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Sechelt’s petition to withhold Seawatch documents dismissed

Court supports Information and Privacy Commissioner’s decision
N.seawatch gate
The closed Seawatch subdivision.

A BC Supreme Court decision issued Nov. 1 upholds an order that the District of Sechelt must release 30 email documents relating to the now-closed Seawatch subdivision. That order was issued by BC’s Office of the Information and Privacy Commissioner (OIPC) Oct. 4, 2019, in relation to a Freedom of Information request filed by Edward Pednaud, a Seawatch property owner.

Sechelt has 30 days from the court decision date to appeal that ruling. The District declined to comment on the matter to Coast Reporter.

As of Nov. 8, the OIPC offices had not received the documents or any information about whether an appeal is pending, OIPC communications manager Michelle Mitchell said.

Pednaud did not participate at the hearing of Sechelt’s petition. The OIPC was the sole respondent in the matter.

“This is simply one piece of a larger fight that the Seawatch residents have been waging,” Pednaud told Coast Reporter by email on Nov. 5. Along with neighbouring property owners, he has additional legal claims pending against Sechelt and others related to homes in the subdivision that they cannot occupy. Since February 2019, a municipally-declared local state of emergency bars access to the area, due to risks posed by sinkholes and subsurface instability. Unresolved issues between Sechelt and the impacted property owners over the troubled subdivision date back to 2013.

According to Justice G.R.J. Gaul’s reasons for the Nov. 1 decision, the six-year wrangle over the documents began when Pednaud filed a request “for disclosure of all Sechelt’s files relating to the Seawatch development” in November 2015.

Apart from material it had shared publicly, Sechelt refused to release further documents, citing that it considered the information as protected under the Freedom of Information and Protection of Privacy Act. In March 2016, Pednaud asked the OIPC to review the municipality’s decision. The OIPC attempted to mediate between the two parties. As a result, Pednaud narrowed the scope of his request and in April 2018, Sechelt provided him with some additional records.

Pednaud then requested an OIPC inquiry into the reasons presented by Sechelt for not releasing certain items. As a result of that process, Sechelt was ordered to provide Pednaud with 84 disputed records over which inquiry adjudicator Laylí Antinuk found “litigation privilege or legal advice privilege did not apply”. Those items included some exchanges between Sechelt and its lawyers, internal municipal communications as well as correspondence with the Municipal Insurance Association of BC and employees of Thurber Engineering.

Sechelt partially complied, providing 54 of the records. On Nov. 19, 2019, the District filed for a judicial review of the adjudicator’s decision regarding the 30 documents it did not release.

In his reasons for dismissing Sechelt’s petition, Justice Gaul wrote in his decision, “I cannot say the Adjudicator committed any error in her analysis or application of the law to the facts of the case…I see nothing in the process in which the Adjudicator reached her Decision or in the Decision itself that is incorrect.”

In an email following the decision, Pednaud told Coast Reporter, “The OIPC and their counsel deserve a great deal of credit. They also have been steadfast in their approach these many years on my behalf.”

“It makes me wonder what is in the documents that the District of Sechelt does not want me to see. The Seawatch story continues,” he said.

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