Ontario developer asks court to prevent, delay interview with auditor general in Greenbelt audit

A prominent Toronto-area developer is asking a court to block or delay a provincial watchdog from interviewing him as part of its investigation into the Ontario government's decision to open formerly protected land for housing development, CBC News has learned. 

Auditor General Bonnie Lysyk has been looking into the government's removal of more than 2,995 hectares of land from 15 different areas of southern Ontario's Greenbelt so that 50,000 homes can be built. Other land will be added elsewhere. The Greenbelt was created in 2005 to permanently protect agricultural and environmentally sensitive lands from development and covers some 810,000 hectares area of farmland, forest and wetland from Niagara Falls to Peterborough. 

As part of that process, Lysyk issued a summons in late June to Silvio De Gasperis, president of the Vaughan, Ont.-based Tacc Group of companies, demanding he provide information related to properties his companies own that were removed from the Greenbelt, according to an application filed on behalf of De Gasperis with the Ontario Superior Court of Justice on June 29.

The summons demanded De Gasperis submit to an "examination under oath" and bring any relevant "records, correspondence, notes and documents," according to the court filing. 

The filing said the summons followed a letter sent in mid-June by Lysyk's office, which noted that the Tacc Group owned lands in the Duffins Rouge Agricultural Preserve in Pickering, Ont., that are no longer subject to Greenbelt restrictions.

That letter outlined some of the possible topics of the interview, according to the court filing, including how the Ontario government identified Tacc Group's lands for removal from the Greenbelt, the Ontario government's expectations for the development of land removed from the Greenbelt, and the overall experience working with the government to remove the land from the Greenbelt.

In his application, De Gasperis asks the court to quash the summons or, alternatively, suspend it while the auditor general provides more information about what she wants him to discuss.

The filing claims De Gasperis doesn't have the information the auditor general's office is seeking, that the auditor general doesn't have the jurisdiction to conduct such an audit, and that requesting him to appear is an abuse of process, among other things.

Lysyk's office agreed in January to conduct "certain audit work" related to Ontario's Greenbelt policy in response to a joint call from all three opposition parties for a "value-for-money" audit and an assessment into the financial and environmental effects of the removal. However, she never defined the full scope of the audit publicly.

In a phone call Monday, Lysyk said she can't comment on the details of the audit — including its scope — as it is still in process. She said she hopes to table a report before her 10-year term ends on Sept. 3.

Scope of audit unclear, lawyer says

De Gasperis didn't respond to a request for comment. However, a lawyer representing Tacc sent a statement on Tuesday after the publication of this story. It said, in part, that the scope and goal of the auditor general's inquiry are unclear.

"If it is a value for money audit, we cannot understand how it could be achieved at this stage, primarily, because the costs of development to the developers are unknown," said the statement sent by Neil Wilson, a partner with Stevenson Whelton LLP.

The vast majority of Tacc's land holdings that were removed from the Greenbelt were acquired more than 20 years ago, before the protected area was created, the statement said.

"It is Tacc's understanding that the auditor general is considering clarifying to Tacc what information is being sought," it read.

The statement also said that Tacc is assisting the office of Ontario's integrity commissioner, J. David Wake, who is conducting an investigation of his own into the Greenbelt decision.

A spokesperson for Housing Minister Steve Clark said in a statement that the Ontario government is co-operating fully with the auditor general.

The De Gasperis family founded the Tacc Group of companies, which includes Tacc Developments, Tacc Construction, Arista Homes, Opus Homes and Decast Ltd., among others, and are known for building homes in planned subdivisions across the Greater Toronto Area.

As CBC Toronto previously reported, corporate and property records show that companies controlled by Silvio and his brothers Carlo and Michael De Gasperis own land that was removed from the Greenbelt in three municipalities — Vaughan, Richmond Hill and Pickering — including at least 28 properties in the Duffins Rouge Agricultural Preserve.

The De Gasperis brothers have been prolific political contributors to Ontario political parties, with the majority of donations made since 2014 going to the Progressive Conservative Party of Ontario and its politicians, Elections Ontario records show. Tacc companies have also hired lobbyists with ties to the PC government, the lobbyist registry shows, although none of the records indicate they were hired to influence decisions on the Greenbelt.

AG can compel private citizens

Trevor Farrow, a professor at the Osgoode Hall Law School at York University in Toronto, said Ontario's Auditor General Act gives Lysyk the authority to compel private citizens to answer questions and provide information related to its audits.

"It's drafted fairly broadly," Farrow said. "The authority comes from the act and it flows from the authority of the auditor being able to ask questions in order to get actual information."

When that authority is challenged, however, the auditor general must prove it has the jurisdiction to conduct the audit in the first place and that the person they're seeking to speak to is within the scope of the audit.

"If the audit is justified and this person is at the centre of the information that's needed," said Farrow. "That's the kind of thing that the act contemplates when it's drafted to include people, including members of the public."

A date to hear the court challenge hasn't been set.