The court room is becoming a familiar place for Marianne Darragh, even though she has been following the rules.
The city has appealed a Yukon Supreme Court decision forcing Whitehorse to accept her 2,654-person referendum petition concerning a park around McLean Lake.
And this time around, the city is asking for Darragh to pick up her own legal tab after the city was forced to pay it in the last court case.
But it isn’t clear that the legal wrangling is her fault.
The sparring is over the lack of clarity in the Yukon Municipal Act’s definition of jurisdiction regarding referendum laws.
The act doesn’t clarify whether a referendum circumvents the public consultation process outlined in normal Official Community Plan amending procedures, say city officials.
Despite the legislation’s problems, Darragh hasn’t broken the law nor is she the one starting the court fights.
So is it fair that Darragh should have to pay for a problem she didn’t create?
“There was always the option to go though the process of the Official Community Plan review to deal with putting a park in McLean Lake,” said Mayor Bev Buckway.
“They made a choice to go (the referendum) route,” she said.
Buckway puts the blame of instigating this skirmish on Darragh, even if referendums on the community plan remain a legal option in Whitehorse.
Putting the blame on Darragh for all the trouble-making has been one of the city’s tactics in fighting off the possibility of a referendum.
In the first court case, Yukon Supreme Court Justice Ron Veale ordered the city to cover Darragh’s legal costs because the city had waged a media war.
Before the case was heard, the city issued a news release saying that the petition was invalid before the court made any decision.
The notice made it sound like Darragh was working outside the bounds of the law, while that was just the opinion of the city.
The city would be forced to award costs because its conduct was too aggressive, Veale decided. The news releases issued by the city were ostensibly to keep people from signing the petition and to dissuade Darragh from circulating it.
And the city has put Darragh at considerable legal expense, he wrote.
In that case, Darragh’s lawyer argued that his client was just an individual who was receiving unqualified duress from the city.
Another tactic to dissuade people from signing the petition has been the city’s attempt to list all petitioners as respondents.
In the outline of the city’s argument dated September 15th, 2008, the respondent is listed as “Marianne Darragh and those persons on whose behalf she has presented a Petition for Referendum to the City of Whitehorse.”
Fearing the move would scare people from ever signing another petition, Darragh asked her lawyer to find out who the added respondents were.
The city wouldn’t agree to remove the petitioners from the court case, and they finally told the court that they meant all petitioners to be considered as respondents.
Darragh’s lawyer applied for their removal.
The city lawyers suggested Darragh could go around and ask for expenses from each petitioner.
All 2,654 of them.
Justice Veale agreed with Darragh’s lawyer that the respondents should be removed and that Darragh should be treated as an individual.
Still, the city continually describes a group of citizens working at their own self-interest to get what they want, reinforcing an image in the eyes of the public of a group usurping the city’s agenda and causing trouble where their needn’t be any.
“You have a small section of the public asking for something that’s not necessarily in the best interests of the city,” said Buckway.
“If we’re successful, we won’t have to pay Darragh’s cost,” she said.
But Darragh has always worked alone.
Buckway wouldn’t say how much money the fight is costing the city because the financial offices are too busy preparing for Monday’s budget, she said.
Contact James Munson at
jamesm@yukon-news.com.