By paNOW

P.A. councillor bounces cheques; still owes city thousands

May 5, 2017 | 3:23 PM

A recent court decision reveals a sitting Prince Albert city councillor wrote a series of post-dated cheques to pay property taxes owed, but had insufficient funds to do so.

Queen’s Bench Justice R.W. Danyliuk handed down his decision on Friday relating to Embee Diamond Technologies and the City of Prince Albert. Embee Diamond, whose chief operating officer is Ward 3 Coun. Evert Botha, elected in the October 2016 election, was seeking relief from the courts because its holding company owes the city more than $170,000 in back taxes. 

The request was denied.

Danyliuk wrote in his decision the main reason was Embee Diamond failed to provide enough documentation to prove its case.

Although both parties provided what Danyliuk called “irrelevant” material, the city submitted plenty of documents including an affidavit from the city’s solicitor, Ken Paskaruk. A meeting took place between Botha and the city on June 27, 2016 where Botha provided a series of post-dated cheques to cover the tax arrears on 1203 Central Ave.

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“Very quickly, cheques began to ‘bounce’,” the decision reads. “By Aug. 30, 2016, the city was writing Embee, to Mr. Evert Botha’s attention, to advise of two cheques being returned due to non-sufficient funds.”

The decision also includes a letter from city manager Jim Toye, which reads the city will have to bring in the Provincial Mediation Board if any more posted-date cheques return.

paNOW spoke with Botha on Friday regarding the decision and the matter of the NSF cheques. He declined an interview but provided an email stating the company “made an aggressive attempt to knock-off the arrears last year. Regrettably, due to unsteady market conditions, things changed and we were unable to keep up.”

Botha claims the company paid the city a total of $35,000 last year.

The legal dispute is over MFN & MB Holdings Inc., the former owners of 1203 Central Ave., failing to pay property taxes.

The city took ownership of the building back in February and changed the locks last month.

Embee Diamond operated out of the building and argued changing the locks would harm the business. The company also argued MFN & MB Holdings was a separate company and Embee Diamond was paying rent to operate out of the building.

Danyliuk pointed out there’s no evidence to back that up and repeatedly requested Embee Diamond provide documentation such as a lease agreement or payments to MFN existed. Danyliuk wrote that while Botha claims no formal position with MFN, he was “very much involved with dealings on behalf of that corporation as well.”

“One would have thought the plaintiff, Embee, would have filed corporate profile reports or given other details about the two companies,” Danyliuk wrote. “One would reasonably have thought that details as to the lease arrangements would have been disclosed and/or copies of the lease arrangement filed (if it is in writing). None of this was done in this case.”

He also pointed out the Provincial Mediation Board wrote to MFN in October and December of 2013, but there was no reply until Dec. 11, 2013 when Botha wrote back on Embee Diamond letterhead. In the letter, Botha wanted to clear up the taxes owed.

Danyliuk criticized Botha’s affidavit for being done improperly and missing information, instead the city provided the majority of information used in the decision. He also mentions the city has not received any payment of rental or tax arrears since taking the building over.

There was also inconsistencies, he noted, such as Botha’s two sworn affidavits contradicting how long Embee Diamond has been renting. One stated nine years while another claimed 10.

Danyliuk also criticized the suggestion of a personal grudge Mayor Greg Dionne might have had for Botha.

“This court is not influenced by tactics akin to high school politics,” Danyliuk wrote. “This court is guided by the law and by justice. Embee would have been much better off adducing relevant evidence that is missing from the file…than it has been served by slinging mud.”

The decision also made mention of two lawsuits against Embee Diamond totaling roughly $1.6 million.

The Queen’s Bench judge also slapped a $5,000 order on the company to be paid to the city.

Jeff.labine@jpbg.ca

On Twitter: @labinereporter