Chris Schnurr
Carol Kosowan LL.B., B.A. (Law), B.A. (Policy)
First it was “Blogger Linked to Ambassador Bridge”; then yours truly got a little roughed up by a member of the community for certain comments made in this blog, and now Ward 3 Councillor Halberstadt is facing challenges from one of his colleagues.
In a word – despicable.
What is it about the powers that be in this city that they target bloggers? Personally, it was quite informative to officially learn that Sam Schwartz was back in town since our MSM didn’t inform us and neither did our mayor. Kudo’s to Councillor Halberstadt for performing his duty as an elected representative and informing those that pay our dear councillors and mayor their salaries.
The secrecy in this city is appalling. Manipulating the intent and purpose of the Municipal Act is equally appalling. We learn from Councillor Halberstadt that:
“City Council met privately last night and the night before to hash out its preliminary position on the DRIC blueprints. New York transportation guru Sam Schwartz, with a full team of technicians, is back in town and ready to engage in intense modeling with the province’s engineers to hopefully find a position acceptable to both parties on the route’s many nuances.”
Well it’s all well and good that Sam Schwartz and the province will be negotiating, but what about public input and oversight through this process? What exactly have our councillors and mayor decided on the border? Why are these discussions being held in secret?
Well, Section 239 of the Municipal Act states that all meetings shall be open to the public except matters regarding the security of the property of the municipality or local board; personal matters about an identifiable individual, including municipal or local board employees; a proposed or pending acquisition or disposition of land by the municipality or local board; labour relations or employee negotiations; litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board; advice that is subject to solicitor-client privilege, including communications necessary for that purpose; a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act. 2001, c. 25, s. 239 (2).
Back in 2005 we learned that, “several LaSalle residents who have carefully studied the plan were also wary about any endorsement until Windsor provided more information. Alan McKinnon said the city is “controlling and denying access to information,” claiming solicitor-client privilege regarding the hiring of traffic expert Sam Schwartz.“
So it would appear all dealings with Sam Schwartz are subject to solicitor-client privilege, hence the in-camera border meetings. Now, environmental lawyer David Estrin is our solicitor. Given his case history in defending the Environmental Assessment Act (after all he helped craft it), one would presume he would favour open and transparent discussions regarding the border route and any city proposals regarding the “nuances” of the route.
According to the Information Privacy Commissioner:
“The common law privilege (Branch 1) applies to: 1) all communications, verbal or written, of a confidential character, between a client, or his or her agent, and a legal advisor directly related to seeking, formulating or giving of legal advice or legal assistance (including the legal advisor’s working papers directly related thereto); and 2) papers and materials created or obtained especially for a lawyer’s brief for litigation, whether existing or contemplated.
For solicitor-client privilege to apply, four criteria must be met:
- there must be a written or oral communication;
- the communication must be of a confidential nature;
- the communication must be between an institution and a legal advisor; and
- the communication must be directly related to seeking, formulating or giving legal advice.
Given that the city has stated it will accept no option other than tunneling the DRIC route and that the proposed routes have been available for public perusal, why the secrecy? Or is “solicitor-client” privilege simply being used to hide information from the public or is our Mayor laying the groundwork for future litigation? Afterall, on September 6, 2006 the Windsor Star reported:
“Mayor Eddie Francis threatened legal action Tuesday if the binational group charged with proposing a new border route plows ahead with a plan that he says will destroy Windsor…Francis said the city has been pushing DRIC to consider an environmental assessment that would examine “all options” including tunnelling. He said the Schwartz proposal, which was commissioned by the city and completed by New York traffic expert Sam Schwartz, moves the traffic off city streets and creates a tunnel under the Ojibway natural area. “They’ve not even looked at that alternative,” Francis said.”
According to the IPC:
“However, the IPC has found instances where there was an implied waiver of privilege and the record was ordered disclosed. In one instance, a client disclosed an opinion to a specific party, intentionally and without any restrictions on its use, and the IPC found that this release constituted a waiver of the solicitor-client privilege. In another instance, an institution was found to have implicitly waived solicitor-client privilege with respect to a letter that was located in a land development file. The file was available for review by the public and had been seen by the requester in that way. Two additional facts were important to the outcome of the case: the institution did not remove the record from the file once it was aware of the problem and it did not make any representations on the issue of waiver during the appeal process.
Institutions must take care to ensure that legal opinions are not released to a specific party as the solicitor-client privilege may be jeopardized. If an institution wishes to release privileged information to a specific party, it should place restrictions on its use if it wishes to retain the solicitor-client privilege.”
Is this why the unnamed councillor challenged Councillor Halberstadt? If releasing the information that Halberstadt provided on his blog created this outburst – I’m curious to know what major issues council is receiving advice on regarding the border?
Surely residents have the right to know. Given the criteria for solicitor-client privilege to exist, I hardly believe that discussion revolving around Sam Schwartz constitute an in-camera meeting or constitutes breaking confidentiality.
After all, only communications that are directly “related to seeking, formulating or giving legal advice” warrant an in-camera meeting.
Filed under: Uncategorized
Meanwhile, the Province is moving forward with the Manning Road/County Road 22 EA. This means that Tecumseh and Lakeshore will benefit from Federal/Provincial infrastructure dollars while Windsor rants and raves about a tunnel under a natural area, ignores the Bridge and does nothing to improve a single road in Windsor.
Every day I drive on Tecumseh Road, Pillette Road and Wyandotte Street and cannot believe the sad shape of these roads. Tecumseh Road between Lauzon Parkway and Jefferson is an embarrassment. Now imagine if we could shift the money we spend on EC Row Expressway to other worthwhile infrastructure projects?
Can anyone name me a municipality that spurns an unsolicited offer of cash to improve infrastructure? In London, the Wellington Road overpass is being rebuilt and the 401 being widened. In Woodstock, the Province is widening the 401 and rebuilding two interchanges in the vicinity of the new Toyota plant. The Province will be conducting a study of a limited-access highway between Cambridge and Brantford – do you think those two cities will rant and rave about a new highway?
Abuse of Solicitor-Client Privilege
http://www.leg.bc.ca/cmt/36thParl/foi/hansard/fi1029.htm
Solicitor-client privilege. As a lawyer, I have to tell you that I think — there’s no doubt in my mind — that public bodies are abusing the notion of solicitor-client privilege. They are withholding information on the grounds that something was the subject of a lawyer’s letter or a lawyer’s thoughts and that therefore the whole subject matter and all the documents associated with it are not compellable under FIPPA. The board owns its own legal department, of course. It shuffles an issue into the board legal department for policy advice, shuffles it out of the legal department and therefore claims solicitor-client privilege. That’s how they get around it. Mr. Doherty will be making a similar point. So a lot of the government agencies are abusing solicitor-client privilege, in my view. That has to be clamped down by restricting the definition of those terms and controlling it, in my own view, as much as possible.
The board throughout wants to use personal privacy as a reason for tightening up on available information. As I say, they make a big argument to the effect that they cannot adequately enforce health and safety conditions in workplaces unless the privacy of witnesses and informants is protected. I’ve been around the bend with that in many coroners’ inquests in British Columbia, where workers have died. Inevitably, the family wants to find out what the board did and what the employer did, and it’s pretty hard to check on that when you have a document full of blacked-out names, addresses and phone numbers, alleged witness statements, statements that aren’t in quotes — tapes not taken. They don’t take tapes and keep the tapes; they don’t make transcripts of tapes. They paraphrase people who allegedly said something, they put the name down and you’re supposed to check all this. Well, you can’t check it if you don’t know who the witnesses were. The board wants you — they ask you — to amend the act so that they can prohibit altogether the release of any statements taken from a witness or an informant, not just the names. I find that an unbelievably bold attempt to stop assessment of how they work, and that’s why they’re up to it.
Finally, the board suggests that things are getting out of hand. The board had $827 million in surplus in the last three years — $827 million. Today they announced in the paper that they are again giving a $45 million break on assessments to employers next year. They have tons of money. I think they should put maybe $8 million of that into freedom of information and start putting out information, instead of spending their time figuring out a way to stop it from coming out. That’s it.
I’ve had to deal with this whole Solicitor-Client Privilege issue. Despite having a Legal Department full of excellent lawyers, Council relies on Estrin for legal opinions. He has become the de facto legal counsel for the City. I can’t recall how many applications have had to be ‘cleared’ with Estrin.
The sad thing is that despite spending over $2 million on Estrin, the City has very little to show for it – many reports are forwarded to Estrin for ‘comments’ but those comments are never in a written form. It’s all by phone. This way the City and Estrin avoids any accountability – everything is hearsay.
The key here, I believe, is that the solicitor-client privilege is between Estrin (solicitor) and Schwartz (client), not Estrin and the City.
That is how CAO Skorobohacz explained it to me in 2005.
This makes the entire City involvement in the project/process privileged.
Contrary to what the Star and the City always imply, the corporation of the City of Windsor has NEVER hired Schwartz. As I understand it, he is an agent of Estrin, paid by Estrin etc.
I read that Councillor Lewenza claims he confronted Councillor Halberstadt
because the use of the word “compromise” in any discussion on the border hurts the City.
I think it is this kind of attitude that got this region into the interminable border/route quagmire to begin with. I hope people will take a minute to reflect on Ken Jr.’s wisdom.
I think we began “not compromising” back in the 1950’s when the 401 was abandoned before reaching the bridge. Every “non-compromise” since then has only worsened the situation.
I think you are right, Chris, in identifying the information revealed by Halberstadt that truly upsets council is the fact that Schwartz is back.
The exalted guru, once hailed as our hero, is apparently ushered through the back door these days.
In spring 2005, the province and feds came knocking with hundreds of millions to take over the expressway, building it out as designed to reach a new crossing at its terminus at Ojibway parkway. (This location was conceived of over 30 years ago, as was the tie-in with EC Row).
Under Mr. Francis’ leadership, the council snubbed the meeting and the offer, instead holding a press conference in council chambers with Estrin and Schwartz, insisting it was the “bypass” or nothing.
Residents who are concerned about the border should inform themselves. The biggest obstacle to getting underway on the border over the last 5 years in my opinion, has been Mayor Francis: he is playing politics with no end game.
He keeps changing the goal line.
“Our starting postiion is a tunnel”, the Mayor said last week.
Well, that’s interesting..as well as completely removed form what he’s
proposed previously.
You must recall in Jan 2005, he sold Schwartz like it was the ONLY thing that would properly protect the City, “THINK BIG” and all that.
There was no tunnel proposed for Talbot road in Schwartz.
In fact, the only tunnel proposed was for an 800 metre stretch under Ojibway Provincial Prairie Reserve. The rest of the route, along Talbot through Lasalle neighbourhoods, other protected natural areas of Ojibway and eventually back onto Huron Church went below, at and above grade. In fact, in one 8km stretch, the Schwartz “bypass” changed elevations over 6 times (bad for trucks, emissions etc.)
Since trying to tell us the bypass was a great plan, when it so clearly was not, I find it hard to trust the credibility of the mayor and council. That they continue to hide details of their “process” behind solicitor-client privilege between a Toronto lawyer and an American consultant does little to assuage my scepticism.
I truly believe in an open government as democracy is the will of the people .Councillor Halberstadt ,however , is not the shining knight in armour as we are led to believe. I see no difference with Councillor Halberstadt and Garth Turner where everything is “Me! Me! Me!
I am coming up on my one-year anniversary of my decision to leave Sam Schwartz and abandon my hometown of Windsor for greener pastures.
At the time I did so with some resentment, because I felt that I, and others, had been led on and that there would be no action or follow-through on the Schwartz Report or any type of proactive City endeavours. Given the city’s economic decline in general, I decided I wasn’t going to waste my engineering career waiting and waiting for the city’s general engineering prospects to improve and for border work to magically appear. So my wife and I left, and in retrospect it was the best move of our careers. I am swamped with work, and good projects too.
Working under Solicitor-Client Privilege is an issue that I struggled with working for Sam Schwartz, and I think most engineers struggle with it.
What I struggled with is this – what was our engineering work worth under the S-C privilege? Ultimately, we were not allowed to share our analysis, our drawings, defend our rationale or our process in public. We were not even allowed to share exactly what the original scope of our work was, or the problem definition. We were never allowed to vet our work, as was promised on January 21st, 2005. And lastly, there was zero follow-up despite promises to do so and funding made available.
An EA for example, is arguably only as good as its public consultation process, and its ability to “engineer” solutions that address concerns and issues brought forward in the public consultation process. Without that public consultation and process transparency the public is left to trust their representatives, whether they are elected or bureaucratic, to bring their concerns and issues to the table. And so we are left with the trust issue; can the public trust that their representatives are not carrying alternative agendas into meetings, trust that they are not posturing for political gain and trust that they are competent to address the issues at hand.
There are scenarios, such as when you are considering an access restriction to a business as part of road improvement project, where a Solicitor-Client privileged business analysis is warranted under the umbrella of an engineering study Even so, eventually the “injured” party is met with and results of the study are fully disclosed so an honest discussion of options and compensation can be had.
As I recently said to another well known “blogster”, I’m not sure what is left for Sam to do on this file. I genuinely like Sam and David Estrin, I respect them greatly, I wish them the best, however you may include me in the camp that disagrees with the continued in-camera secrecy and Solicitor-Client privilege that shrouds engineering work being done by the city on this file.