County headed to court to challenge privacy watchdog

By Douglas Glynn Barrie Examiner
Simcoe County is going to court to challenge an order of Ontario’s Information and Privacy Commissioner.
The county is seeking a judicial review of an IPC order directing it to “immediately take all steps, including legal proceedings if necessary” to obtain the calibrated hydrogeological model and input data created by Jagger Hims.  The information was relied on to approve dump Site 41.
The IPC order stems from a freedom of information request made in 2007 by Steve Ogden
on behalf of the Site 41 community monitoring committee (CMC).  The CMC wants to have the information peer reviewed.  When the county declined Ogden’s FOI request, he appealed the decision to the IPC.
Ogden, Simcoe North MPP Garfield Dunlop and former CMC chair Ray Millar have all criticized the county decision.
The county announced in a news release Dec. 15 that it had reaffirmed with its legal counsel on Nov. 24 to move ahead with an Aug. 25 resolution to seek the judicial review. 
Ogden has questioned why the news release did not explain why there had been a three-week delay in making public the county’s decision. 
He points to the fact that a week earlier – on Dec. 8 – the IPC had sent the county a letter setting a Dec. 18 deadline for the county to comply with its order or serve the IPC with an application for judicial review.
“If the county already knew on Nov. 24 that it intended to challenge the IPC order, why did it not notify the IPC?  Why was the IPC apparently kept in the dark and put in the position of having to issue what amounted to an ultimatum before the county acknowledged it had already decided to go to court?”
He suggested it was just another example of “a lack of respect for the IPC. 
“And it is a further example of a waste of taxpayers dollars by a level of government whose spending is never open to public scrutiny.  Both the provincial and federal governments have independent auditors who watch their spending.   But who watches the county? ” he asked
Dunlop went a step further in his criticism, suggesting the county and a corporation were defying the commissioner, who is appointed by the Legislature and independent of the (provincial) government.
“Environment Minister John Gerretsen should be demanding the county obtain the information and he should be supporting the Commissioner.  The Minister and the Ministry owe it to the citizens of Tiny Township to demand the information to ensure the accuracy of the calculations it relied to approve the landfill.
 “I also agree with the Commissioner when she says the information was paid for with taxpayers’ money and should be public,” he added.
The county news release reiterated a long-standing county claim that it “does not have, and has never had, a right to possession or control of the Model. It is, and has always been, owned by the  engineering consulting firm, Genivar.  As a private corporation,  Genivar is not under the jurisdiction of the Information and Privacy  Commission of Ontario.”  (Genivar recently purchased Jagger Hims).          “The County of Simcoe has made all reasonable efforts to comply with  the IPC orders,” the release said.  “The County has been working diligently over the past  number of months on a compromise solution and had successfully negotiated an agreement that would have allowed the Appellant (Ogden) in this  matter to select a peer reviewer to conduct another independent assessment of the model.
“However,” the release continues,”the Appellant and subsequently the IPC, refused to support this further good faith agreement.
“It is the County’s understanding that it has no legal basis to sue Genivar and that a lawsuit would be unsuccessful.   As far as the County is aware, no Canadian administrative tribunal or court has ever before ordered one person to sue another.
While a judicial review can be a costly exercise,” the release adds, ” the County feels that given the continued unreasonable position it has been put in, this is the most cost effective decision.  It will yield savings over what is very likely to be an unsuccessful lawsuit against its engineering consulting firm.
“Furthermore, the County feels strongly that no person or corporation should be compelled to bring a lawsuit that they consider to be wrong in law. It would be inappropriate and irresponsible for the County to do so.  Asking the court to review this unprecedented decision is important as a matter of principle…(and) will allow the County to avoid engaging in costly litigation efforts against a reputable engineering firm that would very likely result in a failed outcome.”
Ray Millar, who was CMC chair at the time Ogden made the FOI request, differs with the county’s view.
“It is my understanding,” Millar said, “that it is the County’s position that they are not in possession of the MODFLOW data we have long sought. Given that they have taken this position, it is understandable that they would seek a judicial review of the IPC order, because if one is true, the other is impossible.
“Ostensibly, the County can’t give us what they don’t have and Jagger Hims (Genivar) has said that they wont give it up.
“Nonetheless, if the County is sincere and acting in good faith as they claim, they could, for a fraction of the cost of a judicial review, set aside the Modflow results prepared by Jagger Hims, suspect as they are, and undertake a second hydrogeological review.”
Millar says a second review could be carried out so that “the data and all records related to the review are the property of the County and will be made available to interested parties for independent analysis. That would be the simple and cost effective approach to resolving this seemingly intractable problem.
“While a judicial review of this matter may be interesting, asking the Ontario Divisional Court to adjudicate this matter is, I believe, unwarranted.”