Mississauga Judicial Inquiry sheds light into Enersource, Borealis, OMERS, a sneaked-in veto clause –and David O’Brien

June 18th, 2010  

We present the video, complete with transcript.

YouTube Video, “Mississauga Judicial Inquiry shines light on ENERSOURCE’s Public Pretend, Pretend, Pretend…” (5:11 min)

(Click here to go directly to the clip on YouTube)

[VIDEO TRANSCRIPT]

Music: Chicken Dance

MISSISSAUGA MAYOR HAZEL MCCALLION (Enersource Pretend Public Meeting, January 22, 2009):

Yup, okay, come forward quickly, if you wouldn’t mind. They’re going to close the TV off at eleven o’clock so—

MISSISSAUGAWATCH (Enersource Pretend Public Meeting, January 22, 2009):

Perfect.

There’s one, like really pressing question that I have. It has to do with that famous contract and the change and everything else. And it has to do with Accountability.

And my question is, where is the former City Manager, David O’Brien? Why wasn’t he here? Why have Mississaugans have to be dependent on He-Said/She-Said and everyone else’s memory?

Did David O’Brien ever offer to come in here and clear things up?

MISSISSAUGA MAYOR HAZEL MCCALLION (Enersource Pretend Public Meeting, January 22, 2009):

No. He didn’t offer, nor was he invited.

[CROSS ZOOM TO MISSISSAUGA JUDICIAL INQUIRY LOGO]

Music: I Don’t Remember by Peter Gabriel

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

Can we have Mr. O’Brien sworn, please.

COURT CLERK,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

—the whole truth and nothing but the truth so help you, God?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

I do.

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010 ):

Mr. O’Brien, you became the City Manager at Mississauga in 1995?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

That’s correct.

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010 ):

Now, just back up before then. Where were you before you were City Manager at Mississauga or what were you before?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010 ):

I started my career in 1974 in the City of Sudbury, my home town. I started working as the Mayor’s executive assistant, as a matter of fact. In 1981, became the City Manager of Sudbury. In 1983, I went to become the Chief Administrative Officer of the region of Ottawa/Carleton. In 1987, I became the City Manager of the City of Gloucester in Ottawa when it was still a region.

And in 1989, I became the City Manager of the City of Ottawa. And then in 1995, I came to be the City Manager of the City of Mississauga.
So my — my — thirty (30) years of my career were spil — spent in the municipal public service.

[DIP TO WHITE]

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

— before I answer I should just make a broad statement. I haven’t been involved in this process for some ten (10) years, so I’ve —

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010 ):

No, understood.

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

— my memory is not going to be as good as it would be on something that I might have done last week, at the best.

[CLOCK WIPE]

MISSISSAUGAWATCH (Enersource Pretend Public Meeting, January 22, 2009):

Did David O’Brien ever offer to come in here and clear things up?

[CROSS ZOOM]

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

I’m sorry, Mr. McDowell, I don’t re — I don’t recall who that buyer was.

[PUSH SLIDE]

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

Um, do you remember this memo?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

I — I don’t. I — it was one of the memos that you gave me in our — one of our interviews. I don’t remember it up until that point in time.

[PUSH SLIDE]

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

–I take it it follows that you don’t remember the system that — that you set up?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

I — I don’t. I can assure you if Hazel McCallion asked me to set up a system, I did it. I just don’t remember it.

[CLOCK WIPE]

MISSISSAUGAWATCH (Enersource Pretend Public Meeting, January 22, 2009):

Did David O’Brien ever offer to come in here and clear things up?

[CROSS ZOOM]

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

You don’t have any recollection at this point, of having worked with staff to set up a system?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

No.

[PUSH SLIDE]

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

And how often would you be in discussions with Mr. Nobrega?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

Oh, I can’t remember specifically how often, but as we got near the end it would have been a couple of times a week, I’d say, easily.

[PUSH SLIDE]

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

Yes, I do recall discussing this with Mr. Nobrega.

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

All right, when?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

Um. Around this time. I can’t pinpoint the day, but I remember him talking to me about that,

[CLOCK WIPE]

MISSISSAUGAWATCH (Enersource Pretend Public Meeting, January 22, 2009):

Did David O’Brien ever offer to come in here and clear things up?

[CROSS ZOOM]

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

In person or on the phone?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

I –I can’t recall.

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

And would you have had this document, or a version of this document, in front of you when you’re talking to him?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

I can’t recall.

[PUSH SLIDE]

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

Now, do you remember whether the sequence went that you asked Mr. Nobrega — or Mr. Nobrega — that you spoke about this, and then you said to Mr. Houston, I have spoken and this is fine? Or did Mr. Houston tell you about this, and then you circled back with Mr. Nobrega?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

I — I don’t recall, but I assume for– if I can do that, what would have happened is Mr. Nobrega and I would have discussed it, and I would have said to Mr. Houston, This is a proposal from Borealis, OMERS, what do you think?

[PUSH SLIDE]

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

And do you recall the discussion with Mr. Houston?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

No, I don’t. I’m sorry.

[PUSH SLIDE]

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

You — let’s just be clear about this. Do you recall asking him about the legal impediment, or is this just something that you would have done?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

This is something I would have done. As I said I — earlier, I — I assume that I would have done that — that — because that’s what I normally would have done.

[CLOCK WIPE]

MISSISSAUGAWATCH (Enersource Pretend Public Meeting, January 22, 2009):

Did David O’Brien ever offer to come in here and clear things up?

[CROSS ZOOM]

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

–then as the 905 — 905 proposal didn’t work, and it didn’t work for — for — for a — a good reason, and a crazy reason.

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

Okay. The good reason is Bill 100 then becomes less attractive, I take it?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

Right.

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

Okay. The crazy reason?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

There’s no way any Mayor of Mississauga is going to let Hazel McCallion run their utility.

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

Sorry. Any Mayor of a — another municipality?

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

Right, right.

MR. WILLIAM MCDOWELL,  (Commission Counsel, Mississauga Judicial Inquiry, May 27, 2010):

All right.

MR. DAVID O’BRIEN (Former City Manager, former CEO Toronto Hydro, Mississauga Judicial Inquiry, May 27, 2010):

So, that was the struggle, and I’m sorry to put it as bluntly as that, but that’s actually what the position was.

[CLOCK WIPE]

Music: Chicken Dance

MISSISSAUGAWATCH (Enersource Pretend Public Meeting, January 22, 2009):

Did David O’Brien ever offer to come in here and clear things up?

MISSISSAUGA MAYOR HAZEL MCCALLION (Enersource Pretend Public Meeting, January 22, 2009):

No. He didn’t offer, nor was he invited.

MISSISSAUGAWATCH (Enersource Pretend Public Meeting, January 22, 2009):

Okay, thank you, that’s one thing I wanted to know. And just to be clear, Borealis….

[TRANSCRIPT ENDS]

To be fair to all those involved, and especially to Mr. O’Brien, we present a link to Mississauga Judicial Inquiry – May 27 2010  coverage of the Mississauga Judicial Inquiry, before Justice J. Douglas Cunningham, Commissioner. Testimony: David O’Brien, former City Manager and first President and C.E.O. of Enersource.

And here’s a link to the May 27, 2010 court transcripts.

And to be fair once again, Mr. David O’Brien did admit responsibility (and I’ll simply cut-and-paste from the court transcript.

16                 Q:   If that's the concern, once the Put
 17  expires why is there justification for nevertheless
 18  having the language?
 19                 A:   I don't think that language should
 20  have stayed after the Put expired.
 21                 Q:   Right.
 22                 A:   I -- and I know it did stay and that
 23  was an oversight.
 24                 Q:   That was an oversight?
 25                 A:   Yeah.

474

  1                 Q:   And just to follow on, the time at
  2  which the City has leverage on that issue of the duration
  3  of two point one five (2.15) is at the beginning of the
  4  deal?
  5                 A:   I -- I'm sorry, would you repeat
  6  that.
  7                 Q:   The time when you've got leverage
  8  with the other party to the deal is before you conclude
  9  the deal?
 10                 A:   Yes, yes.
 11                 Q:   Right.  Because you can walk, just as
 12  Borealis can walk?
 13                 A:   Yes.
 14                 Q:   Right.  Now, I'm reluctant to ask
 15  this question, but when you say it's an oversight, whose
 16  oversight is it?
 17                 A:   Well, I was the city manager, I was
 18  the guy responsible for the negotiations, I have to take
 19  the ultimate responsibility.
 20                 Q:   Fair.
 21                 A:   But I could rely on -- on legal
 22  advice.
 23                 Q:   Okay.
 24                 A:   Okay?
 25                 Q:   No, no.  Fair enough.

475

  1                 COMMISSIONER DOUGLAS CUNNINGHAM:   Just so
  2  I understand, Mr. O'Brien, what you're saying is that
  3  once the Put expired, that provision giving Borealis, in
  4  the agreement, that vote, that should have been changed?
  5                 THE WITNESS:   I believe so, Your Honour.
  6                 COMMISSIONER DOUGLAS CUNNINGHAM:   There's
  7  nothing in the agreement that said that that would happen
  8  when the Put expired?
  9                 THE WITNESS:   No, and that's the problem.
 10  I -- I agree that it should prob -- there probably should
 11  have been language in the agreement that said when the
 12  Put expired that supermajority or the --
 13                 COMMISSIONER DOUGLAS CUNNINGHAM:
 14  Supermajority.
 15                 THE WITNESS:   -- should -- should have
 16  changed.
 17                 COMMISSIONER DOUGLAS CUNNINGHAM:   But
 18  there was no language in the agreement that said that?
 19                 THE WITNESS:   No, there wasn't.
 20                 COMMISSIONER DOUGLAS CUNNINGHAM:   So, is
 21  that the oversight you're talking about?
 22                 THE WITNESS:   Yes.
 23                 COMMISSIONER DOUGLAS CUNNINGHAM:   All
 24  right.
 25

THAT’S what Mississaugans should have gotten to see and hear back in that public “information” meeting of January 22, 2009.

And THAT’S why I call our city MYTHissauga. Seems the only way for anyone to get Truth out of a city employee is either to file Freedom of Information or better yet, call a Judicial Inquiry!

And I thought I should add this from a May 2000 Audit Committee meeting. In “Audit Recommendations” May 11, 2000 it states, “The Strategic Alliance Agreement, which governs the recapitalization of Hydro Mississauga, Mississauga Wiresco or Mississauga Retailco (as the case may be) on terms and conditions acceptable to the parties not later than July 1, 2000. Staff continue to work towards the completion of the agreement by the aforementioned deadline.”

In "Audit Recommendations" May 11, 2000 it states, "The Strategic Alliance Agreement, which governs the recapitalization of Hydro Mississauga, Mississauga Wiresco or Mississauga Retailco (as the case may be) on terms and conditions acceptable to the parties not later than July 1, 2000. Staff continue to work towards the completion of the agreement by the aforementioned deadline."

Now admittedly this had to do with streetlighting. But even back in May it’s clear that the Strategic Alliance was being “negotiated”.  And in all those months, it takes until December 4th for a “veto clause” to surface?

 21  So, on December the 4th, when you
 22  found out from Mr. Houston that he had received this
 23  blackline letter inserting or suggesting a negative veto,

That’s the other recurrent theme here at MISSISSAUGAWATCH. The number of times that the City (and I suspect many municipalities) wait until the busy Christmas shopping season to “get things done”.

Ho Ho Ho. Like I said, “dark comedy”…

Signed,

The Mississauga Muse

P.S. Many thanks to the reader who noticed one huge error I made on the date of David O’Brien’s testimony. I had incorrectly referred to it as “June 27, 2009”. Yes, both month and year wrong, believe it or not. Rather it was May 27, 2010.

MISSISSAUGA MUSE, MISSISSAUGAWATCH "Conducting Administrative, Oversight & Ombudsman Investigations" GARETH JONES

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