Taxpayers have already forked out well over $5 million in legal costs in the city’s lawsuit against the federal government over an alleged conspiracy to delay construction of the Red Hill Parkway more than a decade ago. Federal expenditures on the case were released Monday in response to a request from Mountain NDP Member of Parliament Chris Charlton on the same day that city councillors angrily voted unanimously to demand the cost figures through a freedom of information (FOI) application.
Under pressure from a CATCH FOI, council approved a motion by Brian McHattie revealing that the city has spent slightly over $3 million in the nearly 10 year saga. The release was opposed by Ancaster councillor Lloyd Ferguson.
Parliament re-opened this week and MP Charlton was provided a written statement that federal costs as of early December were “approximately $2,390,600.61”. That brings the revealed cost of the lawsuit to $5.4 million (see table) but may still not be all the public monies spent to date on a case that is not expected to go to trial before 2015.
City officials informed CATCH earlier this month that they don’t track “internal staff costs pertaining to specific legal files”. That indicates that the nearly $2.7 million in “legal fees” figure released by council on Monday are only what has been paid to the Gowlings law firm that is acting on behalf of the city in the lawsuit.
The federal case is being handled by their own Justice Department lawyers so the cost figures there presumably do include internal spending but details are not provided. The reason given is stated as a belief that the information “is protected by solicitor-client privilege” and the federal government “in this case has waived that privilege only to the extent of providing the total legal cost.”
Council spent more than five hours in secret session with their outside law firm on Monday over whether to continue the lawsuit, after CATCH revealed scathing comments on the law firm’s activities when he ordered the city to pay over $300,000 in federal court costs. That included the assessment that “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.”
This is the second time that the federal government has been asked to reveal its costs by Charlton, and in both instances they have complied. The first was in 2009 at a time when council had voted to stop divulging its expenditures on the lawsuit.
That may be news to Brad Clark who moved Monday’s motion demanding federal disclosure, and to his council colleagues who all endorsed Clark’s demand.
“It’s moved by myself and seconded by councillor Ferguson,” stated Clark, “that whereas the federal government to date have not released legal expenses on the Red Hill litigation; whereas there is no instrument for members of Parliament to secure the actual legal costs incurred on this litigation; therefore the city council directs staff to file a federal freedom of information request for all legal costs to date on Hamilton versus Canada, the Red Hill litigation.”
Ferguson contended that revealing the city’s spending so far will be “probably to very good advantage to the other side because it gives them information. I would love to know what they’ve spent. That hasn’t been disclosed so far.”
“I’m really looking forward to seeing if the federal government will own up as well, how much they have spent to date,” stated Tom Jackson in support of Clark’s motion. “So I’ll support this here today with the hope and supporting strongly an FOI request for the federal government’s expenses too.”
Clark also expressed surprise that Ontario’s Information and Privacy Commissioner (IPC) has ruled that municipalities must tell their taxpayers how much has been spent on individual legal actions – an IPC decision that was made in 2011 and subsequently led Hamilton council to release the Red Hill litigation spending up to September of that year.
Clark believes this requirement is unfair and took the occasion to strongly question the IPC stance.
“I think if we were to talk to twelve lawyers you’d get 12 lawyers stating that that clearly undermines the city of Hamilton’s position when they’re in litigation by providing the amount of the costs,” he declared. “I think it really does handicap the municipality significantly … [M]unicipalities are now being treated to rules that are completely different than anyone else.”
He emphasized the IPC decision was taken “by one adjudicator” and “without any discussion with the municipalities”, and that it “puts us behind the eight-ball in proceeding with litigation.” He advocated making “serious arguments with the IPC and perhaps the Attorney General” of Ontario because it removes “equal playing ground before the courts.”
| Amount | Details | Paid by |
|---|---|---|
| $2,390,600.61 | Not provided | Federal government |
| 2,665,313.00 | Legal fees to outside law firm | City of Hamilton |
| 309,885.00 | Court ordered cost award | City of Hamilton |
| 32,864.00 | Non-recoverable HST | City of Hamilton |
| $5,398,662.61 | TOTAL | Taxpayers |