote, combating the effects of any opt-out campaign by a, “… well-financed defendant,” takes a “significant” amount of “time and expense”, clearly indicating the long-term and residual effects a campaign of misinformation and coercion has.
Only the irrational would claim anyone is taking glee in this multi-million dollar lawsuit. On the contrary, it’s a double-edged sword.
While I may not ‘celebrate’, I certainly do not ascribe blame to charities. Many laws have been changed, many wrongs have been made right as a result of lawsuits against government. This one will be no different if successful.
If the charitable groups are successful, the costs of decisions made by 15 years of local government will be borne by residents, and it would be expected municipalities would appeal such a decision, extending the legal battle for years.
A win not only affects the cities of Windsor and Tecumseh, it has ramifications for every municipality across the province that has followed the The Alcohol and Gaming Commission guidelines. A judge will undoubtedly consider this if or when deciding upon an award, especially if municipalities were following provincial mandate.
On the other hand, the only recourse to check municipal powers is through the court.
If the bingo license fees are deemed to be an “illegal tax,” residents burdened by charges, levies, user fees, and every other euphemism imaginable to render the word “tax” invisible, could have cause for celebration.
Although some may differ, Friday’s decision is worthy of celebration.
After nine years of divide and conquer tactics, and misinformation campaigns to build support or justify nearly every project undertaken (think naysayers, conspiracy theorists, nattering nabobs, myopic minority etc. etc.), this ruling affirms sentiments shared in hushed circles around the city.
Perhaps our elected officials will receive that message loud and clear. After all, if they cannot make an argument without resorting to misinformation, coercion, or intimidation, perhaps they shouldn’t be in representative government to begin with.
Then again, perhaps winning the $2-billion Powerball is a more realistic expectation.