In 3 years, Crown lawyers spent 1,672 hours keeping Doug Ford's leaked mandate letters secret

Between July 2018 and July 2021, Ontario Crown lawyers dedicated 1,672 taxpayer-funded hours to the province's case to keep Premier Doug Ford's now-leaked mandate letters secret.

That figure adds up to 209 eight-hour work days, or about 10 months of 40-hour work weeks, within three years.

Mandate letters traditionally lay out the marching orders a premier has for his or her ministers after taking office — and are routinely released by governments across the country. 

But the Ford government has gone to great lengths to keep the premier's 2018 letters secret by appealing court orders to disclose the records all the way up to Canada's top court. Despite those efforts, Global News reported Monday that one of its reporters was leaked a copy of all 23 of Ford's 2018 mandate letters. 

Until recently, the Ford government has also been refusing to say how many hours Crown counsel spent working on the case. Less than a week before a June 20 judicial review hearing, the government dropped its appeal of a decision from Ontario's Information and Privacy Commissioner (IPC) ordering it to disclose the number of hours to CBC Toronto, and it provided the figure by email.

The government filed the appeal for judicial review to Ontario's Divisional Court in August 2022. In its application, the Ministry of the Attorney General argued the Crown hours were covered by solicitor-client privilege and that by seeing the total number of hours CBC Toronto could deduce privileged information, like litigation strategy for the mandate letters case.

The province's top bureaucrat, Secretary of Cabinet Michelle DiEmanuele, has launched a forensic review into the leak of the mandate letters, a senior government official told CBC Toronto on Thursday.

Although Ford's officials did not respond to multiple queries earlier in the week, a spokesperson now denies the premier's office orchestrated the leak. 

Hours not unusual, province says

CBC Toronto asked the government why it dropped its appeal, but the province didn't answer the question. Instead, a spokesperson for the Attorney General sent an emailed statement saying government lawyers are salaried employees and don't bill at an hourly rate. 

"The number of hours worked on this case are not unusual for a matter that is now before the Supreme Court of Canada," said spokesperson Andrew Kennedy. 

"The Supreme Court of Canada only deals with issues of public importance and last year chose to hear less than seven per cent of all cases referred to them. We look forward to their decision on this matter."

CBC spokesperson Chuck Thompson said external lawyers billed CBC for 750 hours of work on the mandate letters case. And unlike the Crown hours obtained, that figure also includes both the Ontario Court of Appeal and Supreme Court hearings.

The total doesn't include CBC's in-house lawyers because they don't track their time on a per file basis, according to Thompson. He said there's no way to accurately assess the number of hours internal lawyers spent on this specific file.

Shortly after Ford was first elected, CBC Toronto filed a freedom of information (FOI) request for his mandate letters to Cabinet ministers. The Ontario government denied the request, so CBC Toronto filed a $25 appeal to the IPC, which ordered the government to release the mandate letters. 

Ever since, the government has tasked Crown lawyers with appealing the IPC decision to higher and higher levels of court — all the way up to Canada's top court.

The time frame for the 1,672 Crown lawyer hours spans the initial FOI request in July 2018 and subsequent appeals to the IPC, the Divisional Court, and some of the submissions to the Ontario Court of Appeal. The scope ends in July 2021, before the hearing at the province's top court. 

'Hell of a lot of money and resources': opposition leader

Ontario NDP leader Marit Stiles called the situation "embarassing for the government."

"Imagine what they could have done with the money that they have wasted just to prevent Ontarians from having the answers that they want," Stiles said on Monday.  "They're in the middle of a massive corruption crisis."

It's unclear how many Crown lawyers worked on the case, and for how many of the 1,672 hours. But Crown lawyers Judie Im and Nadia Laeeque were counsel for the province in the case at least as early as its judicial review court filings in early 2020. 

Both are included on Ontario's Sunshine List. Im made roughly $229,000 a year during that period, and Laeeque's annual salary was between $142,000-$151,000. 

The hours are "an astounding amount of time" which still don't account for lawyers' staff, and the time other government officials spent advising counsel, said James Turk, director of the Centre of Free Expression at Toronto Metropolitan University.

"That's just a portion of the total cost of this attempt to keep the public from having access to what most every government makes readily available," he said.

Following the leak, Turk said Monday afternoon that the costs are an "enormous waste of taxpayer money."

"It's the government trying to avoid being transparent," he said. "It reflects the view that the public doesn't have a right to know."

"Paying a lawyer for that many hours is a lot of money that could be spent for there's no shortage of other things that badly need done in this province, such as more money for healthcare and for pharmacare and for a variety of things."

In the two years since the count of hours obtained via FOI ended, the Ontario Court of Appeal has heard and dismissed the province's appeal, the government sought and was granted leave to appeal to the Supreme Court of Canada, and the country's top court heard the case in April this year.

The government's argument to keep the letters secret hinges on what's commonly referred to as the Cabinet records exemption in Ontario's Freedom of Information and Protection of Privacy Act (FIPPA). The exemption states that any records that "would reveal the substance of deliberations of the executive council or its committee" are exempt from public disclosure.

"The premier is failing to abide by his own mandate letters by the nature of his $8.3 billion Greenbelt scandal," said Green Party Leader Mike Schreiner.

"We have seen in his second term that he has completely broken his promise not to open up the Greenbelt for development, and it raises questions about what other previous promises the premier is going to refuse to keep," he said. 

Future access at stake with top court's decision

The interpretation of that exemption is at the heart of the mandate letter case. Where the Supreme Court lands on it could have a profound impact on the future of public access to information across Canada that goes far beyond Ford's letters.

The Ontario privacy commissioner's initial decision, and all of the court rulings so far in this case, have supported a narrower interpretation of the boundaries of cabinet secrecy, which differentiates between deliberations and their results. 

But Ontario's interpretation is broad and could exempt any records falling under the umbrella of a topic cabinet discussed or might discuss in the future.

"Cabinet has to have the ability to brainstorm — protecting the discussions and their deliberations is important," said Turk. 

"But to extend that [protection] to things that haven't even come before the Cabinet on the grounds they might come before the Cabinet is then turning a legitimate exclusion into a black hole from which all sorts of things the public should see are denied to them."

Questions and comments from many of the Supreme Court justices during the spring hearing seemed to indicate they were concerned about the importance of protecting cabinet confidences, the convention of cabinet secrecy, and the scope of what the Ontario Legislature originally intended to protect with the exemption in FIPPA.

Thompson said CBC "frequently engages in legal proceedings to hold governments, organizations and individuals to account."

"Given we've been successful at each stage thus far highlights the strong public interest in CBC's position," he said.

"As we await a final decision from the Supreme Court of Canada, we believe the fact Global News is already in possession of the letters is a positive development to ensure public scrutiny of the government and its operations."

A decision from the court is expected in the coming months.