MISSISSAUGA JUDICIAL INQUIRY: April 30, 2010 –a motion filed by The Mississauga News calling for Peter McCallion’s affidavit, etc (in its entirety 85:21 min)
May 4th, 2010
Video: MISSISSAUGA JUDICIAL INQUIRY: April 30, 2010 (in its entirety 85:21 min)
The following is cut-and-pasted from the City of Mississauga Judicial Inquiry website. The video may differ slightly from the court transcript.
Last, I feel silly mentioning this but must. As the videographer, please note that I am only one of two mayoral candidates challenging Hazel McCallion in the 2010 Mississauga municipal election and we are both considered fringe candidates.
1 2 3 4 MISSISSAUGA JUDICIAL INQUIRY 5 6 7 8 9 Before: Associate Chief Mr. Justice J. Douglas 10 Cunningham 11 12 13 14 15 16 17 18 19 HELD AT: 20 Provincial Offence Court 21 Mississauga, Ontario 22 April 30, 2010 23 24 Pages 1 to 65 25
2 1 APPEARANCES 2 William McDowell )Commission Counsel 3 Naomi Loewith ) 4 5 Freya Kristjanson (np) )For Mayor Hazel McCallion 6 Elizabeth McIntyre ) 7 8 Brian Gover ) For Peter McCallion 9 Lusia Ritacca ) 10 11 Clifford Lax, Q.C. (np) )For City of Mississauga 12 Tracy Wynne (np) ) 13 James Renihan ) 14 15 Michael Barrack )For OMERS 16 John Finnigan (np) ) 17 James Roks (np) ) 18 19 Alan Mark (np) )For Enersource 20 Kelly Friedman (np) ) 21 22 Don Jack (np) ) For 156 Square One 23 Adam Goodman (np) ) 24 25 Ryder Gilliland ) Mississauga News
3 1 TABLE OF CONTENTS 2 Page No. 3 Submissions by Mr. Ryder Gilliland 4 4 Submissions by Mr. Bryan Gover 25 5 Submissions by Mr. William McDowell 34 6 Reply by Mr. Ryder Gilliland 37 7 8 Discussion 41 9 10 Submissions by Ms. Elizabeth McIntyre 50 11 Submissions by Mr. William McDowell 59 12 Reply by Ms. Elizabeth McIntyre 62 13 14 Certificate of transcript 65 15 16 17 18 19 20 21 22 23 24 25
4 1 2 --- Upon commencing at 10:06 a.m. 3 4 THE COURT CLERK: All rise. Please be 5 seated. 6 COMMISSIONER DOUGLAS CUNNINGHAM: Good 7 morning. We have a number of issues to deal with this 8 morning, but I think, in order to, perhaps, to 9 convenience counsel, what we might do is deal with the 10 motion being brought by the Mississauga News, counsel are 11 here on that matter. Good morning. 12 13 SUBMISSIONS BY MR. RYDER GILLILAND: 14 MR. RYDER GILLILAND: Good morning, 15 Commissioner. I see we've all rather unhelpfully used 16 white covers for our materials. Helpfully, I'm only 17 going to refer, I think, to two (2) -- two (2) 18 authorities, our book of authorities, which has a white 19 cover -- 20 COMMISSIONER DOUGLAS CUNNINGHAM: Yes, I 21 have it. 22 MR. RYDER GILLIHAND: -- and says 23 "Mississauga News" on it, and the book of authorities of 24 Peter McCallion. 25 COMMISSIONER DOUGLAS CUNNINGHAM: All
5 1 right. 2 MR. RYDER GILLIHAND: And I don't -- I 3 don't intend to make any reference to the -- the fact 4 that are -- although, as you know, there's factum filed 5 by my client, Mr. McCallion, and, of course, Commission 6 counsel. 7 I wanted to deal as a pre -- I'll present 8 it as a preliminary matter, and -- and I'm -- I'm in your 9 hands as to -- as to how we proceed. But My Friends have 10 raised a question as to whether -- as to whether or not 11 you should -- I don't know if hear this is too strong, 12 but revisit your decision, given that you already made a 13 ruling on -- on March 4th. And that's undoubtedly so. 14 There's no question that you did make a ruling on March 15 4th on this -- on -- that's germane to this issue. 16 I've reviewed the transcript, however, and 17 it -- it's clear to me that you weren't presented with 18 any submissions with respect to open courts, 19 Dagenais/Mentuck test, which I understand Commission 20 counsel agrees is the co -- controlling test here. Not 21 all counsel agree, but Commission couns -- 22 COMMISSIONER DOUGLAS CUNNINGHAM: Not all 23 counsel. 24 MR. RYDER GILLIHAND: -- Commission 25 counsel agrees, was not presented to you. And, in my
6 1 submission, it's entirely proper and, indeed, we would go 2 further and say required that you reconsider your ruling 3 in light of Charter principles that were not presented to 4 you the first time -- the first time around. 5 And I should add that those arguments, of 6 course, would have been raised if -- if the media had 7 been given notice of -- of what was intended. The 8 practice since Dagenais, as -- as you will know, is to 9 give notice to the media whenever there's an order sought 10 that -- that impacts on Section 2(b) rights. 11 And My Friend for Mr. McCallion indicates 12 that there was notice given, and he makes reference to 13 paragraph 33 of his submissions on the motion in which he 14 raised as an alternative ground, that -- that there might 15 be a confidentiality order. In my submission, that's a 16 far cry from the kind of notice that would, for example, 17 allow us to have -- to have been here before you in 18 advance of the March 4th ruling. 19 So, in short, you didn't hear argument on 20 what submit is a very important point; we think you 21 should have. We now want to present those arguments, and 22 we are firm of the view that if you hear the argument and 23 you're persuaded that there are Charter principles that - 24 - that you should have considered and didn't and that 25 impact upon your ruling, you -- you should revisit that
7 1 ruling. 2 So I raise that as a preliminary issue. 3 And if My Friends want to address it now, or -- or if you 4 want My Friends to address it now, I'm -- I'm happy that 5 we proceed in that fashion. If not, I would just get 6 straight into -- 7 COMMISSIONER DOUGLAS CUNNINGHAM: I think 8 we'll just do that. 9 MR. RYDER GILLIHAND: Okay. So my -- my 10 two (2) primary submissions, you won't be surprised, are 11 -- are first, that the Dagenais/Mentuck test, which I've 12 just mentioned, a) wasn't considered, but b) couldn't 13 have been met on -- on the -- the evidence before you. 14 And on that basis alone, there should -- there should not 15 be a conf -- a confidentiality order. 16 And the second part of our submission, it 17 -- it relates to the public interest. Even if you were 18 to find that the first branch of the -- of the 19 Dagenais/Mentuck test, the necessity test, were met, 20 there's -- there's no need for confidentiality in the 21 present case because the public interest and openness 22 overrides the need for confidentiality. 23 You -- you commented that not all counsel 24 agree that -- that the Dagenais/Mentuck test applies, and 25 -- and as -- as is clear, counsel for Mr. McCallion takes
8 1 the -- takes the position it -- it doesn't. I think that 2 the -- a complete answer to this is found in -- in the 3 Toronto Star case, which -- which is cited in our factum, 4 but which I will ask you to turn up. And that's at Tab 5 12 of our book of authorities with the white cover. 6 The -- the context of this case, which -- 7 which obviously went up to the Supreme Court of Canada, 8 was the Crown was -- was submitting that the 9 Dagenais/Mentuck test, by this time well established, 10 should not have applied when -- to -- to informations to 11 obtain, and -- and rulings on -- on search warrants; 12 effectively saying this is an investigative stage, the -- 13 the test that you apply at the trial stage should not 14 apply at this very -- very premature stage. 15 And the answer to that came from Justice 16 Fish in paragraph 7, where he stated that -- as follows: 17 "I would dismiss the appeal. In my 18 view, the Dagenais/Mentuck test applies 19 to all discretionary court orders that 20 limit freedom of expression and freedom 21 -- freedom of the press in relation to 22 legal proceedings. 23 Any other conclusion appears to be 24 inconsistent with an unbroken line of 25 authority in this court over the past
9 1 two (2) decades, and it would tend to 2 undermine the open court principle 3 inextricably incorporated into the core 4 values of Section 2(b) of the Charter." 5 You have been asked to exercise your -- 6 your discretion to make -- to make a recommendation. You 7 have been presented with evidence. In my submission, you 8 are going to make a discretionary decision in this 9 regard. And on that basis and on -- on the basis of this 10 ca -- case, you clearly are required to apply the 11 Dagenais/Mentuck test. 12 And there's further support for that in 13 the Episcopal case, which -- which I don't need you to 14 turn up, at least now, but it will be of interest to you 15 because it is an appeal from a commission of inquiry, and 16 that's at -- at tab 10 of -- of my authorities. 17 And Commission counsel has pointed out the 18 statement there, that there's discretion and -- and 19 deference to the discretion, and I -- and I don't 20 disagree with that. I can't disagree with it, it's the 21 Court of Appeal saying so, but the Court of Appeal 22 indicated that the test must be applied and, in fact, 23 highlighted that the test had been applied by the inquiry 24 below. 25 I also don't need to dwell on the
10 1 importance of -- of openness in the context of this 2 Public Inquiry and court proceedings generally. I know 3 you, Commissioner, have already cited some of the law on 4 that in -- in your earlier ruling, which I also have in 5 my authorities -- 6 COMMISSIONER DOUGLAS CUNNINGHAM: Right. 7 MR. RYDER GILLILAND: -- at tab 8. In 8 fact, the first paragraph of that ruling summarizes, to a 9 large extent, what -- what would have been my submission 10 in that regard. 11 In passing, I don't think that ruling 12 could possibly have been dated April 26th. I wanted to 13 refer to it by the date, but it's -- it says at the back, 14 April 26th, 2010. 15 MR. WILLIAM MCDOWELL: That's the date it 16 was signed. 17 MR. RYDER GILLILAND: Oh, I see. But -- 18 so that was -- when it -- it was released earlier. 19 So based on -- on your authority and based 20 on these authorities, in my submission, the principle of 21 openness is alive and well in this proceeding, and the 22 test that's to apply -- to be applied when there's a 23 limit on openness is the Dagenais/Mentuck test. 24 The test itself is found at -- in -- in 25 many places, but in the Sierra Club decision, which is at
11 1 tab 11 of my authorities, and Sierra Club starting from 2 paragraph 40 forward takes you through the -- the genesis 3 of this test in the -- in the Dagenais case, and also 4 mentions -- so that's at paragraph 40. And in paragraph 5 43 you see reference to the Mentuck case, so obviously 6 the two (2) leading cases in relation to this test. 7 And if -- if I can ask you to turn the 8 page and look at paragraph 46. This is after the court 9 had slightly reformulated the Dagenais test in -- in 10 Mentuck. And in paragraph 46, the court states that the 11 court had emphasized that under the first branch of the 12 test the three (3) important elements were un -- were 13 subsumed under the necessity branch. 14 I just add in passing that -- that 15 necessary in the original Dagenais case, which isn't 16 before you, was italicised, so it -- it's emphasis on -- 17 on the -- the need. 18 First, the risk in question must be a 19 serious risk well grounded in the evidence. And, in my 20 submission, I'll come back to it but, in my submission, 21 that's where -- that's where the failure is here because 22 there is no evidence of the harm or the risk. 23 The second point is -- is less relevant 24 here. It talks about the administration of justice. And 25 then third, the test requires the judge ordering the ban
12 1 to consider not only whether reasonably alternatives are 2 available, but also to restrict the ban as far as 3 possible. 4 And then, this is Justice Iacobucci at 5 paragraph 48 states, first, that Mentuck illustrates the 6 flexibility of the approach and then, secondly, the 7 Dagenais model can and should be adapted to a situation 8 in the case at bar where the central issue is where the 9 discretion should be exercised so as to exclude 10 confidential information from a public proceeding. 11 So Dagenais was to protect fair trial 12 rights. Mentuck was to protect the administration of 13 justice, and Sierra Club was designed to protect 14 confidential information, where necessary. And for that 15 reason it's -- it's the most germane case for you -- for 16 -- for today's purposes. 17 The test itself is -- is set out at 18 paragraph 53. The first requirement is the: 19 "...order is necessary [again] to 20 prevent a...risk to an important 21 interest, including a commercial 22 interest, in the context of litigation 23 because reasonably alternative measures 24 will not prevent the risk; and..." 25 And I emphasize that it's a conjunctive
13 1 test, because you could find that it was necessary, and 2 still find in favour of my client's position on the basis 3 of the second branch: 4 "...the salutary effects of the 5 confidential -- confidentiality order, 6 including the effects on the right of 7 civil litigants to a fair trial, 8 outweigh its deleterious effects, 9 including the effects on the right of 10 free expression, which in this context 11 includes the public interest in open 12 and accessible court proceedings." 13 And then Justice Iacobucci, who had 14 written Mentuck, as well, emphasizes again that the risk 15 has to be well grounded in the ev -- in the evidence. 16 That's at paragraph 54. 17 And then, at paragraph 55, he draws out a 18 point that it actually is unique to this setting. In a 19 -- and I'm reading from paragraph 55: 20 "In addition, the phrase 'important 21 commercial interest' is in need of some 22 clarification. In order to qualify as 23 an 'important commercial interest', the 24 interest in question cannot merely be 25 specific to the party requesting the
14 1 order. The interest must be one (1) 2 which can be expressed in terms of a 3 public interest in confidentiality." 4 Gives the example, saying the private 5 company can't claim that a particular contract should be 6 kept confidential, because it would cause the company to 7 lose business, or harm its commercial interest. That's 8 not enough, in this example. 9 "However, if...[the] information would 10 cause a breach of a confidentiality 11 agreement, then the commercial interest 12 affected can be characterized more 13 broadly as the general commercial 14 interest of preserving confidential 15 information. Simply put, if there is 16 no general principle at stake, there 17 can be no 'important commercial 18 interest' for the purposes of this 19 test." 20 And then he adds, in paragraph 56, a 21 further caution that: 22 "It must be remembered that a 23 confidentiality order involves an 24 infringement on freedom of 25 expression...and courts must be alive
15 1 to the fundamental importance of open 2 court[s]..." 3 So that -- that is the test that, in my 4 submission, should have been presented to you, and -- and 5 -- and that -- that you should -- should consider in -- 6 in determining whether or not there should be public 7 access to the materials in question. 8 I'm not aware of -- of any evidence 9 relating to specific harm if these -- if these materials 10 were -- were released. And in my submission, in order -- 11 in order to comply with the Dagenais/Mentuck test, what 12 you would have required at a minimum was some form of 13 evidence indicating what harm would flow from the release 14 of this information. 15 And as I say, there's no such evidence. 16 And -- and weighing the other way is what is in the 17 public record. If you look at -- and now I will ask you 18 to turn up the -- the book of authorities of Peter 19 McCallion. I'm just taking you to the transcript of the 20 March 4th proceeding, which is at Tab 2. 21 22 (BRIEF PAUSE) 23 24 MR. RYDER GILLILAND: So this is a 25 transcript that's available to the public. And I'm
16 1 looking at page -- there's a page 25 and the -- sorry, 2 it's actually page 28 of the transcript. 3 And I know -- I appreciate that you, 4 Commissioner, will be aware of this from other sources, 5 but here, it's -- it's City counsel indicating that: 6 "There is...no dispute that the letter 7 from Mr. Gover on Mr. McCallion's 8 behalf sets out -- Mr. McCallion's 9 earnings, that he does not file income 10 tax returns and that he owns no real 11 property..." 12 Now, then there's a complaint about the 13 extent of the information but, nevertheless, it is 14 information that has been provided on the public record, 15 albeit it's been established insufficient information for 16 -- for your purposes. It's information of the very 17 nature which -- which now seeks to be protected. 18 And -- and I add here something that I 19 would have raised earlier if I had been going through the 20 importance of -- of openness and the underlying 21 principles. One (1), of course, is to assist in the 22 truth-finding exercise. 23 And that goes back to -- to Wigmore, 24 Bentham, all the jurists which are cited in many -- many 25 of the leading Supreme Court of Canada decisions,
17 1 including -- including the McIntyre (phonetic) case. I'm 2 not going to ask you to turn it up, but it's at tab 7 of 3 my authorities. 4 Now -- so on that basis, in my submission, 5 there just isn't the evidence before you that -- that you 6 would require to -- to make a finding to -- to close the 7 -- the proceeding to the public. 8 And, in addition, there's not -- there's 9 not evidence that goes the step further, that -- that 10 Sierra Club requires, that there's some interest that's 11 also of a broader public interest. There's no evidence. 12 I appreciate there is a submission by, I 13 think, both Commission counsel and Mr. McCallion, that 14 people wouldn't -- that basically you need to -- you need 15 to have this confidentiality in order to the protect the 16 process. I appreciate there is that larger argument. 17 There's no evidence to support it. 18 There's -- and the problem with that is that it turns the 19 presumption of openness on its head. Effectively, that 20 means if anybody comes to you and asks for a 21 recommendation for funding, the presumption should be 22 that it'll be closed because they don't need to lead 23 evidence because the presumption is that if -- if it were 24 otherwise, the entire inquiry's process would fail. 25 And, in my submission, that -- that can't
18 1 be right, particularly in light of what we know 2 transpires daily in -- in the courts. 3 COMMISSIONER DOUGLAS CUNNINGHAM: Do you 4 see a distinction, Counsel, between this issue, which 5 relates entirely to funding, and the larger issue, which 6 is the terms of reference under which this Inquiry is 7 charged with the responsibility of investigating evidence 8 and pursuing in whatever means appropriate the terms of 9 reference? 10 MR. RYDER GILLILAND: Well, this -- 11 this -- 12 COMMISSIONER DOUGLAS CUNNINGHAM: It's 13 been suggested by counsel opposite that this is a 14 peripheral issue to the terms of reference, and that all 15 of the evidence having to do with the terms of reference 16 will be forthcoming during the course of the Inquiry. 17 What do you say about that? 18 MR. RYDER GILLILAND: I say, first of 19 all, that it is indisputable that -- that issue doesn't 20 fall squarely within the terms of reference. However, in 21 my submission, the -- the open court principle or, in 22 this case, the open quiry -- inquiry principle doesn't 23 tie in that way. 24 You wouldn't, in -- in a court proceeding, 25 deal with a peripheral issue and say, We're going to
19 1 exclude the public for this part because it's peripheral, 2 because it's not squarely relating to the lead. 3 But perhaps more importantly, everybody is 4 submitting that you need to consider this issue, the 5 merits of the issue that's raised, because it touches on 6 the fairness of this whole process. 7 And, of course, the key -- the key reason 8 we have openness, among the key reasons, is to protect 9 the integrity of the process, and that means to ensure 10 that everybody is doing things the right way and the 11 public can scrutinize it, and that means scrutinizing, of 12 course, you, Commission counsel, Mr. McCallion, all the 13 participants, the City, and -- and that's what's denied 14 if you take it away. 15 And, as I say, it is something that -- 16 that everybody is saying goes to the fairness of this 17 proceeding. Mr. McCallion is saying, It's unfair to deny 18 me this -- this funding. 19 Commission counsel is saying, You have to 20 at least consider this on fairness principles, and you've 21 -- and you've made that decision, as well, that you will, 22 to protect the integrity and fairness of the proceeding. 23 So it's an overstatement at the least to 24 say -- you know, to create this strong division between, 25 okay, well, here's the terms of reference and that's what
20 1 the public should know about, but we could have this 2 other little area here, which does touch on the fairness 3 of this whole process, but we're going to keep that 4 secret. 5 So just to circle back to -- to -- to the 6 -- to conclude the point on the first branch of -- of -- 7 of the Dagenais/Mentuck test, there is no evidence, and 8 that, in my submission, is dispositive. 9 Now, I want to -- I -- I do want to talk 10 at -- at -- at the end about the balancing exercise. But 11 before I do that, because -- because Mr. McCallion has 12 raised a fairness point that -- that relates to the point 13 I raised at the outset, saying, Jeez, I -- you know, now 14 I've led this evidence and -- and I did so on the 15 understanding that -- that it would be kept confidential, 16 and now I've stepped into this and -- and now you're -- 17 it would be unfair to undo that. 18 And I think my opening submission 19 addresses that to some extent but, of course, as a 20 practical matter, that doesn't help Mr. McCallion. I 21 think the practical solutions to -- to that situation in 22 which he would find himself if you were to -- to order 23 that this be made public, is -- is twofold. 24 Number one, Mr. McCallion doesn't have to 25 seek funding. And if he withdraws his request for
21 1 funding, then the openness issue won't be engaged. 2 Another alternative, and -- and in my 3 submission, this -- this is one (1) that -- it -- it's 4 open to you, but it's not one (1) that I recommend, is 5 that Mr. McCallion can now make submissions relating to 6 the harm, and lead evidence relating to the harm, which 7 is what I submit, as you know, he would need to do to 8 protect that confidentiality. 9 The reason I -- I -- I say that -- that I 10 -- I'm against that is because it was, frankly, incumbent 11 upon Mr. McCallion, if he was seeking to -- to get 12 confidentiality in the first place, to put -- put 13 everyone on notice, including the media that -- that he 14 was seeking a confidentiality order. And if -- had he 15 done so, these arguments would have been presented to you 16 in advance of your ruling. 17 That said, it is open to you if you have 18 concerns about -- about his position, which -- which 19 aren't addressed through basically saying, take it or 20 leave it. It's an open process. If you -- if you want 21 to come in here and ask for public funds, you're going to 22 have to do so publically. An alternative is to allow -- 23 allow him to now address the Dagenais/Mentuck test head 24 on. 25 COMMISSIONER DOUGLAS CUNNINGHAM: This
22 1 motion of yours is dated April 26th, which -- and the 2 date of the cross-examination was -- 3 MR. WILLIAM MCDOWELL: The 23rd. 4 COMMISSIONER DOUGLAS CUNNINGHAM: -- 23rd 5 of April. My ruling was made on March the 4th. Was 6 anything done between March the 4th and the cross- 7 examination of Peter McCallion -- 8 MR. RYDER GILLILAND: Yes. 9 COMMISSIONER DOUGLAS CUNNINGHAM: -- to -- 10 MR. RYDER GILLILAND: Commission counsel 11 will -- will confirm that it -- it wasn't March 4th, I'll 12 concede that, but I think it was a -- I think it was 13 April 15th, frankly. April 14 or April 15 is when I 14 first wrote to -- to Commission counsel and asked 15 Commission counsel to raise this issue before you. 16 At that time I wasn't convinced, and I -- 17 and I told Commission counsel that my preference was to 18 not, frankly, appear before you, but rather that this 19 just be raised because it was an issue that -- that, in 20 my view, should have been -- that, in my client's view, 21 should have been raised, and hadn't been. 22 So it was certainly -- it was -- you know, 23 it was not March 4th, but it was well in advance of -- of 24 -- of the actual cross-examination on -- on April 23rd, 25 and after our initial correspondence, and I can confirm
23 1 -- I could confirm on a date the exact -- or on a break, 2 the exact dates, but it -- it is in or around April 14th 3 -- we -- we had some back and forth and -- and Commission 4 counsel advised, and I -- I expect this was likely after 5 consulting with -- with you, Commissioner, but -- but I 6 don't know that, that -- that the proper course was for 7 us to bring this -- this motion, which we did. 8 9 (BRIEF PAUSE) 10 11 MR. RYDER GILLILAND: So then, in 12 closing, I just come back then to the balancing exercise 13 that's -- that's before you, before you only if you find 14 that there's evidence that shows that -- that a 15 confidentiality order is necessary. 16 And so, in my submission, it's a bit of a 17 hypothetical here because, as you know, my position is 18 that there is no -- no such evidence. But assuming that 19 there -- that there were, the -- the bottom line here is 20 that when we get to the balancing point, we're talking 21 about public funds. We're talking about -- I appreciate 22 your -- your order is not binding, but it's a 23 recommendation relating to taxpayer money. And, in my 24 submission, that -- when we talk -- 25 COMMISSIONER DOUGLAS CUNNINGHAM: What's
24 1 your recommendation? 2 MR. RYDER GILLILAND: As I just said, I 3 -- I appreciate that, but obviously Mr. McCallion 4 wouldn't be bringing the application and -- if -- if he 5 didn't feel that there was some significance to your 6 recommendation and -- and Your Honour wouldn't have 7 requested additional evidence, et cetera, if Your Honour 8 wasn't taking the task seriously, as -- as, of course, 9 you should. 10 And there's no question, in my submission, 11 in those circumstances that the recommendation can, not 12 will, but can impact on the expenditure of public monies. 13 And that's something that, when we're at this balancing 14 stage, we're not then just dealing with openness 15 principles, which, of course, are -- are very much alive 16 and well, but we are dealing with a recommendation 17 relating to the expenditure of taxpayer money. 18 And I can't speak for the ratepayers, but, 19 in my submission, it's not too much to ask from a 20 ratepayer perspective that if you want a recommendation 21 in a public inquiry in which you are implicated, rightly 22 or wrongly, but in which you -- you're clearly 23 implicated, if you want a commi -- a recommendation from 24 the Commissioner that there be public funds used to your 25 benefit, then it's entirely fair, if evidence is required
25 1 to support such a recommendation, that it be done in the 2 open. 3 4 (BRIEF PAUSE) 5 6 MR. RYDER GILLILAND: Those are my 7 submissions. 8 COMMISSIONER DOUGLAS CUNNINGHAM: Thank 9 you very much. 10 Mr. Gover...? 11 12 SUBMISSIONS BY MR. BRIAN GOVER: 13 MR. BRIAN GOVER: Yes, good morning, Mr. 14 Commissioner. Mr. Commissioner, I would preface my 15 submissions by saying that in your March 4th ruling you 16 took a context sensitive approach, and, of course, that 17 approach is what is urged by the Mentuck case itself. 18 And in the Toronto Star case, Justice Fish 19 emphasized that this is meant to be a flexible approach, 20 it's not to be applied mechanistically. And all of that 21 leads us to the conclusion, in my submission, that, in 22 this particular context, the context not of a court 23 proceeding, and, of course, in the -- the authorities 24 that Mr. Gilliland took you to we heard repeated 25 reference to open courts and court proceedings, but your
26 1 context, or course, is as the commissioner of a public 2 inquiry, tasked with making a recommendation which itself 3 was peripheral to the terms of reference. 4 As Commission counsel have recognized in 5 paragraph 19 of their submissions, and I quote: 6 "Mr. McCallion's intimate personal 7 financial information is not relevant 8 to the terms of reference. The terms 9 of reference address Mr. McCallion's 10 business dealings, not his personal 11 financial status." 12 This is unlike the Cornwall case to which 13 counsel for the Mississauga News has referred. There, of 14 course, the identity of the supposed perpetrators was 15 central to the terms of reference. There was a real 16 public interest in lifting the veil of secrecy 17 surrounding allegations of sexual abuse by persons in 18 authority, but that's not this case. 19 And in your March 4th ruling, Mr. 20 Commissioner, you recognized the intrusive nature of the 21 inquisitorial process that is a public inquiry. As you 22 recognized in your March 4th ruling, the City has put 23 Peter McCallion's dealings at the heart of the Inquiry, 24 but, of course, that relates to his business affairs in 25 relation to World Class Developments. And, plainly, the
27 1 terms of reference warrant a probing examination of those 2 business affairs at the appropriate time and in the 3 appropriate manner. 4 The Supreme Court of Canada has emphasized 5 that the task of any commissioner is to balance the 6 Inquiry's roles with the rights of those being 7 investigated. 8 And, in this case, using that context 9 sensitive approach, you concluded that the right balance 10 entails respecting Mr. McCallion's privacy interests and 11 right to fair treatment at the stage of determining what 12 recommendation to make to City counsel. 13 And we submit that was a sound exercise of 14 discretion well grounded in authorities, such as the 15 Blood Inquiry case. And I'll provide the reference, sir. 16 It's at tab 1 of our brief of authorities, and I refer in 17 particular to Justice Cory's comments at paragraph 31. 18 Further, in the Phillips case, or also 19 known as the Westray case, Justice Cory again, in tab 3 20 of our brief of authorities, paragraphs 175 and 176. And 21 this issue of managing the inquiry process in a way that 22 will be fair was, as Commission counsel have pointed out, 23 addressed by Justice Binnie in the Consortium 24 Developments case at tab 7 of Commission counsel's brief 25 of authorities, paragraph 27. And, of course, the
28 1 comments in Consortium Developments were made in the 2 context of a public inquiry arising under the Municipal 3 Act. 4 Returning to this point about context and 5 the importance of considering it, of course, in Mentuck 6 itself Justice Iacobucci, writing for the Court, 7 emphasized that context must be taken into account. 8 In that respect, I might briefly take you 9 to tab 10 of our brief of authorities. This is Mentuck, 10 tab 10, paragraph 37, where Justice Iacobucci said this: 11 "It also bears repeating that the 12 relevant rights and interests will be 13 aligned differently in different cases, 14 and the purposes and effects invoked by 15 the parties must be taken into account 16 in a case-specific manner." 17 Now, what really has been left unaddressed 18 by counsel for the Mississauga News is the fact that when 19 we consider this question of whether and how the 20 Dagenais/Mentuck test applies, we have to consider it in 21 the context of a public inquiry and in the context of the 22 recommendation, this peripheral task which you are now 23 concerned with. 24 The Commission, it bears emphasis, is not 25 a court and is, therefore, not bound by the open-court
29 1 principles articulated in Dagenais/Mentuck, Toronto Star, 2 and Sierra Club. 3 Your order of March 4th was not a 4 discretionary court order, as described by Justice Fish 5 in paragraph 7 of the Toronto Star case. As well, you 6 are not bound by the public hearing requirements set out 7 in Section 135 of the Courts of Justice Act. 8 In our submission, this matter can be and 9 should be resolved by reference to Rule 34 of your 10 inquiry rules of procedure, which confer upon the 11 Commission the discretion to conduct hearings in private 12 and/or issues -- issue orders prohibiting disclosure of 13 intimate financial or personal details. Commission 14 counsel point out, as do we, that that is consonant with 15 the approach taken in Section 4 of the Public Inquiry's 16 Act. 17 So in that respect, although as has been 18 said, this has a different legislative genesis, this 19 particular Public Inquiry, we get a sense of what the 20 Legislature's expectation is. The Legislature in that 21 sense has spoken. We go further. We say it's spoken 22 again. We have a -- an as yet unproclaimed replacement 23 for the Public Inquiries Act, the Public Inquiries Act 24 2009, which we've included at Tab 14 of our brief of 25 authorities, which reflects the same sort of approach
30 1 taken by the Legislature as recently as the fall of 2009. 2 So although not directly applicable, we have a good sense 3 of what the Legislature has to say on this, and recently, 4 of course, it has spoken again. 5 I point out, as well, that when confronted 6 with a similar issue, Justice Goudge, at what I'll term 7 as the Goudge Inquiry, recognized that it was appropriate 8 to protect personal information at the standing and 9 funding stage. 10 And we see that in the excerpt from the 11 Goudge Inquiry report, which you'll have at Tab 12 of our 12 brief of authorities. And if I could take you briefly, 13 sir, to paragraph -- pardon me, to page 645 at Tab 12, 14 you'll see in the sidelined portion, Justice Goudge said 15 this: 16 "The Rules of Standing and Funding 17 instructed applicants on the basic 18 information to be included in support 19 of their application. Through 20 Commission counsel the applicants were 21 advised that it was not necessary to 22 prepare formal application records with 23 sworn affidavits. Ultimately, many of 24 the applicants did choose to submit 25 formal application records, while
31 1 others did not. By July 16, 2007, I 2 had received eleven (11) applications 3 for standing. Of the eleven (11) 4 applicants, seven (7) also sought 5 funding. Once Commission counsel 6 reviewed the applications to ensure 7 that they did not disclose confidential 8 information, they were posted on the 9 Commission's website." 10 So Justice Goudge made the decision to 11 protect confidential information in the applications for 12 funding that were before him. And earlier in my opening 13 remarks, Mr. Commissioner, I had referred to the Toronto 14 Star case, and the proposition that the test ought not to 15 be applied mechanistically, but as flexible and 16 contextual. I won't take you to it, sir, but you may be 17 assisted by the reference. It's at paragraph 31 of 18 Toronto Star. 19 Commission counsel have agreed that Mr. 20 McCallion's affidavit does not address matters at the 21 core of this Inquiry's mandate. 22 The affidavit and transcript contained 23 private information, such as that which was considered 24 confidential by the Goudge Inquiry, and we submit that 25 the release of it would serve no legitimate purpose in
32 1 furthering the Commission's mandate. 2 Now whether or not the -- the 3 Dagenais/Mentuck test applies directly, and you've heard 4 my submission, that Rule 34 is where this issue ought to 5 be resolved, I submit that Commission counsel got it 6 exactly right in paragraphs 15 through 37 of their 7 submissions. 8 The confidentiality order is necessary to 9 ensure fairness to Mr. McCallion or, as they have put it, 10 there is a substantial risk to the public interest in 11 fairness of the Inquiry if confidentiality is not 12 maintained. 13 Now we say, with respect, that is clearly 14 specific harm. And on this subject that Mr. Gilliland 15 has raised about evidence being necessary, commissioners 16 of public inquiries have never demanded hard evidence 17 before taking steps to ensure the fairness of an inquiry. 18 As an aside, I would submit, addressing 19 one (1) of Mr. Gilliland's submissions, that there has 20 been no waiver on Mr. McCallion's part in asserting that 21 he is unable to fund legal representation himself. That 22 -- that doesn't warrant an intrusive examination into all 23 of his financial circumstances that would be open to 24 public scrutiny at this stage. 25 Returning to Commission counsel's
33 1 submissions, they're right in saying that the openness of 2 the inquiry's pursuit of its mandate, as set out in the 3 terms of reference, is not compromised by your March 4th 4 ruling. Of course, anything relevant to the terms of 5 reference, and that's consistent, of course, with the 6 Court of Appeal's decision in Bortolati (phonetic), will 7 be the subject of evidence led by your counsel. We can 8 count on that. 9 Thirdly, there are no reasonable 10 alternatives, as Commission counsel have pointed out. 11 What we're left with is this: The salutary effects of 12 your March 4th ruling outweigh any deleterious effects. 13 And here we really need to put ourselves in the position 14 of Mr. McCallion or any person who is swept up in the 15 process of a public inquiry. 16 Imagine the position that someone in that 17 position would be in if a context sensitive and balanced 18 approach were not taken. 19 Faced with the intrusive process of a 20 public inquiry examining certain of his business dealings 21 that would take several weeks and in need of counsel to 22 protect his reputational and other interests and unable 23 to fund legal representation for that purpose on his own, 24 such a person would be left with a Hobbesian choice. 25 He or she would have to either abandon his
34 1 or her request for funding, and, actually, Mr. Gilliland 2 as much as said this, or relinquish his privacy rights 3 over his intimate financial and personal matters. 4 And it's precisely what it -- what your 5 Rule 34 is meant to address. It's precisely what you 6 have addressed in your March 4th ruling, and that is 7 completely consistent with the approach taken by 8 commissioners of other public inquiries in ensuring 9 fairness of the process which they are tasked with 10 overseeing. 11 Those are my submissions, subject to any 12 questions. 13 COMMISSIONER DOUGLAS CUNNINGHAM: Thank 14 you, Mr. Gover. 15 Mr. McDowell...? 16 17 SUBMISSIONS BY MR. WILLIAM MCDOWELL: 18 MR. WILLIAM MCDOWELL: Yes, sir, I -- Mr. 19 Gover having substantially adopted our submissions, I 20 don't propose to repeat them, but just a number of -- of 21 points on the -- on the submissions by Mr. Gilliland. 22 First of all, on the -- on the question of 23 the record, the factual basis for your order, you don't, 24 in my submission, need to have evidence of precisely the 25 harm that would ensue from disclosure of intimate
35 1 personal and financial information. You're entitled to 2 draw that inference. 3 And I say that in part because we know 4 that there is extensive statutory protection given to 5 personal financial information, including in the public 6 -- in the Personal Information and Protection of 7 Electronic Data Act, better know as PIPEDA, the federal 8 legislation, and similar provincial legislation. 9 And that -- that interest of protecting a 10 zone or privacy around a person's personal financial 11 affairs is one which is capable of being elevated to the 12 kind of interest that Justice Iacobucci was talking about 13 in the -- in the Sierra Club case. 14 I underline the unfairness to Mr. 15 McCallion, who, in the wake of your ruling, gave a good 16 deal of information to us by way of affidavit, agreed to 17 be cross-examined, you having made an order, as -- as 18 both the Public Inquiries Act and our rules permit under 19 Section 34. So the fact that there is detrimental 20 reliance by Mr. McCallion I think is -- is a very 21 significant factor. 22 We do take Mr. Gilliland's point about the 23 relationship between the evidence to be disclosed and the 24 truth-finding process, but as I have discussed with Mr. 25 Gover, to the extent that anything in the affidavit or
36 1 the cross-examination is relevant to the matters in the 2 terms of reference, that evidence will be led in the 3 Inquiry as it unfolds. 4 And, therefore, the public interest will 5 be discharged in anything that is actually related to the 6 terms of interest -- or terms of reference. It's just 7 that it won't be immediately disclosed now. 8 There is, I think, a risk here of 9 conflating the public interest with the fact that the 10 media have demonstrated interest in getting this 11 information. And as Justice Iacobucci noted in the 12 Sierra Club case, at paragraph 85, the mere fact that the 13 media are interested in this material gives rise to no 14 inference as to whether or not there's a public interest 15 in getting it. 16 Now on the question of the -- of the test 17 which you must apply, you have our factum, but I just 18 draw your attention in the Cornwall case as paragraph 32, 19 Justice Sharpe sets out the submission of the Cornwall 20 police, having conceded that the Public Inquiries Act 21 requires the Commissioner to engage in a balancing test 22 very similar to, if not identical to the Dagenais/Mentuck 23 test. It's in our -- it's at Tab 5, paragraph 32. 24 And so whether or not you, you know, 25 recited the -- the appropriate language from
37 1 Dagenais/Mentuck in coming to your decision really 2 doesn't matter because the test that you were required to 3 apply and you did apply is substantially the same test. 4 And again, as -- as Mr. Gover says, and -- 5 and he was there, after all, the evidence in that case 6 that was sought to be concealed was at the heart of the 7 -- of the terms of reference of that inquiry. Here, how 8 much cash Peter McCallion has in a particular bank 9 account and how much he pays in -- in mortgage payments 10 and has to set aside for gas money and so on is simply 11 irrelevant to -- to the exercise before you. 12 So subject to any questions, sir, those 13 are my submissions. 14 COMMISSIONER DOUGLAS CUNNINGHAM: Thank 15 you, Mr. McDowell. 16 Mr. Gilliland, would you like to respond? 17 18 REPLY BY MR. RYDER GILLILAND: 19 MR. RYDER GILLILAND: Very briefly. Mr. 20 Commissioner, the -- I think both -- both counsel, and 21 certainly Mr. Gover has rai -- raised the point that -- 22 that I left out the -- the context consideration. 23 Well, it's indisputable that we consider 24 the context. All the cases do say that. They also all 25 talk about the necessity of -- of a serious risk well
38 1 grounded in evidence. One doesn't -- the -- the 2 contextual considerations don't eliminate the 3 requirements of the test. 4 You saw -- Mr. McDowell just took you to 5 -- I was going to take you to it on this point, but he 6 just took you to the portion of the Episcopal case where 7 they -- they -- all parties were in agreement that that 8 test applied, and -- and the court went on to -- to note 9 that there is deference in the application of the test, 10 but not to say that you don't have to apply the test. 11 Mr. Gover states that the legislation has 12 spoken. All the legislation does is provide you with the 13 discretion to address this issue; that's no different 14 than, for example, the Toronto Star case. They -- 15 there's Criminal Code provisions that allow the Justice 16 in that case to consider whether or not to impose a 17 sealing order over search warrant materials; that's the 18 discretion. That's the genesis of a discretion. 19 The application of a discretion has to be 20 consistent with Charter principles, which means it has to 21 be consistent with the Dagenais/Mentuck test. 22 Mr. Gover states there's no waiver on Mr. 23 McCallion's point to -- to give certain particulars about 24 his economic situation. I'm not suggesting it's waiver. 25 I'm suggesting that's far from being evidence that he
39 1 can't provide such evidence or that it would cause harm, 2 he has gone some way down that road. And -- and I 3 appreciate that it's two (2) different things. That's 4 general, and he has provided now specific, but those are 5 two (2) different things. 6 Mr. Gover made some comments about the -- 7 the -- effectively suggesting that -- that you don't have 8 to consider open-court principles here because this is a 9 public inquiry. I think -- I think, frankly, your -- 10 your earlier judgment deals with that. I think, clearly, 11 openness principles are engaged in a public inquiry. I 12 think the Court of Appeal affirms that in the Episcopal 13 case. 14 Commission counsel makes the point that 15 you don't really need evidence because you can infer that 16 this kind of information is -- is private. And I will 17 tie this back then to the litigation context, in court 18 proceedings. 19 How many court proceedings involve, for 20 example, well, detailed -- detailed financial 21 information, in all different kinds of context, of course 22 in relation to damages, but can arise in any number of 23 circumstances? And -- and the courts just don't, and 24 they wouldn't because they -- they can't meet the test to 25 say, oh, well, don't worry, you get -- you get a
40 1 confidentiality order on your tax returns. 2 That's not how it works, particularly when 3 those tax returns are going to form the basis for a 4 subsequent ruling or in this case, I appreciate the 5 difference, a recommendation. 6 And I think on that point that the 7 Commission counsel has slightly misstated my position in 8 a -- in a portion of his submission where he was giving 9 me, I think, some credit and -- and talking about the 10 connection between the terms of reference and -- and this 11 issue. 12 My point is: This issue goes to the 13 fairness of this entire proceeding. That's how it's been 14 presented to you, and that is what needs to be 15 scrutinized. I'm not focussing on whether there's 16 overlap between this particular evidence and what will 17 ultimately come out in the Inquiry - that's not my point. 18 And I think -- I think -- that's how I understood 19 Commission counsel to phrase it. My point is: This 20 issue touches on the fairness of the entire Inquiry, 21 that's how it's presented to you, and that's why, among 22 other reasons, it should be open. 23 That's all I have in reply, Mr. 24 Commissioner. 25 COMMISSIONER DOUGLAS CUNNINGHAM: Thank
41 1 you, Mr. Gilliland. Well, I appreciate the thoughtful 2 submissions of counsel. I will take this matter under 3 consideration and, in short order, will post my decision 4 on the website. Thank you. 5 MR. RYDER GILLILAND: Mr. Commissioner, I 6 understand we have other matters to attend to today. May 7 I be free -- 8 COMMISSIONER DOUGLAS CUNNINGHAM: Yes. I 9 wanted to convenience you as much as I could, so you're 10 free to go. 11 MR. RYDER GILLILAND: Thank you. 12 COMMISSIONER DOUGLAS CUNNINGHAM: Thank 13 you. 14 All right, Mr. McDowell...? 15 MR. WILLIAM MCDOWELL: Just a moment, 16 please. 17 18 (BRIEF PAUSE) 19 20 COMMISSIONER DOUGLAS CUNNINGHAM: Perhaps 21 you could give us an update as to where we are. 22 23 DISCUSSION: 24 MR. WILLIAM MCDOWELL: Well, there's an 25 issue about documents with each -- in relation to each of
42 1 the City and -- and OMERS, but just to give you some 2 idea, we -- we have now reviewed and categorized 3 something like sixteen thousand (16,000) documents. 4 We have a dedicated review team of 5 contract lawyers that's going through all of the 6 documents because we think we've got a responsibility to 7 have a lawyer actually look at every document that's 8 being produced. So that's going well. 9 We've now interviewed approximately thirty 10 (30) witnesses, and we're well into the production of 11 Will Says for the Enersource portion of the hearing. So 12 that's the good news. 13 We think that we've located most of the 14 key documents for both phases, but every day the review 15 team draws something to our attention that we had not 16 otherwise found. 17 The less positive news is that we still 18 don't have coded documents in their entirety from -- from 19 the City and from OMERS. 20 So dealing first with the City, the City 21 has worked pretty diligently to get us material. There 22 is one (1) further tranche of several thousand documents 23 to come and significantly it includes the bulk -- excuse 24 me -- the bulk of materials to come from the Mayor's 25 office.
43 1 So that is, I confess, slowing us up a 2 bit. However, I think we're going to get those 3 imminently. 4 OMERS, we've got very few coded documents 5 from OMERS. Coding is important, just to underline, 6 because it allows rapid circulation of documents among 7 the Commission counsel team. It allows us to produce 8 almost instantly a disc of documents to -- to be produced 9 to a witness or to -- to a party, rather than having to 10 spend the better part of a day photocopying, creating 11 multiple copies, and spending two (2) or three hundred 12 (300) bucks a crack, as -- as we've had to do with some 13 of the OMERS documents. 14 Candidly, and I raised this with Mr. 15 Barrack, he's done different cuts at this. The material 16 that we get is immaculately organized. The last cut that 17 we got had some documents that were of particular 18 relevance to the Inquiry. They came on Tuesday night, 19 and in an ideal world we would have been able to put some 20 of those documents to witnesses who we -- we have 21 interviewed up to this point, and we're going to have to 22 go back around and -- and repeat that process. 23 So that is where we are. And you may want 24 to hear from counsel to the City and counsel to -- to 25 OMERS.
44 1 COMMISSIONER DOUGLAS CUNNINGHAM: Yes, 2 perhaps I could hear from counsel for the City. When can 3 we expect the balance of the documents? 4 MR. JAMES RENIHAN: The tranche that 5 Commission counsel just referred to, Commissioner, 6 arrived at our office yesterday at the end of the day. 7 So I imagine they will be going on to Commission counsel 8 today. 9 There are a few remaining documents that 10 we have recently received from the Mayor's office, and 11 from other departments in the City. The bulk of those 12 from the City have already been turned over in a non- 13 coded form to Commission counsel. Coded documents will 14 be coming as soon as we're able to get them. 15 And the rest of the Mayor's documents, 16 which we just received, will also be -- copies of those, 17 prior to coding, will be delivered to Commission counsel 18 so they can review them, with coded documents to follow 19 shortly thereafter. 20 COMMISSIONER DOUGLAS CUNNINGHAM: You now 21 have all of the Mayor's documents? 22 MR. JAMES RENIHAN: Yes, we -- we have 23 all of the Mayor's documents at this point. 24 COMMISSIONER DOUGLAS CUNNINGHAM: All 25 right. Thank you.
45 1 Mr. Barrack...? 2 MR. MICHAEL BARRACK: By no later than 3 Wednesday of next week, Mr. McDowell will have all of the 4 coded documents. 5 If I can just, Mr. Commissioner, just to 6 put it into context, OMERS' approach was to take all non- 7 privileged documents and make them available to the 8 Commission. And we tried to do that in a manner that 9 best assisted the Commission. And how we did that, 10 there's a decision point at the beginning. Do you dump 11 all the documents, or do you cull the documents? And the 12 decision we took was to cull, not to dump. 13 And what that involved really was a 14 process: first, meeting with Commission counsel to set 15 the groundwork. Then we identified all of the relevant 16 custodians who might have documents and we went and we 17 got all of their documents. And that's the big dump. 18 Now we could have coded that big dump and 19 just given it to the Commission counsel, or we could have 20 gone through it. And the decision we made on behalf of 21 OMERS was to go through the document, and we told 22 Commission counsel about that. 23 And what we've done is, we have released 24 the documents in three (3) batches. The first batch was 25 a -- the most relevant documents. You'll recall you got
46 1 some small packages of very, very relevant documents so 2 that the key issues were identified. 3 The second pass was to take the big dump 4 and to go through and really try and develop a chronology 5 where we could make sure that all of the events were 6 identified, and those we gave in hard copy. We probably 7 should have coded them a little quicker, but we gave them 8 in hard copy. 9 And then we've gone back, as a result of 10 discussions with Commission counsel, and done a further 11 pass. And that further pass has been delivered in hard 12 copy and will be coded by next week. 13 At all times -- and we continue to -- to 14 make the offer, that if the group of contract lawyers 15 wants to come in and look at the OMERS documents in their 16 raw form, other than the privileged, we're happy to have 17 them come in and do that. 18 So all I would say to you is that, going 19 into this process, I'm not sure Mr. McDowell did but I 20 certainly didn't have my Eagle Scout badge in document 21 production. And I might have earned it part way through 22 this and I may ask you, on some plenary jurisdiction you 23 have, to confer one (1) on both me and Mr. McDowell at 24 the end of the process. 25 But I -- I can say to you that the
47 1 responsibility for any delay or perceived delay in 2 delivering the documents is not my client's, it's mine, 3 it's not Mr. McDowell's. 4 COMMISSIONER DOUGLAS CUNNINGHAM: Thank 5 you. 6 Mr. McDowell...? 7 MR. WILLIAM MCDOWELL: There's one (1) -- 8 there's one (1) issue that I should flag because we may 9 have to come back to -- on it, and that is that there is 10 a limited class of documents which we have which we would 11 like to produce to the Mayor, and the City has taken a 12 position that we can't do so. 13 We're going to try and work through that 14 because I think that, depending on which particular 15 document we're talking about, there may be some 16 significance attached to that, so -- 17 COMMISSIONER DOUGLAS CUNNINGHAM: When 18 are you meeting with the Mayor? 19 MR. WILLIAM MCDOWELL: The 11th of May, I 20 believe. The 13th of May, sorry. 21 COMMISSIONER DOUGLAS CUNNINGHAM: All 22 right. 23 MR. WILLIAM MCDOWELL: So between now and 24 then we may have to get a ruling from you if we can't -- 25 COMMISSIONER DOUGLAS CUNNINGHAM: All
48 1 right. If you can't -- 2 MR. WILLIAM MCDOWELL: -- sort this out, 3 work it out. 4 COMMISSIONER DOUGLAS CUNNINGHAM: All 5 right. What about what Mr. Barrack says about the 6 balance of the documents coded by next Wednesday? 7 MR. WILLIAM MCDOWELL: That -- that's 8 suitable. As it happens, I'm out of town next week, but 9 the bulk -- the rest of the team isn't, so that -- that's 10 fine. 11 COMMISSIONER DOUGLAS CUNNINGHAM: All 12 right. 13 MR. WILLIAM MCDOWELL: It -- you know, it 14 -- it will, I think, impact our schedule a little bit, 15 we're going to come to the schedule, but it doesn't knock 16 us off as much as I had -- had feared. 17 COMMISSIONER DOUGLAS CUNNINGHAM: Well, 18 it looks as though our hope of starting on May 17th may 19 have been overly optimistic, but we are beginning to hear 20 evidence on May 25th? 21 MR. WILLIAM MCDOWELL: That's correct. 22 COMMISSIONER DOUGLAS CUNNINGHAM: And we 23 will sit that week. We'll sit the 25th, 26th, and 27th. 24 And we could sit a part of the 28th if that doesn't cause 25 problems. Then we will sit the 31st, the 1st, the 2nd,
49 1 and the 3rd of June. 2 Then we will sit, hopefully, the -- yes, 3 we will sit the 7th, 8th, and 9th of June. I would like 4 to think that we could use the week of the 14th, but that 5 may -- it may be that we will have passed the first 6 portion of the Inquiry -- 7 MR. WILLIAM MCDOWELL: Right. 8 COMMISSIONER DOUGLAS CUNNINGHAM: -- by 9 that time and whether Commission counsel is ready to 10 launch into the second portion will be determined. But 11 if you are, we can use the week. I'm available. I'd 12 like to use it -- 13 MR. WILLIAM MCDOWELL: Sure. 14 COMMISSIONER DOUGLAS CUNNINGHAM: -- the 15 week of the 14th. And then we will sit the week of the 16 28th, although Canada Day falls on the Thursday, and the 17 week -- the week of July 5th. 18 We may be able to sit the week of July 19 19th and the week of July 26th, but we'll determine that 20 as we go along, and the week of August 9th, if necessary, 21 and the week of August 16th, if necessary. 22 I'd really like to get as much of this 23 underway -- 24 MR. WILLIAM MCDOWELL: Sure. 25 COMMISSIONER DOUGLAS CUNNINGHAM: -- as
50 1 we can in a timely fashion. For reasons that have been 2 thoroughly discussed, and through no fault of anyone's, 3 you know, our earlier anticipated start date has been 4 delayed, but once we get going I'd like to get this thing 5 underway and move ahead with it. 6 It may involve sitting through portions of 7 the summer that might be inconvenient to some, but I 8 think it's important that we keep going -- 9 MR. WILLIAM MCDOWELL: Oh, understood. 10 COMMISSIONER DOUGLAS CUNNINGHAM: -- as 11 best we can. 12 MR. WILLIAM MCDOWELL: The one (1) -- 13 just looking ahead, the one (1) thing that seems sensible 14 to do is -- is not sit the day after Canada Day. I don't 15 know if that was your intention, but... 16 COMMISSIONER DOUGLAS CUNNINGHAM: I don't 17 think so. 18 MR. WILLIAM MCDOWELL: All right. Now, 19 Ms. McIntyre has a submission to make. You -- you may 20 have taken the wind out of her sails, I don't know, but 21 we'll see. 22 COMMISSIONER DOUGLAS CUNNINGHAM: Good 23 morning. 24 25 SUBMISSIONS BY MS. ELIZABETH MCINTYRE:
51 1 MS. ELIZABETH MCINTYRE: Good morning, 2 Mr. Commissioner. Yes, we've been in discussions this 3 week with respect to the schedule, and I appreciate the 4 difficulties that have confronted Commission counsel in 5 getting this matter launched, but it was with some alarm 6 that I learned that the Commission may go into the fall. 7 And, as counsel on behalf of Mayor 8 McCallion, that raises significant fairness concerns 9 because that then takes us into the election period. The 10 election is scheduled to be held on October the 25th. 11 And the closing date for the following nomination papers 12 is September 10th. 13 So essentially, that sets up a six (6) 14 week election period, a length -- a time frame in which 15 it's the opportunity for the candidates to engage with 16 the electorate with respect to -- with respect to the 17 issues. And we submit that it's fundamentally unfair, 18 particularly to the Mayor to have hearings of the Inquiry 19 overlap that period. Now it may be a moot point. You 20 know, I'm -- I'm very encouraged to hear that the -- that 21 you're committed to -- to using as much time as we can in 22 the summer. 23 I'm sure when the Inquiry was called in 24 October of last year, it was clearly the expectation of 25 everybody that the matter would proceed and would be
52 1 finished by now, certainly would be well done in advance 2 of the -- 3 COMMISSIONER DOUGLAS CUNNINGHAM: I 4 thought we'd be finished by the end of June. 5 MS. ELIZABETH MCINTYRE: -- the election 6 campaign. And, sir, that would have given to the 7 citizens of Mississauga the opportunity not only to have 8 heard the evidence but, importantly, to know what your 9 findings of fact were at the end of the day, and also to 10 hear what recommendations you had to make in the context 11 of those facts, because at the end of the day it's not 12 the evidence and the question and all the -- the media 13 around the Inquiry, it's your findings of facts at the 14 end of the day that are important. 15 And as is the nature of these inquiries, 16 unfortunately, it's taken much longer than anticipated to 17 get the matter launched, and we've heard details on 18 difficulties with disclosure. I might say in passing 19 that with respect to any reference to the Mayor's office, 20 her staff have worked overtime to get the documents to 21 the City, which then have to be reviewed by the City and 22 go to Commission counsel. But I don't think there's any 23 question that she's been part of -- of the holdup in -- 24 in that matter. 25 In any event, we're -- we're now -- the
53 1 participants and the public are in the unfortunate 2 position of probably not having the benefit of your 3 report, or possibly not having the benefit of your report 4 before the election. 5 We certainly hope that we can. The Mayor 6 is committed to doing anything she can to expedite this 7 process, to get it done. She welcomes your report, your 8 recommendations. But given the terms of the ref -- 9 reference of the Inquiry, and the focus on the Mayor, in 10 the normal course she would be, if not the last, one (1) 11 of the last witnesses. So what we've then got is a 12 prospect of a schedule that has her testifying and being 13 under cross-examination during the -- during the election 14 period. 15 And in the context of the -- not your 16 findings and the report, but the smoke and dust that's 17 thrown up by the Inquiry, and the media's focus on it, we 18 submit that it would be fundamentally unfair to conduct 19 the Inquiry during that relatively brief six (6) week 20 campaign period. 21 So in terms of principles, we've heard a 22 lot of discussion about the -- about the principles of 23 fairness that govern these inquiries, and we've heard 24 Commission counsel talking in his factum and in his 25 submissions about the need to balance the -- the
54 1 principles of fairness and those who are targeted with 2 the interests of the pursuit of truth and, at the end of 3 the day, the report. 4 And so it's quite clear that the rules of 5 procedure of the Commission itself recognize the 6 Commission's commitment to fairness in process. 7 I would also like to make reference, if I 8 may, to some comments made by Justice O'Connor on the 9 application of fairness to those adverse -- adversely 10 affected individuals in an inquiry. And if I could ask 11 that that article be passed out to you. 12 It's -- it's a paper pre -- presented by 13 Justice O'Connor, who we know was commissioner in both 14 the Walkerton Inquiry and the Arar Inquiry for the 15 Canadian Institute for the Administration of Justice. 16 And on page 13/14, he gets to focus on the 17 principle of fairness as applied to adversely affected 18 individuals. And, if I may, I'll just quickly go through 19 this. 20 "My second observation about the 21 inquiry process relates to the need to 22 ensure procedural fairness to those who 23 may be adversely affected by the 24 information that emerges during the 25 course of the inquiry or in the report.
55 1 This is critically important. There is 2 enormous potential for an inquiry, 3 particularly a public inquiry, to 4 seriously damage personal and 5 professional reputations. Because of 6 the nature of the issues that give rise 7 to an inquiry, there is often [intense] 8 publicity both with respect to the 9 evidence called during the hearing 10 process, and to the report which is 11 issued by the commissioner. 12 Inquiry hearings are frequently covered 13 live on television, and news media 14 often assign reporters to cover the 15 inquiry on more or less a full-time 16 basis. During the course of [the] 17 hearings, the evidence is reported in 18 newspapers and on the radio before the 19 commissioner has formed any conclusions 20 with respect to the facts." 21 And I pause there to say that facing that 22 prospect is of particular concern. 23 "News is frequently generated by 24 focussing on evidence that points to 25 fault by individuals or institutions."
56 1 Then they refer to the internet. 2 "Those caught up in [the] inquiry 3 process face a very real danger 4 of...their professional or personal 5 reputations [being] seriously affected 6 by the exceptional amount of public 7 attention generated by the inquiry 8 process." 9 He then makes reference to the Federal 10 Inquiries Act and the Ontario Public Inquiries Act, and 11 concludes by saying: 12 "That said, there remains a significant 13 danger that those caught up in an 14 inquiry process can have their 15 reputations unfairly tarnished in a 16 serious way. I'm not sure of the 17 complete answer to this. The amount of 18 public attention and what the media 19 will focus on is beyond the control of 20 the inquiry. I do suggest, however, 21 that it is essential that Commission 22 counsel, in deciding what evidence to 23 call and how to lead it, lean over 24 backwards to be fair and balanced and 25 alert to the potential for unfair
57 1 damage to reputations. Equally, a 2 commissioner crafting a report should 3 be careful in the use of language that 4 may [generate] this type of adverse 5 effect. 6 It's important to bear in mind 7 throughout that the primary purpose of 8 the inquiry is not to find fault but 9 rather to face facts, and to report on 10 what happened in order to make 11 recommendations to ensure that there 12 not be a repeat [of the crisis] in the 13 future." 14 How does that then apply to the particular 15 circumstances we're dealing with here? And, to me, it 16 goes without saying that it is unfair to put the Mayor in 17 the position of the Inquiry proceeding through the 18 campaign period, and this is for two (2) reasons. 19 First, the potential interference with the 20 campaign itself and the Mayor's ability to focus on the 21 campaign while the Inquiry is running at the same time is 22 basically putting her in the position of having to choose 23 between participating in the Inquiry, which -- following 24 the proceedings, instructing counsel, giving evidence 25 perhaps, rather than focussing on the election campaign.
58 1 This is, I would submit, unfair to someone who has 2 devoted so many years to the public service. 3 Also concerned about the impact on the 4 election itself, potential impact of holding hearings 5 during the campaign, particularly when we're facing the 6 prospect that the Inquiry may not be able to complete its 7 work and issue a report prior to the election. So what 8 we're left with is the allegations and questions of 9 counsel as interpreted through the eyes of the media. 10 That, we would submit, poses a real danger of magnifying 11 the pre -- prejudicial impact on reputational interest 12 referred to by Justice O'Connor. 13 So what are we proposing? First of all, 14 we've had discussions with your counsel, sir, and we 15 appreciate the effort to commit more time to this matter 16 and get it launched. That being said, I would point out 17 that we have not yet received any disclosure and, of 18 course, it's critical in the process that we get 19 disclosure. But assuming that can be done, we welcome 20 the opportunity to get the matter done. 21 This is not that big of an inquiry. It's 22 limited to two (2) particular -- two (2) particular 23 transactions. One would have thought we could have had 24 it done. Let's -- let's get at it and get it done. 25 There is all sorts of efficiencies that are set out in
59 1 the rules that -- agreed statements of facts, summaries 2 of facts, summaries of documents. 3 We are -- welcome the opportunity to work 4 with Commission counsel and other counsel to get it done. 5 However, in the event that it is not completed by the 6 commencement of -- by September 10th, we would propose 7 and submit to you that it be put over for that six (6) 8 week period and so it does not interfere with the 9 democratic process in Mississauga. Thank you. 10 COMMISSIONER DOUGLAS CUNNINGHAM: Thank 11 you, Ms. McIntyre. 12 Anything further, Mr. McDowell? 13 14 SUBMISSIONS BY MR. WILLIAM MCDOWELL: 15 MR. WILLIAM MCDOWELL: I confess to being 16 a little bit troubled by those submissions. First of 17 all, to put them in context, the complaint about 18 disclosure is a bit ironic because we don't have the 19 documents from the Mayor's office ourselves yet, so it's 20 pretty -- don't see how we would do that. 21 I wouldn't -- I wouldn't overstate the 22 simplicity of the issues here. I mean, we have found 23 that there are -- there are real complexities, that there 24 are corporate relationships which we've had to explore. 25 There are money -- there are money flows which we've had
60 1 to follow. And there are a number of witnesses, frankly, 2 on whom we have served subpoenas, summonses, and where 3 we're in the -- in the position that we'll have to see 4 whether they turn up on May the 17th and whether we'll 5 have to take enforcement mechanisms. And some of these 6 witnesses are ones who are absolutely central to the 7 Inquiry. So I would say that. 8 COMMISSIONER DOUGLAS CUNNINGHAM: They 9 have been summonsed for the 17th of May with their 10 documents? 11 MR. WILLIAM MCDOWELL: With their 12 documents. 13 COMMISSIONER DOUGLAS CUNNINGHAM: And 14 some have taken the position that that's when they will 15 arrive with their documents? 16 MR. WILLIAM MCDOWELL: Right. And -- and 17 others, including, frankly, some public institutions, 18 have been a bit coy about it, which I -- I find 19 unhelpful. And so I just say that anything that the 20 Mayor can do in the exercise of her moral suasion to -- 21 to assist in this would be appreciated. And I -- I would 22 make that request of -- of any party in like 23 circumstances. 24 The other thing though, at -- at the level 25 of principle, the suggestion that somehow the Mayor's
61 1 campaigning needs trump the process that's going on here 2 is a difficult proposition. 3 If that's going to be seriously advanced, 4 I'd want to hear some evidence about the Mayor's 5 historical campaigning needs. But beyond that, if you 6 think of the Gomrey situation, which in a different 7 capacity some of us lived through, objection was taken to 8 many aspects of what Justice Gomrey was doing to his 9 extrajudicial interviews, and his fact-finding processes 10 and so on. 11 But the one (1) position that neither the 12 government nor the Prime Minister took was that he could 13 not hear evidence. He could not release his report out 14 of electoral concerns. And my submission is that those 15 considerations are -- are simply irrelevant to what we're 16 doing. If the Mayor comes and testifies, she has to be 17 treated with immaculate fairness, and she will be. And 18 you will reinforce to the public and to the media that 19 what you're hearing are facts upon which -- or evidence 20 upon which you have formed no conclusion. 21 And the electors of Mississauga will 22 understand that, just as the Supreme Court expected in 23 its Dagenais decision that jurors would understand that 24 what appears on television should in no way influence 25 them.
62 1 We have to trust the judgment of -- of 2 electors just the way we trust the judgment of jurors. 3 And so I don't know that Ms. McIntyre is seeking any 4 ruling from you today. 5 I think we should see how this rolls out, 6 but I just wanted to make those statements for the 7 record. 8 COMMISSIONER DOUGLAS CUNNINGHAM: Ms. 9 McIntyre, did you want to respond to that? I got a sense 10 that you did. 11 12 REPLY BY MS. ELIZABETH MCINTYRE: 13 MS. ELIZABETH MCINTYRE: There was just a 14 couple of comments. First of all, with respect to 15 documents from the Mayor's office, just those were given 16 to the City some time ago, and we don't have them either. 17 So with respect to -- they have to go, I guess, through 18 the chain and come back. I just wanted to comment on 19 that. 20 With respect to our position, we are 21 certainly not saying that the residents of Mississauga 22 shouldn't hear the evidence. We want them to hear the 23 evidence. We want them to see the report. It's just the 24 matter of timing on which perhaps Commission counsel and 25 I disagree. And perhaps it will become a moot point that
63 1 we can resolve as -- as we move along. 2 With respect to the -- the suggestion that 3 the Mayor, through her office, facilitate the attendance 4 of witnesses, I -- I am quite, to use Mr. McDowell's 5 term, mystified by that suggestion, so perhaps if he 6 could give me -- give me some -- some further details on 7 what he has in mind, we'll consider it. Thanks. 8 COMMISSIONER DOUGLAS CUNNINGHAM: Thank 9 you. 10 MR. MICHAEL BARRACK: If I could just 11 make a -- a brief comment. You know in the past that -- 12 that I have written to you on behalf of my client, OMERS, 13 asking for expedition in the process. 14 On behalf of my client, I want to thank 15 you for the personal sacrifice of being willing to sit 16 through the summer. 17 COMMISSIONER DOUGLAS CUNNINGHAM: Well, I 18 think you've heard my commitment to move forward with 19 this Inquiry with dispatch. I think those of you who 20 know me will know that I won't be wasting time. 21 I think I heard somewhere earlier on that 22 it is expected there might be something in the order of 23 forty (40) days of evidence. I'd like to think that 24 would be the limit of it. 25 But I think the sooner that all of the
64 1 documents are received, the sooner we can get on with the 2 evidentiary portion of the Inquiry. It's important that 3 appropriate preparation be done before the evidence is 4 led and that all of the interviews are conducted so that 5 we aren't wasting time once we get into the evidence. I 6 think that is well underway. 7 It looks as though we're going to be back 8 here on May 17th in the event that certain parties 9 respond to summonses at that time. I'm urging those 10 people who feel that it's their duty to produce evidence 11 on May 17th simply because the summons has that date, I 12 would urge them to communicate with Commission counsel 13 prior to that date if they have documents to produce so 14 that we don't waste time. 15 And having said all of that, I intend to 16 proceed with the evidentiary portion of this Inquiry 17 efficiently and to use as much of the time available 18 between now and the end of August as we possibly can. 19 I think some of the concerns that counsel 20 for the Mayor has registered are perhaps somewhat 21 premature, but I take them under advisement. I 22 understand the concern that has been raised, but I also 23 understand the importance of proceeding with this Public 24 Inquiry. 25 Thanks very much, and we'll see you on May
65 1 17th. 2 3 --- Upon adjourning at 11:32 a.m. 4 5 6 7 Certified Correct, 8 9 10 11 12 __________________ 13 Wendy Warnock, Ms. 14 15 16
The (only one of two “fringe” mayoral candidates challenging Hazel McCallion) Mississauga Muse