La Nation $250K ‘settlement’ payment raises more questions than answers

In its October 29, 2018 meeting, La Nation council approved a payment to SKS Law of Ottawa for $253,838; the invoice number and description read, “10-19 SPORTS D” and “SETTLEMENT AS PER CLOSED SESSION” Each entry is obviously limited by the character, or letter count spacing allowed by the Accounts Payable print-out.

But the municipality is refusing to answer questions about the payment.

Update: After this story was published online on January 8, 2019, the municipality posted this statement on its website.

Here is that statement:

Following the article published in Le Droit on January 8th, 2019 and the article  in The Review published on January 9th  2019 regarding the sports complex in Limoges, The Nation Municipality would like to provide clarifications. By no means did the municipality have a lack of transparency towards its citizens. The 2001 Municipal Act clearly indicates that Council meetings are open to the public, with a few exceptions, such as: when the subject matter is related to litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board (2001, c. 25, s. 239 (2e)). Therefore, we understand your frustrations, but in a situation like this one, it is impossible to disclose any information without facing potential legal consequences.

We would like to assure you that all of the information that we are allowed to disclose will always be shared with you. Rest assured that the project of the sports complex and community centre in Limoges will move forward. In fact, during the Council meeting on January 7th, 2019, the municipal council announced that the four architectural firms that they chose and approved will now be invited to submit a proposition for the construction of the sports complex and community centre. Council also released a tentative date for the completion of the construction, which is December 31st, 2020.

Please note that the municipality will not be issuing any other messages on this subject. We thank you for your understanding!

The Review first learned about the payment from Dave Mushing, a Limoges resident and former candidate for Ward 4 councillor in this year’s election.

‘Nobody would’ve known’

Since then, Mr. Mushing submitted a formal request for information through the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA). Specifically, he requested documentation pertaining to any agreements between Saint Joseph Property Management and La Nation about the quashed sports dome project, any documentation pertaining to legal matters such as a settlement, and finally any information regarding interested bidders during the request for proposal for the sports facility project.

“Without being privy to the contract or the MOU that was signed, it’s impossible to say how many years of revenue we are compensating them for,” says Mushing.

“This was done quietly and had somebody not noticed that in the accounts payable report, nobody would’ve known. That to me is not accountability and transparency.”

To be clear, the municipality has not confirmed the above payment is a settlement with Saint Joseph after the failed dome project; nor has it shared the details of the payment if it refers to another matter.

In the request, Mushing specifically mentions a memorandum of understanding that is referenced in the minutes of a council meeting from June 2016.

Those minutes show the municipality “approve the terms” of an executive summary and enter into a “project agreement based on the terms outlined in the executive summary” with Saint Joseph.

For many items, the municipality will hyperlink to related documents but there are no links in this case.

The Review has requested the MOU, executive summary and the agreement as the motion was passed during the public portion of the council meeting. At the time of writing, we have not received a copy of any of the documents.

Josée Brizard, the clerk for La Nation, has so far refused to answer any questions about the settlement, saying it cannot be discussed as the instruction to make the payment was discussed during a closed session.

A section of the Ontario Municipal Act outlining the provisions for closed meetings allows exceptions in that a meeting and a vote could be closed to the public if the “vote is for a procedural matter or for giving directions or instructions to officers, employees or agents of the municipality, local board or committee of either of them or persons retained by or under a contract with the municipality or local board. 2001, c. 25, s. 239 (6).” In this case, the payment might have been considered an instruction to the municipality’s lawyer and was therefore voted upon and approved in a closed meeting. In most cases,  votes must be taken at public meetings.

Section 239 of the Ontario Municipal Act outlines all of the conditions under which municipalities can hold closed meetings.

As for Mr. Mushing’s formal request, Mrs. Brizard refused via email to release any documents citing section 12 of the MFIPPA, which allows municipalities to refuse giving documentation under solicitor-client privilege “for use in giving legal advice or in contemplation of or for use in litigation.”

She also called Mr. Mushing’s requests and emails “borderline Frivolous and Vexatious (sic)” (emphasis in original email). She also wrote that she feels “a lot of this is done in bad faith and is made for a purpose other than to obtain access.” The Review asked what she believed the ulterior purpose was but didn’t receive an answer.

Ontario’s privacy commissioner’s office says, “a finding that a request is frivolous or vexatious is based on a variety of factors—the number of requests is not the only consideration.”

Other requests

This was Mr. Mushing’s third MFIPPA request in about a month. The first pertained to the hiring of an economic development consultant and possible development opportunities, including a Tim Horton’s in Limoges; the second was for minutes of the meetings for La Nation Economic Development Planning Committee.

Mr. Mushing says the information he’s looking for was brought up by Mayor François St. Amour and Ward 4 councillor Francis Brière during the election. Brière announced in a Facebook post on his official page that Tim Horton’s was coming to Limoges after “more than one year of negotiations.”

However, Mr. Mushing’s MFIPPA request about the Tim Horton’s returned a single email dated September 30, 2018 from the manager of the Casselman location, which says there are intentions to open one in Limoges but specifically says, “no further details have been given.”

Mr. Mushing says that he tried getting information from the municipality without filing formal requests through the MFIPPA.

“The very day I found out about the settlement in the accounts payable report, I emailed Francis Brière who declined to comment on it because it was dealt with under solicitor-client privilege,” he said.

“That same day I forwarded his response to the clerk in the hope that she could say more about it, and the clerk adopted the same line.”

As for the results of the request, Mr. Mushing says they’re mostly what he was expecting but the lack of detail still led to more questions. And he continued to ask those questions to Mrs. Brizard and to Mr. St. Amour. Those follow-ups led to the third request about the dome project to be considered frivolous and vexatious, and Mr. Mushing says that the mayor has blocked him from emailing him.

“I don’t find that to be behaviour you would expect from an experienced elected official,” said Mr. Mushing.

Mr. St. Amour has told The Review that Mr. Mushing is off-base but didn’t offer any clarifications. Any follow-up questions pertaining to the matter have either been redirected towards Mrs. Brizard or have been left unanswered.

Ongoing process

Mr. Mushing says, “It’s a sensitive issue with the people who live in Limoges of being made promises or being told something’s happening only to find out that it wasn’t entirely accurate.”

Now, Mr. Mushing says he has sent an appeal covering all three of his requests to the privacy commissioner’s office. Specifically for the sports dome request, he believes some information is outside the solicitor-client clause, such as the memorandum of understanding and executive summary approved at the June 2016 meeting.

It’s also not lost on Mr. Mushing that people could see this as an attempt to get back at council after losing the election.

“Just because I’m the guy who found (this information) and I was a candidate in the last election, does that mean I should just keep my mouth shut? I don’t think that’s a reasonable expectation,” he says. “A lot of people say they don’t follow municipal politics, I do. There are other people who follow it very closely and it’s up to us to let people know what’s going on.”