NPCA costs for Smith case at odds with court files
Niagara Peninsula Conservation Authority said Wednesday it cost $146,757 of taxpayer money to attempt to sue St. Catharines activist Ed Smith.
Those figures are at odds with documents filed by NPCA during the court case that say the authority spent substantially less in legal fees.
According to court documents obtained by The Standard, NPCA told the courts that a team of three lawyers billed the authority about $70,655 to bring the failed defamation suit against Smith.
The Standard made multiple interview requests Wednesday afternoon to NPCA spokespeople, its CAO Mark Brickell and NPCA board chair and Fort Erie regional Coun. Sandy Annunziata to ask questions about the difference. Those requests all went unanswered.
NPCA had refused to release its legal costs in the Smith case for months, despite calls from the public and some municipal councils, including St. Catharines city council.
NPCA spokespersons said the costs were protected under solicitor-client confidentiality. As recent as Monday, Annunziata told Fort Erie town council it was unlikely anything but NPCA’s bulk annual legal expenses would be released to the public.
“I don’t know too many municipalities or public agencies that break out individual costs,” Annunziata told Fort Erie councillors.
But during NPCA’s Wednesday board meeting, members voted unanimously to release the costs.
The motion to release a dollar figure was put forward by board member and Niagara Falls Mayor Jim Diodati. Diodati was not present for the vote, but Annunziata said during the meeting that the mayor was fully behind the motion.
“The need to follow policy and provincial legislation is critically important, but in this instance, our responsibility to be fully transparent rises above that,” said Annunziata in a statement published on the NPCA website Wednesday afternoon. “The total billings of the Justice Ramsay lawsuit, and all its parts to NPCA by its legal counsel for this claim was $146,757.62.”
Although the statement calls the defamation action “the Justice Ramsay lawsuit,” Justice James Ramsay was not being sued. Ramsay was the presiding judge. The case was among NPCA, jointly with its former CAO Carmen D’Angelo, and Smith, who they claimed defamed them.
Niagara-on-the-Lake businessman William Montgomery also separately sued Smith for $100,000. NPCA covered D’Angelo’s legal bills, but not Montgomery’s.
The suit stemmed from a 2016 report Smith authored that was critical of NPCA and made allegations of conflict of interest problems and other issues at the authority.
Noting NPCA had not proved its case had any merit and that Smith did not act out of malice, even where his report was in error, Ramsay said as a government entity the authority cannot sue a citizen for criticizing it.
The judge found that NPCA’s response to Smith’s report — including demands for an apology, a promise not to publish his report again and a threat of litigation — was akin to “the opening salvo of a war” and that a reasonable person would not question the accuracy of Smith’s report given that response.
The justice also said NPCA’s action was not in keeping with the Canadian value of free speech saying, “There are many places in the world where I might expect such a thing to happen, but not in our beloved dominion.”
After Ramsay dismissed the NPCA and Montgomery cases, NPCA said its only purpose in suing Smith was to have errors in Smith’s report public acknowledged.
On Jan. 7, Ramsay ordered NPCA to pay Smith $131,000 in costs.
During the hearing about costs, NPCA argued that if Smith is entitled to costs, he should not get the $131,000 he was asking for. The authority argued that was too much money when compared to the actual legal work done for the case.
“It is respectfully submitted that it is inappropriate to award costs of $131,076 for pleadings and a one-day motion,” NPCA’s court documents say.
The NPCA document, which argued Smith should not get more than $60,000, also filed a bill of costs, detailing the work done by lawyers Robert Burns, Paul DeMelo and David Winer. The document shows what work each lawyer did, how many hours were spent on each task and what their per hour rate was.
The billable hours, plus taxes and disbursements — they include mileage, faxes, couriers and a litigation software licence — comes to $70,655.85.
If the figures released Wednesday by NPCA are accurate, when combined with costs awarded to Smith, the lawsuit cost taxpayers more than $277,700.