Will she stay or will she go?

Last week, Charity’s days of watching over the small parkette in Cathedraltown were believed to be numbered, after Markham council voted to bring down the stainless-steel cow statue within 10 days after evidence emerged that the statue could be a safety hazard.

But her removal was temporarily put on hold Tuesday, when lawyers for Romandale Farms Ltd. and developer Helen Roman-Barber asked a Toronto judge to grant them an interim injunction to stop Markham from “initiating, performing, or completing any removal or relocation” of the statue until a lawsuit filed against the city was settled in court.

After listening to arguments from both sides, Justice Andras Schreck said he would render a decision about Charity’s fate by the end of the week.

At the end of March, Romandale Farms Ltd. filed a multimillion lawsuit against the City of Markham over the dispute around ownership of the 25-foot high statue that was installed on Charity Cres. last summer.

Last fall Markham city council voted to move Charity to greener pastures, after complaints from local residents that the stainless steel bovine on stilts was “terrifyingly close” to their homes in Cathedraltown, near Elgin Mills Rd. and Major Mackenzie Dr.

The decision was expedited last week, after residents said they found a sharp leaf from the wreath around Charity’s neck on the ground after a violent wind storm. That sparked concerns that another harsh storm could result in the sharp leaves “impaling” their children, a resident told council last week.

In the lawsuit, Romandale Farms is 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 by Roman-Barber, at the city’s own risk and expense. The lawsuit also states the developer will be seeking an injunction.

The city did not respond to questions from the Star except to acknowledge that a statement of claim had been filed by Romandale Farms and it could not “comment on active litigation.” The city has filed an intent to defend.

On Tuesday, lawyers for the developer argued that the City of Markham breached the “artwork donation agreement” between the two parties when it reneged on its decision to keep Charity at the current location.

“It was site-specific installation. It was created to be installed in Charity Crescent,” said Romandale lawyer Dale Denis on Tuesday.

Roman-Barber has said that Charity had “close ties” to her father Stephen Roman, who once owned the farm that was replaced by the subdivision of Cathedraltown. In 1985, Roman purchased a half-share in Charity, believed to be the greatest show cow of all time, for a then-record $1.45 million. The Star has previously reported that Charity spent most of her life at a farm in Port Perry, and is buried there.

Denis produced an affidavit from the artist Ron Baird, which claimed that moving the statue would lead to “irreparable harm.”

Justice Schreck said the “agreement clearly contemplated that at some point it would be moved” and questioned Roman-Barber’s “end game.”

“What outcome will result in this statue remaining where it is?” he asked.

Denis said a court ruling may sway the mind of the city and residents.

“If the city was told they didn’t own Charity and as a result the cost to move to Charity is the cost of paying ... a $3 million cost ... the decision may be different. The city may decide and the people in the courtyard may decide that allocating $3 million of taxpayers money, that the decision is quite different. They may decide let’s leave Charity, they may decide to grow some tall grass around Charity and change the esthetics,” said Denis.

Justice Screck responded: “Tall grass? How tall would that grass have to be? 25 feet tall?” he said.

“What you’re essentially telling me is that your client wants to pressure the city to put up an installation it doesn’t want, that its people don’t want. It’s well and good to donate art, and it's a commendable thing to do, but if the city turns around and says thanks very much, we don’t want it ... to use these tactics to try your force on the people of Markham ... that’s what this all really about,” said Schreck. “She can have Charity back at any time, but she’s chosen not to.”

“With respect, we aren’t trying to force our will on anyone,” said Denis. “What she’s looking for is for the court to interpret the contract, and decide who the owner is.”

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Markham’s lawyer Luisa Ritacca argued that “nothing in the agreement to suggest that there was an obligation on the city to keep the sculpture in the parkette for any period of time or promise to keep it for an indefinite period of time,” she said.

“It’s clear in the agreement that it is contemplated that at some point in time, or at any point in time, once the ownership passes to the city, it can take steps to relocate to move the statue from public display.”

The developer is seeking an injunction until August.

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