City to look at covering legal costs in withdrawn lawsuit

Herald file photo

A lawsuit against Ward 7 Coun. Dawn Kilmer and the City of Prince Albert by former City Councillor Evert Botha has been quietly withdrawn, and city council will vote on whether to help cover her legal fees at a meeting on Tuesday.

Kilmer faces $3,271.54 in legal fees related to the case, according to a report included in the agenda for Tuesday’s meeting. Kilmer personally incurred the costs while refuting and defending the public allegations made against her in the lawsuit.

The report was written by City Solicitor Mitchell Holash and approved by City Manager Sherry Person. In it, Holash wrote that the City should cover Kilmer’s legal bills since she was able to successfully defend herself, and that the City has an interest in protecting its representatives from exposure to reputational attack by public legal action.

Botha, a former City Councillor defeated in the last municipal election in 2020, commenced a legal action on Nov. 28, 2022 naming Coun. Dawn Kilmer and the City of Prince Albert as party Respondents.

His legal action asked the Court to consider declaring Coun. Kilmer disqualified as a City Councillor based on allegations that in the process of running and serving as a City Councillor she had not reported her involvement as a volunteer director of the Prince Albert Raiders Hockey Club. Kilmer had resigned immediately upon having been elected in November, 2020.

The legal action also called on the City to conduct a by-election, at a cost to taxpayers of approximately $75,000, and consider having Kilmer and/or the City responsible for his legal costs.

Holash wrote that Botha very publicly announced his court proceedings and allegations, but there was not as much attention when the court action was discontinued.

Holash added that upon receiving the Court Application, he immediately provided Botha’s Regina-based lawyer with copies of documents demonstrating that Kilmer had resigned her volunteer position on the Raiders’ board immediately following her election to City Council.

Botha’s court action was initiated and framed on the basis that Coun. Kilmer was serving the public as a City Councillor. However, Holash wrote, Kilmer was advised to engage an independent lawyer apart from the City’s legal council.

“Mr. Botha did not accept the invitation to discontinue his lawsuit before Councillor Kilmer and the City each incurred legal costs to file evidence contradicting Botha’s public allegation,” reads the report. “Nor did Botha retract or correct his public allegations or comments concerning Councillor Kilmer’s integrity and ethics.”

The City Solicitor filed in evidence a sworn Affidavit of the City Clerk, Affidavit evidence was also prepared and directly filed on behalf of Kilmer by her lawyer. Upon the evidence of the City Clerk and Kilmer being filed with the Court, Botha’s lawyer discontinued his Court action.

Botha has already paid $4,228,46 in combined costs to Kilmer and the City, the report reads. In the circumstances, and under discretion afforded in the Administration Bylaw, Holash has directed these awarded costs to Coun. Kilmer’s credit, leaving her incurred legal costs net at $3,271.54.

The Cities Act contains principles specific to coverage of legal costs personally incurred by City officials in applicatinos that are determined to be without merit and are unsuccessful. The principles are based in a recognition that persons accepting public responsibilities can be particularly and unfairly exposed to personal litigious attack, and that protections are warranted.

Holash wrote that although Botha’s Court action was discontinued and withdrawn before a Court adjudicated and passed decision on the merits of the action and allegations, the voluntary discontinuance of his action ultimately concludes the matter in favour of Councillor Kilmer and the City.