Law Times

Law Times • June 24, 2013 Page 11 FOCUS Large municipalities' legal spending creeps back up What is the demand for legal services relative to total municipal expenditures? BY GLENN KAUTH Fig 31.3 Legal Services Operating Cost per $1,000 legalMunicipal Operating and Capitaltotal municipal What is the demand for Dollars services relative to Expenditures Law Times expenditures? Legal services operating cost per $1,000 municipal operating and capital expenditures A fter reining in their legal spending in 2010, Ontario cities saw their costs start to creep back up in 2011, according to the latest data from the Ontario Municipal Benchmarking Initiative. The 2011 report, the latest released by the provincewide effort to compare cities' track records in a number of areas, showed the median legal services operating cost per $1,000 in municipal operating and capital expenditures had dropped to $2.79 in 2010 from $3.15. But in 2011, the number increased slightly to $2.88. But when it comes to per-hour costs, cities have been keeping a tight lid on expenses. The median in-house legal operating cost per in-house lawyer hour was $125 in both 2010 and 2011, down from $145 in 2009. Looking at external counsel, the median cost per hour was $324, down considerably from $344 in 2009 and $370 in 2010. The report analyzes data for 13 large municipalities across the province: Barrie, Durham Region, Halton Region, Hamilton, London, Niagara Region, Ottawa, Sudbury, Thunder Bay, Toronto, Waterloo Region, York Region, and Windsor, Ont. As expected, Toronto typically scores higher than its counterparts. Its in-house legal cost, for example, was $4.25 per $1,000 in municipal operating and capital expenditures. Niagara Region was lowest on that score at 97 cents while the median across the 13 municipalities was $1.75. But Toronto's per-hour in-house cost was relatively in line with its counterparts at $150 in 2011 compared with a median of $125. Toronto also saw a big drop in its external legal costs per lawyer hour. That number fell to $170 in 2011 from $615 two years before. It was also well below the median of $324. While many people would expect legal spending to be higher in Toronto, Windsor also tended to trend above its Source: Ontario Municipal Benchmarking Initiative Source: LEGL260 (Service Level) its legal services operating cost counterparts. For example, per $1,000 in municipal operating and capital expenditures was $6.07, a number well above the median and higher than Toronto at $4.26. Much of that is due to external legal spending. Its external legal operating cost per $1,000 in expenditures was $3.98 in 2011 compared to a median of 89 cents. On a per-hour basis, its external legal costs of $416 also exceeded the median of $324. But Windsor's in-house costs were generally in line with other municipalities: the cost per $1,000 in municipal expenditures was $2.09 compared to a median of $1.75 and the per-hour expense of $129 was just above the median of $125. George Willki, Windsor's city solicitor, says a number of pressures are behind the higher numbers in recent years. "We've had a number of pieces of major litigation going for quite some time," says Willki, noting the matters have often required external expertise given the legal department's relatively small size of five or six lawyers. The matters include litigation over alleged discrepancies in the construction of a long-term care home that required construction law expertise; a claim by a local organization seeking a refund of fees paid to the city for bingo licences, a case that could develop into a class action involving hundreds of charities that has already been going on for years; a challenge by a residents' group seeking to have 120 derelict homes and apartment buildings torn down that the city wants to preserve; and a legal dispute over an extension of Highway 401. "Unfortunately, we've had our share of unusual litigation," he says, noting the legal department generally aims to keep most personal injury and labour relations matters in-house. In addition, Willki notes Windsor has been undertaking a significant number of infrastructure projects in recent years, such as a new aquatic centre that's under construction, that can sometimes involve additional legal expense. "We've been busy," he says. "We try to spend our money wisely and what we can't do here I try to get the biggest bang for the buck." On the other end of the scale, according to the benchmarking report, was Niagara Region. In terms of the total demand for legal services, it spent $1.66 on legal services per $1,000 in municipal expenditures compared to a median of $2.88. It was also lowest in terms of in-house legal operating costs and was near the bottom when it came to external spending in comparison to overall municipal expenditures.LT Twitter 'part of the modern media landscape' Continued from page 10 Confidentiality not only protects complainants from attack and reprisal, it ensures the process is apolitical and allows my office, as an independent and objective investigator, to determine the merit of the complaint without the case being influenced by the personalities involved." Marin addressed the issue of legal representation as well. "My investigations are not adversarial or prosecutorial," he wrote. "They are simply fact-finding exercises. It is completely unnecessary for witnesses to be represented by lawyers during ombudsman investigations. We do hundreds of interviews in provincial investigations each year with no lawyers present. There is no right to a lawyer in such circumstances, as the witness is never detained or facing arrest. There is no individual interest at stake that would warrant legal representation." Orser, however, points to a section of the Ombudsman Act that provides for penalties for obstructing an investigation. Others, too, see merit in allowing those under investigation to have legal counsel. "There are clearly provisions in administrative investigations where lawyers aren't allowed," says Greg Levine, former general counsel with the ombudsperson office in British Columbia and now a lawyer in London. "I have some trouble with it, though, in the context of ombudsman investigations," he adds. While there may not be legal consequences against an individual stemming from the findings of an investigation, Levine says there are effects on people in other ways. "There are effects from publication of whatever is in the findings," he says, noting that having an impact on an issue is generally the point of doing an investigation and issuing a report. At the same time, Levine refers to a section of the act that provides for the same rights and privileges as witnesses in any court. "So why aren't lawyers allowed?" he asks, noting having legal counsel is often crucial to being able to exercise those rights. In particular, Levine emphasizes the importance of having counsel when an ombudsman sends out a preliminary report to those under investigation for comment. Levine notes the B.C. office was fine with allowing counsel when he was there. "When I was there, we certainly accepted counsel or representatives," he says. "I can't see any downside to having counsel," he adds, noting there were no problems with the proceedings being subject to delay due to the involvement of lawyers. Levine also takes issue with the use of Twitter during ombudsman investigations. "You would expect it to be private," he says, noting there's merit to using Twitter in relation to a case once a report is available. In his October report, however, Marin defended his tweets. "I let people know via Twitter about developments that wouldn't warrant a traditional press release —  for example, that we have sent investigators to a particular municipality or that we have completed a preliminary report," he wrote. "Those familiar with Twitter know that tweets are typically brief, informal, and direct," he added. "It is a highly efficient way of communicating, accepted by hundreds of millions, and I encourage municipal officials to embrace it as part of the modern media landscape." Orser, though, has another view. "A judge making public statements like this is so wrong in my view. It shouldn't be a pissing match between the city council and the ombudsman." Municipal councils looking to remove Marin from the investigations can appoint another investigator in his place. One body they can turn to is the Local Authority Services, a subsidiary of the Association of Municipalities of Ontario. LT AVAILABLE ONLINE AND IN PRINT WIpN GACard le ift REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! ting 500 Aepyour current lisnced a Upgrad or Silver enh 13 ld 20 to a Go by June 30, in. listing hance to w for a c r details $ lo See be w fo PLUS! Monthly draws from January to June, 2013 for a $100 Apple Gift Card just for asking how you can develop your business with an Annual Gold or Silver Enhanced Listing. Untitled-3 1 With more than 179,000 page views and 31,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com Visit www.canadianlawlist.com for full contest details. www.lawtimesnews.com 13-01-08 1:26 PM

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