by Fernando Arce

As chair of Legal Aid Ontario's board, Charles Harnick oversaw $14.5 million in cuts to the province’s legal clinic system, affecting clinics offering legal services to low-income community members and helping fight unlawful evictions.

The cuts were part of Legal Aid’s cost-cutting of approximately $70 million to $75 million after the Progressive Conservatives cut $133 million from their funding. But the provincial government does not dictate where to make cuts, the Toronto Star reports Harnick saying. Decisions on specifically where to cut funding are made by Legal Aid, which operates as “independent from, but accountable to, the Government of Ontario,” as per the Legal Aid Services Act.

Though 74 legal clinics will be impacted province-wide, the worst hits will come to 13 Toronto-based specialty clinics which “will lose close to $1 million in funding,” according to NOW Magazine. A 14th clinic, Parkdale Community Legal Services (PCLS), alone will suffer a $1 million loss from its $2.37 million budget. Toronto clinics are facing steeper cuts than rural and northern clinics.

Asked about the Legal Aid Ontario (LAO) cuts to clinics which Harnick oversaw, Parkdale Community Legal Services (PLCS) director Johanna Macdonald told NOW, “It’s absolutely devastating for our community.”

PCLS has helped mostly low-income residents of the Parkdale neighbourhood of Toronto fight landlords and developers. Battling slumlords, uncontrolled rent increases and so-called renovictions, as well as community organizing, advocacy and training of new lawyers have all been at the core of the organization’s mandate.

Registered lobbyist as Legal Aid board chair

Harnick, who was appointed as board chair of Legal Aid on March 13th of this year, is registered as an active lobbyist with eight organizations, including two real estate developers, as of August 14, 2019. In the 1990s, Harnick was an MPP and Attorney General in Mike Harris' Progressive Conservative government.

His lobbyist registry with developer Westdale Construction Co Limited was filed February 27, 2019, just two weeks before being appointed chair of Legal Aid, and his registry with Harmony Heights Developments Inc was filed in November 2018. Both developers operate in the Greater Toronto Area, and Harnick’s lobbyist registries with both companies remain active on the Ontario’s Office of the Integrity Commissioner searchable website.

The site reminds lobbyists that, “If you are a consultant lobbyist and you are no longer lobbying on behalf of your client, you must submit a Notice of Termination for your registration as soon as your activity stops.”

Harnick’s registries for two companies, Enterprise Holdings Inc (parent company of multiple car rental companies), and Block 66 West Landowners Group, were updated on July 4th, and remain active.

For Block 66 West Landowners Group, Harnick’s lobbying goals are stated as pertaining to “infrastructure requirements for future development in Vaughn, including the GTA [Greater Toronto Area] West Highway Corridor.” The listed methods of communication with the Ontario government are: “Arranging Meeting(s), Attending Meeting(s), Telephone Calls, Informal Communication, Presentations, Written Communication (hard copy or electronic).”

Harnick’s description of his lobbying goals representing developer Westdale Construction are described as: “Provide insight to support the province’s ongoing initiatives to streamline the land use planning process and increase housing supply. Forfeited Corporate Property Act, 2015 – Engage with government to resolve an issue of title on a small fragment of provincially-held land in the City of Toronto.” Westdale’s Canadian portfolio includes close to 7,000 residential units through its subsidiary Westdale Properties.

Representing Harmony Heights Development, Harnick’s focus has been on “options to re-designate properties in Durham Region located within and adjacent to the Greenbelt Plan Area.” Durham is the east end of the GTA.

Harnick's lobbying activities between his eight registered clients list as targets the offices of the Premier, the Ministry of Municipal Affairs and Housing, the Ministry of Labour, Minister of Economic Development Job Creation and Trade, numerous other ministries, and nearly every Member of Provincial Parliament (MPP), as per the lobbyist registry.

These registrations are all filed through the company Counsel Public Affairs, where Harnick is listed as one of six Principals. Counsel is a public affairs agency “specializing in government relations, strategic communications, and integrated campaigns,” according to its website. Other Counsel employees have active lobbyist registrations with other real estate players, like Real Estate Equity Exchange and Parkbridge Lifestyle Communities.

Charles Harnick’s lobbying activities and their potential relevance to his role with Legal Aid were first brought to public attention in a blog on the Parkdale Organize website titled “Legal Aid Board Chair Serves Landlord Class,” written by David, a pseudonym used by a long-time Parkdale resident and community organizer who fears jeopardizing his tenancy for speaking out.

Is this a problem?

According to sections 8.1 and 8.2 of the Conflict of Interest Rules For Public Servants (Ministry) And Former Public Servants (Ministry), under the Public Service of Ontario Act, 2006, a conflict of interest arises where a public servants’ employment in a private business and thus their private interests “could conflict with his or her duties to the Crown” or if it can “interfere” with their duties as public servants. Section 8.5 also prohibits anyone connected to that business from deriving “an advantage from” their position as a public servant. The Office of the Integrity Commissioner referred questions from the Media Co-op to the text of the Public Service of Ontario Act, 2006.

Legal Aid Ontario also has its own conflict of interest guidelines. By-law No. 2 states that: “Directors shall not have private interests — other than those permitted by this policy, laws or statutes (including Section 5 hereof) — that would be affected particularly or significantly by the Corporation’s decisions or actions in which directors participate.” (Section 5 states there is no conflict for simply being a “Bencher of the Law Society of Upper Canada,” meaning being on the board of directors of the Law Society.)

Additionally, the bylaws state that "a conflict of interest exists when the interests of a director, or his or her family member or business associate, could influence or be seen to influence the director’s decisions or impair his or her ability to act fairly, impartially and without bias. These conflicts include financial or other interests, and are not limited to situations where a director could personally benefit as a result of a decision by the Board.” A couple of exemptions are available to this by-law, including a circumstance “where a conflict exists, but provides minimal or no benefit to the director.”

Charles Harnick’s daughter, Alison Harnick, is listed as senior vice-president, general counsel and corporate secretary of First Capital Realty, one of Canada’s largest owners, developers and managers of urban retail properties. Nearly half of First Capital’s properties are in Ontario, many of those in the GTA.

In response to questions from the Media Co-op about whether his and his daughter’s corporate links were disclosed by Harnick to the Legal Aid board, and whether they constitute a conflict of interest – as per By Law No. 2 – a media spokesperson responded:

“The suggestion that Charles Harnick’s previous or current professional experience inappropriately influenced the recent decisions of Legal Aid Ontario is baseless and defamatory,” wrote Graeme Burk, senior media relations advisor. “If you publish these insinuations, Legal Aid Ontario will consider all options and will respond accordingly.”

Burk furthermore stated that, “The Chair is selected by a committee that includes a representative of the Ministry of the Attorney General, a member of the Law Society of Ontario and third person (sic) appointed by both parties, who in turn conduct interviews and recommend the candidate to the Government.”

The chair of the board is ultimately "selected by the Attorney General from a list of persons recommended by a committee," with that committee being the one Burk describes, according to Section 5 (2) 1 of the Legal Aid Services Act. The Attorney General at the time of Harnick's appointment was Caroline Mulroney. Charles Harnick donated $250 dollars in 2018 to Caroline Mulroney's unsuccessful campaign to lead the Ontario Progressive Conservatives, according to Elections Ontario records.

"Regarding political activity," Burk continues, "LAO staff and appointees are governed by the Public Service of Ontario Act."

"The balance of LAO’s [Legal Aid Ontario's] Contingency Reserve Fund is zero."

In the opinion of Bob Rose, a Parkdale resident and activist with Parkdale Eviction Resistance Network, Harnick’s corporate links and roles are a “huge conflict of interest,” he tells the Media Co-op in a phone interview. "Especially given the profile of this particular issue…(with) 9,000 homeless people here in Toronto.”

Stephanie Cox, a lawyer at the Hamilton Legal Services Clinic, sees Harnick’s connections as troublesome.

“A board is meant to reflect the diverse community,” she said in a phone interview with the Media Co-op. “However, that board also should have a philosophical approach that aligns with the values and mandate of the organization for which they are the board.”

In Legal Aid’s case, that mandate is “to promote access to justice throughout Ontario for low-income individuals,” as stated on its website.

This mandate, Cox says, is “at odds” with that of landlords.

“I think it is a conflict [of interest] because private developers and private landlords have starkly different mandates than a legal clinic,” she said. “So the philosophical approaches would contradict one another. And both mandates, or philosophical approaches, as I say, are at odds with one another.”

While not referring directly to Legal Aid Ontario, Cox suggested that when such a misalignment of mandates occurs at the board level of an organization, “the integrity of that mission could become compromised and a conflict could be raised.”

There appears not to have been an investigation into whether Harnick’s connections to real estate and development companies officially constitute a breach of the rules, so there has been no official determination made on the matter.

Landlords meeting

On March 7, the Federation of Rental-Housing Providers of Ontario (FRPO) held a seminar in Toronto titled “How to Handle a Crisis: The Media, AGIs and Tenant Actions." (AGI stands for "above the guideline rent increase."] The FRPO represents over 2,200 members including owners and managers of “over 350,000 households in every area of Ontario,” according to its website. The organization -- formerly known as the Fair Rental Policy Organization -- was instrumental in getting the 1997 Tenant Protection Act passed, which removed rent controls.

In attendance were some of the city’s biggest landlords and the public relations firms and lawyers that represent them. Philip Dewan, the president and co-owner of Counsel Public Affairs, where Harnick works, was one of the keynote speakers along with his colleague Alissa Von Bargen. Douglas Levitt of Horlick Levitt Di Lella LLP was also present. It appears that Charles Harnick was not present.

A recording of the event was shared with the Media Co-op by an attendee who prefers to remain anonymous for their professional protection. The Media Co-op has been able to confirm this person purchased a ticket for the event.

The recording reveals that Dewan and Counsel Public Affairs have worked with the FRPO “for a number of years” and have now “re-engaged” with them, according to FRPO president Tony Irwin.

“We won’t say for how many [years], but quite a few,” he says at the seminar. “One of the reasons we [FRPO] re-engaged Counsel [Public Affairs] was because there had been a couple iterations to the current PR campaign that we are engaged in.”

One of the main topics of discussion, the recording reveals, was how to ensure disgruntled tenants go through the Landlord and Tenant Board (LTB), rather than organizing and mobilizing.

Addressing a room of many landlords, Dewan, president of the agency where Harnick works, suggests that they should be “reminding people that there is a forum for adjudicating all of these disputes [the LTB] – and it is not through the newspapers; it is not through protests on the streets.”

Public relations man Danny Roth, who represents some of Toronto’s largest real estate companies, backed that up.

“It is no secret to the people in this room that amongst certain members of the media, a certain group of tenant advocates, and certainly amongst some politicians and bureaucrats, this industry seems to have a bit of a target on its back,” Roth says. “That actually is how I got back involved in the last few months with Tony and FRPO – specifically, trying to figure out a response on behalf of the industry to the rise in rent strikes [and] tenant protests.”

(Though not in attendance, Brent Merrill, the president and CEO of MetCap Living Management Inc, and Ugo Bizarri, chief investment officer of Timbercreek Asset Management, both sit on the FRPO’s board. Those are two of the main landlords involved in real estate development in Parkdale. In 2017, tenants held rent strikes against MetCap for badly needed repairs in 12 buildings that had gone unaddressed; and on March 13 of this year, the head offices of Timbercreek were occupied in protest by tenants of the West Lodge buildings, who delivered more than 150 work orders detailing disrepairs. The demonstrations were also held in response to threats of being pushed out of their homes through rent hikes and evictions.)

According to the transcript, “Parkdale” or “Parkdale Community Legal Services” or “Parkdale Legal” are mentioned a total of five times.

The first two are by Roth, who says he is “intimately familiar with what is happening in Parkdale.”

The third time is by George Van Noten, senior vice president of operations of Minto Apartment Real Estate Investment Trust. He describes Parkdale Community Legal Services as “manipulative” and blames them for “how they spread a lot of misinformation” regarding a specific case which speakers refer to as the “St. Dennis Drive situation.”

Later, Irwin asks Levitt what his thoughts are “as it relates to Parkdale Legal.” Levitt declines to “talk about Parkdale Legal specifically” but laments that “there are organizations out there that are ideologues” in search of “a villain in order to push forward a specific agenda.”

Levitt says he is “trying to be diplomatic in not naming the organizations,” but asserts he knows “every one of them” as well as “who not to speak to...and who to speak with.”

A week later, Harnick was appointed chair of the board of Legal Aid Ontario.

Just over three months later, on June 12th, Legal Aid Ontario, with Harnick as chair, announced major funding cuts and issued a directive to the legal clinics referenced above, letting them know they are “expected to prioritize casework and public legal education,” according to a copy of the document obtained by the Media Co-op.