Court case against Republic Live on hold until fall

By Patrick Bales Orillia Packet & Times

The upcoming summer festivals at Burl’s Creek will be a fading memory by the time a justice of the peace determines the fate of a private prosecution against Republic Live.

After a nearly five-and-a-half-hour-long pretrial motion hearing Tuesday in Orillia, Justice of the Peace Gerry Solursh indicated a decision on Republic Live’s request to quash the case wouldn’t be coming immediately.

“I have a lot of reading to do,” he said.

Instead, the parties will return to court Sept. 14 to learn if the private prosecution launched by Wendy McKay will go to trial.

McKay launched her private prosecution against Republic Live and a number of other companies associated with Burl’s Creek Event Grounds in December, following a plea agreement reached between the companies and the Township of Oro-Medonte in the fall. McKay’s charges pertain to illegal use of land zoned for agricultural/rural use for the WayHome Music and Arts Festival and Boots and Hearts Festival and non-compliance with a township bylaw governing use of land and creating noise and vibration.

All of the companies McKay initially charged are owned solely by Stan Dunford. The allegations have not been proven in court.

In the opinion of Nicholas Macos, counsel for Republic Live, they shouldn’t even get a chance to be proven.

“(This is) double punishment, if you will,” he told the court. “We’ve been prosecuted before. Now we’re being prosecuted again.”

In the plea agreement reached between the Burl’s Creek companies and the township, an agreed statement of facts stated the Barrie Automotive Flea Market used land not zoned for such a purpose and that earth was allowed to be moved in a manner that created a nuisance. The most important part of the agreement, Macos stressed, was further prosecution relating to events in 2015 at Burl’s Creek — including WayHome and Boots and Hearts — was not deemed necessary.

Macos suggested Republic Live was a privity to the other companies associated with Burl’s Creek and argued using the doctrine of res judicata against further prosecution on the same charges. A similar argument was made via a letter to Lynn Saunders, crown attorney for Simcoe County, who stayed the charges against all of the defendants previously included in the plea deal with the township.

But Saunders didn’t include Republic Live, which David Donnelly, McKay’s lawyer, seized upon.

Donnelly argued if Republic Live had privity, it should have been mentioned along with the other companies in the plea agreement from the fall.

Saunders’s decision, in acting as the agent of the attorney general, needs to be taken as paramount, Donnelly said. If the justice of the peace accepts the motion of Republic Live, McKay will not have another avenue to consider.

“Overturning the will of the attorney general would be highly prejudicial to my client,” Donnelly said. “There’d be no place else to go.”

McKay’s counsel presented seven reasons to the justice of the peace as to why the motion to quash should be denied, including Saunders’s aforementioned decision and an argument last year’s fine through the plea agreement — $200,000 — was not a deterrent, as the WayHome and Boots and Hearts festivals remained on the schedule, among others.

It was “irrelevant,” he said, Republic Live and Burl’s Creek Event Grounds share the same owner.

If Republic Live had been included in the plea, “Mr. Macos might have a leg to stand on,” Donnelly said.

Donnelly “completely missed the point,” Macos said, arguing there can’t be a greater connection between two companies than being owned by the same person and under the same directorship.

If the private prosecution was to proceed, it would be an “abuse of process,” he argued.

“We’ve already litigated this before,” Macos said. “The fact it is a private prosecution makes no difference.”

Solursh will issue his decision Sept. 14 in Orillia provincial court. If he rules against Republic Live’s motion, trial dates will need to be set.