Report to/Rapport au:

Finance and Economic Development Committee

Comité des finances et du développement économique

and Council / et au Conseil

24 April 2012 / le 24 avril 2012

Submitted by/Soumis par: M. Rick O’Connor, City Clerk and Solicitor/Greffier et Chef du contentieux

Contact Person/Personne ressource : David White, Manager, Litigation & Labour Relations/ Gestionnaire, Division des litiges et du droit administratif

(613) 580-2424 x21933, david.white@ottawa.ca

City-Wide

Ref N°: ACS2012-CMR-LEG-0005

SUBJECT:	COMPREHENSIVE LEGAL SERVICES REPORT FOR THE PERIOD january 1^st to march 31^st, 2012
OBJET :	Rapport général sur les services juridiques pour la pÉriode du 1^er janvier AU 31 mars 2012

REPORT RECOMMENDATION

That the Finance and Economic Development Committee and Council receive this report for information.

RECOMMANDATION DU RAPPORT

Que le Comité des finances et du développement économique et le Conseil municipal prennent connaissance du présent rapport.

INTRODUCTION

The inaugural Comprehensive Legal Services Report covering the first and second quarters of 2011 was approved by City Council on August 25^th, 2011. The new report format originated from a Motion that was passed by Council on April 27^th, 2011, that directed “the City Clerk and Solicitor to combine the existing Claims Settlements, Litigation Record and External Legal Costs reports into a single comprehensive report”.

The information provided herein is with respect to the first quarter of 2012.

Litigation and Labour Relations Branch

In keeping with the format developed as part of the initial Comprehensive Legal Services Report, outlined below is the litigation record for the Branch for the 2012 first quarter, as well as an overview of the claims concluded in that same period.

The report also provides a breakdown of the range and volume of civil litigation currently being handled by the Branch, as well as information on whether carriage of these matters rests with the Branch’s in-house legal staff or with external counsel.

(a) Labour

Figure 1

(b) Claims Unit

Figure 2

Figure 3

*Note: These are non-litigated claims, being claims settled prior to receipt of a Statement of Claim

Claims concluded over $100,000 – Q1 2012

Department	Category	Claim Type	Amount
Transit Services	Bodily/Personal Injury	City Vehicle Hitting Pedestrian/Cyclist No AB	$147,808.54
		TOTAL:	$147,808.54

Specific details with regard to this claim are confidential in keeping with standard settlement practices. As a result, a confidential memorandum will be provided to Members of Council detailing the specific circumstances and facts surrounding this settlement under separate cover.

(c) Civil Litigation Unit

In Q1, 28 new Statements of Claim were received by the Litigation & Labour Relations Branch. With these, there are currently 235 outstanding civil proceedings against the City that are being handled by the Branch. Of these 235 open files, carriage of 208 rests with the City’s in-house Legal staff, with the remaining 27 having been referred to external counsel. Of this latter category, 11 have been referred to external counsel at the direction of the City’s insurer, with the remainder having been outsourced largely due to the scope and/or complexity of the litigation.

Figure 4

Figure 5

Reason for Unsuccessful Outcome:

This OMB matter relates to 1566 Cedar Lakes Subdivision. A Notice of Motion for Leave to Appeal has been filed.   The seeking of leave to appeal will be before Agricultural and Rural Affairs Committee on 10 May 2012 (and thereafter Council) for confirmation.  The Board was not satisfied that the City had shown that the development sought by the applicant could not proceed.  It is the understanding of the City that the onus of proof was upon the developer to show that it did meet the applicable planning policies, principles and guidelines.

Figure 6

Corporate, Development and Environmental Law Branch (“CDEL”)

The CDEL branch, in the first quarter of 2012, continued to provide key legal support for important strategic initiatives of the City. Some of the highlights of the extensive and varied services provided by in-house legal staff include the following:

1. Working with Ottawa Public Health on new amendments to the City’s Smoking By-laws;

2. Preparing contribution agreements for Ottawa Public Health projects to monitor and improve child health, to increase child and youth participation in physical activity and to educate and improve child and youth diet/eating habits;

3. Working with OC Transpo on agreements with Carleton University and the University of Ottawa for the continuation of the U-Pass programme on a three-year basis;

4. Seeking legislative amendments to the Highway Traffic Act to increase the City’s enforcement powers against ‘bandit’ taxi-cabs ;

5. Working with staff in REPDO on the leasing agreement pertaining to the Ottawa Baseball Stadium to bring professional baseball back to Ottawa;

6. Working with staff in REPDO on the relocation of the Coliseum Inc. soccer dome from Lansdowne Park to another site;

7. Working with staff in the Planning and Growth Management Department on the development of the draft policy permitted under Section 37 of the Planning Act to enable the City to require the provision of community benefits in return for rezoning that permits further density and height;

8. Assisting REPDO staff with the sale of property by Ottawa Community Lands Development Corporation (“OCLDC”) in the Longfields Subdivision;

9. Concluding a naming rights sponsorship agreement in the amount of $500,000 with Richcraft for the Kanata North Recreation Facility;

10. Working with the Environmental Services Department on the Phase 2 of the City’s Municipal Waste Management Master Plan;

11. Participating with City operational staff in a CRTC directed steering committee on a model Municipal Access Agreement.

12. Working with staff in the Economic Development Branch on the agreements for the City to host the 2014 FIFA Under-20 Women’s World Cup and the 2015 FIFA Women’s World Cup.

A summary of key in-house CDEL metrics for Q1 is set out below in table form.

CDEL – Q1 STATISTICS

Agreements & Contracts Reviewed/Drafted	205
Reports Reviewed/Drafted	82
*Real Estate Purchases	9
*Real Estate Sales	8
*Tax Sale Registrations and Payments Out of Court	48
By-Laws Reviewed/Drafted	34

*Stats do not include work required in processing outsourced transactions including Stimulus

CDEL – PLANNING AND DEVELOPMENT – Q1 STATISTICS

Development Agreements Initiated
Subdivision	9
Site Plan Control	31
Condominium	5
Other	20
Miscellaneous Development Requests Processed
Severance	12
By-laws (Road Opening/Closing)	14
Releases/Development Charge Deferrals	17
Compliance	15
Part Lot Exemption	17
Early Servicing	4

*The Statistics for the Development Agreements do not include associated registration such as transfers, easements, maintenance and liability agreement, and inhibiting orders as well as review of joint use and maintenance agreements.

External Legal Costs

The 2012 first quarter external legal costs are set out below:

Firm	Subject	Fee	Taxes	Disburse-ments	Total
Borden, Ladner, Gervais	Corporate, Commercial, Development	$ 80,116.35	$ 10,415.13	$0	$ 90,531.48
Borden, Ladner, Gervais	Light Rail Project	$305,203.40	$ 39,760.00	$ 689.66	$345,653.06
Caza Saikaley	Litigation	$ 9,616.60	$ 1,299.07	$ 376.20	$ 11,291.87
Gowlings	Insured Litigated Claims	$ 52,414.50	$ 8,910.18	$ 16,125.17	$ 77,449.85
Heenan, Blaikie	Litigation/Labour	$ 94,436.88	$25,209.71	$ 99,484.06	$219,130.65
Heenan, Blaikie	Insured Litigated Claims	$0	$ 441.76	$ 3,398.14	$ 3,839.90
Hicks, Morley	Labour and Employment	$ 19,619.00	$ 2,570.89	$ 156.98	$ 22,346.87
Lerners	Insured Litigated Claims	$ 2,031.50	$ 297.90	$ 259.97	$ 2,589.37
Soloway, Wright	Expropriation	$ 247.50	$ 32.23	$ .40	$ 280.13
Stieber Berlach	Insured Litigated Claims	$ 11,605.50	$ 1,541.20	$ 865.87	$ 14,012.57
Q1 Total		$575,291.23	$90,478.07	$121,356.45	$787,125.75

*Note: Not all of the costs above are charged to the Legal Services budget, namely, the costs with respect to the Ottawa Light Rail Transit Project and insured litigated claims.

ITEMS OF INTEREST

(a) Rapidz Baseball Club

On March 15, 2012, the Supreme Court of Canada dismissed the appeal filed by the Rapidz Baseball Club and other plaintiffs in their action against the City of Ottawa and various named defendants. The Supreme Court’s decision ends a $3 million claim against the City that was started in the spring of 2009, but which had been dismissed by the Superior Court of Justice in November 2009. An earlier appeal of that decision had been dismissed by the Ontario Court of Appeal in October 2010.

The City was awarded legal costs on the Supreme Court proceeding.

Along with those awarded in the earlier decisions, the costs payable to the City in relation to this case total $27,550.51.

(b) Lansdowne Park Conservancy

The Ontario Divisional Court on March 23, 2012, ruled that the application brought by the Lansdowne Conservancy/John E. Martin for an order halting the Lansdowne Partnership Plan was an abuse of process.  The Court ruled that there was “no obligation on the City to consider [the Lansdowne Conservancy] proposal and enter into a detailed evaluation pursuant to s. 25 of the Purchasing By-law.” Given that Mr. Martin’s application made essentially the same arguments as those that had been dismissed by Justice Hackland in the Friends of Lansdowne Inc. case, the Divisional Court concluded that “it makes no sense for this Court to examine the same legal issues that the Court of Appeal will determine” in that case.

The Court went on to award legal costs of $10,000 in favour of the City, payable by Mr. Martin personally.

(c) Minimum Maintenance Standards – Giuliani v. Halton (Region)

Late last year, the Ontario Court of Appeal issued a ruling on the subject of the Municipal Act, 2001 Minimum Maintenance Standards (MMS). The MMS define how a municipality must maintain its roads and also set thresholds which, if met by a municipality, prevent successful claims from being made based on negligent road maintenance. Put simply, the MMS dictate how quickly a municipality has to clear its roads, depending on the type of road and the amount of fallen snow.

In the Giuliani case, the plaintiff was injured when she lost control of her car due to the accumulation of ice and snow on the roadway.  The weather forecast on the day before the accident had predicted light snow would fall in the area beginning early the next morning. By the time of the plaintiff’s accident, two centimetres of snow had fallen and the roadway was covered with snow and ice, compacted by traffic. The municipality defended the case based on the MMS, which stipulated how quickly five centimetres of snow had to be cleared. Essentially, the municipality’s defence was that, because five centimetres of snow had not yet accumulated, it had met the MMS and was immune to a claim in negligence.

At trial, the court disagreed. Instead, the trial judge turned the MMS on its head, ruling that the lack of a minimum standard that applied where two centimetres of snow had accumulated meant that there was no statutory protection and the normal rules of negligence applied. Had the municipality been following the weather forecast, it would have started its salting operations earlier and this may have avoided the slippery conditions that caused the accident.

Given the apparent inconsistency in a ruling that imposed a greater obligation on the municipality in the event of a light snowfall than it would be under in the case of heavier snow, the Region of Halton appealed. Once again, the municipality argued that, if the MMS standard applied only once there was five centimetres of snow, it must have met its statutory obligations if there was only two centimetres of snow. To require the municipality to clear two centimetres of snow would effectively mean that there could never be a situation where there was five centimetres of accumulation, such that the MMS would apply. Once again, the courts disagreed, saying:

To be clear, section 4 of the MMS did not say that a municipality need not clear snow if there was less than 5 cm accumulation.  The section did not address that circumstance.  There was no minimum standard for clearing accumulative snow on a class 2 highway when the accumulated snow was less than 5 cm.

The Region of Halton has since sought leave to appeal the case to the Supreme Court of Canada.

In light of its potential impact, Legal Services has provided a summary of the case to management of the Public Works Department to ensure that the City of Ottawa continues to meet its legal obligations for the care and maintenance of its roads.

CONSULTATION

As this is largely an administrative report issued on a quarterly basis, no consultation was undertaken.

RISK MANAGEMENT IMPLICATIONS:

There are no risk management concerns arising from this report.

LEGAL IMPLICATIONS

Some settlements referenced here are subject to the confidentiality requirements that commonly form part of a claim resolution. Should further details be sought on those matters, it may require an in camera discussion.

FINANCIAL IMPLICATIONS

There are no direct financial implications associated with this report.

TECHNOLOGY IMPLICATIONS

There are no technical implications associated with this report.

DISPOSITION

Subject to any direction by the Finance and Economic Development Committee and Council, the City Clerk and Solicitor will continue to produce this report on a quarterly basis.