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Court rules against former city auditor general

Ron Foster was seeking judicial review to quash 2013 council resolution, and strike report by municipal investigator from meeting minutes

By Dave Flaherty/The Oshawa Express 

An attempt by the city’s former auditor general to have the council resolution eliminating his job almost seven years ago stricken from the record was quickly dismissed in court.

Ron Foster served as Oshawa’s auditor general from September 2006 until September 2013.

At its Sept. 6, 2013 meeting, the city council of the day voted not to extend Foster’s contract, and later to ultimately eliminate Oshawa’s auditor general position altogether.

The meeting is well remembered as members of the public were arrested by plain-clothed Durham Police officers as tensions boiled over.

The decision came after Foster released a report months earlier which accused the city manager of misleading council about the value of 199 Wentworth St. E., property the municipality eventually purchased for a works depot. Foster said the city could have overpaid for the property by millions of dollars.

The city hired municipal investigator George Rust-D’Eye to review Foster’s allegations. Rust-D’Eye later found there was no basis in the claims made in Foster’s report.

In 2015, Foster began his current role as the auditor general for the City of Greater Sudbury.

Durham Regional Police investigated allegations made by Foster on two separate occasions in 2013 and 2018.

In March 2019, DRPS investigators told The Oshawa Express while there may have been breaches under the Municipal Act by the city “in and around the time of the allegations, there was nothing criminal at the time.”

According to court documents, Foster filed his notice of application for a judicial review on April 24, 2019.

Over the past few months, the city’s legal department has been working on a defense to Foster’s application.

The former auditor general asked a panel of three judges to “quash” the resolution passed by council at the Sept. 6, 2013 meeting.
Foster also wanted the report delivered by Rust-D’Eye stricken from the meeting’s minutes.

According to the court’s ruling, Foster’s application was dismissed due to the fact it was filed five years and seven months after council had voted not to extend his contract.

During the hearing, Foster claimed the delay was due to ongoing settlement negotiations between himself and the city. Unsuccessful settlement attempts were made in 2014, 2016, and 2017.

Foster also noted new information can become available through the city’s release of many documents related to the purchase of 199 Wentworth St. E in March 2019.

However, the court ruled the timing of the city’s release of these documents did not justify the delay of Foster’s application filing.

“The freedom of information requests was not made by Mr. Foster and there was no evidence that any of the documents disclosed were necessary or a precondition to the commencement of the application. Notably, the concerns Mr. Foster raised on this application were contained in his September 2013 rebuttal report to [Rust D’Eye’s] Report,” the court’s decision reads.

The judges also remarked Ontario’s Municipal Act states an application to quash a by-law passed by a municipality must be made within one year of the original decision.

During submissions for the hearing, Foster’s counsel suggested the court could alternatively declare that Rust-D’Eye’s 2013 report was flawed and Foster had been treated unfairly.

However, in their ruling, the judges noted this was not included in Foster’s application and did not alter their finding that the delay wasn’t justified.
Court documents show Foster has agreed to pay the city partial indemnity costs of $75,000.

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