(News Bulletin file)

(News Bulletin file)

Supreme Court judge in Nanaimo hears application related to leaked documents

Tim McGrath, former councillor Gord Fuller and Attorney General of B.C. counsel present cases

The B.C. Attorney General’s legal counsel and people named in an application to remove confidential documents that were released online had a chance to present their cases Wednesday.

Judge Douglas Thompson heard from Gord Fuller, Tim McGrath and Michah Rankin, legal counsel for the attorney general, in B.C. Supreme Court in Nanaimo on Wednesday, in relation to leaked letters and e-mails that were published and distributed.

The attorney general announced in September that it filed a petition naming Fuller, McGrath, Matthew O’Donnell and Terry Lee Wagar directing them to remove the documents posted online, which consisted of a pair of 2015 letters from legal firm Ramsay Lampman Rhodes to former mayor Bill McKay and former city chief administrative officer Tracy Samra, as well as a 2015 e-mail from McKay to consultant Integrity Group that contained sensitive commentary about city councillors.

In November 2016, McGrath distributed printed copies of McKay’s e-mail to councillors at a council meeting; McGrath said a copy was left in an envelope under the front windshield wiper of his vehicle. The province also alleges that the RLR letters were posted online by McGrath, O’Donnell and Wagar.

The city had demanded that the named people remove and destroy the items, but they had previously refused to do so.

RELATED: Attorney general takes councillor to court over release of confidential documents

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Rankin told Thompson there were a number of considerations relevant to the matter: It has to relate to personal information. The personal information had to have been in custody or control, of a body before it was released. The person alleged to be in possession of the information must not be authorized by law to possess the information. The public body has to make a demand a return of the information. Finally the subject of the demand has to be given the opportunity to respond and has to have failed to comply.

The fact that McGrath says the documents were left on the windshield is irrelevant, said Rankin. The point is, the information was in custody and control of the City of Nanaimo and somebody appears to have taken it.

By issuing an order to return and destroy information, it can dissuade people from acting in similar fashion in the future, said Rankin.

Fuller reiterated what he had previously told the Nanaimo News Bulletin, stating that the correspondence with RLR was received long before council considered bringing the letters in camera and there was nothing denoting they were confidential. He also questioned the timing of the application, given it was announced with a municipal election on the horizon. Fuller received 1,930 votes in the October municipal election and was not re-elected.

The city and the Integrity Group have been involved in a legal battle over an unpaid bill – the city said it hadn’t hired Integrity to do any work on its behalf – and McGrath wondered whether if there is a contract between the two. If there isn’t, he said they don’t have the duty to keep anything private.

McGrath said he knew that many people in the Shaw Auditorium gallery had the letter too, and because of that, it was public domain. He said there was no effort to call security or have a city employee try to recover all the copies.

The City of Nanaimo was called for a comment, but did not immediately respond.

Rankin said he didn’t know when Thompson would render a decision and said it could take a few months.

Rankin told Thompson the matter with Wagar had been resolved. O’Donnell was not present in court.

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