COURT FILE AND PARTIES
COURT FILE NO.: 6962/13
DATE: 2014-03-19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tim Whitfield, Applicant
AND:
Robert Steckley, John Hill, Paul Collard and Donald Lubberts, Respondents
BEFORE: The Honourable Justice B. H. Matheson
COUNSEL:
David A. Hurren, for the Applicant
Christopher McClelland, for the Respondents Robert Steckley and John Hill
Ian Flett, for the Respondents Paul Collard and Donald Lubberts
HEARD: January 13, 2014
ENDORSEMENT
[1] There are two motions that I have been asked to rule on.
[2] They are a motion brought on behalf of the respondents that the applicant Tim Whitfield advise the name of the person or persons who are financing his application and any relevant questions that deal with his application. The second motion is brought by the applicant to have respondents John Hill and Donald Lubberts answer all relevant questions that deal with the application, whether arising out of in camera information or not.
[3] The manner in which this application came about is a little out of the ordinary.
[4] Tim Whitfield, the applicant, stated that on April 9, 2013 he was approached by Fort Erie’s mayor, Doug Martin, who asked him if he wanted to become involved in a legal matter concerning the town council. His affidavit appears to state that Mayor Doug Martin disclosed to him many items that were discussed in closed meetings of council.
[5] On April 10, 2013 the applicant swore the affidavit before Mr. Hurren. Mr. Hurren did not prepare the affidavit or application. In his affidavit Mr. Whitfield outlined, in detail, matters that were dealt with in closed session, in particular the termination of the employment of Heather Salter and her harassment complaint as against certain councillors.
[6] His affidavit outlines the number of closed sessions that council held with respect to the termination of Ms. Salter and her harassment issue.
[7] The affidavit of John Hill sworn September 4, 2013, amongst other items, deals with a number of matters that were in the public domain, and concerning matters that were dealt with in closed sessions of council.
[8] In the affidavit of Douglas Martin, Mayor of Fort Erie, sworn 10th day of April 2013, references are made to what went on in closed sessions of the Fort Erie Council.
[9] Counsel have agreed that for this motion there are two issues that they want to have the court rule on.
[10] Those issues are whether the court should order that the applicant Tim Whitfield and the respondents John Hill and Donald Lubberts answer the refusals on their examinations.
[11] The second issue is whether Tim Whitfield should disclose the name of the person or persons who are financing his application. This has to do with the respondents Robert Steckley’s and John Hill’s motion to dismiss the application of Tim Whitfield on the grounds of maintenance.
[12] With respect to John Hill and Donald Lubberts, they refused to answer questions that arose from an in camera meeting of the Fort Erie Council. They take the position that because it is a closed or in camera meeting, they are barred from answering it because of s. 239 of the Municipal Act, S.O. 2001 c. 25. Subsection 2 of s. 239 outlines when council may go into closed session.
[13] Section 239 reads as follows:
239.(1) Except as provided in this section, all meetings shall be open to the public.
(2) A meeting or part of a meeting may be closed to the public if the subject matter being considered is,
a) the security of the property of the municipality or local board;
b) personal matters about an identifiable individual, including municipal or local board employees;
c) a proposed or pending acquisition or disposition of land by the municipality or local board;
d) labour relations or employee negotiations;
e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;
f) advice that is subject to solicitor-client privilege, including communications necessary for that purpose;
g) a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act.
(3) A meeting shall be closed to the public if the subject matter relates to the consideration of a request under the Municipal Freedom of Information and Protection of Privacy Act if the council, board, commission or other body is the head of an institution for the purposes of that Act.
(3.1) A meeting of a council or local board or of a committee of either of them may be closed to the public if the following conditions are both satisfied:
The meeting is held for the purpose of educating or training the members.
At the meeting, no member discusses or otherwise deals with any matter in a way that materially advances the business or decision-making of the council, local board or committee.
(4) Before holding a meeting or part of a meeting that is to be closed to the public, a municipality or local board or committee of either of them shall state by resolution,
a) the fact of the holding of the closed meeting and the general nature of the matter to be considered at the closed meeting; or
b) in the case of a meeting under subsection (3.1), the fact of the holding of the closed meeting, the general nature of its subject-matter and that it is to be closed under that subsection.
[14] I am satisfied that council complied with the legislation when it went into closed session.
[15] The issue that the court has to decide is whether decisions heard in closed session remain confidential or not.
[16] The applicant has quoted from Wigmore on Evidence, 3rd ed. (1961) at p.70, when the learned author wrote:
For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man’s evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.
[17] The Municipal Act requires that all decisions that council make be made at meetings that are open to the public. I have quoted from the Municipal Act as to when the council may go into closed or in camera meetings.
[18] In RSJ Holdings Inc. v. London (City), 2004 11261 (ON SC), [2004] O.J. No 1982, Justice Kennedy wrote the following at paras. 17 and 18:
Simply put, an in camera meeting is a proceeding or deliberation that takes place in a venue where access is restricted and deliberation takes place in private. There is no public representation present.
Such a meeting is not cloaked with confidentiality and there is no restriction on publication that follows. Such a meeting is not cloaked with the like protection of s. 649 of the Criminal Code which refers to jury deliberations which take place outside public view nor is it similar.
[19] When the council meets in closed session, there is no recording of the deliberations. Councillors may make notes, but those notes are for the benefit of the person making them. A decision may be made that is accepted by a majority of those present.
[20] Granger J. in Cameron v. Taylor, 1992 7575 (ON SC), [1992] O.J. No. 4069, at para. 32 wrote the following:
“… If Taylor is correct that discussions or actions of council members in meetings which are held in camera cannot be the subject-matter of application under the Municipal Conflict of Interest Act, it would have the effect of allowing council members to ignore their conflicts as long as it was done as a meeting in camera. In my opinion, an in camera meeting of council does not preclude an application under the Municipal Conflict of Interest Act using as supporting material, statements made or actions of council members at such meetings.” [Underlining mine.]
[21] In dealing with the question of disclosure of what transpired at an in camera meeting, I am of the opinion that since it is a public body, as a general rule, the public has the right to know what went on and what council agreed to. There is one exception. That is if there is a claim of solicitor-client privilege.
[22] In the examination of the applicant Mr. Whitfield, there were six refusals that he made. They are recorded at Schedule A. At the present time the applicant has answered refusals #3 and #6. The applicant has confirmed that he will answer refusals #4 and #5. Counsel is asking for an order to “in the interest of efficiency” make sure it will be complied with. If counsel for the applicant has stated that the applicant will answer the two questions, I will not make an order.
[23] That leaves the two refusals by the applicant to disclose the identities of the individual or individuals that have contributed funds toward the legal fees that have been incurred in this application.
[24] From reading the material filed on this application and hearing from counsel, I believe the factual basis is as follows.
[25] Someone brought in legal materials concerning this application. Mr. Hurren did not prepare them. Mr. Whitfield, who had no legal connection with Mr. Hurren, came to his office and retained him. He did not provide a financial retainer, someone else did.
[26] Mr. Hurren has stated that the financier or financiers wish to remain anonymous. He relies on solicitor-client privilege or litigation privilege in advising his client not to divulge the name or names of the financiers.
[27] Mr. Hurren has not provided the court with case law that would allow him to make the claim on behalf of Mr. Whitfield. Counsel for the respondents have raised the issue of maintenance.
[28] There is nothing wrong with an individual or a corporation providing financing for a law suit. Examples are family and friends, and banks or trust companies. There is a problem if the financiers are providing the retainer for an improper purpose.
[29] Certainly, in this case there is a division on council and apparently much disagreement between members of council.
[30] If the name or names are disclosed, the respondents would be able to determine if they wish to take further steps. The claim of privilege would be with the financier or financiers.
[31] Therefore, on the two issues that the parties wish me to make an order, I make the following rulings:
John Hill and Donald Lubberts will answer all the refusals that are set out in the chart prepared by the applicant’s solicitor and attached as Schedule “A”.
The applicant or his solicitor will provide the name or names of the person or persons who provided the retainer for Mr. Hurren.
[32] I may be spoken to about costs if counsel are not able to agree.
_____________________________
Matheson J.
Date: March 19, 2014
COURT FILE NO.: 6962/13
DATE: 2014-03-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tim Whitfield
- and –
Robert Steckley, John Hill,
Paul Collard and Donald Lubberts
ENDORSEMENT
Matheson J.
Released: March 19, 2014