Hazel McCallion’s Conflict of Interest hearing. Elias Hazineh’s Testimony. Notes from Brampton Superior Court, April 15, 2013
April 25th, 2013
What follows is a summary of notes taken during the Hazel McCallion conflict of interest hearing at Brampton court house on April 15, 2013 —Elias Hazineh testifying. If anyone finds any errors I’d appreciate being advised.
COURT NOTES DAY 8 April 15, 2013 Elias Hazineh testimony
10:00 am Judge John Sproat, like me (and later Hazineh) went to the wrong courtroom…
10:05 am Judge Sproat enters. He asks for a register of exhibits/documents –an exhibit list.
Thomas Richardson (lawyer for Elias Hazineh) is up first.
Regarding Hazineh’s knowledge of Region of Peel votes refers to the New Castle court case and the issue of conflicting affidavits.
Richardson points out the dispute is between Hazineh evidence in his affidavit versus those in his cross-examination. He points out that affdavit/testimony is not a situation of two or more affidavits conflicting.
Richardson then refers to Imperial Tobacco class action case where the issue turned to “Credibility and Bias”. That case determined that weighing affidavit evidence not as good as actual testimony and looking the witness straight in eye.
Sproat then asks Richardson to finalize his position. Did his client, Elias Hazineh read the National Post article or not?
Richardson says he’ll get to that and returns to credibility being an issue. Richardson reminds Judge Sproat that cross-exam is intended to challenge contradictory evidence.
Richardson says “must have knowledge member was present at a meeting…” etc.
Richardson consents to Hazineh going on stand with his knowledge, attendance at Stephen D’Agostino’s office, attendance at October 3, 2011 Judicial Inquiry report release and his review of Inquiry transcripts. Richardson says they’ll consent to having Hazineh take the stand.
Regarding imputed knowledge by Carolyn Parrish. He reminds Judge Sproat if that the respondent (Mayor Hazel McCallion’s lawyers) want to explore Hazineh’s relationship with Parrish, that was explored in original cross-examination. Richardson calls this a “fishing expedition”. So he’ll consent to imputed knowledge cross-examination if questions are limited to Hazineh’s knowledge of the Peel vote.
Judge Sproat explores what the procedure would be.
Elizabeth McIntyre (lawyer for Mayor Hazel McCallion) responds, “We appreciate Mr. Richardson’s agreement.”
McIntyre says that she’s “concerned about the limitations” and that once the issue of credibility is raised one would explore impugned knowledge based on his relationship with Parrish.
Judge Sproat asks for an estimate of the time this cross-examination would take. McIntyre says she can’t imagine more than 45 minutes.
Sproat then says to Richardson what harm does it do to restrict McIntyre questioning to the Peel vote. And then suggests such a restriction could be an issue in an appeal.
Richardson says the issue is the National Post article, that is, when Hazineh first had knowledge. And now using the Post thing and using it as a springboard to reopening the entire matter on how Hazineh got his knowledge.
Sproat rules that Hazineh is to give all evidence –and that he will hear that evidence to assess Hazineh’s “credibility and reliability”.
RECESS UNTIL RECALLED
10:40 am COURT RESUMES
Richardson now calls his client, Elais Hazineh to the stand. Hazineh declines the Bible or any other religious book and instead affirms.
Richardson asks Hazineh what he has with him. Hazineh has his application record, affidavit, Clay Connor’s article and one from National Post.
Richardson gets his client to go to Notice of Application and scan to the word “amended” December 13, 2011.
Richardson asks how Hazineh came to amend it. Hazineh says that new evidence came about. That during investigation, there was discovery of another Peel vote to extend the Development Charges transition provision by 18 months. And that it was discovered by Richardson’s law firm.
Richardson asks Hazineh if at the time he initiated the Application if he were aware of the additional Peel vote. Hazineh responds emphatically, “Absolutely not”.
Richardson refers to par 19 tab b in Hazineh’s affidavit. In there Hazineh states that around October, 2011 in the Mississauga News, he learned that Hazel McCallion may have been in breach of the Municipal Conflict of Interest Act in a Peel Region vote. Hazineh says that while reading this article, he also learned that investigating Peel Region was outside the mandate of Mississauga Judicial Inquiry.
Richardson par 21. states that prior to that October 2011 Mississauga News article Hazineh wasn’t aware of a potential Peel vote conflict.
Richardson refers to page 56 Q 323 in Hazineh’s original cross-examination.
Question: Did you read this article at the time. Hazineh says yes. National Post July 17, 2010.
Richardson tells Hazineh that there’s a conflict between affidavit and cross-examination. Hazineh explains that he read many articles and thought the photo looked familiar. Hazineh then responds, that upon reflection, he does not read the National Post. That Conrad Black takes slanted view of Muslims and Arabs. Particularly Palestinians.
Richardson points out that Hazineh originally suggested that his first knowledge was the National Post article. Hazineh replies that he was obviously mistaken.
Richardson asks Hazineh when he first became aware of potential conflict of interest at Peel Region. Hazineh replies with Clay Connor article. Hazineh points out that he used the $9M development charges figure and not the $11M in his affidavit.
Richardson asks where he got the numbers. Hazineh says Connor’s “McCallion may not be out of woods” article. Hazineh reads “…WCD stood to save roughly $9M”.
Hazineh says in the National Post article, it says “…saved her son’s development company $11M”.
If he read the Post, Hazineh says, he’d have definitely used the $11M figure from the National Post in his application.
Richardson asks if Hazineh if he had seen the Regional Council meeting minutes. Hazineh responds that he saw them in his lawyer’s office and not through the Inquiry.
Richardson points out that the Clay Connor article makes mention of extending the transition provision by 30 days.
Richardson questions Hazineh about a meeting with Stephen D’Agostino. Hazineh says it happened some time in Summer 2011 —either July or August. Meeting at D’Agostino’s office.
Hazineh says he drove Carolyn Parrish there. Those at the meeting, Parrish, D’Agostino, a young lawyer —and him.
Richardson asks the purpose of the meeting. Hazineh says that Parrish was delivering documents. Explains that he didn’t take part in the meeting. That he was not party to the meeting. That he sat at one end of the table. And that it was a very short meeting, maybe 15-20 minutes at most.
Richardson asks Hazineh if he were aware of the results?
Richardson then asks if Parrish shared outcome with him.
Richardson again asks if Parrish shared anything about development charges? Hazineh replies that he doesn’t know and wouldn’t have cared at the time.
[Ed. Missed something about two meetings –Toronto, was on summation on recommendations to Municipal Conflict of Interest Act. And something about Parrish and Hazineh left around lunch.]
Richardson explores how Hazineh got his knowledge of the Inquiry. Hazineh explains that he occasionally watched the Judicial Inquiry on TV.
Richardson asks if he got any knowledge through the Inquiry website. Hazineh responds that he didn’t look, that he might have glanced once –but it wouldn’t have interested him.
Richardson asks if he examined any exhibits/transcripts. Hazineh responds, “I glanced”.
Asked if he read the Inquiry Report, Hazineh says yes —says “Yeah, took long time” and adds it was the “most boring thing I’ve ever read”.
Richardson asks how soon after Release of Report did Hazineh read the Connor article? Hazineh says about 8 days later. Richardson asks if any of these sources put Hazineh to file Regional Council. [Ed. Seems I didn’t write down Hazineh’s answer… ]
Richardson asks Hazineh about his relationship with Carolyn Parrish.
Hazineh says that he first heard about Parrish in 1985. That she ran for school board. That they both served on the Canadian Spectrum Board of Directors.
Then in 1991 he offered to help Parrish run a campaign for City councillor. He says after that they became friends. He adds that Parrish was very upset at the 1991 loss. That it was less than 300 votes separating her from the winner.
Hazineh says that he then suggested Parrish try for the Federal Liberals. She won the nomination and also the election. Hazineh says that he was on the Parrish payroll from 2004 to 2006.
Hazineh says that he also worked on her 2006 municipal campaign and adds, “We were friends, very close friends”.
Hazineh says that Parrish is a good listener but “she knew little about Palestinians –like most Canadians”.
Hazineh says that he went with Parrish to inspect refugee camps and adds “She’s done a great job on the issue of Palestine and I’m grateful for that.”
He says that Parrish was also concerned about the Enersource case. And other issues that came out in the news, like the minutes –that somebody was tampering with those minutes. Hazineh then adds that “Politicians should be held to the highest standards possible”.
Hazineh then says that he got most of his information from news sources. Hazineh insists that Parrish “never” discussed the Regional vote with him.
Richardson then asks the nature of Hazineh’s contact with Parrish at the time of the Inquiry. Hazineh responds that they’d gone to restaurants, dinner at her home –here and there…
Richardson asks if Carolyn Parrish ever discussed the possibility of a McCallion conflict of interest at Peel Region. Hazineh: No.
Richardson asks whether Hazineh was present at the October 3, 2010 press conference. Hazineh replies yes, but that he was on his own and that he later joined her.
Richardson asks whether Hazineh heard anything at the Mississauga Inquiry press conference regarding the Peel vote. Hazineh: No.
Richardson asks whether Hazineh he talked to Parrish about the Inquiry Report. Hazineh says yes, that Parrish was frustrated about the timing. That the release of the Report was delayed until after the vote. That Parrish felt that cost her the election.
Richardson asks whether Hazineh had any inkling prior to reading the October 2011 Connor article that there might be a Peel conflict.
Richardson asks Hazineh what papers he reads. Hazineh replies Globe and Mail and Toronto Star. He says that he also reads the Mississauga News, “when it has something relevant. Most of the times it does not.” Also the New York Times, Israeli and Arab press.
Elizabeth McIntyre, Mayor Hazel McCallion’s lawyer, now up.
McIntyre states that Hazineh helped Parrish in her 2006 and 2010 campaigns and in the 2011 by-election. McIntyre suggests then that he’d be familiar with how municipal councils work.
McIntyre asks Hazineh if he ever attended Council meetings or watched them on TV. Hazineh replies he only ever watched just one —where they were to name a street after him. That was the only time.
McIntyre says that Hazineh would have understood generally how resolutions, motions and the municipal process worked.
McIntyre goes on to say that she assumes that when he ran Hazineh would know that he’d be bound of Municipal Conflict of Interest Act. That he would have known a councillor would have to declare conflict.
McIntyre asks whether he aware of development charges. Aware they’d apply to undeveloped land.
McIntyre asks Hazineth whether he knew there was a City Council and Regional Council. Hazineh: Yes. And that development fees applied at both levels. Hazineh: Yes, but he didn’t know specifics.
McIntyre refers now to his original affidavit. Page 10, par 4. January 18, 2012 where it says that Hazineh “developed an interest in Conflict of Interest and Mayor” McIntyre assumes he read media reports around 2009. And that Hazineh followed at least some of the Inquiry. Hazineh: Yes.
McIntyre par 8. “refers to resolution of City Council requesting Inquiry”. She asks Hazineh if he were aware of this. Hazineh: “Could be”… “At the time, possible, might have, I don’t know”.
McIntyre suggests that Hazineh would have definitely looked at it when preparing his Application. Hazineh: At the lawyer’s office he had all these documents.
McIntyre asks Hazineh if he recalled hearing July 26, 2010 evidence of John Zingaro (former Assistant City Solicitor).
McIntyre now gives Hazineh Zingaro’s Inquiry transcript.
McIntyre asks if Hazineh if he had a chance to look at Zingaro’s transcript. McIntyre gets Hazineh to look at the mention of development charges and also the reference to the regional charges in Fall 2007.
Exhibit 174 in Zingaro testimony.
McIntyre says that the Zingaro transcript mentions grandfathering. That there’s reference to “long list of site plan applications” and reference to World Class Developments.
Hazineh appears to be seeing this for the first time now.
McIntyre asks when Hazineh reviewed this Zingaro transcript. Hazineh says that he didn’t see it. Either then or after reviewing transcripts.
McIntyre now deals with Hazine’s cross-examination and focuses on Hazineh’s statement today that he made a mistake about having read the National Post article.
McIntyre now refers him to page 51 of his cross-examination. She has Hazineh refer to the July 17, 2010 National Post article. “Mississauga melee nears nadir”.
McIntyre read before that Parrish felt McCallion was replacing councillors with her people. [Ed. Sorry but I can’t recall what McIntyre meant by this…] Hazineh says he could have read that from other sources or heard it.
Referring to Hazineh’s January 22 2013 cross-examination, Kristjanson took him through those very paragraphs.
McIntyre reminds Hazineh that not only did he read the reference to Stephen D’Agistino, he attended the D’Agistino meeting. McIntyre says that there are no other articles referring to Stephen D’Agistino.
Hazineh responds saying if McIntyre thinks there is no other article containing reference to D’Agistino she’s wrong. [Ed. I Googled “Stephen D’Agistino” and “Parrish”. The only article prior to November 2011 is “Mississauga melee nears nadir”… ]
McIntyre continues reading from the article. It mentions D’Agistino and a motion at Peel Region [Ed. Specifically, “The seven dissident councillors, using this money, have hired lawyer Stephen D’Agostino to work on their behalf. Now Mr. D’Agostino has uncovered documents that, according to Ms. Parrish, fall under the scope of provincial legislation. These documents pertain to a motion Ms. McCallion moved three years ago, asking for a delay in implementing new development charges. That motion would have saved Peter McCallion $11-million on a hotel and conference centre his company wanted to build in the city centre, Ms. Parrish said.”]
McIntyre now reads through Hazineh’s January 22, 2103 cross-examination testimony.
Q: Did you read the article at the time?
A: I’m sure I did. The picture looked familiar so I probably read it.
In response, Hazineh tells McIntyre, “You are brilliant at deciphering people’s minds”. Then adds, if he read the July 2010 National Post article, given the relevant Peel information were there, he did not catch it.
McIntyre squeezes Hazineh to talk about time limit and insists that if he read it, his Application is out of time. Hazineh responds that she’s asking him a legal question about term limits.
McIntyre repeats that if Hazineh knew that McCallion had a conflict back in July 2010, his Application is out of time.
Hazineh counters with “I had a perfect explanation for you today and it’s the truth”.
COURT RESUMES AT 12:05
[Ed. I arrive a bit late.]
McIntyre still up and asks Hazineh to refer to the Application record. Tab F. Mississauga News November 17, 2011 “Man to charge Mayor” article.
McIntyre gets Hazineh to admit it’s fair to conclude that he read the entire article. McIntyre now refers to what she said in the article about the Mayor not having a conflict of interest in Peel Region. [Ed. The article actually states, “McCallion’s lawyer, Liz McIntyre, said last week that any such conflict charge brought to a judge would have little merit.”]
McIntyre also points out that Inquiry Commissioner counsel William McDowell maintained that he and his Staff conducted a thorough investigation and that the development charges transition provision applied to 80 site applications and not just World Class Developments. So even McDowell didn’t think the Mayor could be regarded as in conflict. [Ed. The article actually states, “‘(The inquiry’s) Commission counsel (William McDowell) and his staff did a thorough investigation regarding the Regional Council vote and concluded that the mayor could not be regarded as having a conflict of interest,’ McIntyre said. ‘In light of that, one has to question the motives of anyone continuing to pursue the issue.'”]
McIntyre points out that despite this, Hazineh’s January application says the Peel vote/issues “were not considered by Judicial Inquiry”. Hazineh responds that though Commission Counsel William McDowell may have made that statement, that does not make it true.
Richardson stands up and says that Inquiry didn’t consider the Peel Region vote and it’s unfair to extend William McDowell’s opinion to be that of the Inquiry.
Judge Sproat says it seems to him that there is a distinction between findings/opinions of the Inquiry and William McDowell.
McIntyre continues saying that William McDowell said that he and his Staff conducted an investigation and 2 that he and his staff discovered that what McCallion did or didn’t do couldn’t be regarded as conflict of interest.
Hazineh replies that he has no idea if McDowell’s info was accurate or that his investigation was thorough or that any of it was cross-examined.
McIntyre asks Hazineh if he doubts that McDowell/Staff conducted the Peel investigation. Hazineh responds that the only thing he knows for sure is that McDowell said that he did conducted an investigation. McIntyre then asks Hazineh if he doubted the Peel investigation whether he asked McDowell directly.
McIntyre revisits the July 17, 2010 “Mississauga melee nears nadir” National Post article and now asks “I take it it’s quite possible Carolyn Parrish showed you the article”. McIntyre points out that in July 2010 that he’s running her campaign at that point and that all media reports are a critical part of any election campaign.
McIntyre adds that this National Post article was “that biggest splash” that Parrish had for some time.
Hazineh counters that the “National Post in all of Mississauga doesn’t sell more than a hundred papers”. [Ed. Not the wisest thing to say if you’re intent of selling the Judge on your credibility…]
Hazineh adds that “I do not read the National Post period for the reasons I’ve outlined earlier”.
McIntyre continues her pursuit asking whether it’s possible that Carolyn Parrish to have shown it to him at the very time they were involved in the election campaign. Hazineh digs in: “I have not seen it prior to the application. That is the truth.”
McIntyre shows Hazineh a “supplementary application”. Pages 13 and 14. [Ed. I’m not sure what this means.]
McIntyre refers to the October 17, 2011 Clay Connor Mississauga News article and asks Hazineh if he remembers seeing it at the time. Hazineh offers that it’s possible and asks to read it. Then says that he can’t recall the article –that he doesn’t remember specifically, yet that he recognizes the information from other articles.
McIntyre now refers Hazineh back to his cross-examination. Article says McDowell conducted a “thorough investigation”. [Ed. Actually when you read the article, it is actually McIntyre who states that McDowell did a thorough investigation!]
McIntyre says that in his cross-examination, Hazineh, when asked if he read the article at the time responded “I’m sure I did”.
McIntyre probes did Hazineh not follow the news on the issue he was interested in. She asks why did you say on January 22, 2013 “I’m sure I did.”
McIntyre doesn’t wait for an answer, rather alleges, “I put it to you these were the honest answers at the time”.
McIntyre now deals with Hazineh’s relationship with Carolyn Parrish. Tab 1 in [Ed. I’m not sure what document].
McIntyre refers to par 10. Six weeks prior to actual election. McIntyre suggests that one of the issues on Parrish’s mind was the Inquiry and whether the Report would be released before the elections.
McIntyre gets Hazineh to admit he was with Parrish a lot during that time —and that Parrish has very few “unvoiced thoughts”.
McIntyre reminds the court that Hazineh drove Parrish down to see D’Agistino. She asks how much time it takes to drive to Toronto and back. Hazineh replies that at no time was it a one-way conversation. That he and Parrish talk about everything the weather, kids, grand-kids… [Ed. The weather?…]
Hazineh then says that Carolyn Parrish did a lot of the work on Peel Regional Council. Donated her time. And that he donated hundreds of hours on her campaigns.
McIntyre asks whether Parrish herself contributed money to the cost of this Application.
Judge Sproat objects on behalf of Richardson.
McIntyre says the question is relevant because if Hazineh is not a straw man, then at least he and Parrish are co-venturers in the application.
Judge Sproat admits that he has imperfect recollection of any test cases relating to legal fees/costs what with such a question being under client/solicitor privilege.
McIntyre says she now has only one other document. Blue volume, application record of the respondent. Tab H.
Article Mississauga News Feb 2, 2012. “We’re on the right track” with picture of Hazineh and Parrish. Hazineh says that the purpose of visit to Richardson’s office. That Parrish was with me when he was there. McIntyre observes that the photo shows Parrish leading him about four feet.
McIntyre reads “We’re on the right track” and the part about Hazineh saying “We’re on the right track and we have all the evidence we need to get a conviction.” McIntyre asks if that is a correct quote. McIntyre then asks who is “we”. Hazineh reponds, “Lawyers”.
McIntyre counters with is “we” not Parrish?
Hazineh replies, “I already responded. Me and my lawyers.”
By now McIntyre is essentially calling Hazineh a liar. Hazineh: “I am not afraid of you.”
And that pretty much ends it.
Richardson will not re-examine.
Judge Sproat says he will look into McIntyre’s financing question about how much Parrish donated to Hazineh’s application.
Sproat says let’s break a bit later, until 2:15, because he has to attend a meeting over the lunch hour.
Freya Kristjanson, Mayor Hazel McCallion’s lawyer, now up.
Right off the bat she retracts her question about Parrish’s contribution to Hazineh. [Ed. I suspect McIntyre/Kristjanson just flung “contribution” onto the court floor because they (correctly) expected the media would run with it.]
Content, Kristjanson sits down. Richardson now up.
Richardson starts with supplemental evidence, article by Megan O’Toole, National Post. Richardson says this case requires the Applicant have full and complete knowledge –and reminds the judge that a member of public has a “daunting and risky task” when it comes to laying conflict of interest charges. Richardson insists that the six week time limit should only apply once there’s a degree of certainty.
Richardson points out that otherwise an applicant is required to act on the basis of meager information and even speculation.
Richardson now refers to the July 17, 2010 article, “Mississauga melee nears nadir” and impugned paragraph, “The councillors are alleging a direct violation of the Municipal Conflict of Interest Act, dating back three years, when the Mayor introduced a motion that would have saved her son’s development company $11-million.”
Richardson states that there’s no indication in that sentence whether the violation was City or Region. And the only reference is on the second page, par “Freya Kristjanson, one of Ms. McCallion’s lawyers, disputes any conflict with the 2007 motion, passed by Peel Regional Council. ‘This was a bylaw of general application. It was not targeted at World Class Developments. It affected all development in Brampton, Caledon and Mississauga,’ Ms. Kristjanson said. ‘So it certainly was not targeted at WCD and that would be a most unfair targeting were that not made clear.’”
Richardson maintains that this article is not sufficient here to trigger alarm by a ratepayer of any wrong-doing.
Sproat mentions the paragraph about six weeks, specifically, “Since discovering the latest conflict allegation, councillors have a six-week window in which to launch legal action.” Richardson counters that the sentence refers to Councillors. And that it’s just insufficient information for citizen-watchdogs to respond.
Richardson states, that by contrast, the Connor article has more detail. That we read for first time “transition provisions”. Richardson reads “grandfathering” saving “$11M” [Ed. $11M? not sure…] and that forms the basis of the application and their case. It’s the information in the Connor article that came to Elias Hazineh’s attention.
Richardson now focuses on the statement “probably read it” that Freya Kristjanson failed to mention.
Richardson reminds the court that Hazineh’s application was modified to address this second amendment. Richardson gets Judge Sproat to look at the application record of the respondent. Refers to application record of Ms O’Connor. Tab 1 page 6.
The characterization of the Peel meeting on September 13, 2007. Richardson says that Brampton Mayor Susan Fennell requests revisiting the transition provision matter. Par G. Fennell moved an amendment seconded by McCallion to extend the provision to May 1, 2008.
Richardson says that’s not correct! That’s not what Fennell and McCallion moved. Richardson explains that when the two mayors initially prepared the application they were not aware of the 18-month transition.
Richardson says he sees no reference indicating that Mayor McCallion was involved in extending provision by 18 months.
Richardson now returns to the July 26, 2010 Zingaro Inquiry testimony. Richardson states that there is nothing in Zingaro’s testimony that identifies that there was conflict of interest in Peel.
Richardson says that there’s no conflict in his affidavit/cross-examination. [Ed –missed it. Talking too fast.]
Richardson now turns his attention to Hazel McCallion. Says he will highlight details not put in affidavit.
Richardson states that:
- The Mayor was involved with the WCD cast of characters
- She had expressed frustration transaction taking so long
- McCallion was involved in the Purchase of Sale
- That in her most recent testimony that the Mayor recanted what she said in her affidavit regarding her instructions to staff
- The Mayor admitted that she did not consider the financial implications of the Peel amendments
- That the Mayor did not talk to Council or seek advice
- That she would’ve moved same motion had she known it would benefit World Class Developments
- That McCallion did not indicate her actions were the result of inadvertence
- That transition provision revenue loss would come out of the City’s reserve
- Knew the site in official plan was for the hotel and knew about H designation
- Knew it would require building permits which wouldn’t be issued until the development charges were paid
- Knew World Class Developments had to pay these charges
- Knew that losing hotel had negative implications for the City
- Acknowledged that conflict of interest does not prevent her of having knowledge of status of site plan application
- Knew that there was serious disagreement between World Class Developments Murray Cook and Tony DeCicco
- Went on a tour of the Marriott with City Staff,
- Stated that McCallion/Fennell motion to extend the transition provision for 18 months would be for Brampton only
- Stated that it was usual practice for the Peel Clerk to “regionalize” what affected just one municipality to apply to all three
- Asserted that she did not know her son Peter had ownership of World Class Developments until it was revealed through the Inquiry
Richardson says that Peter McCallion was there from the beginning. That he had a relationship with the World Class Developments “characters”.
Richardson then states that it is “beyond belief” that Mayor Hazel McCallion did not know that World Class Developments had a site plan application until the Inquiry.
Richardson continues that it’s unbelievable that McCallion didn’t see that newspaper article that her dream hotel was proceeding. Or that Director of Planning Marilyn Ball offered a briefing but didn’t tell her. Or that McCallion was not aware that Ed Sajecki went on Rogers TV announcing the imminent start of her favourite project. Or, especially, that during all those meetings involving World Class Developments no one told her.
Richardson suggests that one can infer a great deal from the messages left by Tony DeCicco, the meetings entered into her diary, the Agreement of Purchase of Sale, the Marriot viewing. That McCallion had general knowledge of the process and/or knew the process in detail. That World Class Developments would require building permit and payment of development charges.
Richardson submits that the mere frequency of McCallion’s phone messages show that she was well aware (apprised) of the process and status of World Class Developments
Richardson states there’s the “unavoidable conclusion that she (McCallion) was well aware of her dream hotel”, the development charges transition provision and that she the ample opportunity to inform herself. Richardson says that there were enough clues that would trigger the Mayor to investigate and raise questions.
Richardson reminds that court that there is no affidavit of Peter McCallion, nor any effort to involve witnesses from World Class Developments, no effort on the part of the Mayor’s defense team to corroborate her side of the story.
Richardson introduces the concept of an adverse inference.
He says that:
- The Mayor acknowledges World Class Development charges
- Would have voted for an extension period even if she knew
- And that McCallion’s voting on these matters was not inadvertent
Richardson returns to the defense that the by-law was one of general application. He states that the pecuniary interest of Peter McCallion is deemed to be pecuniary interest of the Mayor. That Peter McCallion’s interest is viable —and that the pecuniary interest of Peter McCallion is not an interest in common “with the electors generally” as defined by the Act.
Freya Kristjanson, Mayor Hazel McCallion’s lawyer, now up.
Kristjanson takes on Issue 1, the interest of Hazel McCallion. She states that the onus on the applicant is to establish that Peter had a pecuniary interest that was known to his mother and that that pecuniary interest was present at Peel Region when matter came up.
Kristjanson explains that the time frame is important. She focuses on September 6, 13 and October 4, 2007. Kristjanson says that the Municipal Conflict of Interest Act requires actions to be taken.
Kristjanson addresses the Mayor’s knowledge of son Peter’s pecuniary interest during those times.
Kristjanson says that pecuniary interest will be addressed in three parts.
Did World Class Developments have a pecuniary interest at the time of the Peel votes? Kristjanson says even assuming that Peter was a principal, WCD did not have a pecuniary interest in the transition period in Peel because World Class Developments did not have a complete site plan application within the meaning of the Regional by-law.
Regarding the alleged pecuniary interest in the development charges, Kristjanson states that WCD had filed a master site plan and to their knowledge such a plan did not allow for the issuance of building permits.
Kristjanson states that the Zingaro opinion was incorrect. That Marilyn Ball has testified that his opinion was based on information he acquired after the September/October 2007 Peel votes.
Kristjanson then talks about site plan application [Ed. This going way over my head…] Kristjanson insists that since the site plan application was never paid, there was no complete site plan as of October 4, 2007.
Kristjanson tells the judge that the real consideration was what were Peter’s actual pecuniary interests as to the day of the Peel vote in relation to the development charges. She then insists that Peter McCallion’s pecuniary interests were speculative and “too remote” to be affected by the vote.
Kristjanson states that the “evidence is clear” that Peter did not have an existing real estate agreement.
Kristjanson then goes on to Issue 1C: What did the Mayor know Peter’s pecuniary interest to be. Was his interest known to her.
Kristjanson states that the Municipal Conflict of Interest Act Section 3, requires “knowledge of an actual pecuniary interest”. [Ed. “Interest of certain persons deemed that of member 3. For the purposes of this Act, the pecuniary interest, direct or indirect, of a parent or the spouse or any child of the member shall, if known to the member, be deemed to be also the pecuniary interest of the member. R.S.O. 1990, c. M.50, s. 3; 1999, c. 6, s. 41 (2); 2005, c. 5, s. 45 (3).”]
Kristjanson then asks what the Mayor did for actual knowledge. Kristjanson says Hazel McCallion asked her son and he told her that he was an agent for Leo Couprie. Kristjanson says that this is consistent with what Peter McCallion told both Ed Sajecki (Commissioner of Planning and Building) and Marilyn Ball (Director of Development and Design).
Kristjanson tells the court that Peter McCallion had only ever been a real estate agent. And that the Mayor knew her son didn’t have the financial ability to invest in World Class Developments. And that Hazel McCallion also knew he didn’t have the technical expertise to take on a hotel project.
Kristjanson says that it was only in August 2009 that Hazel McCallion learned for the first time that son Peter was more than an agent. Kristjanson then states that the Mayor has to have knowledge of her son’s actual pecuniary interest for it to be a deemed her interest as well.
Kristjanson then moves to Issue 2 the Exemptions in Section 4 of the Act.
Kristjanson states that if found in violation, they will rely on four of the exceptions in the Municipal Conflict of Interest Act.
- Interest in common. Also called “general application”. Kristjanson states that William McDowell used that term as did Mayors Fennell and Morrison.
Kristjanson maintains that the Mayor had an interest in common with other electors. Kristjanson argues that if Peter had an “indirect interest” and it was found to be known to Hazel McCallion, then they argue that the Mayor had an interest in common with all those who had an interest “in stream”.
Kristjanson says there were 80 such site plans –and the Peel transition provision vote affects them all equally.
[Ed. Missed what Kristjanson said. Her drone is getting to me…]
Kristjanson goes on about:
- Section 5. Pecuniary interest “common to other persons” offered by municipality or local board.
And that the development charges transition period is a benefit offered to all other persons in the community. That they’re like transit increases, dog licenses….
Kristjanson now address the defense of Remoteness
Kristjanson says that test of remoteness is, would a reasonable elector apprised of all the circumstances conclude the Mayor’s interest was remote. That is, if a reasonable person were informed of everything on October 4, 2007, —remoteness is an objective test.
Kristjanson then introduces Issue 3, the savings provisions under the MCOIA.
Kristjanson defines inadvertence as an oversight of fact or law, and that it is not willful or recklessly blind.
Kristjanson observes that Mayor McCallion didn’t ask Staff about World Class Developments. Kristjanson says that the Mayor could’ve threatened to fire all the staff –stating threat-to-fire “doesn’t seem to be prohibited by this Act.”
Kristjanson then explores whether the Mayor showed a good faith error in judgement.
Kristjanson says McCallion took steps. [Ed. Kristjanson is going too fast…]
Kristjanson now introduces Issue #4. The Time Limitation.
Kristjanson insists that the applicant, Elias Hazineh was out of time. That he applied some five years and two months after the event in question. Kristjanson reminds that Judge that the MCOIA states that there is a six week limitation after facts come to their knowledge and that Hazineh was well aware of necessary facts before limitation.
Kristjanson insists that the facts were “discoverable by him” given relationship between Hazineh and Parrish.
Kristjanson reminds the court Hazineh and Parrish were “driving to Inquiry together”, “meeting together” and that given Parrish’s knowledge of the facts of this case, her knowledge should be imputed to him. She then goes on to states that the “Case should be dismissed on this basis alone.”
Kristjanson says that she will now look at three aspects of the applicable law.
Kristjanson refers to Peel Regional bylaw Tab 32.
Kristjanson focuses on Requirement under the Regional by-law: that there had to be an application for complete site plan approval on October 4, 2007.
Kristjanson draws attention to the back of the factum. Sub 4. Approval of plans or drawings. [Ed. I can’t follow this. I sure hope Sproat can.]
Kristjanson suggests that everything Council wants has to go into site plan considerations including servicing agreements that cities can require. Kristjanson says that where there’s an upper tier municipality that upper tier has to be advised.
Kristjanson presents a case relating to high rise structures. Ontario Court of Appeal 1992. Re Section 40 of the Planning Act.
[Ed. By this time my notes say “My brain wants OUT! Don’t know how much Sproat makes but it’s not enough!”]
Kristjanson now refers to City’s Fees and Charges by-law. Pursuant to the Planning Act.
Kristjanson maintains tath the Region does not control site plan applications —that it’s up to the three lower-tier Councils as to what kind of drawings/plans are required to be complete.
Sproat’s question suggests he’s not entirely sure where Kristjanson is going either. Sproat says Master Site Plan is conceptual and thought Kristjanson was arguing …. [Ed. I don’t get it.]
Kristjanson says whatever was there in Oct 2007. [Ed. I don’t get what I wrote here either.]
COURT RESUMES AT 3:55
Kristjanson now turns to Marilyn Ball’s evidence. Page 3, Question 8. Kristjanson explains that a master site plan is for a large complex sites to be worked over several years and will be used for future site plan applications.
Master site plans, Kristjanson says, help people understand the overall vision of a project but not the details.
Kristjanson refers to Page 10 and states that 10% would’ve been the required fee –complete site plan $520,000. And 10% for Master Site Plan. Why didn’t City have fees for Master Site plans. [Ed. Checking my court notes, it’s clear my attention at this time of day is badly flagging… I write, “She’s reading again. Brain foggy blah blah blah…”]
Now evidence of Scott Walker. Page 51.
Now refers to Ben Phillips, worked for Ball and was planning in charge of WCD file.
I stopped taking notes… this actually hurts….
[Ed. After 3:55 my notes become meager, interspersed with personal comments and “I stopped taking notes… this actually hurts….” was the last entry of the day. For the record I tried my best to record what was said and now to flesh the material out and polish it. I had no idea that when I committed to summarizing Hazel McCallion’s testimony and those of Elias Hazineh, what a tedious chore this would turn out to be. By far the greatest difficulty was not seeing the documents/exhibits that both set of lawyers were referring to. Anyway. Done.]