Residents retaliate against gifted cow sculpture


Heather Paterson Head shot.

Public consultation might have helped to diffuse a conflict between the City of Markham and an area resident who hoped to donate the sculpture of a cow on stilts, Toronto civil litigator Heather Paterson tells

But residents’ consternation over Charity, the stainless-steel cow sculpture which stands 7.6-metres high, prompted the removal of the statue. As a result, the would-be donor sued the municipality for $4 million and sought an injunction to prevent the municipality from moving it, says Paterson who was not involved in the case, and comments generally.

The Ontario Superior Court of Justice denied the injunction and the sculpture was ultimately moved.

“I think in the end the judge’s reasoning was, you can’t force people to take a gift,” says Paterson, a partner with Shibley Righton LLP, who has an active municipal defence practice.

In his decision, Justice P. Andras Schreck of the Ontario Superior Court wrote that the donor did not meet the well-established tests that the question be serious and that the party seeking the injunction will suffer irreparable harm if it is not granted.

“The residents of Markham do not want the gift that the plaintiff wishes to give them. I am not satisfied that forcing them to accept the unwanted gift by granting an injunction is required to preserve the plaintiff’s rights or to prevent irreparable harm,” Schreck wrote.

Residents complained when the steel cow was installed, arguing that it negatively impacted property values, posed a potential hazard and that they weren’t consulted. City council reacted to the complaints and announced their decision to have it moved.

Typically, a municipality will enter into an artwork donation agreement when a gift of this nature is offered, says Paterson.

“That’s something that’s negotiated between the parties and, in this case, there was a provision in the agreement that the city could move it once they took full ownership,” she says, adding that reasons could include public safety concerns or bylaw compliance. “In any event, the city had sole discretion to move the statue if it wanted.”

The city also had an obligation to inform the donor of its decision to relocate the sculpture, and the donor then had the first right of refusal to retain its possession, Paterson says.

But the owner argued that moving Charity repudiated the agreement and that the sculpture would sustain damage and be irreparably harmed, according to court transcripts.

The city could have used the public safety argument, Paterson says, because there were concerns that a number of the leaves that made up the wreath around the neck of the cow had weak welds and a few had already fallen from the statue.

“While that wasn’t the deciding factor for the court, it certainly is a consideration for the municipality,” she says.

Paterson says the City of Toronto and other municipalities have guidelines for public art and monument donations, which typically include a provision for public consultations. It offers the community an opportunity to have a voice and for council to hear, beforehand, any potential concerns, she says.

“While it is not clear that there were public consultations in this case, if there had been, that might have gone a long way toward avoiding the heartache everybody experienced,” Paterson says.

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