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Fallis seeking $7,500 in judicial review; city demands $30,000

'This essentially subverts the democratic process, allowing staff rather than councillors the power to determine how decisions are made,' contends Fallis's lawyer
jay fallis photo.jpg
Jay Fallis sought a judicial review of the integrity commissioner's decision to sanction him for consulting a lawyer about an in-camera matter. That review took place today; no ruling was made. Dave Dawson/OrilliaMatters File Photo

Lawyers from both sides presented their cases Tuesday morning at a judicial review — requested by Orillia Coun. Jay Fallis — that was called to investigate an integrity commissioner decision related to the Ward 3 councillor.

Fallis’s camp is seeking $7,500 in costs, while the city is seeking $30,000, the review's judges heard today during a Zoom hearing that lasted just over three hours.

“We’ve submitted that $7,500 is fair in the context of a litigant raising novel public interest issues, and also in the context of Coun. Fallis, who has a limited income through the City of Orillia,” said Ashley Wilson of Ross and McBride LLP, the law firm representing Fallis.

“The (city) is seeking $30,000 in costs,” said the municipality’s lawyer, Lara Kincartz. “This was quite expensive for the city, and largely that was because of the nature of the issues and the fact that it dealt with confidential information … there was a huge amount of time that needed to be spent parsing through that to determine what could go in the public record, what had to go in the private record, and that’s because of Fallis’s decision to disclose that information.”

The decision on the judicial review will be released once it is made, judges said, though they did not specify a timeline.

The saga between Fallis and the city dates back to Oct. 1, 2021, when the city’s integrity commissioner found Fallis breached the code of conduct by sharing confidential information about a waterfront development project with legal counsel he hired for advice.

At its Oct. 4 meeting, city council voted unanimously to suspend Fallis’s pay for 45 days, but Fallis responded Oct. 29 when he called for a judicial review of the ruling through law firm Ross and McBride LLP, with the goal of quashing the integrity commissioner’s report and council’s decision to suspend his pay.

Wilson argued Fallis was acting within his rights in seeking legal counsel regarding closed-session discussions on the waterfront development project, as he was looking for additional advice in regard to the massive project that will transform the city’s waterfront.

“This case is about municipal councillors being able to serve their constituents and make informed and educated decisions. Coun. Fallis sought out independent legal advice to ensure he was making the best decision possible on a multi-million-dollar project,” Wilson argued. 

She said penalizing a councillor for seeking independent legal advice on a city issue works against the democratic process, stressing the city’s concerns about confidentiality were protected by solicitor-client privilege.

“If councillors are not permitted to seek independent legal advice, they will be required to follow the advice provided to them by staff, even if they are not satisfied with the answers and do not have confidence in their ability to make an informed decision,” Wilson said.

“This essentially subverts the democratic process, allowing staff rather than councillors the power to determine how decisions are made. At all times the documents in question remained confidential and were protected by solicitor-client privilege. The confidentiality of the project was never compromised.”

Jill Dougherty, representing the city, argued Fallis could have received the counsel he needed without disclosing the details of the request for proposals (RFP) surrounding the project and confidential reports and closed-session discussions.

“He could have sought council’s permission to share the materials in question with his personal lawyer, (but) he didn’t do that. He urged council to get a second opinion, and when they decided not to, he just unilaterally decided he was going to share the materials,” Dougherty said.

“What Mr. Fallis can’t do is what he did, which is to unilaterally, and after the city had already said no, take the information from a closed session, and the city’s confidential legal advice and disclose it, send it all to (his lawyer), and say, ‘Can you go through this and give me your opinion about what you think the right way is to interpret this provision?’”

She said Fallis put the city in a situation where it could have been sued by the RFP proponents for sharing confidential information, adding he was wrong to disclose the information without the consent of council.

“The risks, from the RFP perspective, is that you could have one or both proponents sue the city for the unauthorized release to others of confidential RFP information,” Dougherty said.

“The city has not waived, nor has the city consented to, Mr. Fallis passing along its privileged information to his own lawyer, or to anybody else, and that (he) is not at liberty to, in effect, override the decision of council not to seek a further external legal opinion, and to just take the stuff and release it to his lawyer himself.”


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Greg McGrath-Goudie

About the Author: Greg McGrath-Goudie

Greg has been with Village Media since 2021, where he has worked as an LJI reporter for CollingwoodToday, and now as a city hall/general assignment reporter for OrilliaMatters
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