The retired Ontario judge chosen by York University to investigate a controversial land deal works in the same legal office as the university's chancellor.

Both the retired judge, Edward Saunders, and York's chancellor, Peter Cory (a retired Supreme Court of Canada justice) are members of Toronto law firm Osler Hoskin & Harcourt's dispute resolution centre.

While nobody is questioning Saunders's credentials, some York academics say his appointment is not the "independent" review the university promised. They want the provincial auditor called in.

Saunders was appointed by York's board of governors after a Toronto Star story last month revealed campus land was sold for $15.8 million to a developer with financial ties to the university official who helped negotiate the deal on York's behalf.

The housing developer is Tribute Communities. The university official is Joseph Sorbara, a developer who chairs York's land development agency.

OurTrent Editor's note: Joseph Sorbara is the brother of Ontario Finance Minister Greg Sorbara (See article "York U. board agrees to independent review of land transaction").

Sorbara and his family worked with Tribute and its president, Howard Sokolowski, on two major subdivision developments at the same time Sorbara was helping York negotiate the land deal with Sokolowski. Sorbara's family company also has a 20 per cent investment in two Tribute companies.

Sorbara disclosed his interest in Tribute's developments at a 1996 committee meeting, but he continued to be involved in negotiations about the York land.

The Star story also showed the university may have lost millions of dollars by selling land in 2002 without a public tender. While it did not publicly advertise the land, York did offer it to Tribute and two other developers, giving them a five-week window to bid. Only Tribute submitted an offer.

Other land deals in the area attracted higher prices.

York said only a few developers could build the type of community the university wanted.

A series of 550 townhouses, semis and detached homes is springing up on the land, on the south part of the campus, with another 500 in the planning stage.

In a written statement, York president Lorna Marsden said the university wanted "an aesthetically pleasing, low-rise, environmentally sensitive housing development."

Marsden has also said that Sorbara did not benefit from the Tribute Communities deal, so there was no problem with him negotiating the deal for York.

Following the story, York board of governors chair Marshall Cohen vowed a probe would be conducted by an "independent and respected person." Last week, Cohen announced Saunders would lead the review. In a written statement, Cohen said the review would be "independent" and "impartial."

Asked about the apparent conflict in choosing Saunders, York spokesperson Nancy White said yesterday: "Mr. Saunders will continue to undertake this impartial and independent review and will arrive at his own conclusion."

White said Saunders "has reached the highest level of Canada's judicial system by being above political influence."

Saunders, contacted by the Star, said he could not comment.

The Star was unable to reach Cory yesterday.

Saunders and Cory are respected jurists, admired for their time on the bench. Academics at York say the problem is that the university administration, in hiring somebody to review an apparent conflict, chose a person with another possible conflict.

There's no doubt Saunders is well-respected. He became a lawyer in 1953, rose to become a partner at Osler, and was appointed to the bench in 1977. As a judge he was in charge of bankruptcy court in the early 1990s and presided over a hearing assessing a new plan for Ontario Hydro.

He was a judge at the Supreme Court of Ontario before he retired.

Since retiring from the bench, he has worked at Osler's Alternate Dispute Resolution Centre as a mediator and arbitrator.

Alternate dispute resolution services offer an alternative to the courts by providing mediation, arbitration and other means to resolve disputes.

Osler's website describes the centre as a "unique facility operating independently within a full service law firm."

Three retired judges (Cory, Saunders and James Southey) and two senior lawyers hear cases at the centre.

Osler co-chair Clay Horner said the five members are independent of Osler, but a portion of what they earn is paid to Osler for "overhead."

Horner said that while both Cory and Saunders work in the five-person centre at Osler's First Canadian Place offices, they do not rely on each other for income, so there is "no financial conflict."

Saunders and Cory share the same administrative assistant at the centre.

Cory retired as a Supreme Court of Canada justice in 1999. Since then he has worked at Osler's dispute resolution centre.

In 2002, he took a year's leave from the centre after being appointed commissioner by the governments of the United Kingdom and the Republic of Ireland to investigate six controversial murder cases involving alleged collusion between police and loyalist forces in Northern Ireland.

Cory became chancellor of York in June 2004. The chancellor presides over convocation each year.

He is also an ex-officio member of all board committees and sits on the university senate and the senate sub-Committee on honorary degrees and ceremonials.

Cory is also a member of the York University Foundation, a charity that raises money for the school.

Joseph Sorbara and Howard Sokolowski are also on the board of the foundation.

Osler is a strong supporter of York University's law school, Osgoode Hall. Last year, the firm gave Osgoode $1 million: the law school's largest donation to date. The money is for legal education and will endow the Osler Chair in Business Law at the school.

It's unclear how York chose Saunders to conduct the review. After the Star story was published, NDP Leader Howard Hampton told the provincial Legislature the provincial auditor should be called. But Premier Dalton McGuinty said York would hire its own reviewer. In a release last Friday announcing the appointment of Saunders, York chair Cohen said Saunders would have access to all land deal documents and could interview anyone at York he wanted to. His review would be made public, Cohen said.

At York this week, some academics raised the issue of the apparent conflict in appointing Saunders to review the deal. The Star has interviewed four professors who were raising concerns.

Most said they were also worried about getting in trouble with the administration if they spoke out.

But one, economics professor and university senator Ricardo Grinspun, said he hopes to raise the issue at the March 24 senate meeting.

"Although no one will question the integrity of two former judges," Grinspun said, "Mr. Saunders's close association with the highest officer of York University creates an appearance of a bias, which will undermine the usefulness of the review."

TORONTO – A review of a controversial land sale by York University hit a snag Tuesday amid revelations that the retired judge hired to conduct the probe works in the same law office as the university's chancellor.

That relationship has one York professor calling for the province's auditor to take over the investigation.

Edward Saunders, a retired Ontario Supreme Court justice, was hired to report on the circumstances under which York sold property to a land developer in 2002.

The review was commissioned after revelations that Joseph Sorbara, the university official who negotiated the land sale to Tribute Communities, also had financial links to the purchaser.

Saunders was expected to examine the actions of York's board of governors in approving the $18.5 million deal.

However, a business connection of Saunders' is now prompting questions about the review process itself.

Saunders is employed at the Osler ADR Centre, a mediation service operated at the Toronto law firm Osler, Hoskin and Harcourt.

One of Saunders' fellow arbitrators at the office is retired Supreme Court of Canada justice Peter Cory.

Cory was named chancellor of York University in 2004.

York Professor David Noble says the provincial auditor should take over the review.

"This is a mess," Noble said. "This is a scandal, and we who work at York University don't like it one bit."

A university spokesperson said Saunders was selected because of his expertise in corporate arbitration, and is capable of conducting an impartial review.

"We stand by the integrity of this process," said Nancy White.

"We just simply are saying to others, please allow the review to do its work and do not interfere with that process."

White said the results of the review will be made public.

Much has been said in York University’s Senate regarding the controversial nature of communications from President Lorna Marsden and her staff about the January 20 protest. But the latest problematic communication relates to the southlands sale, a deal that was described in exhaustive detail by the investigative report of the Toronto Star.

In a key paragraph in her 28 February Statement to the York Community on this matter, President Marsden said:

“With regard to Mr. Joseph Sorbara, he declared his interest in 1996 to the York University Development Corporation (YUDC) board that he had previously worked with Tribute Communities but the board’s opinion was that this did not constitute a conflict of interest as THERE WAS NO ONGOING BUSINESS RELATIONSHIP” (my emphasis).

The current version of this statement in the York website, still dated 28 February, is identical except the emphasized text has been replaced with: “…THERE WAS NO BUSINESS RELATIONSHIP WITH RESPECT TO THIS PARTICULAR DEAL.”

The corrected statement recognizes that there has been an ongoing business rela- Between a Rock and a Land Deal by Ricardo Grinspun tionship between Mr. Joseph Sorbara and Mr. Howard Sokolowski, who is building York’s Tribute Communities. Sorbara, who is also a developer, is involved in other Tribute Communities and other major construction projects, even though not in the York project currently under scrutiny. The existence of this business relationship is confirmed in a later paragraph in the same statement.

OurTrent Editor's note: Joseph Sorbara is the brother of Ontario Finance Minister Greg Sorbara (See article "York U. board agrees to independent review of land transaction").

The change in President Marsden’s 28 February communication was made without a correction notice and without changing the statement’s date, which is not in accordance with accepted communications practices. Moreover, the change from the incorrect claim that “there is no ongoing relationship” to the statement (now posted) that “there was no business relationship with respect to this particular deal” is significant in view of the Board of Governors’ conflict of interest policy.

President Marsden’s claim that there was no conflict of interest should have related to the Board’s own conflict of interest guidelines, which expand the definition of a conflict well beyond any possible benefit to Sorbara alone. Rather than mention of any benefits, the guidelines make reference to a ‘disjuncture’ between the personal interests of a governor, and his/her fiduciary obligations to the University. As the Board’s policy reads:

“A conflict of interest exists when there is a disjuncture between a governor’s personal interests, financial or otherwise, or a governor’s professional interests, and his or her fiduciary obligations to the University. A conflict of interest situation affects not only a governor but also all of his or her nonarm’s length relationships, including but not limited to immediate family members and persons with whom there exists, or has recently existed, a close personal relationship.”

Sorbara’s claim – which we may accept — that he obtained no personal benefit from this particular deal is beside the point. The question is whether Sokolowski, his ongoing business associate, did get what appears to be a very advantageous contract in a limited auction where only one bid was received, as was detailed in the Toronto Star report. In the words of Bud Purves, the current president of YUDC, “Howard (Sokolowski) did very well on that sale” (TS, Feb. 26).

In short, according to the Board of Governors’ definition, the query is not only whether the university officer obtained a direct benefit, but also whether a “close personal relationship” was favourably affected. The inconspicuous correction in President Marsden’s communication parallels the tenuous position of the Board, which despite rather strict conflict of interest guidelines, seems to have difficulty addressing the questions that have been raised.

Ricardo Grinspun is a York Senator, professor of economics, and former director of the Centre for Research on Latin America and the Caribbean (CERLAC).

York President Lorna Marsden has warned York community members who are publicly criticizing the Administrations sale of lands to Tribute Homes that they may regret their words. She alluded to the possibility of lawsuits over what she alleges are unfounded claims.

However, she denied that the warning, which she issued at the March 24 Senate meeting, had been intended as a threat. The President objected when York Senator Matthew Hayes stated that he found her comment threatening.

Marsden warned that people should be more cautious in their communications until after York’s independent review of the land sale deal. The review is being conducted by Edward Saunders, who is a business associate of the York Chancellor, Peter deCarteret Cory. Cory sits on the Board of the York Foundation, along with the the land deal brokers whose conduct the review is to examine.

The President delivered her warning at the end of her remarks in defense of the University’s decision to sell university land to Tribute Homes, a developer with whom Joseph Sorbara, a volunteer university official who negotiated the deal on behalf of theuniversity, has close business ties.

The land deal has been a source of much flak for the university.When the details of the deal were made public by Toronto Star reporter Kevin Donovan last month, the Administration’s conduct was criticized by several York faculty members, students, members of the York Federation of Students and the Graduate Students Association, and CUPE 3903. Several York faculty members and students were quoted in the Star expressing their dismay over the deal. Criticism was also expressed over listserves on the York server (which have historically been monitored by the York administration), and in a protest at the February 28 York Board of Governors meeting.

Faculty and students criticized the lack of a public tendering process in the deal, the alleged conflict of interest. They also echoed the Star’s concern about the relatively low per-acre rate that the university received from the sale.

Marsden denounced this publicly as a campaign being run by the Toronto Star.

Senator Leslie Sanders observed that initially she “thought ‘that sounds like a threat’.” However, she noted that “in retrospect, the university is not going to go suing people”.