Saturday, November 14, 2009

Dunn to file Notice of Appearance in Judicial Review

John Dunn will be filing with the court a "Notice of Appearance" which enables him to become a party to the Judicial Review application the City of Ottawa filed with the court (09-DV-1513) after Dunn made a request for e-mails between the City of Ottawa's City Solicitor Rick O'Connor and the Children's Aid Society of Ottawa (of which O'Connor is now President).

The e-mails were sent and received by Rick O'Connor and/or his assistant through their computers at City Hall at the time the Society contravened the offence-creating provision of the Corporations Act. (307 (5))

During the mediation process with the Privacy Commissioner, O'Connor did allow some records (e-mails) to be released to Dunn which were already known to him, however O'Connor continues to withhold other e-mails utilizing the Municipal Freedom of Information and Protection of Privacy Act.

The Privacy Commissioner's office ordered the City to issue a new decision letter regarding the request for those e-mails saying that the City can not claim that they have no "custody or control" of them. Upon receiving that order (MO-2408) from the Privacy Commission the City sent the tribunals' decision to the Divisional Court for Judicial Review.

NOTE: The Executive Director of the Ottawa CAS is Barbara MacKinnon. It is unknown so far who the "consultant" is, and the volunteers would most likely be the Board of Directors of the Society.

The Privacy Commissioner's office has described the withheld records as follows:

1. Pages 370-373 – an email chain and attachment sent by the Executive Director of the CAS to employees, a consultant and volunteers of the CAS, including the Solicitor at his City email address.

2. Page 387 – an email sent by the Executive Director of the CAS to the Solicitor at his City email address. This email was also sent to two other individuals: another CAS volunteer and a CAS employee.

3. Page 391 – an email sent on behalf of the Executive Director of the CAS by her executive assistant to a number of individuals who are either employees or volunteers of the CAS. Among the recipients is the Solicitor and the email was sent to his City email address.

Some questions arise from the descriptions of the records Rick O'Connor wishes to remain sealed. For example:

What did the first e-mail to the Society's consultant, staff and volunteers say, and what was the attachment? Was it Dunn's request for a list of the Society's members? Was it something else? Why would the CAS send anything to a consultant in relation to a request for a list of the Societies members when according to law they are required to produce it? Who is that consultant? Is it a lawyer? Did the CAS violate privacy when sending this consultant the e-mail and attachment? Is the e-mail somehow slanderous of Dunn? Does the e-mail sent demonstrate that all members of the Society's Board of Directors was well aware of their legal requirement to furnish the list of their members?

In the third e-mail it appears that an e-mail was sent as instructed by Barbara MacKinnon (Exec. Dir of Society) to several CAS staff members and volunteers (probably Board members). What did that e-mail contain? Was it a warning of sorts to all staff about communicating with Dunn about this legal matter? Why would the executive Director order her assistant to send an e-mail pertaining to Dunn to several staff and volunteers of the Society?

Remember that all records at issue here do pertain to Dunn and the legal matter of the Society contravening/violating an offence-creating provision of the Corporations Act. (as narrowed down by the Privacy Commissioner's Office)

The City of Ottawa's original application to the court can be seen at the following link:

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