The $200-million-plus Queen’s Marque waterfront development is nearing completion. Apartments, stores, and an underground parking lot will have a phased-in opening. Major tenants such as the Stewart MacKelvey law firm and a hotel are expected to arrive by the end of 2021.
So imagine my surprise earlier this month when an investigator with the province’s Freedom of Information and Protection of Privacy (FOIPOP) office sent a letter advising me “a third party” is still blocking the release of the Construction Management Plan requested back in April 2017.
That’s right — April 2017 — three and half years ago, just as the bulldozers and heavy equipment were hammering 24/7 at a deepening hole in the ground on Upper Water Street. Neighbouring businesses such as Murphy’s restaurants, Nova Scotian Crystal, Stayner’s Wharf, and commercial tenants of an 1820 heritage building across the street were worried about how to stay in business. Pedestrian access from Upper Water Street was reduced to a footpath and blocked off entirely for businesses clustered near the ferry terminal. Traffic backups exiting the container terminal and the peninsula were routine.
There’s been a lot of water under the bridge since the 10-storey glass building took shape. It was endorsed in 2016 by the previous HRM council, which allowed Queen’s Marque to flout height and street-facing regulations in return for creating “open space” and “public art” facing the Harbour. The gain for the developer was approximately 8,000 square metres of leasable space. Provincial taxpayers kindly put up $1.8 million for a floating boardwalk so visitors and locals could access affected businesses from the Harbour side during two summer seasons of construction. Murphy’s/Harbour Hopper owner Dennis Campbell coughed up some cash for an odd-looking train that chugged tourists from Pier 21 to the Maritime Museum.
The Construction Management Agreement between Scott McCrea’s Armour Group (the firm building Queen’s Marque) and the Halifax Regional Municipality was supposed to describe how the developer would lessen or mitigate any negative consequences of the project on nearby businesses. Examples might include the changing barriers to customer access, the dust, the noise, and the foundation-shaking vibrations from blasting.
But this was a non-binding agreement. It came into being after lengthy delays during another disruptive construction project just blocks away. The Nova Centre construction uptown caused significant financial losses for its neighbouring businesses such as The Carleton, The Foggy Goggle, and The Wooden Monkey. These documents do not discuss any financial compensation for businesses disrupted by the megaprojects, as The Wooden Monkey’s co-owner Lil MacPherson found out when she took the municipality to court. In the case of the Queen’s Marque neighbours, there is another complication: Their landlord is the Waterfront Development Corporation, which is the same landlord that leases the land for the Armour development.
Fast forward…sorry, make that creep forward… to December 2020. In a decision letter to the Halifax Regional Municipality and copied to the Halifax Examiner, FOIPOP investigating officer Jason Mighton says in his opinion the Armour Group does not have sufficient grounds to block the disclosure of the 2017 Construction Management Agreement for Queen’s Marque, writing:
My opinion is that section 481 (of the Municipal Governance Act) cannot be applied to withhold the record because the third party has not provided sufficient evidence that significant or undue harm would result from disclosure.
But this validation comes as cold comfort. The Armour Group had made the usual argument most businesses make when they don’t want to be publicly embarrassed by the disclosure of certain facts or certain actions. The company argued the information was, “commercially sensitive” and disclosing the contents of the Agreement could “harm” their business.
If that sounds eerily familiar, it’s because it is.
Yarmouth Ferry Case
A Supreme Court of Nova Scotia judge is currently in the throes of deciding whether Bay Ferries business will suffer “harm” if the court orders the disclosure of a management fee paid by the province to operate the Yarmouth ferry each year (even in years like this, when it doesn’t budge a centimetre).
Catherine Tully, the former Commissioner for the Freedom of Information and Protection of Privacy Act, had recommended the McNeil government disclose the amount of the management fee. The Progressive Conservative caucus has asked a Judge to do what the government wouldn’t do and order that the size of the annual payment be revealed. It’s doled out to the company from provincial coffers whether the ferry sails or not. Bay Ferries continues to fight that disclosure.
But back to Queen’s Marque. Mr. Mighton goes on to quote a previous decision by FOIPOP Commissioner Tully that canvassed other cases and set the bar for what constitutes “significant harm” to a business:
One of the biggest challenges in assessing whether or not a harms-based exemption applies to a particular circumstance is the fact that, in general, the evidence supplied by the parties tends to go no farther than mere assertions of harm. Consistent with the purposes of the Act, there is an expectation of openness with respect to financial and commercial information held by municipalities. Section 481 speaks of undue loss and significant harm.
As a practical matter mere assertions of harm will rarely be sufficient. Independent evidence of expectations of harm or at least evidence of harm from all third parties and the public body is helpful, evidence of previous harm from similar disclosures is also useful and evidence of a highly competitive market would all assist a decision maker in determining whether the test has been satisfied. In all cases it is evidence of a connection between the disclosure of the type of information at issue and the harm that is necessary.
Mighton was unable to find any link between Armour Group’s assertions of harm and actual harm by releasing the now outdated Construction Management Plan.
Considering that the record is now over 3 years old and the project is complete, it is difficult to see how this plan, specific to this very unique development, could bind the third party to any future conduct or negotiation. There is no contract, pricing or proprietary information that usually attracts the ‘chilling effect’ position that the third party asserts here.
Mighton tells the Examiner that despite the passage of time, the Armour Group is still opposed to disclosing the document. As previously mentioned, it’s a dead issue now, seeing that the Armour Group is already leasing space at Queen’s Marque. All the subsequent “next steps” in the FOIPOP process are also not worth pursuing. The purpose of this story is just to shed light on how the FOIPOP process favours companies and governments should THEY decide there is information they would prefer the public not see.
Lack of staff and resources at the FOIPOP means it has taken 3.5 years to deliver a decision. The Freedom of Information Commissioner will now review Mighton’s opinion. The estimated timeline for that process: at least six months. And if the Commissioner upholds Mighton’s opinion, the Armour Group can appeal as far as the Supreme Court of Nova Scotia if it chooses to (see “Bay Ferries”, above).
So we won’t be pursuing this through Freedom of Information. Time to cut bait. But you’ll understand why this year, what I want for Christmas are “brown envelopes” filled with accurate, verifiable documents.