Legal Opinions

Tom Urbaniak, CBU professor and Cape Breton Post columnist, took to the pages of that publication on Tuesday to make a very interesting point about a recent, secret session of CBRM’s regional council.

On February 27, writes Urbaniak:

Council went into confidential session without notice to the public that a confidential session would be held. The confidential session was on a topic that is not deemed legitimately confidential by the MGA [Municipal Government Act]. It was about whether to censure and reprimand Mayor Amanda McDougall-Merrill based on information that was already in the public realm.

Even where the MGA permits a council to deliberate in private, it must come into public to vote on any decisions made behind closed doors. This didn’t happen on February 27:

Substantive final decisions were taken in the private session. The public was not told if the decisions were unanimous or how councillors voted.

And while the debate and the vote were secret:

…the evidence and e-mails that formed the basis of the complaints were part of the public council agenda package for the meeting.

Councilors, as Urbaniak explains, clearly wanted to discuss their votes in public but were advised by regional solicitor Demetri Kachafanas, without reference to “the MGA or any other enabling legislation or precedent,” that “an adjudicative body deliberates in private.”

Kachafanas, says Urbaniak, “was presumably comparing council to a panel of judges or to a jury.”

But council is not an arms-length judicial or quasi-judicial body, not even on a code-of-conduct matter. It is not trained for that. It is too close to the parties and the issue for that.

Urbaniak wrote to Kachafanas asking for more information about his advice to council, but as of press time, had received no answer.



This isn’t the first time council has breached the MGA on Kachafanas’ watch:

January 2014 to October 2015: During this period, then-Mayor Cecil Clarke presided over 31 in camera council meetings, many of which were not even announced to the public, in contravention of the MGA.

2016:  When the CBRM sold Archibald’s Wharf in North Sydney, a number of citizens complained about the process to the provincial Ombudsman, who looked into the sale and found that the CBRM lacked a public participation policy (required by the MGA), had rushed the sale of Archibald’s Wharf and had failed to adequately consult the public:

quote from a report by the NS Ombudsman

2016 to 2018: Council met in camera four times to discuss raising mayor and councilors’ pay to compensate for the federal government’s decision to abolish the one-third tax-free provision for municipal officials.

Council is not permitted to discuss its own remuneration in camera.

In the discussions that followed, it became clear that Kachafanas had been in attendance at those meetings and had not advised council against discussing its own salaries. In fact, at a 20 November 2018 meeting during which he presented an issue paper on the subject, Kachafanas admitted, under questioning by councilors:

…Staff set the agenda, we put it in, we were there, there’s enough blame for everyone, I think. Were we formally asked a question, “Let’s do an opinion and look at the MGA?” No, I think we all assumed this was a salary issue, it was done in camera. It’s a simple mistake, really. It seems to be a big issue over, to me, not a big issue.

After this meeting, then-District 11 Councilor Kendra Coombes gave an interview to the CBC (the audio version of which is no longer available online) prompting Kachafanas to send her an email, copied to all councilors, castigating her for stating:

…that I as Solicitor for the CBRM gave a legal interpretation that said meetings about Council remuneration could be held in camera, a statement which you know or ought to know is not true.

Please consider this formal notice to yourself and all Council that if you continue to make false public statements of that nature I will take legal action against you for slander/libel.

You should know that your position of Councillor does not afford you immunity from making false or misleading statements inside or outside of the Council chambers.

Kachafanas may not have offered a “legal interpretation” of the matter but he didn’t stop council from breaching the MGA and you can watch the video of him admitting he didn’t realize they were breaching the MGA–”[w]e all assumed this was a salary issue, it was done in camera”—the relevant exchange begins at roughly the 4:31:20 mark.


‘The FOIPOP office’

And don’t get me started on Kachafanas’ ideas about access to information. Back in 2020, Nova Scotia’s Office of the Information and Privacy Commissioner (OIPC)—or as Kachafanas called it, “the FOIPOP Office”—upheld my appeal of the CBRM’s refusal to release port-related documents I’d requested in 2015.

Privacy Commissioner Patricia Ralph’s scathing decision, as I noted at the time, suggested the CBRM lacked a basic grasp of provincial access-to-information legislation. The commissioner said the CBRM broke the law by failing to conduct a proper search for documents (41 of which it never produced) and by failing to conduct a line-by-line review of the 862 pages it withheld.

And while it’s true my FOIPOP was handled by outside counsel—Jim Gogan of Breton Law—it was Kachafanas who, after the commissioner’s decision, had to explain to council why Gogan needed another 60 days to comply. As I wrote at the time, the regional solicitor did so by invoking the specter of “non-disclosure agreements” (NDAs) and warning new councilors they could be sued for breaching them, but:

…if you read the Privacy Commissioner’s decision, there is no mention of NDAs. Ralph says the package of withheld information contains “various unsigned business agreements.”

Moreover, the CBRM’s justification for withholding 862 pages contained no reference to NDAs, and when I finally received the requested documents from Gogan, I found precisely one NDA: it was between Mayor Cecil Clarke and Dundee Capital Markets, was dated May 2014, had expired in 2016 and referenced a deal that had never happened.

Maybe the 41 documents the CBRM failed to produce were wall-to-wall NDAs, but if so, why didn’t the municipality cite them as justification for withholding information?

We’ll never know, I guess.

But we do know the CBRM has more than once in recent years fallen afoul of the MGA and that is not a good look for its municipal solicitor.