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Mall owners, engineers want some secrecy at inquiry into Elliot Lake tragedy

A makeshift memorial sits outside the Algo Centre Mall in Elliot Lake, Ont., on Tuesday, Aug. 14, 2012. Part of the mall's rooftop garage collapsed June 23, killing two people.


The owners of a mall that collapsed in northern Ontario this summer are asking a public inquiry to keep some of their documents secret.

A similar request has come from a professional engineering association related to complaints and disciplinary measures taken against two engineers involved with the Algo Centre Mall.

Normally, material deemed relevant to the proceedings would form part of the public record and one lawyer said secrecy could undermine the hearings.

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The inquiry, under Commissioner Paul Belanger, has notified participants and media lawyers that they have the right to make submissions objecting to the confidentiality demands.

"This may go right to the root of the inquiry," media lawyer Paul Schabas said Tuesday.

"If there are issues about the competency or conduct of engineers, the confidentiality issues could go right to the heart of the purpose of the inquiry."

In their application, mall owners Robert Nazarian and his son Levon say they have given the commission sensitive financial statements they want kept out of public view.

The documentation was part of the Nazarians' request to prove to Mr. Belanger they needed taxpayers to pay for their legal help at the inquiry. "There is a high expectation of privacy in relation to personal financial information," they argue.

In his funding decision, Mr. Belanger said he was not impressed with the quality of the material submitted.

"Applicants seeking funding must be forthright and provide the commission with a clear picture of their net worth," Mr. Belanger said. "In my view, their evidence is wholly deficient."

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Mr. Schabas said the public should know how Mr. Belanger made his decision. "Once you file something and you're asking for a commissioner to make a ruling based on some evidence, that evidence should be public so we can understand why he's going to give them funding or why he won't give them funding," he said.

The inquiry is delving into the collapse of the mall in June that killed two women and the emergency response that followed. Residents had long complained about leaks and other problems but the owners have said the mall was inspected regularly and no serious structural deficiencies were found. In September, the inquiry ordered the Association of Professional Engineers of Ontario to produce documents related to complaints taken against the practices of two engineers whose identities the commission is withholding.

However, the association said it has to respect its own confidentiality requirements and giving the documents to the inquiry doesn't change that. "The right of those whose confidential information is protected by ... confidentiality provisions should not lightly be displaced by blanket arguments favouring early public access to information, presumably based on the 'open court' principle," the association said.

"The inquiry's roles of investigation and education of the public are of great importance, yet those roles should not be fulfilled at the expense of the denial of the rights of those being investigated."

Mr. Schabas said there's a "big clash" between public inquiries and confidentiality of professional societies that Mr. Belanger needs to sort out.

To allow participants and media organizations to make submissions, the commission said it would provide their lawyers with copies of the information sought to be kept confidential if the recipients agree to keep it secret.

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Those who want to make submissions have to advise the commission by the end of day on Dec. 3, and written submissions will have to be filed by end of day Dec. 7, 2012.

Hearings will take place Dec. 17 in Ottawa.

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