Owners of former Sarcoa restaurant add Waterfront Trust boss to $15-million lawsuit
Move comes just before Werner Plessl was to address council on trust’s finances The plaintiffs allege Plessl received drawings and plans that showed the patio and stage complex, but submitted different ... plans to the city.
There’s a new, personal twist to the legal battle between the beleaguered Hamilton Waterfront Trust and the former restaurant Sarcoa.
The restaurant owners, whose 20-year sublease was terminated in July, have now added waterfront trust executive director Werner Plessl to their $15-million lawsuit.
The statement of claim, which alleges breach of contract, bad faith and negligent misrepresentations, originally targeted the trust, City of Hamilton, and Parks Canada.
But according to a lawyer representing Sarcoa co-owners Sam Destro and Marco Faiazza, Plessl was added because he allegedly made “personal representations” which induced his clients to invest “significant sums of money” in what turned out to be a painfully contentious enterprise.
“Had it not been for those representations made by him, there certainly would have been perhaps a different direction taken,” said Konstantine Ketsetzis. Plessl declined to comment. The allegations have not been proven in court. And a trial date has yet to be set. Lawyer Louis Frapporti, who is representing the trust, was unavailable. The trust, an arms length city agency, has previously denied all allegations.
Plessl’s inclusion in the claim surfaces just as he’s scheduled to appear before city council to answer questions about the trust’s wobbly finances, which includes $330,000 in unpaid property taxes.
Plessl was slated to speak to councillors Wednesday but his presentation is now expected to be tabled until Oct. 18 so the trust’s auditor can attend.
The legal battle between Sarcoa and the trust is rooted in a high-profile dispute over the enforcement of a city bylaw banning outdoor music, which the restaurant claimed was pummeling its business model.
The owner allege their lease agreement at the former west harbour Discovery Centre — run by the trust but owned by the municipality, which acquired it from Parks Canada in 2015 — gave them the right to throw patio parties.
The company claims they invested $4 million in renovating the building and allege the trust itself contributed almost $1 million to the construction of a large patio and outdoor stage.
The restaurant opened in 2012 with a fair bit of hoopla. But after some three years of operation, the city began cracking down in response to noise complaints. That’s when things began to sour.
The intensifying squabble not only resulted in the $15-million lawsuit, it saw the trust terminate its lease agreement with Sarcoa for allegedly breaching conditions and not paying rent.
The amended lawsuit alleges, among other things, that Plessl told Faiazza and Destro that the city’s bylaws didn’t apply to Sarcoa whether the land was owned by the feds or after it was transferred to Hamilton.
It also alleges Plessl was aware of Sarcoa’s plans for outdoor patio parties with live, amplified music but he failed to advise the trust or city about those plans and nor did he tell Sarcoa’s owners of prior noise complaints in the neighbourhood.
Additionally, the plaintiffs allege Plessl received drawings and plans that showed the patio and stage complex, but submitted different drawings and plans to the city.
Again, these are all allegations, none of which have been tested in court.
There’s potentially another new aspect to the lawsuit. It seems Faiazza and Destro are considering increasing the amount of damages they’re seeking because of the termination of their lease, which put the restaurant out of business. In essence, they allege they were illegally evicted.
Co-owner Destro declined to say much other than, “I’m looking forward to the courts reinstating us.”
That remains to be seen, of course. Meantime, you have to wonder if another business will have the stomach for moving into the vacated space at the old Discovery Centre until this costly, complicated mess is settled.