2.                   COMPREHENSIVE LEGAL SERVICES REPORT FOR THE PERIOD July 1st to september 30th  2011

 

Rapport général sur les services juridiques pour la pÉriode du 1er JUILLET AU 30 septembre 2011

 

 

COMMITTEE RECOMMENDATION

 

That Council receive this report for information

 

 

RECOMMANDATION DU COMITÉ

 

Que le Conseil municipal prenne connaissance du présent rapport.

 

 

 

DOCUMENTATION

 

1.      City Clerk & Solicitor’s report dated 20 October 2011 (ACS2011-CMR-LEG-0027).

 

 

 

Report to/Rapport au:

 

Finance and Economic Development Committee

Comité des finances et du développement économique

and Council / et au Conseil

 

20 October 2011 / le 20 octobre 2011

 

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, Litiges & Relations de travail

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

 

City Wide/À l'échelle de la Ville

                 Ref N°: ACS2011-CMR-LEG-0027

 

 

SUBJECT:

COMPREHENSIVE LEGAL SERVICES REPORT FOR THE PERIOD July 1st to september 30th  2011

 

 

OBJET :

Rapport général sur les services juridiques pour la pÉriode du 1er JUILLET AU 30 septembre 2011

 

 

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 this year was approved by City Council on August 25th, 2011.  The new report format originated from a Motion that was passed by Council on April 27th, 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 third quarter of 2011.

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 third quarter, as well as an overview of the claims concluded in that 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 Relations

 

Figure 1

 

Reasons for Unsuccessful Outcome:

 

The case involved the termination of an employee for insubordination.  Following a two-day hearing, the Arbitrator determined that the employee should be provided with a last opportunity to redeem himself in his employment, recognizing his lengthy service, and ordered that he be reinstated.  However, the Arbitrator did substitute a suspension without pay of over one year, and ordered that the discipline remain on the employee’s file for an extended period of time. As this constituted a “last chance” for the employee, the Arbitrator limited the employee’s right to grieve in the future if he were to be terminated for a similar incident.

 

 

(b)      Claims Unit

 

 

Figure 2

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

 

Figure 3

 

 4 Claims concluded over $100,000 – Q3 2011

Department

Category

Claim Type

Amount

 

Public Works

 

Bodily/Personal Injury

 

Slip and Fall

 

$290,239.96

 

Public Works

 

Bodily/Personal Injury

 

Trip and Fall

 

$278,492.99

 

Transit Services

 

Bodily/Personal Injury

City Vehicle Hitting Pedestrian

$101,226.98

Transit Services

Bodily/Personal Injury

Losses Onboard City Vehicle

$251,640.56

TOTAL:

$921,600.49

 

 

Specific details with regard to these claims 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 these settlements under separate cover.

 

(c)    Litigation Unit

 

2011 Litigation Claims

In Q3, 37 new Statements of Claim were received by the Litigation & Labour Relations Branch.  With these, there are currently 245 outstanding civil proceedings against the City that are being handled by the Branch.  Of these 245 open files, carriage of 25 of these rests with the City’s in-house Legal staff, with the remaining 220 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.

 

The Litigation & Labour Relations Branch is currently developing a categorization of civil litigation claims which will be fully implemented in Q4 2011.  As a result, a more detailed breakdown of the types of claims received and handled by the Branch will form part of the future quarterly reporting.

 

 

 

 

 

Figure 4

 

 

 

 

Corporate, Development and Environmental Law Branch

 

In the third quarter of this year, the Corporate, Development and Environmental Law Branch (CDEL) provided legal services to support various strategic initiatives of the City.  Some of the highlights include the following:

 

·      part of the successful negotiation and conclusion of the new Public Accountability Agreement between the Ottawa Board of Health and the Ministry of Health and Long-Term Care;

·      provided services to support the recently approved expansion of the City’s O-Train service from one to two tracks;

·      continued to meet significant demands placed on them pertaining to the City’s One-Stop Service initiative for planning and development matters and also participated in the 18 month review of the initiative; and,

·      provided support on affordable housing programs and initiatives to end homelessness via Federal funding to the City on the Homelessness Partnership Initiative (“HIP”).

 

External legal services were provided to support the ongoing progress on the City’s Economic Stimulus Fund (“ESF”) Projects which will be the subject of a separate report by Infrastructure Services and Community Sustainability going forward to Council. 

 

A summary of key in-house CDEL metrics for Q3 is set out below in table form.

 

Agreements & Contracts Reviewed/Drafted

   257

Reports Reviewed/Drafted

     25

Real Estate Purchases

       9

Real Estate Sales

     15

Tax Sale Registrations and Payments Out of Court

     91

By-Laws Reviewed/Drafted

     14

 

PLANNING & DEVELOPMENT - Q3 STATS

 

Development Agreements Received

Subdivision

       6

Site Plan Control

     33

Condominium

       3

Other

       3

 

 

Miscellaneous Development Requests Processed

Severance

     22

By-laws (Road Opening/Closing)

     22

Releases/Development Charge Deferrals

     24

Compliance

     13

Part Lot Exemption

     12

Early Servicing

       9

 

 

 

 

External Legal Costs

 

The 2011 third quarter external legal costs are set out below. 

 

Law Firm

Portfolio/ Practice Area

Legal Fees

Taxes

Disburse-ments

Total

Borden, Ladner, Gervais

Corporate/ Commercial/ Development

$240,349.05

$32,271.13

$5,231.44

$277,851.62

Borden, Ladner, Gervais

Light Rail Transit Project

$450,923.10

$58,944.53

$2,496.28

$512,363.91

Gowlings

Insured Litigated Claims

$4,375.50

$583.76

$114.89

$5,074.15

Heenan, Blaikie

Litigation and Labour/ Employment Law

$220,145.92

$28,918.44

$453.30

$249,517.66

Heenan, Blaikie

Insured Litigated Claims

$33,228.07

$4,188.32

$0

$37,416.39

Hicks, Morley

Labour/ Employment Law

$60,007.00

$7,883.87

$638.13

$68,528.99

McCall, Dawson, Osterberg

Insured Litigated Claims

$2,627.50

$357.25

$264.51

$3,249.26

Parnega, Langley

Insured Litigated Claims

$427.50

70.40

$114.00

$611.90

TOTAL

 

$1,012,083.64

$133,217.70

$9,312.54

$1,154,613.88

 

 

ADDITIONAL ITEMS

 

(a)          Momentous Inc. v. City of Ottawa

 

Further to the May 19th, 2011, update to Members of Council advising that the Supreme Court of Canada had agreed to hear the appeal filed by Momentous Inc., the hearing before the Court has now been formally scheduled. The Supreme Court will hear arguments on Momentous Inc.’s appeal on February 10th, 2012. 

 

In the interim, the Court will hear applications by the Attorney General for British Columbia, as well as ADR Chambers (a Toronto group that provides mediation and arbitration services), to intervene in the case in light of the legal issues raised in the appeal, namely the binding effect of forum selection clauses. 

 

 

(b)          Toronto Ombudsman’s Report on Claims

 

On October 21st, 2011, the City of Toronto Ombudsman released a public report entitled "Potholes, Floods and Broken Branches: How the City Handles your Claims: An Investigation into the Processing of Third Party Liability Claims Under $10,000." The report was critical of the claims administration process at the City of Toronto, noting the routine denial of claims without any background investigation by external claims adjusters. The City of Ottawa's approach to the claims administration process is markedly different, as described in the initial Legal Services Comprehensive Report. Most notably:

 

·      The City’s Claims Unit administers the vast majority of claims through its experienced in-house investigative staff; and

 

·      The Claims Unit investigates all claims in order to determine whether the City is legally liable for the losses claimed.

 

Nevertheless, the Litigation and Labour Relations Branch will review the Toronto Ombudsman's report in greater detail in order to determine whether there are any lessons to be learned from the Toronto example and will provide a more detailed analysis in a subsequent report.

 

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.