WTF!!!Have any of you read the wed paper?Fire the lawyers,Bob Long,council and the mayor…what a fri…ing mess and it never ends.How much is this screw up going to cost us?
Ok Rob Ford, calm down. I’ve read the ad, and we know the Sun Wave guy is being a d*ck again.
Anyway, nothing new.
The City and Sunwave have chosen to keep the terms of the settlement agreement confidential, although there is no requirement for them to do so. It’s doubtful whether that decision would withstand scrutiny by the Information & Privacy Commissioner.
A public body cannot contract out of the requirements of the Freedom of Information & Protection of Property Act by entering into an agreement that has a confidentiality clause.
There is a three part test under s21 as to whether a public body, in this case the City, can keep information confidential on the basis that disclosure would be harmful to the business interests of a third party, in this case Sunwave.
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Disclosure would reveal financial information about a third party. Disclosure of the terms of the settlement agreement between the City and Sunwave would reveal how much Sunwave is to be paid for its assets (chattels, mobile equipment etc) on Watson Island, or the how that liability to Sunwave is to be calculated when the assets are sold. In one of its court submissions Watco said that the City estimated that Sunwave would be owed $3 million (March 27, 2014, paragraph 44). So the answer to the first part of the legal test is almost certainly “Yes”, disclosure would reveal financial information about Sunwave.
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The information is supplied, implicitly or explicitly, in confidence. Public bodies have argued that agreements with third parties that have confidentiality clauses meet that part of the test. The Commission has held, though, that settlement agreements result from negotiations; they are not information “supplied” by the third party. The answer to the second part of the test is probably “No”.
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The third part of the test is that disclosure could be reasonably expected to “harm significantly the competitive position or interfere significantly with the negotiating position of the third party”. There are some other scenarios, but that is the most likely one. It’s hard to see how Sunwave would be harmed by disclosure of how much it will be paid (or how that will be calculated). The answer to the third part of the test is probably “No”.
Point is that if someone wants to know how much Sunwave will be paid, or as Salty puts it, “How much is this screw up going to cost us?” and they push the issue with the Information & Privacy Commission, they should not be surprised if the City is ordered to disclose that financial information. If the City claims third party confidentiality all that it takes is one “No” and the information has to be released.
It’s interesting to read how the City spins this in its press release:
“For the past two years, both parties have taken steps to implement the 2013 Settlement Agreement, including the filing of the dismissals of all litigation that had been commenced by Sun Wave against the City and the discharge of the certificates of pending litigation that had been filed on title to the Watson Island lands.”
The way the City talks only the City benefited from the settlement agreement: Sunwave withdrew its court cases and the Certificates of Pending Litigation were cancelled.
I don’t think that there can be any doubt that Sunwave will be getting something out of the deal as well. It was after all a settlement agreement, not a capitulation agreement, and no one enters into a settlement agreement without getting something. Based on what has been released in court my bet would be that Sunwave will be getting about $3 million.
Well, if SunWave is now paid off, we can only hope that the Colonial Coal lawsuit is either heard and CPR wins, or a settlement is made. I just did a fast Google search and could not find anything recent.
Also, does anyone know what the deal is with Stantec for removing the old pulp mill? Are they getting the salvage rights or has the City agreed to a flat rate contract or?