Does it cost money to break a contract? Most of the time, yes. In 2003, it cost taxpayers $35 million to cancel a $22 million bridge to the Island Airport. In 2011, cancelling Transit City in favour of Toronto Mayor Rob Ford’s subway-focused plan could have cost taxpayers $65 million. The politically motivated gas plant cancellations will stagger to hundreds of millions of dollars. So we know there is a cost to break a public contract.
But how much would it have cost taxpayers back in 2010 to break the lease with Tuggs Incorporated, the sole-sourced tenant of the Boardwalk Café? The tenant was granted a 20 year monopoly over most waterfront parklands and concession stands with no other competitive bids considered. Remember, council met in camera (behind closed doors) to reconsider the deal late in the night in May 2010 — before it was signed. The date on the lease is June 2, 2010, and the actual date of signature is unclear.
But has anyone ever seen an opinion, heard a figure, or seen anything which told us why we were “stuck with it” as people are fond of saying? Councillor McMahon was quoted in the Toronto Sun on February 27, 2011 that “The implications [breaking the Boardwalk Café lease] financially are huge”. And the city solicitor was quoted in the media on 30 October 2010 that: “the financial penalties would be provided to council in a confidential briefing note”. So it was in the media — we didn’t dream it — but no one seems to know the cost. Ask anyone and they will not be able to answer. They just heard we were “stuck” with it.
That is why on February 3, 2012 I made an Application to the city under the Municipal Freedom of Information and Protection of Privacy Act asking for a copy of the legal opinion, in particular an opinion related to the costs of breaking the Boardwalk café lease after the last municipal election. The city replied that it was “unable to locate records that were responsive”. I asked them to look again. The city located a briefing note dated from June 2010 which “did not deal strictly with the costs of breaking the lease” — but was denied to me as it was privileged. Privileged?
I then appealed the city decision to the Information and Privacy Commissioner of Ontario. How could Council have made the decision behind closed doors to go forward without examining the possible costs? How is it possible that taxpayers can know the costs of breaking every other public contract — be it gas plants, airport bridges, F-35 fighter planes, or transit city buses — but not this lease?
As we speak, the matter has not been decided, but the ruling — to gain access to the information — is expected any time now.
Freedom of Information is based on the idea that municipal institutions function to serve the public. They are required to be open to public scrutiny. Access to Information legislation is an important step towards ensuring an open and very public operation of government at both the provincial and municipal levels. Further, the public has a right to monitor the procurement process — paid for by tax dollars — in order to safeguard against abuse, promote accountability, and maintain public confidence in the city and its processes, and to participate in the democratic process.
So imagine my surprise when the city submitted that my appeal was an abuse of process, claimed every privilege at law possible, claimed I was interfering with municipal process and the discretion of municipal authorities, and that there was no compelling reason for me to have the information.
That was a slap in the face to every resident, voter, and taxpayer. But it raised more questions than answers. Why is this information being so strongly denied? Or if in fact it doesn’t exist — there never was an opinion about the possible costs of breaking the lease regardless of the media coverage — how was a decision made behind closed doors at Council not to put the lease renewal out for public tender and why? You also have to finally wonder why taxpayer funded institutions such as Access to Freedom of Information are used to strip away rights rather than enforce them. It raises many disturbing issues.
Now with credible rumours that a Tim Horton’s franchise is coming to the Beach, and that the Boat House may be sold or commercialized, will residents be denied all the information about costs and implications as well? It’s simply wrong to freeze out residents from being fully informed. That is why Freedom of Information applications remain important and should be vigorously pursued. Residents need access to information to make informed decisions.
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