Environmental groups take PC government to court over failure to respond to Greenbelt FOIs
While Minister of Municipal Affairs and Housing Paul Calandra and Premier Doug Ford try to move past the Greenbelt scandal, with claims of righting wrongs, environmental groups are testing the sincerity of the government’s recent commitments to accountability and transparency.
Despite admissions from Calandra and Ford that their government made disturbing mistakes, after it was caught by two of the province’s accountability watchdogs who exposed widespread mismanagement in the handling of the Greenbelt Plan, Environmental Defence is taking the PCs to court for their failure to issue a decision on a freedom of information (FOI) request. The prominent organization is trying to unearth more information about how the initial 15 parcels of land were selected for removal from the protected greenspace in late 2022.
Laura Bowman, legal counsel for Ecojustice, the organization representing Environmental Defence in its case, said information is being sought after Ontario’s Integrity Commissioner established that former minister of Municipal Affairs and Housing Steve Clark broke ethical regulations in failing to oversee the actions of his staff. Environmental Defence believes there might be documents whose contents still have not been made public and is seeking information to corroborate statements that were made to the integrity commissioner when the investigation was conducted.
“Any documentation around what government actors knew about the proposed Greenbelt withdrawals, and about the landowner request, is something that is still very much an open question,” Bowman said. “If there's something they didn't give the Integrity Commissioner that exists, the public deserves to have access to that information.”
But so far that process has proved difficult, as the Ministry of Municipal Affairs and Housing (MMAH) has failed to issue a decision on the FOI request almost a year after it was submitted. While extensions can be granted, the government is mandated by law to respond to FOI requests within 30 days.
Former housing minister Steve Clark resigned from cabinet following the Integrity Commissioner investigation that found he broke ethics laws.
(Government of Ontario)
On November 18, 2022 — 14 days after former minister Clark first announced 7,400 acres would be removed from the Greenbelt in 15 parcels and replaced with 9,400 acres elsewhere — Environmental Defence, which has been instrumental in the protection of Ontario’s natural ecosystems and a prominent player in advocating for reviews of government policies, filed an FOI to the MMAH requesting general records in relation to the lands withdrawn from the Greenbelt dated between September 1 and November 18 last year. These records include:
- “All draft/redlined greenbelt plan policies;
- All draft/redlined greenbelt plan mapping;
- All staff reports providing risks/analysis and justifications for modifications or changes to the greenbelt;
- All decision packages, including modification analysis;
- All analysis of the statement of environmental values, all decision summaries;
- All memoranda, emails or minute notes from Premier’s Office, Minister’s Office and Ministry officials regarding modifications and changes; and
- Information and data on the quantum of expansion lands and employment conversions.”
Under the Freedom of Information and Privacy Protection Act (FIPPA), the Ministry has 30 days to respond to such a request. On December 17, the Ministry provided notice that it needed an extension under section 27 of the Act. With this extension in place, Clark was required to issue a decision by January 18, 2023.
On January 26, the Ministry issued an interim decision and the applicant paid the required fee in order to have the process proceed.
“So, presumably back at that point, they had the records, they had thought about what exemptions apply, they thought about what fees that our clients should be paying,” Bowman said. “So what happened between then and now, that they are just not complying with the order and just not responding to us about why.”
The actions are particularly concerning in light of Ford’s repeated claims recently that he has heard what Ontarians think about his government’s handling of the entire scandal and is committed to fixing the alarming process used by the PCs, which ignored obligations to behave openly, transparently and ethically.
“We are committed to adhering to all record keeping practices as set out in legislation, including the Freedom of Information and Personal Privacy Act,” Alexandru Cioban, spokesperson for the MMAH, told The Pointer in an email statement. “We have already undertaken steps to secure records and will be releasing them in accordance with the legislation.”
The applicant has not received any recent update from the Ministry regarding the information request.
On February 8, Environmental Defence appealed to the provincial Information and Privacy Commissioner (IPC), which is responsible for enforcing compliance with the Information Act. The Ministry’s failure to make a timely decision on the request was highlighted in the appeal. Throughout the process with the IPC, it was communicated from the Ministry’s delegate that a decision could be expected in late August/early September. On August 28, the IPC rendered an order for the Ministry to make a decision by September 15.
Contrary to this order, no decision has been made.
“They haven't given us any reason that they didn't comply with the order. They did not seek to judicially review the order. And under the Freedom of Information and Protection of Privacy Act, they are obligated to comply with the order,” Bowman said, adding that it is an offence to willfully fail to comply with an order and doing so can lead to prosecution by the IPC.
The IPC has also issued a document preservation order stating that they have reason to believe that some documents may not have been preserved by the PC government as is required under the Act.
The matter as it stands, is currently in the hands of the Supreme Court of Ontario, which will issue a decision on whether or not current Minister Paul Calandra is required to comply with his statutory duty as is set out under the Act. Should Environmental Defence, through Ecojustice, be successful, the court order will only require the Minister to make a decision on the matter, it will not require the documents to be released.
Under FIPPA there are 12 circumstances under which an FOI request can be denied, most of which relate to interfering with ongoing investigations, endangering life or threatening personal property, depriving a person of the right to a fair trial or endangering the security of a building.
The RCMP has officially announced it is undertaking an investigation to determine if criminal action was involved in the Greenbelt scandal. Despite the police investigation, Bowman said she does not anticipate it will affect the ability to release the sought after documents.
“There is an exemption for matters affecting law enforcement,” she said. “I can't speculate about what's in there, perhaps there's something criminal in there that could affect someone's right to a fair trial, but that would be the only way that the two would interact.”
Minister Paul Calandra is the new face of the Ministry of Municipal Affairs and Housing and has been trying to move past the Greenbelt scandal.
(Government of Ontairo)
Since the release of the Auditor General and Integrity Commissioner investigations into the Greenbelt scandal that led to the resignation of multiple cabinet ministers and the former housing minister’s chief of staff, Premier Ford and Minister Calandra have both apologized for ignoring the demands of the public and not acting in its best interest. Ford has said he is “very, very sorry” for the “wrong” decision to open up the Greenbelt and Calandra has stated he wishes to close and move on from the Greenbelt chapter.
Bowman questions these statements.
She said it is important that the public and advocacy organizations continue to push for transparency.
“I think that's still important because it goes to the integrity of various members of the legislature, not just to the question of the Greenbelt expansion itself,” she said, adding that there are other decisions, such as the forced urban boundary expansions to create more sprawl that are heavily contested and are tied to a series of backroom dealings, but have yet to be reversed.
“While this request does just deal with the Greenbelt aspect of it, the two are linked, and there has been no resolution of the Official Plan expansion issue. And a number of municipalities have asked that those decisions be reversed as well. So this fight isn't over.”
Ford and Calandra have said they will fix their mistakes, but the public is looking for actions, not words.
Bowman said, unfortunately, the onus is on the public to hold the government accountable.
“A member of the public is our client, this environmental organization is being forced to enforce this order ourselves. There is no accountability from the government about why they didn't comply with the (FOI) order.”
This is a symptom of what she referred to as a broken FOI system, one in which a person in power can willfully go against legislation and an order by the IPC with little consequence.
An FOI is a key accountability mechanism that allows the public to gather information on what happens within government institutions. The MMAH is not the only institution that has abused the system. Since the election of Brampton Mayor Patrick Brown in 2018, the FOI function at the City has consistently declined. In 2018, 98 percent of requests were responded to across the City in the 30-day time period. After his election, by 2022, that number fell to 64 percent. Even when the time extension function was used, only 78 percent of requests received a response.
Despite the bumps in the system, Bowman said she is not aware of any other case that challenged a nondecision for an FOI that reached a hearing and the judge had to order a decision. Environmental Defence and Ecojustice are currently waiting for a hearing date to be set.
The NDP have tabled a motion that, if passed, would require Premier Ford to turn over phone and email records, but with a powerful PC majority the effort will likely fail. If the PCs defeat it, more questions will likely be raised about the sincerity of Ford and his cabinet, who are now claiming that the days of backroom deals and misleading the public are over.
“The more we learn about the Ford government’s preferential treatment to speculators and personal friends, the more the Premier appears to hide,” NDP Leader Marit Stiles said in a press release. “This government is under a cloud of suspicion; it is being investigated by the RCMP. People deserve to know who their Premier is talking to and what he’s saying.”
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