City Solicitor’s dance card filling up – Council to hear legal strategy December 14th ; will she ask Council to go into closed session?

By Pepper Parr

BURLINGTON, ON November 16, 2011 – It was a Community Services Committee meeting; that meant Scott Stewart was on deck and that meant an Update on The Pier. It was short – less than 50 words actually – which meant there was nothing really happening and Stewart suggested that perhaps Pier Updates could be dispensed with.  ‘Not so fast laddie’ was the response he got to that idea.  Councillor Dennison said there “was significant enough concern” in the community and that putting out the report lets people “at least know there is something going on”.  Meed Ward chimed in saying she was supportive of continuing the updates at every second Community  Services meeting. “It is not a lack of trust” commented Meed Ward. “Things do happen, things did happen.  This is a prudent course.”

Then Meed Ward upped the ante a bit and asked when there might be some information on how much money has been spent on lawyers and what the legal strategy was going to be regarding the Pier going forward.

Stewart, along with Acting City Manager Kim Philips, advised the committee they could expect something at the December 14th committee meeting.  Meed Ward wanted more than an ‘expect something’ but the best she could get was that there would be some material on what the strategy should be on releasing information about legal costs but there would be no numbers.

General Manager Scott Stewart on the left and Councillor Meed Ward second from the right (Helen Wallihura in the middle) This is not the last time Meed Ward will be using hand gestures to communicate with Stewart.

Meed Ward and Stewart bantered back and forth on what exactly the committee was going to get.  “All expenses on the Pier” asked Meed Ward – “No,”, responded Scott Stewart. ” there will be an overview and discussion around a strategy then discussion around the costs.”  It was like pulling teeth from a hen.  It was clear that staff really didn’t want to talk about this and equally clear that Meed Ward did want to talk about how much money had been spent suing the various parties that were involved with the building of the Pier during what is now called Phase 1.

Staff kept talking about looking for a strategy within which they could then release specific financial data on the Pier.  How much are you prepared to bet that much of this “strategy” stuff will get discussed in closed session?

One got the sense that staff (city solicitor Nancy Shea Nicol was not at the meeting) wanted to say as little as possible but that cat was out of the bag and Meed Ward wasn’t going to put it back in.

Ward 4 Councillor Jack Dennison made an important point when he advised the committee Wednesday evening, that Burlington has not been involved in any construction related litigation in more than 17 years – which made the announced attendance of city solicitor Nancy Shea-Nicol at a December 14th committee meeting all the more interesting because the city now has law suits being pressed on a number of corporations that were involved in the design and phase one construction of  The Pier.

The city has brought in outside legal counsel – understood to be Weir & Foulds, a Toronto law firm that has been a leader in municipal matters, advising on every step they take.  The city has also had a law firm overseeing the procurement of material for the second phase of The Pier.  Ms Shea-Nicol must spend the better part of a day each month approving invoices that several members of council are just itching to know what the total amount is on the invoice.

Councillor Meed Ward made The Pier an election issue during her campaign for public office and she now wants to know just how much the city has spent on legal services.  She had wanted the city to go back to the original contractor and work out the problems with Henry Schilthuis and Sons, (HSS) but the city decided not to “kiss and make up” nor did they like the look of the offer Schilthuis insurance company put on the table.

The real legal issue that is costing the city a small fortune is these steel beams which were found to be defective after a crane accident during phase 1 construction. Councillor Meed Ward wants to know how much the city has spent on legal costs and the city solicitor doesn't want to tell her - yet.

The completion of the Pier, for an additional $5.8 million, is now in the hands of Graham Infrastructure, who now have a construction trailer on the site and may soon begin removing all the deficient steel that is in place and have things ready for the new ‘up to spec’ steel that will be available sometime in the spring.

Shea-Nicol, the Director of Legal Services as well as Solicitor for the city and was once a planner who, in the words of the city’s Director of Planning Bruce Kruszelnicki, moved to the “dark side” and took on “robes” which are not made of silk but perhaps that honour will come her way in the future.  She certainly understands the need for a strategy but does tend to keep every scrap of information that crosses her desk tucked into a drawer or a brief case she locks.  The idea that a public has to be informed if they are to make responsible decisions seems to evade her.  The view seems to be that ‘we the lawyers know best’ which is fine but there is an obligation to let your client know what you are doing and why – and the client is the city council but is not just the city council. The people who pay the taxes have a big interest in all this.

In the meantime Shea-Nicol will battle with council and say as little as possible until she is absolutely certain the city has kept its powder dry and is ready to negotiate the best possible settlement for the city.  Let’s just hope the parties on the other side don’t come across anything during the ‘examination for discovery’ sessions that could jeopardize the city’s claim.

While the Director of Legal Services will put forth a strategy which council will debate – it is the city council that decides what it wants to do – yes of course with advice from the legal counsel, but one would hope that common sense would prevail and that respect for the taxpayers would be top of mind.

This council has a tendency to believe that everything their lawyers tell them is exactly what they should be doing – and that is not responsible local government by any stretch of the imagination.  A council has an obligation to fully inform its citizens and to call to account in-house lawyers who might be in thrall to colleagues who are with large prestigious firms in Toronto. Burlington’s city council has kept information on the cost of this legal mess from the public for far too long.


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