After years of disputes with Tay Valley Township, Robyn Mulcahy says the dismissal of the municipality’s latest court case feels like a victory, although one that came at a high personal cost.
An Aug. 18 consent order from Ontario Superior Court Justice B. Abrams dismissed the township’s application against Mulcahy with prejudice and ordered the municipality to pay her $25,000 in costs.
“Throughout this past year, the damage has lingered,” Mulcahy wrote in a statement following the dismissal. “I couldn’t be as present for my children and grandchildren. I stepped away from so many things that had previously brought me joy … And now, together, we have won.”
The order ends the township’s latest Superior Court proceeding involving Blueberry Creek Nature Centre and short-term rental accommodation operating from Mulcahy’s Highway 7 property.
“The Township’s application against Ms. Mulcahy was dismissed with prejudice, meaning they cannot seek to litigate these particular issues again,” her lawyer, Kristopher Kinsinger, said in a written response to Hometown News.
Kinsinger said Mulcahy can now be assured her Airbnb complies with the township’s zoning bylaw. He said the township agreed to the dismissal following an April 23 hearing “during which it became clear that the presiding judge was leaning strongly in favour of Ms. Mulcahy’s interpretation of the bylaw.”
The court did not issue reasons for deciding the zoning question, and the consent order contains no findings on the merits of the township’s case.
Township maintains its position
Tay Valley continues to disagree with Mulcahy’s interpretation of the zoning bylaw.
In an Aug. 19 media release, the township said Mulcahy argued the Airbnb qualified as a hotel under the zoning provisions in place when the use began because it contained more than three bedrooms.
The township said that if the court accepted that interpretation, the Airbnb would be legal under the zoning in place when the use began. Council said it was concerned such a finding could have implications for hundreds of other short-term rentals and therefore decided to ask the court to dismiss its application.
In an Aug. 28 response to Hometown News, Reeve Rob Rainer said the township would not provide additional information beyond its media release.
“We expect to have a figure re: legal fees to give to you soon, once final costs associated with the recent court matter have been determined,” Rainer said. “The figure will be significantly below what has been claimed by the property owner.”
The township did not respond to questions about Kinsinger’s characterization of the April 23 hearing or whether other enforcement matters involving Blueberry Creek remain outstanding.
Kinsinger said the $25,000 award compensates Mulcahy for her full costs on this application, calling it “an extraordinary concession for the Township to make.”
What has it cost?
Township records show costs associated with Blueberry Creek were accumulating years before the latest court application.
In response to a 2018 freedom-of-information request from Mulcahy specifically seeking costs associated with Blueberry Creek Forest School and Nature Centre, Tay Valley reported spending $11,968.04 as of Aug. 22, 2018.
That included $10,186.12 in legal costs and $1,781.92 paid to planning consultant Novatech. Municipal staff time was not included because the township said it was not tracked.
Later township records document $48,399.52 in legal fees associated with a series of 2018 information requests and subsequent appeals, mediation and adjudication work through early 2020, along with $2,129.25 related to the township’s involvement in an information request filed with the Rideau Valley Conservation Authority.
Those records do not establish that all of the later costs were incurred exclusively because of Blueberry Creek, and some expenses may overlap. Hometown News has therefore not combined the figures into a single historical total.
Scott Reid, Mulcahy’s husband and the MP for Lanark-Frontenac, estimates the broader cost to the township over the years at between $250,000 and $500,000.
“It is impossible to be precise about this,” Reid told Hometown News.
His estimate includes legal expenses, related proceedings, payments and municipal staff time. Documents Reid provided substantiate significant expenditures but do not independently establish his overall estimate.
The difficulty is compounded by staff costs the township has said were not fully tracked. In a 2020 response, Tay Valley identified 29.75 hours of then-clerk Amanda Mabo’s time recorded for fee-estimate purposes but said that represented only part of the work performed.
“Data with respect to the total time spent on MFIPPA-related materials is not available,” the township stated.
Reid said the township previously paid Mulcahy $65,000 under a full and final agreement arising from an earlier Blueberry Creek dispute involving an art studio. Combined with the $25,000 costs award in the latest case, the two payments total $90,000.
Pierman disputes account of conversation
Tay Valley Coun. Angela Pierman, an educator, told Hometown News she spent about 2½ hours with Mulcahy at Blueberry Creek.
Pierman said she supports Mulcahy’s educational work and described part of their conversation as being “from educator to educator.”
Her principal concern, she said, was the safety of children participating in activities on property within a floodplain.
“My position from the very beginning is that schools should not be on a floodplain,” Pierman said.
Pierman said they discussed alternatives, such as moving the school to a different location.
Pierman also operates an Airbnb and said she had declared a pecuniary interest when the township’s Airbnb matter arose.
“I didn’t know she’d been served papers, and I didn’t know it was going forward,” Pierman said.
Mulcahy has said Pierman told her township staff had advised councillors that pursuing the Airbnb would be easier than challenging the forest school’s status and that the goal was to cut off income supporting the school.
Pierman disputed that account.
She said Mulcahy raised the possibility that the township might be attempting to eliminate income generated by the Airbnb and Pierman responded: “Well, maybe that’s what they are doing. I didn’t directly say to her what she is stating.”
Latest case over, broader questions remain
The Aug. 18 dismissal ends the Superior Court application, but the township has not said whether other zoning or enforcement matters involving Blueberry Creek remain outstanding.
For Mulcahy, the result comes after years of conflict she says affected her family, her health and her ability to run the forest school. She credited Blueberry Creek families, educators, its board and supporters with helping keep it operating through the latest legal fight.
Kinsinger said the outcome carries a bigger lesson.
“The outcome of this dispute is a timely reminder that municipalities must draft their zoning bylaws clearly and unequivocally before limiting the common law rights of property owners like Ms. Mulcahy,” he said.
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Tay Valley court application against Blueberry Creek dismissed with prejudice
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