ORDER MO-2094

 

Appeal MA-060118-1

 

City of Toronto

NATURE OF THE APPEAL:

 

The City of Toronto (the City) received a request on behalf of a company (the requester) under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to the following information:

 

We are trying to locate either a draft or cheque in the amount of $10,000.00 issued by [the requester], which was for security for the installation of the base Park for [specified address] which was land that was conveyed to the City of Toronto as part of our Section 37 Agreement for our … Condominium Project.  We are requesting the opportunity to physically review the contents of the file of the Parks and Recreation Division, Finance, and Legal.

 

In its decision letter to the requester, the City indicated that the search by staff of Parks, Forestry and Recreation (PFR) and Legal Services has found copies of the requested file records regarding the particular project and that full access would be granted to these records upon receipt of a fee of $11.80.  The City also advised the requester that the search by staff of Finance, Accounting Services, PFR, and Legal Services has found no record of the draft or cheque in the amount of $10,000.00 that has been requested and that access cannot be granted as the record does not exist.

 

The requester (now the appellant) appealed the City’s decision on the basis that additional records exist.  Specifically, the appellant stated the following:

 

We are appealing the decision of the City Clerk’s office as the submission of the security was a pre-requisite in obtaining sign offs from the Parks Department for site plan approval and building permit issuance, we are certain that the City has a record that a security was posted for the base construction of the Park.

 

This office provided the appellant and the City with a Notice of Inquiry informing them that an oral inquiry would be held to determine whether the City conducted a reasonable search for records responsive to the request.

 

The issue was not resolved through mediation and the appeal proceeded to an oral inquiry.

 

The inquiry was held at this office.  Two individuals provided evidence on behalf of the appellant.  For ease of reference, unless otherwise specified, I will refer to both of these individuals as the appellant for the purpose of this order.  Present on behalf of the City were the Manager of Public Access from the Corporate Access and Privacy Unit (CAP), the Acting Supervisor of Development Applications for PFR and an Access and Privacy Officer from CAP.  Oral representations were submitted by the appellant and the attending representatives of the City.

 

DISCUSSION:

 

REASONABLENESS OF SEARCH

 

Where a requester claims that additional records exist beyond those identified by the institution, the issue to be decided is whether the institution has conducted a reasonable search for records as required by section 17 [Orders P-85, P-221, PO-1954-I].  If I am satisfied that the search carried out was reasonable in the circumstances, I will uphold the institution’s decision.  If I am not satisfied, I may order further searches.

 

The Act does not require the institution to prove with absolute certainty that further records do not exist.  However, the institution must provide sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records [Order P-624].

 

Although a requester will rarely be in a position to indicate precisely which records the institution has not identified, the requester still must provide a reasonable basis for concluding that such records exist.

 

APPELLANT’S SUBMISSIONS

 

In advance of the oral inquiry, the appellant forwarded to me a package of documents containing correspondence between the appellant and the City as well as other documentation.  The appellant referred to these documents in support of its position throughout the oral inquiry.  During the inquiry, the City confirmed that the appellant provided it with a copy of these documents in advance of the oral inquiry as well.  

 

The appellant started out by providing some background to the appeal.  In its submissions, the appellant explained that two condominium towers were developed on a particular street and that properties were conveyed to the City for parks purposes for both developments.  The second of the two condominium developments and the premises located at a specified address is the property that is the subject of this appeal. 

 

Included in the package of documents, is a copy of the Site Plan Agreement between the appellant and the City regarding the subject property.

 

Section 11(c) of the Site Plan Agreement states:

 

The Owner will be responsible for the base construction and installation of the park at its own expense.  Base construction and installation includes the following:  grading, sodding, fencing, all necessary drainage systems and water connections to the street line.  Such work is to be complete prior to issuance of building occupancy permits and shall be to the satisfaction of the Commissioner of the Economic Development, Culture and Tourism.  The Owner will not receive any credit towards development charges for the base construction and installation of the park.  At the time of the conveyance, the Owner will post a letter of credit in the amount of $10,000.00 as security for the installation of the base park improvements; and that this letter of credit will cover the cost for the demolition of the premises located at [specified address].  

 

The appellant provided the following submissions in support of its position that $10,000.00 was submitted to the City as security.  It explained that on January 26, 2001, land was conveyed for the subject property.  Discussions took place with the City regarding a security for the installation of the base park.  The City was initially asking for a $13,000.00 security but this amount was negotiated down to $10,000.00.  The appellant referred to its letter dated March 15, 2001 to the City which contains confirmation that the amount to be submitted to the City for the demolition of the subject property and installation of the park would be $10,000.00.

 

The appellant submitted that the Site Plan Agreement was acknowledged by the appellant on March 23, 2001 and by the City on September 10, 2001.

 

The appellant submitted that on October 4, 2001, the City’s Planning Department issued a memo setting out the outstanding site plan conditions that were necessary for the issuance of the building permit for the subject property.  The appellant explained that while the memo addressed outstanding securities and fees in relation to various City departments, there is no mention of any outstanding security for the demolition of the subject property in relation to the Parks Department.  The only item that is listed as outstanding in relation to the Parks Department is a record of site condition.  The appellant submits that if the security of $10,000.00 were outstanding at that point in time, it would have been included in that list.  The appellant submits that the $10,000.00 was not on the list because it had already been submitted to the City.

 

The appellant submitted that it has been requesting a return of the security since October 4, 2002.  The appellant referred to an invoice from the contractor dated October 28, 2002 for the demolition of the existing house on the subject property.  On November 7, 2002, the appellant sent a letter to the City confirming that the house had been demolished and that it was requesting a return of the $10,000.00 security.  The appellant submitted that at the time, it never received any indication from the City that the $10,000.00 security had never been submitted. 

 

One of the individuals providing representations on behalf of the appellant was the company President.  He clarified that the method of payment for the security deposit was a bank draft issued by a specified financial institution.  The President explained that he did not keep a copy of the bank draft for his records nor did he attach a cover letter to it.  He was unable to confirm the date of the bank draft but thinks that it was issued some time around September, October or November 2001.  The President also claims to have personally handed the $10,000.00 bank draft to the current Acting Supervisor of Development Applications for PFR with the City at the North York Civic Centre.  The President explained that the City did not issue a receipt for the $10,000.00 security at the time that the bank draft was hand delivered.  He explained that the Building Department subsequently issued the building permit and that this would not have happened if he had not first submitted the $10,000.00 security to the City.  This is the evidence that the appellant is relying upon to support its claim that the security was indeed submitted to the City.

 

In response to the appellant’s submissions, the City asked if the appellant obtained a receipt for the bank draft from the specified financial institution.  The appellant said that it did not obtain a receipt from the financial institution.

 

CITY’S SUBMISSIONS

 

In its submissions, the City explained that three stages of searches were conducted in relation to this matter. 

 

The Parks Planner who had carriage of the application for the subject property and is currently the Acting Supervisor of Development Applications for Parks, Forestry, & Recreation (Acting Supervisor for PFR) was asked to conduct a search for the $10,000.00 bank draft.  As such, the Acting Supervisor for PFR explained that he went through all of the planning files relating to the appellant and the subject property including Zoning Amendment Application, Official Plan Application, Site Plan Application, and the Condominium Application for a copy or any evidence of a bank draft.  The Acting Supervisor for PFR also searched through all of the files for the adjacent development as well as those for a related development at another location.  Records and files searched dated back to 1996 in an effort to cover all possible areas where the bank draft may be located.  

 

The Acting Supervisor for PFR explained that his office is located at the North York Civic Centre.  He explained that he also went through his office and searched through his desk and cabinets.  The Acting Supervisor for PFR was unable to locate a $10,000.00 bank draft and concluded that this record does not exist.

 

The Acting Supervisor for PFR explained that as part of his job, he receives millions of dollars all the time and that his first task is to document receipt of such funds.  If he had received a $10,000.00 bank draft from the appellant, he would have made a copy of it for his file and forwarded it to the Finance Department with a cover memo.  In addition, he would have issued a receipt to the appellant.  The Acting Supervisor for PFR explained that he had no recollection of ever personally receiving a bank draft in the amount of $10,000.00 in relation to the subject property from the appellant. 

 

In his submissions, the Acting Supervisor for PFR confirmed that the appellant was required to convey parklands as part of the conditions of approval of the Site Plan Agreement and that the lands were conveyed on January 26, 2001.  The Site Plan Agreement was drafted after this time and discussions occurred in March 2001 about the amount of the security required by the City to bring the property into base park condition which included the grading, sodding and demolition of a house.  The City originally proposed $13,000.00 for the security but the sum was reduced to $10,000.00.  This figure was placed in the Site Plan Agreement and this agreement did not get approved until October 15, 2001.  Clearance was given by the City to the Building Department on October 18, 2001 to proceed with the issuance of the building permit.

 

The Acting Supervisor for PFR also explained that a letter of credit is usually taken as a security and that once the work as stipulated in the Site Plan Agreement is completed, the City will release either all or part of the funds depending on the particular circumstances.

 

In this particular case, the Acting Supervisor for PFR explained that his department assumed that the $10,000.00 security was submitted directly to Legal Services when the Site Plan Agreement was executed and that is why there is no mention of any outstanding security in the October 4, 2001 memo from the City to the appellant referenced in the appellant’s submissions. 

 

The Acting Supervisor for PFR also clarified that the security may be submitted to any one of the following departments:  Planning, Legal Services or PFR.  The security is then forwarded to Finance.  However, he reiterated that he has no record of ever having received a bank draft in the amount of $10,000.00 relating to the appellant.

 

The Access and Privacy Officer from CAP explained that additional searches were conducted by Legal Services and Accounting Services, which is part of the Finance Department, and that no bank draft was located by any of these departments.  Legal Services located some records consisting mostly of copies of contracts.

 

The Access and Privacy Officer from CAP also explained that during the mediation stage of this appeal, additional searches were conducted by Accounting Services, PFR, Building Division North District, and Legal Services.  The City’s Building Division North District is located in North York and this is where all records pertaining to this and the adjacent development are located.

 

The City submitted that additional searches were also conducted by managers and staff in City Planning and Technical Services.  As such, the City explained that it has no evidence that a bank draft of $10,000.00 was ever received and it therefore takes the position that the record does not exist.

 

The Access and Privacy Officer from CAP clarified that all searches conducted with all City Departments included files for the subject property as well as the adjacent development.  Files searched were electronic and paper records. 

 

Finally, the Manager of Public Access from CAP advised that if this document had existed it would not have been shredded pursuant to any retention schedules.

 

To summarize, the Manager of Public Access from CAP submitted that knowledgeable staff conducted three rounds of thorough searches and that a bank draft relating to the appellant in the amount of $10,000.00 does not exist.  Furthermore, if such a record had ever existed, it would have been retained by the City.

 

FINDINGS

 

Based on the evidence presented at the oral inquiry, I find that the searches conducted by the City were carried out by experienced, knowledgeable employees.  In addition, I find that the City expended reasonable efforts to identify and located the responsive record at issue.  As a result, I am satisfied that the search to locate the record at issue was reasonable.

 

ORDER:

 

I uphold the City’s search for the responsive record and dismiss the appeal.

 

 

 

 

 

 

 

Original signed by:                                                                        October  5, 2006                                    

Maria Tzimas