Ontario's Housing Ministry has been ordered to search again under strict terms for records showing how Premier Doug Ford's office may have directed the land removals resulting in the Greenbelt scandal.
An adjudicator in the Information and Privacy Commissioner of Ontario's (IPC) office issued a legal order a few weeks ago to the ministry to expand its search for records of "directives" premier's office officials may have given in 2022 to remove land from the Greenbelt, after determining there's "a reasonable basis for believing" these records exist.
The ministry must also offer some new explanations in an affidavit, whether or not it finds anything new. The adjudicator ordered the ministry to say in its affidavit “whether it is possible that responsive records … existed but no longer exist,” and to explain “when such records were destroyed” if they were, and “if it appears that no further responsive records exist after the new search, (to provide) a reasonable explanation for why.”
A spokesperson for Municipal Affairs and Housing Minister Paul Calandra told The Trillium in an email that his ministry will be “fully complying with the order, including providing its affidavit evidence” to Information and Privacy Commissioner Patricia Kosseim’s office by its deadline.
“As this matter is currently before the IPC, it would be inappropriate to comment further at this time,” Emma Testani, Calandra’s spokesperson, added.
Any uncovered records and the ministry’s affidavit itself could provide new information about what led to the Greenbelt scandal, which remains the subject of separate investigations by Kosseim’s office and the Royal Canadian Mounted Police.
It’s currently unclear how much of the ministry’s affidavit — if any of it — will be made public, and when it may be, however. The provincial law giving the commissioner’s office the power to compel it, Ontario’s Freedom of Information and Protection of Privacy Act, contains confidentiality provisions that can prevent materials like the affidavit evidence in question from being published.
An adjudicator in the commissioner’s office gave the interim order in the case of an appeal of a decision the ministry made on a freedom-of-information (FOI) request.
The case is part of a collection of FOI appeals that Kosseim’s office is planning to eventually publish a “special report” on. The commissioner wrote in the letter confirming the report that it will summarize 19 Greenbelt-related appeals and include “conclusions and insights into the access to information and record-keeping issues relating to changes to the Greenbelt.”
The commissioner’s office said in an email last week that it was unable to project when it’ll release its special report because of how its timing is dependent on the conclusion of several still-unresolved FOI appeals. Cases like these can take anywhere from months to multiple years to resolve.
In an FOI appeal case, an adjudicator can decide whether or not to provide affidavit evidence it receives from a ministry to the appellant. Sometimes, an adjudicator will disclose certain information from affidavit evidence it receives in response to an interim order in a follow-up final order. After an adjudicator makes an order, it's published on the commissioner’s office website, typically within a few days to weeks after.
The Ontario NDP made the FOI request and subsequent appeal that led to the recent order to the Municipal Affairs and Housing Ministry.
“New Democrats have worked tirelessly to hold Ford accountable for his Greenbelt scheme, and we won’t stop until Ontarians get the truth – including a clear answer to who made the call on these unlawful decisions,” NDP Leader Marit Stiles said in a statement.
It was also Stiles who asked Kosseim’s office about a year ago to investigate whether the Ford government’s record-keeping and retention practices in the lead-up to its Greenbelt changes followed provincial law.
The Ontario NDP leader referenced several findings Ontario’s auditor general made in her August 2023 Greenbelt report, and others that have been uncovered or reported on since about Greenbelt records, in requesting the commissioner’s office’s investigation.
Stiles also compared them to the circumstances of over a decade before that prompted an investigation by the commissioner’s office, under one of Kosseim’s predecessors, into former Liberal government staffers’ deletion of emails related to gas plant relocations.
Two-and-a-half years after the commissioner’s office published its “Deleting Accountability” report in 2013, two senior ex-aides of former Liberal premier Dalton McGuinty were criminally charged over the deletion of government records. One was later found guilty and served just over a month in jail.
The then-auditor general, in her 2023 report following her office’s Greenbelt investigation, wrote that “emails were regularly being deleted by political staff,” who also used personal emails to communicate with “lobbyists and other external parties.”
The-then integrity commissioner also addressed record-keeping issues in the report his office released a few weeks later, following its separate investigation that focused on the Greenbelt removals. His report said documents his office received “included very few emails and no text messages exchanged between the (housing) minister’s chief of staff and developers and their representatives with respect to the Greenbelt project.”
“I was advised that many communications took place by telephone call and that documents were frequently hand-delivered on USB sticks or on paper,” the integrity commissioner’s report said. “I was also advised that phones had been replaced and text messages had been lost at that time.”
After the integrity commissioner’s office released its Greenbelt report on Aug. 30, 2023, two Ford government cabinet ministers and multiple senior staff who were involved in the scandal that erupted as a result of the land removals resigned from their positions.
Under intense public pressure, on Sept. 21, 2023, Ford apologized for the Greenbelt removals and promised to reverse them, which his government followed through with later that fall. That October, the RCMP revealed it was investigating whether there was a criminal element behind the plan.
The government’s keeping of records related to the 2022 Greenbelt changes has re-emerged as an issue a few times since then, including through the uncovering of internal emails challenging when various officials have said the premier’s office became intimately involved.
In its FOI request and subsequent appeal case prompting the recent order to the Housing Ministry, the Ontario NDP has been seeking evidence of “directives” from premier’s office officials to anyone in the ministry to remove land from the Greenbelt.
In their recent order, the Information and Privacy Commissioner’s office adjudicator explains that they issued it after a lengthy back-and-forth with the appellant and the ministry, which has done multiple searches for the records already.
“The adjudicator finds that the appellant has established a reasonable basis for believing that the records he is seeking exist but that the ministry has applied too narrow and literal an interpretation of his request,” the summary of the order said.
The adjudicator cited the auditor general and integrity commissioner reports, as well as public servants' testimony to a legislative committee, in support of the belief and ordered the ministry to specifically search for references to the premier and his office — and shorthand for both — in records of meetings.
In the order, the adjudicator noted as well that the ministry director who has handled the case has stated that “she is unable to comment on whether it is possible that responsive records that may have existed at one time are no longer available.”
Stiles said in her statement about the order that, “Doug Ford has used every trick in the book to keep the details of his Greenbelt grab a secret, even as the RCMP continues their criminal investigation.”
“This latest order from the IPC will show us just how far this government has gone to cover its tracks, and whether more important records were lost in ‘accidental’ data wipes,” she said.
Ford has repeatedly denied personally directing the removal of lands from the Greenbelt, outside of writing in his 2022 mandate letter to the former housing minister to “complete work to codify processes for swaps, expansions, contractions and policy updates for the Greenbelt.”