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Simcoe County given ultimatum

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Dec 12th, 2009
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By DOUGLAS GLYNN Barrie Examiner
Simcoe County has been issued an ultimatum by the office of Ontario’s Information and Privacy Commissioner to either comply by Dec. 18 with an order to obtain the Site 41 calibrated hydrogeological model from a county consultant or seek a judicial review of the IPC order.
Adjudicator Colin Bhattacharjee has written Graham Wilson & Green, the county’s law firm, setting the deadline and noting that an application for judicial review “does not automatically stay the operation of an order issued by this office.
“However,” he adds, “this office can grant a stay where warranted. If you wish to have the order stayed pending the hearing of the application for judicial review, please serve us with your application to stay the order, together with your application for judicial review.”
Steve Ogden, a longtime dump Site 41 critic who launched a freedom of information request for the calibrated model on behalf of the Site 41 community monitoring committee in 2007, confirmed that he has received a copy of the IPC letter.
“I hope that Cal Patterson, the new warden, and his council colleagues will halt the games that have been going at county since August to thwart the IPC order,” Ogden said.
The county was ordered in August to immediately take all steps, including legal proceedings if necessary, to obtain the calibrated model and input data from Jagger Hims. The order also directed the county to then issue an access decision to the appellant (Ogden) within 30 days of receipt of the records.
If the county obtains the calibrated Modflow, as ordered, it must then decide whether it will honour Ogden’s freedom of information request, essentially beginning the whole process anew.
Instead of complying with the IPC order, however, county council passed two resolutions at its Aug. 25 meeting.
The first resolution instructed its legal counsel to seek a judicial review of the Information and Privacy Commission’s Order and related matters and continue efforts in the interim to persuade Genivar the new owner of Jagger Hims to release the calibrated model.
The second resolution proposed that the Information and Privacy Commission be approached to determine if a further peer review would satisfy its Order.
In October, the Toronto law firm McCarthy Tetrault advised the IPC that it had been retained to bring an application for judicial review of the IPC decisions.
However, Bhattacharjee’s Dec. 8 letter says: “we have not yet been served with this application, nor have we been served with a stay application.”
Then, on Nov. 17, the county’s lawyers — Graham Wilson and Green — sent Ogden’s lawyer a proposal to arrange a peer review of the calibrated model that set our a number of conditions which, Ogden says, were unacceptable.
Ogden’s lawyer replied pointing out that Ogden had not been a party to the agreement between the county and Genivar and emphasizing that Ogden believes the calibrated model — paid for the citizens of Simcoe County — should be made a public document.
“That’s especially important,” he said yesterday, “because it was relied on by the Ministry of the Environment to approve Site 41.”
The CMC’s FOI request was made so an independent review could be carried out by the CMC’s own hydrogeologist to ensure its accuracy.
The county maintained it did not own the Modflow and, thus, could not comply with Ogden’s FOI request. Ogden appealed the matter and an IPC adjudicator determined that, in fact, the Modflow did belong to the county.
In May, the adjudicator ordered Simcoe County to direct Jagger Hims to provide the county with the calibrated model and input data. The further order was issued in August.

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