COURT FILE NO.: 13-328
DATE: 2013/NOVEMBER/19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JOHN ROBERT HICKLEY, Applicant
AND:
MAYOR BOB KILGER and THE CORPORATION OF THE CITY OF CORNWALL, Respondents
BEFORE: The Honourable Mr. Justice J. M. Johnston
COUNSEL: Fay Brunning, Counsel for the Applicant, John Robert Hickley
Gordon Cameron, Counsel for the Respondent, Mayor Bob Kilger
William C. McDowell, Counsel for the Respondent, The Corporation of the City of Cornwall
RULING ON MOTION
[1] This is a Motion commenced by the Applicant, John Robert Hickley, seeking an Order for Advanced legal costs payable by the City of Cornwall to the Applicant for this Application and his costs the Whistleblower proceedings commenced to date. The motion is opposed by both Respondents, The City of Cornwall and Mayor Bob Kilger.
Nature of the Application and this Motion:
[2] The Applicant argues this is a “public interest application” initiated by him in his capacity as the Deputy Fire Chief for the City of Cornwall. The Applicant seeks inter alia, for the Court to determine the rights of electors under Rule 14.05(3)(d) of the Rules of Civil Procedure, RRO 1990 Reg.194 by interpreting the Municipal Conflict of Interest Act (hereinafter referred to as the “MCIA”). He asks the Court to determine whether the Respondent, Mayor Kilger, has been in an undeclared conflict of interest in relation to his complaint, known as the “Hickley complaint” under MCIA since May 31, 2012. The Applicant maintains, inter alia, there is an undisclosed conflict of interest and the Court is the proper place for him to adjudicate the legal issues and to determine this issue on behalf of electors of the City of Cornwall.
[3] Mr. Hickley, as the Applicant, also seeks an Order from the Court to determine the rights and obligations under the City’s Whistleblower policy. The Whistleblower Policy contains no provision for complaints against the CAO of the Municipal Corporation and no provisions pertaining to members of Council. The Applicant alleges that the Policy is silent about complaints by civil servants about members of City Council breaching legislation such as the MCIA in closed meetings of City Council. The Whistleblower Policy is silent about payment of legal costs of complainants.
Background:
[4] The Applicant, Mr. Hickley, is a long time employee of the City of Cornwall and is currently Deputy Fire Chief of the Cornwall Fire Service.
[5] On May 31, 2012, Mr. Hickley delivered a Whistleblower complaint (the “Hickley complaint”) to Cornwall City Council. The complaint relates to hiring practices and management at the City of Cornwall Fire Service. The Applicant alleges that the Fire Service’s management was improperly interfered with by the former Chief Administrative Officer (CAO) of Cornwall, Mr. Fitzpatrick. The Applicant alleges, inter alia, that the hiring practices of the Fire Services were interfered with by the CAO and others in order to ensure hiring of Chad Kilger, son of Cornwall Mayor, Mr. Bob Kilger. The Hickley complaint alleges that the CAO retaliated against Mr. Hickley, that Mr. Fitzpatrick interfered in the process to replace the Fire Chief, that Mr. Fitzpatrick made inappropriate comments about fires and public safety and that the CAO used Mr. Hickley’s medical leave to force him out and replace him with a new Acting Chief.
[6] The City of Cornwall has in place a Whistleblower Policy. The Hickley complaint was investigated by the City of Cornwall pursuant the Whistleblower Policy. The investigation was overseen by Mr. Stephen Alexander, Cornwall’s Acting Chief Administrative Officer. Pursuant to the Policy, the identity of the whistleblower was held confidential. The Whistleblower Policy for the City of Cornwall does not provide for payment of legal fees for whistleblowers or complainants.
[7] Notwithstanding the Whistleblower Policy does not provide for payment of legal counsel, Mr. Hickley retained his own lawyer, Ms. Fay Brunning, of Sack, Goldblatt, Mitchell. Ms. Brunning acted on behalf of Mr. Hickley for the purposes of arguing this Motion as well. Mr. Hickley entered into a Retainer Agreement with Ms. Brunning in the amount of $20,000.00 to be paid by monthly instalments of $1,000.00. This retainer was in relation to the initial Whistleblower complaint and not in relation to the current Application before the Court.
[8] Cornwall City Council investigated the Hickley complaint and held three meetings throughout the summer of 2012. The meetings were held in-camera, pursuant to the Whistleblower Policy. Mr. Alexander concluded his investigation and issued a confidential report in respect of his findings to the Hickley complaint.
[9] The issue to be determined on this Motion is: should the Court exercise its discretion and Order legal costs be paid by the City of Cornwall for the Applicant’s costs in either or both the Whistleblower Complaint and this Application currently before the Court.
[10] The Applicant alleges two legal grounds upon which a Court could grant the requested relief for Advanced Costs.
(a) Implied term of the Whistleblower Policy of the City of Cornwall:
[11] The Applicant argues that the Court can find implied terms of the Whistleblower Policy, specifically that a public servant of the City of Cornwall who brings forward in good faith, a prima facie complaint of wrongful conduct against the CAO and the Mayor on issues that need to be adjudicated by the Court, shall be reimbursed for legal fees for doing so. The Applicant argues that it is his duty as a Municipal employee, not an option, to bring forward concerns about wrongful conduct under the Whistleblower Policy. The Applicant argues it is unreasonable to expect municipal employees to pay legal fees out of their own pockets.
[12] This Applicant further argues that the outcome of the investigation should not dictate whether the complainant shall be reimbursed if represented by legal counsel. In the facts of this case, the Applicant argues that he required the assistance of legal counsel. Previously, the City of Cornwall had been convicted of legal retaliation upon a City employee in a Whistleblower complaint made by the employee. The Applicant alleges that the CAO involved in his complaint was the same person involved in the matter that lead to the City of Cornwall’s conviction for illegal retaliation. Accordingly, Mr. Hickley argues it was reasonable for him to hire legal counsel in the circumstances.
[13] The Applicant argues that the City of Cornwall controls access to public money and used public money to pay for lawyers in the prior conviction and in relation to this matter now before the Court. The Applicant argues that “the public interests at stake in this litigation require someone to be funded to bring these matters for adjudication to the Court. The Court should imply this term.”
[14] The Applicant further argues that a complaint brought in good faith and investigated properly “should not be penalized by refusing costs. It is contrary to public policy to place civil servants into an adversarial position, who bring forward good faith matters for investigation, by using threats of costs or withholding costs.” The Applicant also argues that public servants might not bring forward Whistleblower complaints of public interest in the future if they cannot have legal representation, or if they are required to pay all costs out of personal funds.
[15] The Applicant further argues that in the City of Toronto, their Integrity Commissioner By-law enacted under Part V.1 of the Municipal Act provides payment for legal costs for both the complainant and complainee without regard to outcome. Accordingly, he argues this type of term ought to be implied in the Cornwall Policy.
[16] The Whistleblower Policy of the City of Cornwall specifically does not provide for payment of legal counsel for whistleblowers. Rather, a confidential procedure is established for employees to make complaints that are to be thereafter investigated. The procedure is confidential to protect the employee and to encourage reporting. The Whistleblower Policy is not by its nature designed or intended to be adversarial. Accordingly, the Policy does not provide for payment of legal fees for whistleblowers.
[17] Mr. Hickley chose at an early stage to engage the assistance of legal counsel to advance his complaint pursuant to the Whistleblower Policy. An employee is not required to retain legal counsel to advance a complainant. There is no basis for this Court to imply a term of the Whistleblower Policy requiring the City of Cornwall to pay for legal counsel. In the absence of statutory or other authority, the Court cannot simply order a Municipality to pay legal costs in a complaint process. The Court has jurisdiction to award costs, including Advanced costs, in appropriate cases in relation to litigation matters. However, there is no authority to imply a term requiring funding of legal counsel. Accordingly, I reject the Applicant’s argument for an Advanced costs Order on the basis of an implied term to be Whistle Blower Policy.
(b) Advanced Costs Order:
[18] I next proceed to consider the Applicant’s claim for an Advanced costs Order on the basis of the test articulated in case law from the Supreme Court of Canada and, in particular, in the case of British Columbia (Minister of Forests) v. Okanagan Indian Band 2003 SCC 71 (hereinafter referred to as the Okanagan test). The Supreme Court of Canada ruled that the Court has discretionary power to order interim costs (advanced costs) in certain circumstances, however, it is a rare remedy to be used. The Court stated that discretion is “subject to stringent conditions and to the observance of appropriate procedural controls”.
[19] In order to meet the test for award of Advanced costs set out by the Supreme Court of Canada in Okanagan, a litigant must convince the Court that:
(a) the party seeking interim costs cannot afford to pay for the litigation and no other realistic option exists for bringing the issue to trial;
(b) the claim is prima facie meritorious; and
(c) the issues raised are of public important and transcend the individual interest of the particular litigant.
Application of the Okanagan Test
[20] Can Mr. Hickley afford to pay for the litigation and are there other realistic options to bring the issue to trial?
[21] In Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue) 2007 SCC 2, [2007 SCJ No. 2] the Court stated, “In evaluating whether the impecuniosity requirement is met, a Court should also consider the potential costs of the litigation.” “As such costs estimate form an integral part of the evidence, the Court should subject them to scrutiny, and then use them to consider whether the litigant is impecunious to the extent that an Advanced costs Order is the only viable option.” Further the Court stated, “Advanced costs should not be used as a smart litigation strategy; they are the last resort before an injustice results for a litigant, and for the public at large.” The Court reaffirmed its decision in the Okanagan test that it provides that an Advanced costs award only be used as a last resort “in order to protect the public interest”.
[22] In the case at bar, I find that the first branch of the Okanagan test has not been satisfied. Mr. Hickley is the Deputy Fire Chief in the City of Cornwall. Mr. Hickley has a significant income, owns assets and says he will proceed with the matter even if funding is denied.
[23] The Applicant’s own material discloses that Mr. Hickley earns approximately $126,000.00 per year, but intends to retire in May, 2014, with a $60,000.00 per year OMERS pension. The Applicant owns half a home valued at $189,750.00 and has a mortgage principle of $25,427.00. Further, the Applicant has R.R.S.P. savings of approximately $105,000.00. The Applicant has agreed to pay legal fees of $20,000.00. In his updated Factum, the Applicant states, “Mr. Hickley is close to retirement so does not want to risk his personal assets needed for the balance of his lifetime. He is delivering these legal issues that he has a duty to report to the Court for adjudication and remedial action. If he does not get funding, he will proceed but will leave the Court to deal with Cornwall City Council and the Mayor.”
[24] There is no evidence before this Court as to the anticipated cost of this Application to the Applicant. There is no evidence as to whether the Applicant has contacted other counsel to ascertain if any other arrangements can be made to obtain representation on terms that would be acceptable to him.
[25] The Court finds no fault in Mr. Hickley’s desire to limit his expenditure from his personal finances for this litigation. It is entirely understandable that Mr. Hickley does not wish to spend more than the funds he has now committed given his impending retirement. However, in the end, this is a choice made by the Applicant.
[26] The issue on this branch of the Okanagan test is not whether it is reasonable for the moving party to utilize his personal savings, rather it is whether or not it is impecunious.
[27] Further, there is no evidence before the Court as to whether Mr. Hickley has sought other private sources of funds for the litigation from other interested members of the public. There is no evidence whether he has sought alternate financing.
[28] Finally, counsel for the purposes of this Motion, advises the Court that the Applicant intends to proceed with this Application whether or not the Court orders legal representation to be paid for by the City of Cornwall. While it is often preferable for litigants to be represented by counsel, that is not the test. The test is can the litigant afford to pay for the litigation and are there other realistic options to bring the issue to hearing.
[29] For the foregoing reasons, I conclude that the first branch of the Okanagan test has not been established by the Applicant on this Motion. Accordingly, the Motion for Advanced funding must fail.
[30] Notwithstanding this finding, I wish to briefly consider the other two branches of the test.
[31] Counsel for the City of Cornwall argues that the alleged conflict of interest of the Mayor without merit, on the basis that the MCIA complaint was made beyond the limitation period and, therefore, is statute barred. It is not necessary to deal with this argument at this stage. This issue was not fully argued and it may be that other evidence will be adduced. It is premature to adjudicate upon this issue at this stage.
Do the Issues Raised meet the Public Importance Test?
[32] The third branch of the Okanagan test is whether or not the issues raised meet the public importance test. The involvement of a public body is not enough, in and of itself, for a case to meet this element of the test. The case must raise issues that not only transcend the interests of the particular litigant, but also are of public importance and have not been resolved in previous cases. The test is high. In Okanagan, the resolution of the case was determined to be a major step toward settling a host of unresolved issues in Crown-Aboriginal relations in the Province of British Columbia. In Little Sisters, the Court found that the public interest test was not met.
[33] For the purposes of this Motion, I accept that the Applicant brings this matter forward as a matter of public interest and in good faith. The allegations are serious and involve public officials, including the activity of the now retired CAO of the City and the conduct of the Mayor as it relates to the alleged conflict of interest. I further accept that the issues raised in the Application are of general interest to the citizens of the City of Cornwall. Whether or not elected officials act in contravention of the conflict of interest legislation should be of importance to citizens of the community. That said, it cannot be that in every case of an alleged contravention of the MCIA that this branch of the Okanagan test is automatically satisfied. Counsel has not provided me any case authority wherein Courts ordered Advanced costs in circumstances where violation of the MCIA is alleged.
[34] Public importance cannot be determined in the abstract. It is not sufficient to simply raise the issue of Municipal conflict of interest, or to allege contravention of Whistleblower Policy. The real issue is whether the claim raised in this Application satisfies the criteria. The public interest raised in this case while important, is limited to the City of Cornwall and is not of general application across the Province or Country. The issues of public importance in the Okanagan case were significant and far reaching.
[35] In conclusion, I find that this is not an appropriate case for the Court to exercise its discretion and award Advance funding to the Applicant. The Applicant has some ability to fund the litigation from his own resources if he chooses to do so. Further, the Applicant intends to pursue the litigation even if he is denied funding. Finally, the issues raised in the Application, while important on one level to the citizens of Cornwall, are not of such general importance that it demands the Court to exercise its discretion and impose the drastic remedy of ordering the tax payers of Cornwall to pay for the Applicant’s legal counsel.
Conclusion:
The Motion for Advance funding by Mr. Hickley is dismissed.
The Honourable Mr. Justice J. M. Johnston
Date: November , 2013
COURT FILE NO.: (Cornwall) 13-328
DATE: November 19, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
John Robert Hickley
Applicant
- and –
Mayor Bob Kilger and The Corporation of the City of Cornwall
Respondents
RULING ON MOTION
Johnston, J.
Released: November 19, 2013