Act of Charity was unwanted, judge decides
Loathed cow statue won’t get protection from being moved
Goodbye, sweet Charity.
After months of udder confusion and indecision, a Toronto judge put a swift end to Markham’s ongoing cow statue debacle this week after he dismissed a motion by the developer for an injunction to prevent the sculpture from being moved.
“The residents of Markham do not want the gift that the plaintiff wishes to give them,” Superior Court Justice Andras Schreck said in his decision . “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,” he said.
Last week, Markham council passed a motion to have Charity removed within 10 days, after residents said a sharp leaf from around her neck fell on the ground. Further examination of the sculpture by an engineer found there was “insufficient welding attaching 20 to 25 per cent of the leaves to the rest of the sculpture and that there was a risk that those leaves would fall,” Schreck said.
But on Tuesday, lawyers for developer Helen Roman-Barber and her company Romandale Farms Ltd. were in court arguing that moving the stainless steel statue on stilts, called “Charity: Perpetuation of Perfection,” would cause it “irreparable” harm. They also argued that Markham breached the “artwork donation agreement” when it reneged on its decision to keep Charity at the current location on Charity Cres., in the community of Cathedraltown at Elgin Mills Rd. and Major Mackenzie Dr.
Romandale Farms also filed a lawsuit seeking $3 million from the City of Markham, or a lesser amount of $1 million if the city also declares that it never acquired ownership of the statue, and if it returns it to the developer at a time and place determined Roman-Barber, at the city’s own risk and expense.
Roman-Barber is fighting to keep the memorial as a tribute to her late father who owned a part share in Charity, a famous show cow, and the farm the subdivision now sits on. But since it was installed last year, residents have complained that the statue is too close to their homes, and was installed without consultation.
In a statement, the City of Markham said following the court’s decision, the “donor has agreed to accept the return of the sculpture to the Donor. The City of Markham is working on removing the sculpture as soon as reasonably possible with the assistance of a contractor.”
In his decision, Schreck commended Roman-Barber for her donation but said her will could not trump the desire of residents. “The residents of Markham have stated, through their elected representatives, that they do not want the gift that Romandale wishes to bestow on them. A true philanthropist respects the wishes of those he or she wishes to benefit,” he said. “The balance of convenience does not favour allowing Romandale to continue to try to impose on the residents of the City a gift they do not want.”