In the Ashes of the Royal Cape Breton Yacht Club

On 13 May 2016, I submitted an access to information and privacy (ATIP) request to ACOA asking for information pertaining to the 2012 sale of the Royal Cape Breton Yacht Club (RCBYC) and adjacent lands to Enterprise Cape Breton Corporation (ECBC). The request was transferred to Public Services and Procurement Canada which had “a greater interest in the records sought.”

Three years later (almost to the day), I received the information I’d requested, which is why this week, rather than writing about the library that has been proposed for the Sydney waterfront, I’m writing about a 113-year-old building that used to be on the Sydney waterfront.

Weirdly, the arrival of the ATIP information coincided with the sixth anniversary of the fire that destroyed the Royal Cape Breton Yacht Club on 3 May 2013.

As the Canadian Press reported at the time:

The deputy fire chief for the Cape Breton Regional Municipality says firefighters responded to the blaze at 2 p.m. Friday and when they arrived, the building was engulfed in flames.

Richard Bulley says the mostly wooden structure burned quickly due to its age and construction.

The building had recently been purchased by Enterprise Cape Breton Corporation and by late Friday afternoon,  ECBC spokesperson D. A. Landry was telling the Chronicle Herald:

“As of the end of the day, the building is down and the rubble is being removed…

“We anticipate that it will be tidied up by tomorrow.”

Which it was, as documented by a CBRM resident on Facebook:

Photo taken at 9:30 AM 4 May 2013, posted on FB by Merle Richardson

Cape Breton Regional Police issued this press release on 4 May 2013:

Police originally responded to assist Cape Breton Regional Fire Services with Traffic Control surrounding the structure fire on the Esplanade at approximately 1:40 PM on May 3rd. The Forensic Ident Unit and Arson Investigator were later called to assist the Fire Marshall’s Office with an investigation into the cause of the fire. Witness information led police to arrest a male suspect just before midnight, and [as] a result of further investigation, police charged Derek Joseph Harris with Arson and a Breach of Probation.

Sydney Fire Services contained the large fire in an area that was barricaded with the assistance of CBRM Public Works. Police and Fire Services also received assistance from Nova Scotia Power and EHS, while several other Fire Services remained on standby.

No one was injured as a result of this fire.

There are, it turns out, a couple of problems with this account of events.

First, according to an email I received on Monday from Assistant Fire Marshall Doug MacKenzie:

The Office of the Fire Marshall was not requested to conduct an investigation into that fire, so there is not a report on this matter. I would recommend that you contact the CBRM Fire service for any documentation as they looked after this file.

(For the record, I contacted the CBRM Fire service and was told it sends its fire reports to the Fire Marshall and that I will have to submit a FOIPOP request to access the report on the RCBYC fire.)

But there’s a bigger problem, having to do with the circumstances under which the “male suspect,” 34-year-old Derrick Joseph Harris, was arrested. When his case came to trial a year later, in May 2014, Provincial court Judge Brian Williston ruled that the statement he’d given police confessing to the crime was “the result of an inducement and therefore not given freely or voluntarily.”

According to the Cape Breton Post:

In his decision, Williston referred to [Const. A.J.] MacIsaac’s testimony in which he admitted to telling Harris police had eyewitnesses who saw him leave the scene, which was not true.

MacIsaac said it was a common technique used by police in a bid to get an accused to open up.

“Const. MacIsaac, further in his cross-examination by defence counsel, testified that other than his own suspicions, he did not have any evidence to suggest the accused was responsible for the fire at the yacht club,” said Williston.

Which means the police also lied to the public in that initial press release, which stated unequivocally that “witness information” had led to Harris’ arrest.

The Post account of Harris’ trial continues:

Williston concluded that because Harris has a diminished mental capacity, the comments made to him by investigator Const. A.J. MacIsaac during an early morning, one-hour interrogation could be construed by Harris as offering a promise that he would not be charged if he admitted to the crime.

The judge said while the conduct of MacIsaac was not oppressive in terms of an individual with an average developmental state, it was oppressive for Harris who has a diminished mental capacity.

Crown prosecutor Shane Russell told the court that without the statement, the Crown could not prove its case, which “resulted in the judge issuing an acquittal for Harris.”

That was the end of any attempt to get to the bottom of the RCBYC fire. When I contacted the CBRPS recently to ask about the status of the case I received an email from Staff Sergeant Bill Turner who said:

I have been asked to provide the results of the investigation into the fire at the Royal Cape Breton Yacht Club by Staff Wilson. First this is public record that police charged Derrick Harris with starting the fire (arson) which resulted in the destruction of the yacht club. Mr. Harris did tell police he started the fire in an interview however, prior to the beginning of the trial the cautioned interview was challenged by his lawyer. A voir dire was held in front of Provincial Court Judge the Honorable Brian Williston and it was determined that the statement would not be allowed into evidence as Mr. Harris has a diminished mental capacity and did not fully understand the process which was taking place. The Crown not being able to rely on the interview decided not to proceed through trial.

To be absolutely clear, I asked Turner if that was the end of the investigation, to which he replied:

Yes it was.

 

CBCL ‘study’

I am in the process of tracking down the relevant police and fire department reports, about which I will write in future, but in this article, I am going to look at the controversial event that preceded the fire — the sale of the RCBYC facility to ECBC — thanks to the information I received as a result of the ATIP to ACOA.

I see this as a cautionary tale about what happens when historic buildings fall into the wrong hands (writing against the backdrop of New Dawn’s renovation of the old Holy Angels Convent makes the lesson hit home all the harder). My reading of the correspondence I received is that no one discussing the fate of the clubhouse — neither the RCBYC board nor ECBC — made the case for its historic value. Instead, it was viewed as just another part of the “infrastructure” supporting “recreational marina traffic within the Bras d’Or Lakes and Sydney Harbour,” which would be kind of like viewing (and valuing) the Fortress of Louisbourg purely as part of Canada’s military defense system.

The reason for the sale was, in part, because the RCBYC was in debt — a fact the directors blamed on declining membership, rising operating costs and facilities in need of a facelift. In 2011, to address this latter problem, the RCBYC board commissioned CBCL, the engineering firm, to conduct a “preliminary structural assessment” of the clubhouse on the basis of which they requested financial assistance from ECBC for renovations.

Donald Rowe of the Port of Sydney Corporation received the report on behalf of the RCBYC on 9 May 2011. (I think there’s a typo in the CBCL report — it says they were engaged to undertake the work on “21 March 2001,” which would mean it took them over a decade to complete it, which seems unlikely.)

CBCL’s Lorne Martin wrote Rowe that the assessment was made “on the basis of limited and random access to the structural elements” of the clubhouse and could not “be considered all inclusive.” He then continued:

However, in consideration of the structural restoration requirements noted, and based on our experience, it is conceivable that the cost of a renovated facility would be in the order of 1.5 to 2.0 times the cost of a new building. Considering, current new building unit costs of $200 to $250 per square foot, restoration/renovation costs may be in the order of $350 to $500 per square foot. With an approximate floor area of 7,200 square feet, total restoration/renovation costs would likely be in excess of $2.5 Million (excluding building additions).

I’m struck by how speculative this is — “it is conceivable” that the cost would be “1.5 to 2.0 times” the cost of a new building. Restoration/renovation costs “may” be in the order of $350 per square foot but could be 43% higher at $500 per square foot. Total costs would “likely” be in excess of $2.5 million — although if the restoration/renovation costs actually came in at $500 per square foot, the costs related to a 7,200 square foot building would be $3.6 million, which is decidedly in excess of $2.5 million.

In its defense, CBCL did at least touch on the issue of historic value, saying:

Understandably, the RCBYC facility has historic significance and as such the cost of the planned restoration may take second priority to preservation of the legacy. In such a case, we are of the opinion that the facility is restorable but at significant expense.

Overall, though, this doesn’t read like a report on which a decision to save or demolish a heritage building should have been made — and yet, it was. ECBC’s Gerard Shaw would write in 2012:

The RCBYC had requested funding from ECBC to assist them in rebuilding/renovating the existing building. An engineering study identified that this building could not be renovated and made structurally sound without investing $350-$500 per sq foot. ECBC could not justify this expenditure on this property. Alternatively, ECBC offered to purchase the property which would become part of the Sydney Harbour revitalization. ECBC will then enter into a long term lease with the RCBYC to operate the marina. This option was seen as the best approach for the on going [sic] operation and sustainability of the marina in Sydney Harbour. An offer of $280,000 was accepted.

But I’m getting ahead of myself.

 

Scope

That CBCL report is the first document in the batch I received from ACOA and as noted, it was accompanied by a letter dated 9 May 2011. There’s a gap in the paper trail after that and then things picked up again on 5 June 2012, when the manager of the RCBYC (whose name has been redacted from the documents) emailed Tom Plumridge, ECBC director general of community economic development, to say:

Hi Tom,

Darrell Cormier will be our new Commodore, he was speaking to Lauri [Gallaway] yesterday and she suggested we contact you to find out where we are with our application for funding. Is it possible to set up a meeting with you and our flag officers in the next week or so [?]

Plumridge replied, in an email he also sent to Gallaway and ECBC’s Gerard Shaw:

 

His putting “study” in quotation marks seems to suggest Plumridge doubts the value of the CBCL report, which is funny, because as noted earlier, it became the basis for the decision not to renovate the RCBYC.

(Also, what is it with Cape Bretoners and their funding applications? Did the RCBYC actually forget to submit an application? Is Plumridge covering up for losing it? Seriously, what gives?)

And finally, can I just express my utter amazement that an agency contemplating a “waterfront development” project in Sydney could fail to see the value of the RCBYC as part of that development? The only explanation I can offer is that they could not actually see the clubhouse because their gaze was fixed on a far distant shore: that of Ben Eoin.

And now we come to the other part of the reason for the RCBYC sale. You see, even as Plumridge was turning down the opportunity to save an iconic, 113-year-old Sydney building, ECBC had already approved an outlandish amount of funding for what would turn out to be a modern marina of no architectural interest that will probably no longer exist in 100 years in Ben Eoin. According to the agency’s own records, ECBC had given Ben Eoin Marina Ltd a non-repayable contribution of $135,000 for “preliminary work and preparation of a business plan for a proposed marina” on 17 September 2010.

And on 19 May 2012 — roughly a month before Plumridge wrote the above email to the RCBYC — ECBC had approved a $4 million non-repayable contribution to Ben Eoin Marina Ltd “to construct a full service marina on the east side of the Bras d’Or Lake consistent with the Cape Breton Marina strategy.”

Which makes what Ben Eoin marina board chair Robert Sampson told the CBC in August 2012 all the more amazing:

Most of the money for the project has been raised from the community, said Sampson, but they are expecting a government funding announcement in the near future.

Somehow, this $4 million, non-repayable contribution was within “ECBC’s scope,” even though the agency had to get around its own moratorium on marina investments — which it did by commissioning a marina study in 2010 and writing some convenient new guidelines that allowed it to fund marinas on the Bras d’Or Lakes.

It also had to break the rule that said it couldn’t provide more than 75% of the value of any project — $4 million represented 83% of the marina project.

And it had to break the rule it had just written for funding marinas on the Bras d’Or Lakes because the Ben Eoin board of directors said it was not feasible for them to meet the requirement that they provide 25% of berths for transients (read: tourists). The board explained it could only see its way clear to dedicating 9% of berths for visitors and ECBC accepted this.

Because it was clearly bound and determined to get its Ben Eoin Marina and yacht club — possibly even a Royal Cape Breton Yacht Club in Ben Eoin. In 2010, changes had been made to the provincial Royal Cape Breton Yacht Club Act removing restrictions on where the club could own property and limiting the liability of members. At the time, as the Post reported:

[RCBYC] officials denied that there were plans to relocate to the Bras d’Or Lake from Sydney Harbour.

But as you’ll see below, plans were afoot to merge the two clubs and demolish the RCBYC facility in Sydney, so the notion that the club would move to Ben Eoin was hardly far fetched.

 

Mergers & Demolitions

The paper trail goes cold again after that communication between Plumridge and the RCBYC, but conversations were clearly happening behind the scenes, because on 28 September 2012, Joan McInnis, executive assistant to soon-to-be disgraced ECBC CEO John Lynn, forwarded Robert Sampson and Darrell Cormier a “fact sheet” labeled “Ben Eoin – Royal Cape Breton Yacht Club,” with the message:

Please find attached from John Lynn.

Here’s the fact sheet:

FACT_SHEET_Version_One

On 23 October 2012, after “consultation” with both groups, McInnis sends an updated version of the fact sheet to Sampson and Cormier. The quality of the copy I received is poor but I’ll attach it here anyway. It begins with a letter from Lynn:

Lynn_FACTSHEET_03

There are a number of differences between the two versions — the second version, for example, specifies the charter for the RCBYC will continue to reside in Sydney — but the most important difference for my purposes is that the second version introduces the word “demolition,” making clear the fate of the clubhouse. Interestingly, we’re not allowed to know how much ECBC had budgeted for the demolition — the amount was redacted from this October 2012 email:

 

 

And while Lynn claimed the offer was in good faith and that either group was free to refuse the merger, he had the RCBYC over a barrel — he wouldn’t fund their renovations and basically told them they could struggle on alone with their debts or sell to ECBC and merge with the shiny new marina in Ben Eoin.

And those debts were clearly the main concern of the RCBYC, as you can see from this 8 November 2012 email from Cormier to Shaw in which he uses the word “debts” three times in five sentences:

 

The debts were also a concern to Plumridge, who, after reading that email from Cormier, wrote to his fellow ECBC officials:

Personally, I have no faith in people who think there are 32 days in December but passons, as the French would say, and let’s have a moment of silence  to contemplate the image of an Enterprise Cape Breton Corporation executive — one poised to dump $5 million into a pointless marina and a road to nowhere in Ben Eoin — worrying about somebody else wasting money.

Honestly, if it weren’t for moments of pure hilarity like this, I wouldn’t be able to get through these document dumps.

Speaking of which, here’s another chuckle. Shaw emails Cormier to say ECBC is prepared to offer $280,000 for the purchase of the RCBYC’s properties and asks for a decision after an upcoming meeting of the members.

Plumridge then writes to Shaw:

Let me spell that out: “Did John K. Lynn soften on the no proceeds to the Canada Revenue Agency?”

Because heaven forbid the Canadian government, WHICH EMPLOYS HIM, should get anything out of this.

I would really like to be able to tell you whether “jkl” softened on this, but the answer is not to be found in these documents.

 

Heeeeere’s Jim!

No property transaction on the Sydney waterfront can be completed without the only lawyer in Sydney, Jim Gogan, who was, of course, consulting on ECBC’s purchase of the RCBYC lands.  Bright and early on the morning of 29 November 2012, Gogan first emailed Shaw (subject line: ECBC-RCBYC):

Hi Gerard,

John asked that I touch base with you [redacted on the grounds of solicitor/client privilege]. I understand that he wants this closed quickly.

Then Plumridge (same subject line):

Hi Tom,

John asked that I call you to discuss the RCBYC matter.

[redacted, privacy and solicitor/client privilege]

Plumridge replied that he and Usher and Shaw were meeting with [redacted] from RCBYC the following Tuesday at the ECBC office and Gogan was “welcome to join.”

They met a few times and Gogan was, indeed, able to make sure things moved quickly. By 17 December 2012, Shaw was requisitioning the money to send Gogan, who would hold it in trust until the sale went through:

You’ll note that no appraisal was conducted. You’ll also note that ECBC, which had committed to paying fair market value for the properties, used the sale price of the Robin Hood property to help determine that value. The same sale price CBRM regional solicitor Demetri Kachafanas now claims should not be used in determining the value of the land the CBRM expropriated from Jerry Nickerson for the second berth. Land valuations are FUN!

And while I realize there is a difference between the market value and appraised value of properties, I think it’s worth noting the appraised values of the clubhouse and the properties ECBC purchased for $280,000:

PIDAssessment Account Number (2012)AreaValuation
(Commercial Taxable 2012)
Valuation
(Residential Taxable 2012)
150648270407420314,300 Square Feet$11,400
150648430407423816,000 Square Feet$9,600
15064850040752939,200 Square Feet$281,100
(Land $68,100; Building & Improvements $249,300)
$36,300*
15185978**040752939,200 Square Feet
156682620730278921,911.40 Square Feet$23,200
1569757604072113.38 acres$51,800
Total $377,100$36,300
Total Assessed Value (Commercial + Residential) 2012$413,400

*There was an apartment in the Yacht Club (where the steward lived) which was taxed as residential.

**This property is included in the same assessment as the previous property — you’ll note that while they have different PIDs they share the same AAN.

 

The remaining documents I received consist of a “complete Phase I Environmental Site Assessment (ESA) for the six contiguous properties” done by CBCL for ECBC (for $3,700); emails from Gogan to ECBC and others about the sale and lease contracts; and a squabble between the Ben Eoin Marina and the RCBYC over who would, in future, be responsible for what (memorable for a line from Robert Sampson to the effect that he believed the only assistance Ben Eoin was expected to provide the RCBYC was in helping “salvage” the Royal Charter.)

 

Go public

By this point, the ECBC investment in Ben Eoin had been made public (it was announced on 27 October 2012) and public response was not exactly enthusiastic.

So when it was further announced on 15 January 2013 that ECBC was also going to buy — and demolish — the RCBYC, people were, to use a nautical term, pissed. And the way ECBC handled it didn’t help either: the agency issued a two-page press release then refused interviews. Spokesperson D.A. Landry told the Cape Breton Post:

We are of the opinion that the corporation’s position is well outlined in the statement and there is nothing more to add at this time.

Lynn literally disappeared — he took a six-week sick leave.

So it was up to Marlene Usher to meet the press, which she finally did on 29 January 2013, saying, as the CBC reported:

We thought it’s probably time we came out and addressed both of those issues.

Read: “We thought we should probably say something publicly about our secret decision to put $4 million of your money into a marina in Ben Eoin and to tear down that historic building on your waterfront.”

Ya think?

Usher assured everyone that this was not about “providing services to elite people” but about “providing a resort for the general public and for tourists…” She said the development at Ben Eoin (the marina along with the ski hill and golf course and a hilltop hotel and housing development) had the potential to generate tens of millions of dollars in new investment and hundreds of jobs.

And tearing down the RCBYC? Why, that was going to facilitate harborfront development.

And yet, strangely enough, some people still felt tearing down the RCBYC was a bad idea.

CBRM resident Rod Gale started a “Save the Royal Cape Breton Yacht Club” Facebook page that attracted 1,600 supporters in five days. He showed more concern for the city’s heritage in two sentences than I saw in all the ECBC correspondence related to the sale, telling the CBC:

It could be used as a centerpiece for tourism development here in the Sydneys. It’s a beautiful piece of historic architecture, and I believe that could be used.

Just to demolish it without thinking of the options for this building is ludicrous.

Sydney-Victoria MP Mark Eyking said ECBC needed to be “more transparent” about its plans.

Two Sydney heritage groups — the Old Sydney Society and the Sydney Architectural Conservation Society — stepped up, offering to help ECBC find other uses for the building.

In March 2013, Christopher Borgal, president and senior principal of GBCA Architects, and one of Canada’s leading heritage consultants, submitted a report on the RCBYC to The Sydney Architectural Conservation Society and The Heritage Canada Foundation.

Borgal said of the CBCL report, which had become the basis of the decision to demolish the RCBYC:

Cost[s] presented in the engineering report were listed as $2.5 million which appears to have been based on new building construction rates applied to the size of the current structure and escalated because it is a heritage project. While this amount could certainly be spent over a long term if a brand-new quality is desired, in our view, the approach should be one of progressive expenditure rather than all at once…

Borgal, who put the necessary immediate outlay at $210,000 to $345,000, noted:

This building is of exceptional importance as a heritage site…Every effort should be made by all parties to ensure its survival and to ensure it has a viable use that will keep it visible and present to the public.

rcbyc_report_c_borgal-1

 

Also in March 2013, the CBC reported that federal Auditor General Michael Ferguson would look into ECBC’s marina decisions — the Ben Eoin investment and the purchase and proposed demolition of the RCBYC — after ACOA critic Ryan Cleary questioned “the rationale behind both decisions, saying there was little public consultation and there appears to be little economic return.”

But Vincent Frigon of the Office of the Auditor General told me that report never happened:

The CBC article refers to a Special Examination report that was never produced because the corporation was merged with Atlantic Canada Opportunities Agency on March 19, 2014.

Special Examination reports are to be submitted to the corporations’ Board of directors. In this case, however, the Board had been dismissed.

And of course, by that time, the RCBYC had burned to the ground.

 

Dead ends

There’s something deeply unsatisfying about this story — the police investigation into the cause of the fire petered out; the Auditor General’s examination of the ECBC’s marina dealings petered out; ECBC itself petered out (well, no, it kind of exploded, thanks to Lynn, who got himself fired not for his marina investments but for his patronage hires, and took the agency down with him).

But there have to be some lessons here — especially since so many of the same people involved with all these questionable decisions are still out there, influencing what happens on the Sydney (and North Sydney) waterfronts, making private decisions about public assets and pocketing public money for their efforts.

But I’m not going to try and draw lessons yet.

First, I’m going to get my hand my hands on the police and fire reports about the yacht club fire and see if there are any more facts to be learned, so stay tuned.

And while you’re waiting, have a look at the ATIP documents yourself.