Court File No.

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MARK COAKLEY Applicant and JUDITH BISHOP Respondent APPLICATION UNDER section 9 of the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50 and rule 14.05(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. NOTICE OF APPLICATION TO THE RESPONDENT: A LEGAL PROCEEDING HAS BEEN COMMENCED by the applicant. The claim made by the applicant appears on the following page. THIS APPLICATION will come on for a hearing on Tuesday, April 30, 2013 at 10:00am, at 45 Main St. East, Hamilton, Ontario. IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or an Ontario lawyer acting for you must forthwith prepare a notice of appearance in Form 38A prescribed by the Rules of Civil Procedure, serve it on the applicants lawyer or, where the applicant does not have a lawyer, serve it on the applicant, and file it, with proof of service, in this court office, and you or your lawyer must appear at the hearing. IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSSEXAMINE WITNESSES ON THE APPLICATION, you or your lawyer must, in addition to serving your notice of appearance, serve a copy of the evidence on the applicants 1

lawyer or, where the applicant does not have a lawyer, serve it on the applicant, and file it, with proof of service, in the court office where the application is to be heard as soon as possible, but at least four days before the hearing. IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO OPPOSE THIS APPLICATION BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.

Date: February 22, 2013

Issued by __________________________ Local registrar Address of court office: 45 Main St. E. Hamilton, ON

TO:

JUDITH BISHOP 131 Barclay St. Hamilton, ON L8S 1P6

APPLICATION

1.

The Applicant makes an application under sections 5, 8, 9 and 10 of the Municipal Conflict of Interest Act (the Act) for an Order: (a) (b) declaring that the Respondent has contravened subsection 5(1) of the Act; declaring that the Respondent's seat on the Hamilton-Wentworth District

School Board (HWDSB) is vacant, pursuant to paragraph 10(1)(a) of the Act; (c) declaring that the Respondent shall be disqualified from sitting on the

HWDSB for a period of seven years, pursuant to paragraph 10(1)(b) of the Act; (d) declaring that pursuant to section 12 of the Act, the decisions of the

HWDSB: (i) to close Prince Philip School effective June 2013; and (ii) to make a series of expenditures upgrading G.R. Allan School and Dalewood Middle School as outlined in the HWDSB Staff Report submitted January 16, 2012, are voidable at the instance of the HWDSB at any time until April 30, 2014; (e) awarding costs of this action, together with Harmonized Sales Tax where

applicable; and (f) such other remedies as counsel may advise and this Honourable Court

may permit.

2.

The grounds for this application are: (a) (b) The Respondent is a Trustee of the HWDSB. On January 24, 2011, the HWDSB approved the initiation of an

Accommodation Review Committee for the Dalewood area (the Dalewood 3

ARC) to address facility and redevelopment requirements for the elementary schools in the Dalewood area (George R. Allan Elementary School (GRA), Prince Philip Elementary School (PP), and Dalewood Middle School (DMS)). (c) The Dalewood ARC was subsequently established and began to meet on

April 6, 2011 to review the accommodation of students at GRA, PP and DMS. The ARC held fourteen meetings in all, four in public, and developed a series of possible options in order to make a recommendation regarding the future accommodation of those students. After a lengthy public consultation process with considerable public input, the ARC made a report (the ARC Report) recommending that all of GRA, PP and DMS remain open and their existing programming remain intact. (d) The HWDSB, according to its public statements and reports, considered

this option unviable and trustees insisted that instead one of the three schools must be closed. Trustees and staff including the Respondent insisted to members of the ARC as well as to members of the public that one of the three schools subject to the ARC must be closed. (e) The area subject to the Dalewood ARC is bounded into two catchment

areas for the purposes of assigning students to the elementary schools. Students in the Ainslie Wood North, Ainslie Wood West, Ainslie Wood, and Ainslie Wood East neighbourhoods attend PP; students in the Westdale South and Westdale North neighbourhoods attend GRA. Generally these neighbourhood groups are described as Ainslie Wood and Westdale. GRA is located in the centre of 4

Westdale; PP is located in the centre of Ainslie Wood. DMS is located in Westdale, near the border with Ainslie Wood. (f) The Respondent owns a house at 131 Barclay St., Hamilton, in the heart

of the Westdale neighbourhood. (f) On April 16, 2012, the HWDSB Trustees met in Committee (as the

Committee of the Whole) (the COW Meeting) to consider the ARC Report and a competing recommendation proposed by HWDSB staff that would (i) close PP effective June 2013 and relocate its students to GRA effective September 2013; (ii) approve a large number of upgrades to GRA (and a smaller number to DMS) in the amount of approximately $5.8 million. At that COW Meeting, a number of HWDSB Trustees stated that it was imperative to close one of the schools subject to the Dalewood ARC. (g) The Respondent attended the COW Meeting. The Respondent moved the

question at the COW Meeting to close PP and adopt the HWDSB staff's recommendation (the COW Motion). The Respondent spoke extensively to the COW Meeting on this motion, about matters such as her desire for improvements at GRA and her desire (and the HWDSB's need) to close one of the schools subject to the ARC. The Respondent voted at the COW in favour of a motion adopting the staff recommendation, the closure of PP and the approval of $5.8 million of expenditures to improve GRA and DMS, a measure which passed on a 6-5 vote. (h) Because the Respondent owns a home in the heart of the neighbourhood

where both schools were selected to remain open, and where large amounts of 5

HWDSB funds (including the proceeds from the closure of PP) were to be spent improving the schools, with a consequent positive effect on the value of her home, the Respondent had a pecuniary interest in these matters discussed and decided at the COW Meeting. (i) On April 30, 2012, the HWDSB Trustees met (the Trustee Meeting) to

ratify the decisions taken at the COW Meeting. At the Trustee Meeting, the two elements of the decision at the COW Meeting were split, and there was an initial motion to refer the COW Motion back to HWDSB staff for reconsideration. The Respondent spoke to this initial motion and voted against it; the motion failed on a 6-5 vote. The Respondent then spoke to and voted in favour of each part of the split motion, that selecting PP for closure in June 2013 (which passed 6-5) and that expending approximately $5.8 million for improvements to GRA and DMS (which passed 7-2). (j) Because the Respondent owns a home in the heart of the neighbourhood

where both schools were selected to remain open, and where large amounts of HWDSB funds (including the proceeds from the closure of PP) were to be spent improving the schools, with a consequent positive effect on the value of that home, the Respondent had a pecuniary interest in these matters discussed and decided at the Trustee Meeting. (k) The Respondent did not declare her pecuniary interest in any of the

matters discussed at either the COW Meeting or the Trustee Meeting. (l) Subsection 5(1) of the Act prohibits a member, such as an HWDSB

Trustee, from taking part in the discussion of any matter, or voting on any matter, 6

where she has a pecuniary interest, and in doing so the Respondent has contravened that subsection. (m) Paragraph 10(1)(a) of the Act provides that where a member has

contravened subsection 5(1) her seat shall be declared vacant, unless under subsection 10(2) the contravention was committed through inadvertence or by reason of an error in judgment. (n) The Respondent cannot have been inadvertent to her pecuniary interest in

the matter as she and other staff and trustees of the HWDSB had insisted throughout the process that one of the schools subject to the Dalewood ARC must be closed, and she herself moved the motion at the COW Meeting (ratified by the Trustee Meeting) that HWDSB was to spend moneys improving the schools in her neighbourhood, including funds to be obtained from the disposition of PP. The Respondent is a very experienced HWDSB Trustee and would therefore be well aware of the Act and its requirements. (o) Sections 1, 4, 5, 8, 9 and 10 of the Municipal Conflict of Interest Act,

R.S.O. 1990, c. M.50. (p) (q) Rule 38 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Such other grounds as counsel may advise and as this Honourable Court

may permit.

3.

The following documentary evidence will be used at the hearing of the application:

(a) the affidavit of Mark Coakley sworn February 22, 2013, and the exhibits thereto; and (b) such further and other evidence as counsel may advise and as this Honourable Court may permit.

_______________________________ February 22, 2013. CRAIG BURLEY Barrister and Solicitor 222 Haddon Avenue South Hamilton, Ontario L8S 1Y1 Telephone (905) 523-4812 Fax (866) 605-3524