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Ombudsman: council received ‘bad legal advice’

By: Darren MacDonald - Sudbury Northern Life

 | Dec 12, 2012 - 1:54 AM |
Ontario Ombudsman Andre Marin addressed city council Dec. 11.

Ontario Ombudsman Andre Marin addressed city council Dec. 11.

Marin blasts city’s solicitor, who responds in kind

Ontario Ombudsman Andre Marin and Sudbury city council continued their war of words Dec. 11, with Marin accusing council of having a “lawyer fetish,” and councillors taking turns expressing their dislike of how he does his job.

But Marin’s strongest criticism was aimed directly at City Solicitor Jamie Canapini, whom he blamed for incorrectly advising councillors they had the right to have the city’s lawyer present during investigations.

“You received bad legal advice,” Marin told councillors. “You were told that we had to go through a lawyer, the city solicitor, and that for us to go straight to you would be a breach of rules of professional conduct.”

The ombudsman was referring to an investigation the office conducted last spring of three closed-door meetings held in 2011 to discuss the fate of Auditor General Brian Bigger. When Marin’s Open Meetings Law Enforcement Team (OMLET) came to Sudbury to investigate, 10 of 12 city councillors refused to meet with them. Acting on Canapini’s advice, they insisted they had the right to have him present during the interviews.

While council was cleared of wrongdoing, Marin cited them for being the least co-operative city council he had ever dealt with.

“The city solicitor should know better than to be present there after he has been advised that we would not proceed with him in the room,” Marin said Dec. 11. “The city solicitor complained to the Law Society, and that complaint was thrown out ... The duty to co-operate is not an option.

“You would have preferred if I walked away and just zipped it. But I owe it to the community to write credible reports.”

Marin also said that while Canapini is the lawyer for council as a whole, he’s not the lawyer for individual councillors and should have known that.

“We’ve been at this 37 years, and we never see public servants show up at our office with lawyers,” he said. “It never, ever happens. Why is it an issue in Sudbury? What law do you have here that’s different from the law of all of Ontario?”

When it came time for Canapini to respond, Marin asked that he be allowed to leave, because he didn’t want to engage in a debate with the city solicitor.

Canapini said he was offended by Marin’s disparaging remarks. He said he has 20 years' experience in litigation, which means 20 years of having a differences of opinion with other lawyers.

“On none of those occasions, when the other lawyers had a diametrically opposed opinion to mine, would I ever say to them or their client that they received bad legal advice,” Canapini said.

He said in every discussion he had with lawyers for Marin’s office, he asked to see the statute that gave the ombudsman the authority to deny councillors the right to have Canapini present during the interviews.

“My question to his office was, please show me the authority where it says you’re allowed to exclude me from the room. And at no time did I receive a satisfactory answer.”

He also disagreed with Marin’s assertion that he was not the lawyer for individual councillors. He said when the ombudsman investigates a closed-door meeting, he is investigating council as a whole, whom Canapini respresents.

“I was a little shocked when Mr. Marin said I’m not your lawyer. I certainly am your lawyer.”

He also took issue with Marin’s assertion that Sudbury was the first council to ever raise the issue of having a city lawyer present during interviews, citing a closed-door investigation in London, Ont.

“I have personally spoken to lawyers for the City of London, where this was the very issue,” Canapini said. “They wanted their city solicitors in the interview room. And I find it equally surprising Mr. Marin would have raised that given he acquiesced. Lawyers were allowed in some of the interviews.”

And while the ombudsman’s office has been doing investigations for 37 years, it has only conducted investigations of closed-door meetings since 2008. Canapini said the no-lawyer policy was put in place to protect provincial employees, whistleblowers who would be intimidated by the presence of lawyers for the government during interviews. But he said that wasn’t the case here.

“In this case, it was the board of directors – it was council. It was the people who run the show that were being interviewed,” Canapini said. “And each and every one of them said I … would be more frank and open if the city solicitor was in the room.”

Marin’s exchanges with city councillors were equally tense. Ward 3 Coun. Claude Berthiaume asked Marin why, when one of the foundations of the ombudsman’s office is confidentiality, he revealed the name of the person who was being discussed in the closed-door meeting.

“You revealed the name to the public,” Berthiaume said, in reference to the auditor general.

Marin responded that the identity of the person discussed in the closed-door meetings was already in the public domain.

“His name was all over the papers … the name of the person being discussed was already out of the bag,” Marin responded. “It was one of those situations where you can’t unring a bell.”

Ward 8 Coun. Terry Kett took issue with a tweet of Marin’s that referred to the ombudsman’s first investigation of city council in 2008. In that instance, councillors were reacting to public outrage over the fact they gave themselves first pick of Elton John tickets. Councillors held an informal meeting to talk about how to respond. Marin’s investigation of that meeting found that, while they had come close, they had not broken the rules under the Municipal Act.

“It’s not the office I’m concerned with, it’s you,” Kett said. “Here’s a tweet from you before you came to meet with us. One June 25, you say, ‘OMLET visiting Sudbury tomorrow conducting interviews with council members. It’s been awhile since Elton John.’

“Is that not disparaging?” Kett said. “Is that not sarcastic?”

Marin said it was not meant to be either one of those things.

“Can you articulate how you find it disparaging?” he asked Kett.

“You are saying that something bad happened with Elton John, right?” Kett responded.

“No,” Marin said. “I’m saying that Elton John was the last investigation conducted here. You were cleared in Elton John. Council was cleared. How does that imply anything else?”

An exasperated Kett threw up his hands and said, “OK. I give up. There’s no use.”

Ward 10 Coun. France Caldarelli said when the OMLET investigation team came here to investigate the Elton John complaint, it was a scary process. She disputed Marin’s assertion the interviews are not adversarial.

“That is not true,” Caldarelli said. “The investigators were not pleasant. They were intimidating. They tried to put words in our mouths … They weren’t very nice at all.”

Marin said all interviews are recorded and if a councillor had an issue, she should have let him know.

“This is the first I’ve heard (of this),” Marin said. “If this was a concern, Coun. Caldarelli should have raised it at the time ... These people work for me, and they owe fairness to every council member.”

Ward 12 Coun. Joscelyne Landry-Altmann asked how much the investigations cost.

“You had three lawyers here for three days. What is the cost of an investigation?” she asked.

Marin said he didn’t know, because calculating the cost of all the investigations they do would take up too much time. However, he said they do all their investigations using the same budget they had before they got oversight of municipal councils in 2008.

“We don’t cost the cases individually,” he said. “When we got this jurisdiction in 2008, despite being very onerous, we didn’t get extra pay from the province to do it. So we find all the resources internally.”

After his remarks, Marin told reporters that some people have issues with Twitter, other forms of social media -- and even email.

“Some people believe we should still be using an IBM typewriter,” he said. “Some people think the Internet is insidious.”

He said there were three factors at play in Sudbury. The first two are a citizenry concerned about transparency in government and a council that has an aversion to oversight.

“And then we have this lawyer fetish that I don’t see in other communities,” Marin said. “I don’t get it ... No wonder we have conflict.

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Darren MacDonald

Darren MacDonald

Staff Writer


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