The city’s legal department is promising to reveal how much has been spent in the nine-year lawsuit against over 40 federal civil servants and cabinet ministers. Almost certain to exceed $2 million, the amount may become public on Wednesday when councillors debate a motion to end the legal action over an alleged conspiracy 15 years ago to intentionally delay construction of the Red Hill Valley Parkway.
CATCH filed a Freedom of Information request on December 2 asking for “a summary of all financial costs incurred in the Red Hill Valley Expressway litigation against the Attorney-General of Canada and others [including] billings by outside legal counsel (both paid and outstanding), internal staff time, cost awards paid and outstanding, and the date to which each is complete.”
A January 6 response letter states that “staff from the legal services division of the City Manager’s office have responded … advising that information responsive to your request will be available to the public through the legal services division by March 3, 2014.”
The city’s freedom of information office is using this promise to refuse to provide a formal response to CATCH’s request, citing provincial legislation that allows denial if the city expects the information “will be published within ninety days after the request is made”.
A supplementary letter of January 8 clarifies that the city doesn’t maintain records “for internal staff costs pertaining to specific legal files” and will continue to keep secret “legal invoices containing descriptive details of services and disbursements provided by outside counsel” on the grounds of client-solicitor privilege.
The Gowlings private law firm originally filed notice of the legal action in April 2004. City council approved the lawsuit by an 8-7 vote in November 2004 after listening to justifications for the action by Gowlings lawyer David Estrin and his company continues to represent the city in the case.
The council decision required regular release of the legal costs, but that requirement was revoked in March 2008 by a 10-6 vote that also turned down a motion by former mayor Fred Eisenberger to end the lawsuit. That secret spending of public dollars came under scrutiny in 2011 when Waterloo Region was forced to release its legal costs on a controversial issue. As a result, later that year the majority of Hamilton councillors agreed to a one-time release of the spending up to September 2011 – an amount of $1,335,000 million. Robert Pasuta and Lloyd Ferguson opposed the release and no further accounting has been provided to the public since that time.
However, in late 2011, the city decisively lost a three and a half-year preliminary court battle, and in February 2012 it was ordered to pay $310,000 in federal legal costs. The judge ruled the motions by the Gowlings lawyers were “contrary to fundamental fairness and the system of justice in this country”.
In his decision, Superior Court Justice P B Hambly was brutal in his assessment of the performance of the city’s legal team: “Counsel for the city has acted as if it had a client with inexhaustible resources to finance endless experimental litigation and that it could conduct litigation against the federal government with impunity.”
It appears the judge’s evaluation was never shared with city councillors. But after it was revealed by CATCH in November of last year, a motion to end the lawsuit was advanced by Brian McHattie.
Voting on that motion has been delayed until this coming Wednesday’s general issues committee to allow city staff to prepare a formal report to councillors. That report is and could remain secret. The meeting agenda indicates it will be discussed in private session where “outside legal counsel will be attending to speak to this issue”. Voting on McHattie’s motion must take place in public.
Opponents of continuing the lawsuit in 2010 were Eisenberger, McHattie, Bob Bratina, Sam Merulla, Russ Powers and Terry Whitehead. Those voting in favour were Ferguson, Pasuta, Brad Clark, Chad Collins, Scott Duvall, Tom Jackson, Bernie Morelli and Maria Pearson, along with former councillors Dave Mitchell and Margaret McCarthy. The views of new councillors Brenda Johnson and Judi Partridge have not been formally tested, but it’s understood that Johnson has asked to second McHattie’s motion.