SmartCentres drops legal challenge
By Martha Wickett – Salmon Arm Observer
January 04, 2012
Salmon Arm Shopping Centres Ltd. has stopped its federal court case aimed at preventing information in the possession of Fisheries and Oceans Canada from being made public.
In August 2010, Warren Bell, president of Wa:ter (Wetland Alliance: The Ecological Response), submitted an Access to Information request for information from 1997 to 2009 related to the depositing of fill on properties at the site of the planned SmartCentres development at the west end of Salmon Arm.
He told the Observer that fill had been placed by previous owners on what was once an oxbow of the Salmon River, and so he and his group were curious what discussions took place with Fisheries and Oceans Canada prior to and following the fill replacement.
Fisheries and Oceans Canada was prepared to release the files, but Salmon Arm Shopping Centres consented to the release of only some of them. The company subsequently launched the court action versus the Attorney General of Canada and the Information Commissioner to block the release. It stated in court documents that the balance should not be disclosed because they do not relate to the request and could do probable harm to the company’s interests.
Part of the reason given was that they “would prejudice the applicant’s competitive position for a municipal land use rezoning process concerning the property.”
On Nov. 18, after months of legal dealings that included more than 60 letters, applications, affidavits, certificates, motions and orders filed with the Federal Court of Canada, Salmon Arm Shopping Centres gave notice that it was discontinuing its case.
Bell finds the date significant.
“On the exact day that the (municipal) election campaign ended, SmartCentres withdrew their application for a judicial review… The timing of their withdrawal of the application is quite significant in my mind,” he said, noting it would have been the last time information would have been brought forth involving SmartCentres and Fisheries and Oceans Canada prior to the vote.
One possibility, he surmised, was “to keep any potentially damaging information out of the public view until the municipal election was over.”
“SmartCentres played a very active role in the election in Salmon Arm,” he added, by suggesting who people vote for and by posting entries on Facebook during the campaign promoting the development.
Nathan Hildebrand, SmartCentre’s land development manager, told the Observer in an email that legal processes, not the municipal election, were the driving reason behind the date the case was discontinued.
“Salmon Arm Shopping Centres Ltd decided to discontinue the federal court case involving the FOI (freedom of information) request after discussions with and advice from our lawyers. Although we still do not agree with the position of the Department of Fisheries and Oceans regarding the release of information that was not relevant to the original FOI request, we have weighed the costs associated with the next steps of the application and have made a business decision not to proceed. The timing of our decision was driven by the appropriate legal processes surrounding the FOI application.”
Salmon Arm Shopping Centres Limited, Inc. is one of the owners of property at the site of the planned shopping centre and is one of a group of affiliated entities operating under the trade name SmartCentres.
Bell has not yet received the information requested, which he is expecting will be about a 1000-page digital file.