ALLISTON, ONT., ICE CREAM WAR ESCALATES INTO $500K LAWSUIT.
‘GREAT ICE CREAM WAR’ PITS PARLOUR AGAINST TOWN COUNCIL, ESCALATING INTO A $500K LAWSUIT IN SMALL-TOWN ONTARIO
Ice cream shares a pedigree with pasta as a delicacy that migrated from origins in China, through culinary perfection in Italy, to mass market celebrity in America.
Its cultural talons hold deep. A favourite ice cream is like a favourite pasta dish, irreplaceable, no matter how good the others may be. Carbonara could no more replace pomodoro than chocolate stand in for strawberry.
So ice cream is important, but more so to some people than others. Miyah Lampe, for example, is going into her fourth year of psychology and microbiology at McGill University, aiming for medical school. Ice cream has been funding her education and providing her with a summer job.
“I’m kind of the reason it’s open,” she says of What’s The Scoop?, a summer- only ice cream parlour in the attached garage of her family’s corner- l ot bungalow on the main drag in Alliston, a small town in the farmland between Toronto’s bedroom communities and the cottage country around Georgian Bay.
It was going well for a couple of years until the start of the Great Alliston Ice Cream War, as it is becoming locally known, pitting What’s The Scoop? against the waffling mandarins of the town council. At first, they granted a permit for the business, but then set about strangling it with regulations, allegedly because, as a judge described the speculative theory of Miyah’s stepfather, Norman Dallard, “the councillors are aligned with the owner of another ice cream shop located in downtown Alliston.”
It got so bad that a bylaw enforcement officer made 32 visits last summer, parking at a distance and taking pictures like a Hollywood gumshoe on a stakeout. “He observed patrons buying ice cream and then going to the patio, octagon picnic table or the Muskoka chairs to sit and eat their ice cream,” according to t he t own’s legal pleadings. Another officer made 19 visits, unannounced. Charges were filed under the Provincial Offences Act. Miyah’s mother, Louisa, said it felt like bullying. They never bought an ice cream cone. There were even rumours that town employees were instructed not to patronize the place.
Norman, who works for Ontario Parks, and Louisa, a real estate agent, built What’s The Scoop? in the garage of their house, funded mostly with Miyah’s savings. Norman had received the formal blessing of local authorities for a home-based occupation, j ust l i ke the neighbouring dog- groomer. So he did the renos, tiled the floor, and put in a softserve machine, a little milkshake blender, two ice cream freezers and a fridge. For the family, the shop recalled Miyah’s childhood lemonade stands, and even an ancestral family ice cream shop called Kealey’s back in Northern Ireland.
They expected their customers to be mainly children from the surrounding new- build subdivisions, but once they opened in 2015, they discovered it was heavily weighted to cottage commuters avoiding the gridlock of the main Toronto- bound highway, and senior citizens cruising the countryside. As a result, they do a better than expected trade in such stereotypically geriatric flavours as rum raisin, while also stocking juvenile concoctions like birthday cake.
The town council had many objections. One was “significant external evidence of the business,” by which it did not mean the banner and sign, which the town approved, but the Muskoka chairs and the Canadian flags displayed on a roadside tree stump in the yard.
It also objected to the “unlawful” use of a patio by customers as they sat to eat their cones, and argued that the business is no longer secondary to the bungalow’s residential use, but has become the primary use. The town planner even came up with a mathematical equa- tion that purports to prove this.
The house is now under renovation, being fitted as a home for Miyah’s grandmother.
“Selling i ce cream has always l ooked appealing to me. It looks like one of those jobs, like flower delivery or greeting card writing, that generally makes people happy,” wrote Judge Cary Boswell of Ontario Superior Court, in his new ruling on the dispute. “But looks can, as we all know, be misleading ... Not everyone is happy.”
Judge Boswell rejected the town’s effort to shut the place completely. He specifically rejected the planner’s equation. A summer i ce cream season in the garage does not come “anywhere even close to being the predominant use of the property,” he wrote.
“I find it unusual that the Town would approve an ice cream parlour in this residential location, then raise concerns about parking. It is also puzzling that they continue to assert that parking is a problematic issue in the face of their own evidence to the contrary,” he wrote.
He did, however, f i nd What’s The Scoop? violates bylaws by showing external evidence of the business, by not being entirely contained within the dwelling, and by employing people who do not live there.
As a result, he ordered Dallard to “barricade” the patio so customers cannot use it, remove the chairs and the picnic table, and ensure that he employs only one non-resident.
What ’ s The Scoop? opened for the first time this weekend, with Miyah back at the scoops, but the war continues. Louisa and Norman have filed a $ 500,000 lawsuit, alleging negligence, abuse of process, and interference with economic relations. They claim the town maliciously pressured Dallard into shutting down the business for “motives other than zeal for the public welfare.”
“People come to enjoy ice cream. They don’t come for the drama. These are things the township should have thought of before they said yes,” Louisa said.