1 2 3 TORONTO COMPUTER LEASING INQUIRY 4 5 6 7 8 *************************** 9 10 BEFORE: THE HONOURABLE MADAM JUSTICE DENISE BELLAMY, 11 COMMISSIONER 12 13 14 15 16 Held at: East York Civic Centre 17 850 Coxwell Avenue 18 Toronto, Ontario 19 M4C 5R1 20 ************************* 21 22 23 24 June 24th, 2002 25

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  1  --- Upon commencing at 10:05 a.m.
  2  
  3                 THE REGISTRAR:   Order.  The Inquiry is now in
  4  session, please be seated.
  5                 MADAM COMMISSIONER:   Good morning.  Let me
  6  get my computer set up here and we're set to go.
  7  
  8                       (BRIEF PAUSE)
  9  
 10                 MADAM COMMISSIONER:   Well, while I'm waiting
 11  for that.  Welcome, first of all, to the first public session
 12  of the Toronto Computer Leasing Inquiry.  My name is Denise
 13  Bellamy, I am a Judge of the Superior Court of Justice in
 14  Ontario and I have been appointed by the Chief Justice of
 15  that Court to be Commissioner of this independent inquiry.
 16                 Before we begin with the Applications for
 17  Standing, I am just going to make a few preliminary remarks. 
 18                 Toronto City Council voted unanimously to hold
 19  this Inquiry.  I see that unanimity as a demonstration of
 20  their concern.  It's not at all common, as I'm sure most of
 21  you will know, for a municipal government to call for a
 22  public inquiry and, to the contrary, it's quite rare.
 23                 Clearly, Council and the Mayor wanted an
 24  impartial outside look at something that they feel went
 25  wrong.  There have been suggestions of significant cost

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  1  overruns, conflicts of interest and poor decision-making.  My
  2  job is to look into this and get answers to those questions.
  3                 Council has provided me with broad terms of
  4  reference.  Briefly, they want me to examine what happened
  5  with respect to certain computer and software leasing
  6  contracts between the City of Toronto and MFP Financial
  7  Services and between the City and Oracle Database.
  8                 In looking into this, they've given me the
  9  power to ask any questions that I consider to be necessary. 
 10  They want me to scrutinize the evidence and determine what
 11  the impact of these leasing contracts has been on the
 12  taxpayers of Toronto.
 13                 I'm going to do this by way of public Hearings
 14  and, after I'm finished, I will be writing a report.  I have
 15  been given the explicit authority to make any recommendations
 16  that I think are appropriate and in the public interest.
 17                 In the final analysis, my report should shine
 18  a bright light on the issues of concern to City Council and
 19  to the taxpayers of this City.  To help me do that, I
 20  encourage anyone who has any information that they think
 21  might be helpful to the Inquiry, whether that involves
 22  documents or names of potential witnesses, to provide us with
 23  this information as soon as possible.  The law offers
 24  protection to witnesses to encourage them to come forward in
 25  public inquiries.

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  1                 Let me speak for a very brief minute about
  2  what a public inquiry is and what a public inquiry is not.  A
  3  public Inquiry investigates and reports on matters of
  4  substantial public interest to a community.  A public inquiry
  5  is not a trial.  No one is charged with any criminal offence,
  6  nor is anyone being sued.  A public inquiry must be conducted
  7  with scrupulous fairness and impartiality.
  8                 A public inquiry also needs to be both public
  9  and available to the public.  I am committed to having open
 10  and public hearings.  I encourage members of the public to
 11  come to the Hearings and listen to the evidence.  The TTC
 12  stops very close by. 
 13                 Having said that, I recognize that in our busy
 14  world not everyone who is interested in the Inquiry will be
 15  able physically to come and attend.  I am pleased, therefore,
 16  to know that there are members of the media present and also
 17  who are interested in the Inquiry.  It is through you that
 18  those who are unable to attend can find out what is happening
 19  on a day-to-day basis.
 20                 To ensure that the media can accurately report
 21  what is happening at the Inquiry in a timely manner, I have
 22  directed Inquiry staff to make materials as accessible as
 23  possible to the media.
 24                 In another attempt to make information
 25  available to the public, we have created a website to provide

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  1  an open window into the activities of the Inquiry.  For
  2  example, anyone will be able to access the website at any
  3  time, any time of day or night, and read what a witness has
  4  said word for word generally by the end of the same day the
  5  witness testifies.
  6                 Our website can be found at torontoinquiry.ca,
  7  that's torontoinquiry, one (1) word, dot ca.
  8                 Today, we begin the process of identifying
  9  those persons or organizations who may have a direct and
 10  substantial interest in the proceedings of the Inquiry or
 11  whose participation in the Inquiry may be helpful.
 12                 I'm going to hear submissions from applicants
 13  who have expressed an interest in getting what is known as
 14  standing.  People who are granted standing can take an active
 15  part in the proceedings of the Inquiry.
 16                 Before I hear the Applications for Standing,
 17  though, I want to briefly update you with respect to what has
 18  been happening since I was appointed as the Commissioner.
 19                 The first thing I did was to choose Commission
 20  Counsel.  Commission Counsel are lawyers.  They play a
 21  critical role in a public inquiry.  They are the legal arm of
 22  the Commission.  Essentially, I'm their client and their only
 23  client.  The main responsibility I have given to them is to
 24  represent the public interest at the Inquiry.  They do not
 25  represent any particular point of view.  They are not

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  1  prosecutors.  Their role is not adversarial, nor do they take
  2  one side over another.
  3                 They have a duty, in fact, to make sure that
  4  all issues bearing on the public interest are brought to my
  5  attention.  Their job is to use their skill and experience to
  6  present all the available relevant evidence in as fair and
  7  thorough a fashion as possible.
  8                 I'm fortunate in having been able to put
  9  together what I consider to be an outstanding team.  This
 10  team is headed up by Ron Manes, seated over there, and he is
 11  being assisted by Pat Moore and Daina Groskaufmanis;
 12  obviously the two (2) people sitting right beside Ron.  I
 13  encourage you to check our website for more information about
 14  the background of each of these lawyers.
 15                 Each public inquiry establishes its own rules. 
 16  We have drafted our rules of procedure in a way that makes
 17  sure that the process we follow is open and fair to everyone. 
 18  We've tried to write the rules in plain language and to keep
 19  the legal jargon to a minimum.  Our rules explain the process
 20  that I intend to follow and they, too, have already been
 21  posted on our website.
 22                 At the moment, I stress that these rules are
 23  in a draft form.  After I have made my decision about who
 24  will have standing, I will invite the lawyers representing
 25  parties with standing to let me know if there's anything in

1 the rules that they think should be changed. If there are 2 any changes, then these will be posted on our site. 3 Commission Counsel have also started to pull 4 together and organize many, many thousands of pages of 5 documents. They are beginning also to interview people who 6 have knowledge of the issues that I will be examining. 7 The City has provided us with these premises; 8 we've been here since the beginning of May. I want to take 9 the opportunity to thank the staff in this building for their 10 very cheerful help in getting us up and running; something 11 that hasn't always been easy. 12 Our offices and our Hearing room are both in 13 the same building at 850 Coxwell Avenue, which is called the 14 East York Civic Centre. Before amalgamation, it was the home 15 of City Council for the Borough of East York and we will be 16 holding our Inquiry Hearings in this very room. 17 I'm not yet in a position to announce the date 18 for the Hearings. Before we can start the public Hearings, 19 we have to be sure that we have gathered all the information, 20 that we have interviewed all those who may be helpful and 21 that we have organized everything for the Hearings so that 22 this information can be presented in an understandable and 23 efficient way. 24 All this takes time, however, my hope is that 25 we will be in a position to start the Hearings in the fall

1 and I encourage you to check our website regularly for 2 updates. Those of you who have standing will discuss at some 3 point what the dates are going to be and people will know 4 long in advance, so, I won't be springing this two (2) weeks 5 beforehand or something like that. 6 I'm now ready to hear the oral presentations 7 for standing. I'll hear from the City first; before I do, I 8 just have a couple of little comments. I was hoping that all 9 of you might have agreed which order you are going to go in 10 next, but -- and, if you have, then let me know and, if you 11 haven't, I'll just pick and choose. 12 Before I hear from you, though, I want to let 13 you know that, after you have all made your Applications for 14 Standing, I will be giving each of you the opportunity to 15 comment on whether you think another applicant should or 16 should not have standing. 17 I understand that some of you want to address 18 the issue of whether there will be funding. As we indicated 19 in our rules, the terms of reference don't actually give me 20 the jurisdiction to order funding. Having said that, last 21 Friday afternoon we received a letter from Ms. Anna 22 Kinastowski, the City Solicitor, in which she mentioned that 23 City Council has now invited me to direct that funding up to 24 fifty thousand dollars ($50,000) be provided by the City to 25 individuals who receive standing in certain circumstances.

1 So, I would be grateful if the City's lawyer could address 2 that issue in as much detail as possible. And I would ask 3 counsel for those parties who are seeking funding to also 4 address that component of the City's letter. 5 And then, lastly, after hearing all the 6 submissions on standing, I just want to tell you now that I 7 will be reserving my decision. I expect to be able to have 8 something in writing very shortly. I don't expect it will 9 take very long, but obviously the issue of funding is 10 something that I would like to give some attention to. 11 But, when I do, I will release the decision to 12 those who have applied for standing and I will ensure that 13 the media and the public are made aware of the decision on 14 the very day it's released and it will definitely be posted 15 on our site. 16 Okay. Now, let's get me get the computer up 17 and running here and we'll be ready to go. 18 19 (BRIEF PAUSE) 20 21 Ms. Dimmer, you're acting for the -- you're 22 here for the City today? 23 MS. DIANA DIMMER: I'm here for the City, 24 Madam Commissioner. I'm not quite sure where you want me. 25 MADAM COMMISSIONER: Can you --

1 MS. DIANA DIMMER: Would you like me to -- 2 MADAM COMMISSIONER: -- is that too close for 3 you? 4 MS. DIANA DIMMER: No, that's fine. 5 MADAM COMMISSIONER: I'm not used to having 6 people that close up either. 7 MS. DIANA DIMMER: You should -- the City has 8 set out its position in two (2) letters -- 9 MADAM COMMISSIONER: Yes. 10 MS. DIANA DIMMER: -- to you, one dated June 11 7th and one dated June 21st and we now have instructions to 12 seek standing, the City of Toronto wishes to seek standing, 13 and it's our submission that we clearly have a substantial 14 and direct interest in the proceedings here. 15 The terms of reference clearly set out that 16 what's being looked into are matters dealing with the City's 17 processes, certain significant contracts that the City 18 entered into, certain reports to City Council and I don't 19 think I have to belabour the point, but it -- it's very clear 20 that the City has a substantial and direct interest and 21 should be given standing. 22 I don't know if this is the -- the right 23 opportunity, but the only party that we question whether 24 standing should be given to is -- 25 MADAM COMMISSIONER: Why don't I hear that

1 later from you at the very end, after everyone has had an 2 opportunity to say why they are seeking standing and then 3 maybe you'll have a better under -- you'll know for sure 4 whether you're still -- you're objecting to them or not and 5 it'll help me once I know -- once I hear in a more sort of 6 fulsome way why people are seeking standing. 7 I would, though, like to hear from you at this 8 stage about the funding component because I know there are at 9 least two (2) others here who will be making submissions to 10 me on that. 11 MS. DIANA DIMMER: All right. Again, this is 12 set out in our letter to you, -- 13 MADAM COMMISSIONER: Hmm hmm. 14 MS. DIANA DIMMER: -- Madam Commissioner, of 15 June 21st. 16 MADAM COMMISSIONER: Yes. 17 MS. DIANA DIMMER: Last week, we did obtain 18 instructions from City Council on the funding issue and 19 essentially those instructions are that we ask that you make 20 recommendations to the City to provide funding up to a limit 21 of fifty thousand dollars ($50,000) for individuals and that 22 be based on your determination that those individuals should 23 have standing, that it's fair and reasonable that they be 24 provided with some funding. 25 It was --

1 MADAM COMMISSIONER: Just on that point, it 2 wasn't clear in the letter that I have before me whether 3 City Council was saying that I should be the one who decides 4 whether it's fair and reasonable that they be provided with 5 funding or whether the City was wanting to decide whether it 6 would be fair and reasonable. 7 So you're saying that I should be reading that 8 that I'm the one to make that decision? 9 MS. DIANA DIMMER: Yes. 10 MADAM COMMISSIONER: Okay. Thank you. 11 MS. DIANA DIMMER: And it's our submission, 12 perhaps we'd get into this a little later, but it's our 13 submission that the terms of reference don't provide for you 14 to order funding. 15 MADAM COMMISSIONER: Hmm hmm. 16 MS. DIANA DIMMER: It's our submission as 17 well that there's no legal basis on which you can rely to 18 order funding, that all you can do is make recommendations. 19 And in our submission, it's appropriate to set some limit on 20 that. It's in the public interest to not have an open-ended 21 risk of significant costs and that there should be some 22 parameters. 23 And we've tried to set a reasonable limit, 24 taking into account that the individuals that -- who may be 25 seeking standing and getting funding will not necessarily

1 need to be here for the full Hearing, that their interests 2 will be engaged only for a portion of that Hearing. 3 Madam Commissioner, in -- in discussions with 4 other counsel, we did comment that it may be preliminary at 5 this stage to fix that amount. It may be difficult to fix 6 that amount to a limit of fifty thousand dollars ($50,000) 7 and we have no objection if Your Honour revisits the number 8 at a later stage and -- and that counsel appear before you at 9 a later stage to discuss that once it's clearly determined -- 10 it's clearly determined how many Hearing days will be in 11 issue and -- and which parties will be needed on what Hearing 12 days. 13 MADAM COMMISSIONER: Okay. So the City is 14 asking me to fix the amount at fifty thousand dollars 15 ($50,000), but be prepared potentially to revisit it at a 16 later stage once we find out how long the Hearings might 17 last; is that right? 18 MS. DIANA DIMMER: I think that's fair, yes. 19 MADAM COMMISSIONER: Okay. 20 MS. DIANA DIMMER: That -- I already hear 21 from counsel for some of the individuals that they don't 22 think that's going to be an adequate amount -- 23 MADAM COMMISSIONER: Hmm hmm. 24 MS. DIANA DIMMER: -- and I think it would be 25 very difficult today to get into full argument on whether

1 that amount is adequate or not. I have submissions as to why 2 I think it is, but I think it will be difficult. 3 MADAM COMMISSIONER: It would be helpful to 4 me if I could hear from you as to why you think it is 5 adequate and also if you're in a position to assist me with 6 respect to how the amount was obtained; you may or may not be 7 able to assist me on that. 8 But I note, for example, and I'm just going 9 from what I read in the newspapers and, who knows, you can't 10 believe everything one reads; right? But it seemed to me 11 that quite a big chunk of money was being set aside for the 12 City's counsel and I'm not sure just -- I'm not sure what the 13 framework or the policy behind the decision was with respect 14 to the amount that is being put aside for the City's counsel, 15 as opposed to for those individuals who will be seeking 16 standing and who may or may not be here for as much time as 17 City counsel would be. So, if you can help me with those, 18 that would -- I'd appreciate it. 19 And if you don't have the answer, then I'm not 20 trying to put you on the spot. 21 MS. DIANA DIMMER: Well, no, I think the main 22 principles from that would be that the City, in retaining 23 counsel, would obviously have to fully indemnify any counsel 24 they are retaining. 25 It was foreseen that any City counsel retained

1 would be participating in the full Hearing for every Hearing 2 day, not just a portion of it. 3 MADAM COMMISSIONER: Right. 4 MS. DIANA DIMMER: It was also anticipated 5 that City counsel -- any counsel retained by the City would 6 also assist Commission Counsel in ensuring that all 7 documentation was pulled out and made available. 8 In terms of a distinction then between that 9 and the individuals, I have looked at some of the authorities 10 being relied on by the individual's counsel, I note that 11 there's a flavour in those authorities and in those other 12 Inquiries that there's a concern that it's important to have 13 some limits on the costs of an Inquiry such as this and 14 that's in the public interest to put some limits on it. 15 In the Dryden Inquiry, that was in Mr. Anand's 16 authorities, there was a reference to distinguishing between 17 providing funding for individuals versus organizations or 18 institutions and we think that's an appropriate distinction. 19 And you'll see in some of the other inquiries 20 as well that funding has been provided with some 21 restrictions, for example, that counsel be only provided with 22 funding for the hearing days that they need to be there. And 23 -- and in our submission there should be that distinction in 24 this case, that there's no reason that the individual's 25 counsel necessarily has to be present at all of the Hearing

1 days. 2 And I would hope that something could be 3 worked out in that regard where the individual's counsel 4 could be advised in advance as to when there may be evidence 5 given that affects that individual so their counsel could be 6 present. 7 In terms of justifying the fifty thousand 8 dollar ($50,000) figure, we were anticipating that at the 9 maximum there could be forty (40) days of Hearing and we are 10 anticipating then that an individual's interest may be 11 engaged for half of that time, perhaps twenty (20) days. 12 And looking at a counsel fee on a partial 13 indemnity scale, looking at the new tariff, Madam 14 Commissioner, that would -- I think the new tariff sets a 15 counsel fee of twenty-three hundred dollars ($2,300) per 16 Hearing day. 17 If I could just go back to my table and get 18 that material. 19 20 (BRIEF PAUSE) 21 22 MS. DIANA DIMMER: So that provides for some 23 justification for the number, Madam Commissioner -- 24 MADAM COMMISSIONER: Hmm hmm, okay. 25 MS. DIANA DIMMER: -- recognizing there would

1 be some preparation time as well. 2 3 (BRIEF PAUSE) 4 5 MS. DIANA DIMMER: I can take you to -- 6 through the authorities, if you wish, that reflect that if 7 funding is to be given to certain parties, it's not expected 8 that it be on a full-indemnity basis. 9 MADAM COMMISSIONER: Yes, hmm hmm. 10 11 (BRIEF PAUSE) 12 13 MS. DIANA DIMMER: So, reviewing the book of 14 authorities for the funding issues submitted by Mr. Anand. 15 MADAM COMMISSIONER: Hmm hmm. I have that. 16 17 (BRIEF PAUSE) 18 19 MS. DIANA DIMMER: At tab 1, ma'am. 20 MADAM COMMISSIONER: Hmm hmm. 21 MS. DIANA DIMMER: Selections from the 22 Marshall Inquiry, the first page that's in that tab at page 23 335, paragraph 5, the notion: 24 "...that parties who have been given 25 standing and who played an important role

1 in the events...could reasonably assume 2 that their -- and -- and could reasonably 3 assume that their contact may be attacked, 4 would want their counsel to be present when 5 they are giving evidence themselves and 6 whenever evidence is being adduced which 7 would tend to call their conduct into 8 question." 9 And in our submission, that is what's 10 appropriate here, that counsel not be present throughout the 11 whole Hearing and that there's no need for that, but merely 12 be present when their client is giving evidence and when 13 another party is giving evidence where they may call into 14 question something that that individual has done. And I'm 15 hoping that that mechanism can be worked out prior to the 16 Hearing dates. 17 18 (BRIEF PAUSE) 19 20 MS. DIANA DIMMER: Similar comments sort of 21 coming through in the materials, which is at tab 2, which is 22 the Hearing into the Dryden matter. I'll just point out a 23 couple of references at page 3, Madam Commissioner, the first 24 paragraph, they review a request for funding from one (1) of 25 the organizations and say there it's not appropriate and that

1 it's not in the public interest to recommend funding to 2 institutions or organizations who have sought participant 3 status. 4 My -- okay, yes, and then if you could turn to 5 page 9 of this decision or this report. 6 MADAM COMMISSIONER: Yes. 7 MS. DIANA DIMMER: There's a reference at the 8 top of the page there and, in my submission, it's equally 9 applicable here that, 10 "...Commission Counsel have the primary 11 responsibility of presenting before this 12 Inquiry all relevant evidence gathered by 13 the investigators acting under [the 14 Commissioner's] direction." 15 And it's anticipated that that all will be 16 done. The bulk of the preparatory work will be undertaken by 17 Commission Counsel and which should alleviate the need for 18 significant preparation time, in my submission, by counsel 19 for the individuals seeking standing. 20 They set some parameters in this case on how 21 funding should be calculated and, looking down the page under 22 sub (a), they're recommending that, 23 "...counsel fees are to be calculated at an 24 hourly on the basis of the fee schedule in 25 use by the Government of Canada..."

1 And, secondly there, 2 "The hours for which counsel shall be 3 entitled to assistance shall be the total 4 of the hours actually spent by...counsel... 5 at the Hearings." 6 And that they be 7 "...entitled [going down the page] to 8 compensation for a maximum of one (1) hour 9 of preparation time for each hour actually 10 spent at the Hearings..." 11 Again, in our submission, we think those are 12 reasonable parameters to put on funding here. 13 MADAM COMMISSIONER: Can you help me with one 14 question I have? In this case, they refer to the Government 15 of Canada's fees for outside counsel and I know in the 16 Walkerton Inquiry, the Provincial Government had rates for 17 outside counsel. 18 Can you help me with whether or not the City 19 has something like that; is there any policy that the City 20 has with respect to how much they pay to outside counsel? 21 MS. DIANA DIMMER: No, Madam Commissioner, we 22 don't have such policy. And I have to apologize, I don't 23 have those rates. I could undertake to provide them to you, 24 the rates that the Provincial and Federal Governments pay for 25 outside counsel if that may be of assistance.

1 MADAM COMMISSIONER: Well, I don't want to 2 put people in this Inquiry in a situation where they're being 3 compared to Federal Government rates or Provincial Government 4 rates if the City doesn't have that same particular policy; 5 if I need that, I'll let you know. 6 MS. DIANA DIMMER: Okay. And in terms of the 7 amount, that's -- that's why we -- I did make reference to 8 the partial indemnity scale that's in place now in terms of a 9 counsel fee of up to twenty-three hundred dollars ($2,300) 10 per day, just to -- 11 MADAM COMMISSIONER: Right. 12 MS. DIANA DIMMER: -- have some guidance on 13 what the amount should be. 14 Just to be complete then, tab 3 in this book 15 deals with the Sarnia Inquiry. 16 MADAM COMMISSIONER: Hmm hmm. 17 MS. DIANA DIMMER: And the point that, in our 18 submission, is clear from this Inquiry is that Justice 19 Killeen was certain that the legislation did not allow him to 20 order funding and he -- in his view, there was a need to poss 21 -- for the Government to revisit that; the legislation has 22 not been changed. 23 So that, in our submission, all that -- I'm 24 repeating myself a little bit, but all that you can do is 25 make recommendations to City Council with respect to funding;

1 you actually have no power to order funding. 2 In terms of the amounts that were discussed 3 here -- 4 MADAM COMMISSIONER: It was thirty-five 5 hundred dollars ($3,500). 6 MS. DIANA DIMMER: They -- it was incredibly 7 small and they talked throughout of, you'll see over near the 8 end of this tab at page 87, that the, 9 "...recommendation [with respect to 10 funding] should be...modest assistance in 11 the way of funding for counsel and related 12 expenditures, and should not be full 13 indemnification." 14 So, in our submission, those comments are 15 applicable here, that it's not in the public interest to not 16 have some parameters and some limits on the funding that be 17 provided and it shouldn't be full indemnification. 18 19 (BRIEF PAUSE) 20 21 MS. DIANA DIMMER: And, finally, Madam 22 Commissioner, I don't know that you have this right in front 23 of you, but I have taken a look at the comments from the 24 Walkerton Inquiry as well. It's not in the book of 25 authorities, but, if I could just identify a couple of

1 passages there, that may be helpful. 2 3 (BRIEF PAUSE) 4 5 MS. DIANA DIMMER: At page 478, I'll just -- 6 I'll just make a couple quick references and perhaps at a 7 break I can make copies of those. 8 MADAM COMMISSIONER: I'm assuming you're 9 talking about Volume 1 of the report in the Process section? 10 MS. DIANA DIMMER: Right. 11 MADAM COMMISSIONER: Right. 12 MS. DIANA DIMMER: Page 478. 13 MADAM COMMISSIONER: Yes. 14 MS. DIANA DIMMER: They talk about parties 15 seeking standing and funding and the comment was made that 16 funding was normally recommended for a single counsel with 17 disbursements for those Hearing days that engaged the party's 18 interests or perspective; and, in our submission, similar 19 parameters should be put on here. 20 And at page 479, Justice O'Connor stressed the 21 significant role that Commission Counsel played and that it 22 was their role to ensure that all of the relevant information 23 was pulled out. 24 And over on to pages 481 and 482, they talk 25 about a process being established whereby a party was given

1 notice of a potential for findings of misconduct; that they 2 have then certain rights that flow from that; that those 3 recipients of notices such as those could recall witnesses, 4 if necessary; they could make closing submissions; and they 5 were provided with reference to those portions of the 6 evidence that were relevant to the issues that affected them. 7 So, we're hoping that there -- as we get 8 closer to the Hearing dates, that a process could be 9 established whereby the individuals could be advised as to 10 what dates they'll be needed for giving evidence and given 11 some advance notice as to when other parties or other 12 witnesses may be giving evidence that affects their interest 13 so that it's not necessary that they be present throughout 14 the whole Hearing. 15 MADAM COMMISSIONER: Okay. 16 MS. DIANA DIMMER: So, subject -- subject to 17 any questions, those are the reasons for the recommendations 18 that we receive -- the instructions that we have received 19 from City Council. 20 MADAM COMMISSIONER: Okay, thank you. I 21 gather you're not going to be representing the City, that 22 you're going to be getting outside counsel? 23 MS. DIANA DIMMER: That's correct. 24 MADAM COMMISSIONER: And I just ask you or 25 outside counsel if you'd be kind enough to contact our

1 Commission Counsel as soon as you have someone; okay? 2 MS. DIANA DIMMER: All right, thank you. 3 MADAM COMMISSIONER: Okay. Now, do we have 4 an agreement as to who goes next? 5 MS. DIANA DIMMER: We do. 6 MADAM COMMISSIONER: Is it a surprise to me 7 or is someone going to let me know? 8 MR. DAVID MOORE: Good morning, Madam 9 Commissioner, my name is David Moore, I'm here on behalf of 10 MFP -- 11 MADAM COMMISSIONER: Okay. Good morning. 12 MR. DAVID MOORE: -- and with me is Fraser 13 Berrill, he is an Executive Vice President at MFP, he's held 14 that position and been at the company for about six (6) 15 months. I expect we'll be appearing jointly during the 16 course of the Inquiry, assuming we are granted standing, if 17 that transpires. And perhaps I can address, firstly, the 18 question of standing for MFP. 19 MADAM COMMISSIONER: Thank you. 20 MR. DAVID MOORE: I'm not going to say 21 anything that is particularly new or different beyond what 22 has been articulated already in the correspondence to you and 23 -- and to your counsel Mr. Manes. 24 As you know, the City determined back in 25 February that it would take steps under Section 100 to cause

1 this Inquiry to be constituted. As you pointed out in your 2 introductory remarks, it's relatively uncommon that that 3 provision is resorted and, of course, what -- what made the 4 situation even more unique, in this case, is that that 5 request occurred or that action occurred in circumstances 6 where the City had already conducted a very lengthy review 7 with the benefit of outside counsel and outside expertise and 8 with the benefit of an extensive investigation by KPMG and, 9 despite that, decided to act under Section 100 of the 10 Municipal Act. 11 The other -- the other part of the context 12 that -- that makes it somewhat unique is that that step was 13 taken in circumstances where the City on January 21st had 14 commenced legal proceedings against MFP. Those legal 15 proceedings were obviously pending at the time of its 16 resolution, they are pending today and MFP, in turn, has 17 brought legal proceedings against the City. 18 I don't want to jump ahead to the issue of 19 costs, but I just observe that -- that we have a situation 20 where -- where the City, in effect, has constituted this 21 Inquiry where there will be parallel legal proceedings before 22 the Superior Court dealing with many of the same issues. 23 And so, when one looks at the terms of 24 reference and -- and the preamble thereto, it's quite obvious 25 that -- that the evidence issues in this Inquiry in -- in

1 virtually every respect or possibly every respect will 2 involve, one way or the other, issues, events, circumstances 3 in which MFP has an interest. 4 I referred in my letter in which the 5 Application for Inquiry was made to one (1) case that dealt 6 with the question of standing and -- and dealt with the issue 7 of what a direct and substantial interest was. I have a copy 8 of that case for you. 9 10 (BRIEF PAUSE) 11 12 MR. DAVID MOORE: And this is a decision of 13 Mr. Justice Linden in the Royal Commission on the Northern 14 Environment and he observed at paragraph 8 of the decision 15 that there was very little guidance in the authorities as to 16 the factors to be examined by the Court or Commissioner in 17 determining what a substantial and direct interest was. 18 And then went on in paragraphs 8 and 9 to make 19 some general observations about what that phrase might mean. 20 I'm not going to read all those paragraphs to you. He made 21 reference to the principle that the more specific practical 22 and concrete the subject of the Inquiry was, the more likely 23 it would be that property or individual rights of a person 24 might be affected. 25 And here, of course, the City has articulated

1 in its resolution some very specific assertions. I may say 2 that MFP does not agree with certain of the assertions 3 contained in the preamble to the terms of reference, but the 4 point for today's exercise is that it's a specific focussed 5 Inquiry dealing with a series of events where there's 6 parallel litigation involving many of those same events, 7 obviously circumstances in which MFP has a clear and 8 substantial interest. 9 And so, at this stage, subject to any 10 questions you have, I think I'd be repeating myself and 11 repeating what I'd already put in writing to you to go on 12 further, other than to -- to conclude that it appears that 13 MFP's interests are going to be affected and, if we are 14 granted standing, in all likelihood it will be necessary for 15 MFP to -- to appear at most and possibly all of the Hearing 16 dates before you. 17 Now, that -- that may be jumping ahead 18 somewhat, but that seems to be a reasonable inference given 19 the terms of reference and -- and the -- the relationship of 20 those terms of references to -- to MFP. 21 So, subject to any questions you have, that -- 22 that's what I have to say on the question of standing. 23 In terms of the issue of costs, MFP is -- is 24 in somewhat of a unique position and my -- my intention or 25 expectation was, frankly, that we might not be dealing with

1 all of the cost issues today, at least insofar as they dealt 2 with -- with MFP. 3 As you know, from -- from the materials, and 4 others will address this in greater detail, historically, 5 where Commissions have considered the question of costs, it 6 has focussed primarily on individuals and individual 7 interests and -- and included in that analysis there has 8 often been a consideration of the financial means, ability to 9 pay, if you will, of those individuals at the given Inquiry. 10 And -- and in this case, as I indicated in my 11 correspondence, MFP will not be asserting, does not assert 12 that it -- it is impecunious or it doesn't have the resources 13 to pay for the costs of representation at the Inquiry should 14 it be granted standing. 15 However, and again I will just outline the 16 position and, in effect, be inviting you to perhaps reserve 17 judgment on this with a view to potentially having more 18 detailed submissions at another time when -- when the City 19 has its counsel in place, but -- but our position in -- in a 20 nutshell is as follows: 21 The emerging case law dealing with the duty of 22 fairness, in -- in administrative law, has been held to apply 23 to public inquiries. As you observed very fairly at the 24 outset and -- and in your remarks, it is important and we 25 have every confidence that this Inquiry will be held with

1 scrupulous fairness to all participants and all interests who 2 are potentially -- potentially affected. 3 From that principle, it will be our position - 4 and, again, I'm not seeking to have you make a determination 5 of this today as a result of this submission, it's simply to 6 outline our position going forward - implicit in that 7 principle in the event that you are to be persuaded that 8 fairness dictated or required that costs be provided to a 9 particular party, whether it be an individual or a corporate 10 entity or some other interest, then it's our submission, and 11 will be our submission, that implies a power on your part to 12 direct that costs be paid. 13 Putting it somewhat different, if conducting 14 your Inquiry without costs being paid for a party with an 15 interest in the Inquiry would render the Inquiry unfair, it 16 is our position that you have a power to rectify that 17 unfairness and make the appropriate order, whether or not 18 there's explicit authority vested in your pursuant to the 19 terms of reference. 20 That then, of course, begs the question 21 whether or not any particular party should be indemnified in 22 respect of their costs. As indicated, MFP is in a different 23 position than the individuals. It is in the unique position 24 of being ready, willing and able to fully defend itself, to 25 fully follow the normal procedures that are usually applied

31
  1  in this kind of case, that is, our Courts where, as -- as you
  2  well know, there is full rights of discovery, production of
  3  documents, a public trial, et cetera; that's the normal route
  4  that -- that one -- one follows where these kinds of
  5  commercial disputes arise.
  6                 And, indeed, the City decided itself to follow
  7  that route when it instituted the lawsuit against MFP and, as
  8  I say, MFP is fully ready, willing and able to -- to deal
  9  with those issues in that context and is very confident that,
 10  at the end of the day in those proceedings, its position will
 11  be vindicated.  Indeed, there's some suggestion that that's
 12  the likely outcome already on the public record by virtue of
 13  the recommendations of the City's outside counsel as to the
 14  merits or, putting it more accurately, the lack of merits in
 15  the City's position.
 16                 That said, the City then decided to require
 17  that this Inquiry be appointed and, as you know, under
 18  Section 100 of the Municipal Act, there really was no
 19  discretion vested in -- in the Court but to appoint a Judge
 20  to conduct the Inquiry.  It's an unusual section, one that's
 21  not often used.  Quite frankly, I wasn't familiar with it
 22  before I got involved in this case.
 23                 And -- and so we have the unusual situation of
 24  the City, in effect, being able to set the terms of
 25  references required, the appointment of -- of a Judge and, in

1 -- in so doing, by necessity, MFP comes and seeks standing 2 and by necessity, if it's granted standing, MFP will incur 3 very substantial expense beyond the parallel expense that it 4 is already being required to incur in the ongoing legal 5 proceedings and -- and in circumstances where -- again, I 6 won't take you through all the material this morning. 7 It strikes me that, given the quantum of money 8 involved, given -- given the complexity of some of the 9 issues, given the fact that -- that we, at MFP, don't -- 10 don't even have all the City documents yet in terms of 11 resolutions, given the evolving situation right up until the 12 end of last week, it strikes -- it strikes me and it's my 13 submission, that we should come back with all those materials 14 in hand and fully argue this point. 15 But there's no question that -- that MFP will 16 be put to very considerable expense in -- in dealing with 17 these issues at this Inquiry if it is granted standing. And, 18 really, given the nature of -- of the issues and the nature 19 of the terms of reference, it has no alternative but to seek 20 standing to appear before you to ensure that its -- its 21 interests are adequately represented. 22 So, having decided to do that, having in 23 effect caused this -- this parallel process, having -- having 24 not been content to simply abide by and await the outcome of 25 the legal proceedings, it's our position that that's the

1 unique circumstance that -- that warrants an order being made 2 or, at a minimum, a recommendation in respect of an indemnity 3 for costs. 4 I do have, although I don't have all of the 5 City documentation or resolutions, I do have a copy of the 6 report that City Council apparently considered last Thursday 7 or Friday in which staff recommendations with respect to 8 funding were set out and -- and it may be appropriate to 9 leave that with you. 10 One item of note in that material is the 11 City's estimate that the costs of its counsel for these 12 proceedings, funds to come out of -- of the public -- public 13 purse, if you will, are estimated to be five hundred thousand 14 (500,000) to seven hundred and fifty thousand dollars 15 ($750,000); that's in the staff report and -- and I have a 16 copy of that for you as well. 17 MADAM COMMISSIONER: Thank you. 18 MR. DAVID MOORE: Those -- those estimates 19 you will find on the fourth page in, under item 'D' Outside 20 Counsel, and in the first full paragraph, at the end, it 21 indicates that: 22 "The cost consequences of retaining 23 external counsel are set out in a companion 24 report." 25 I -- I don't have a copy of that companion

1 report, but the document goes on to state: 2 "It is estimated that the total cost could 3 be in the range of five hundred thousand 4 (500,000) to seven hundred and fifty 5 thousand dollars ($750,000)." 6 And then on the next page, there's a summary 7 of the financial implications and impact statement and -- and 8 you'll see it refers to the original or preliminary budget 9 estimate for this Inquiry of one million nine hundred and 10 sixty thousand dollars ($1,960,000). 11 You'll see it refers to an estimated cost of 12 an additional KPMG retainer of fifteen thousand dollars 13 ($15,000); that's over and above what I understand to have 14 been a three hundred thousand dollar ($300,000) expense in 15 the initial KPMG material or report and then you see a 16 repetition of the estimated costs of City's outside counsel, 17 five hundred (500) to seven hundred and fifty thousand 18 dollars ($750,000). 19 And then, at the bottom, you'll see there's a 20 note: 21 "The estimated cost of the City's outside 22 counsel for the -- for MFP litigation, a 23 million dollars." 24 And, again, I -- I don't know the specific 25 terms of that retainer, what the hourly rates are, but -- but

1 those figures give you some measure -- that's not to say that 2 MFP's costs will necessarily be exactly the same, but that -- 3 that gives you some measure of the additional costs that MFP 4 will likely be put to should it be granted standing to 5 properly represent its interests in this proceeding which the 6 City itself has caused to be -- to be established. 7 So, again, I'm -- I'm not asking that you 8 determine those issues in respect of the cost issues, in 9 respect of -- of MFP. It may well be fair and appropriate 10 that we return on a specific date to deal with those 11 specifically with full argument and factum and whatnot, but - 12 - but that will give you an outline of our position at least 13 at this juncture. 14 MADAM COMMISSIONER: Okay, thank you. 15 MR. DAVID MOORE: Thank you. 16 MADAM COMMISSIONER: I expect that on that 17 issue that it would be probably closer to the end rather than 18 the front end that you would be coming back with that funding 19 component; is that right or -- 20 MR. DAVID MOORE: That -- that may well be. 21 I would expect to have some discussions with your counsel and 22 -- and hopefully come to some agreement as to what would be 23 the sensible point in time should we wish to -- to have that 24 issue revisited in the manner I've suggested and -- and 25 obviously, the City has a direct interest in that issue and

1 we want to coordinate that, have a full record, full argument 2 and it -- it may well put you in a difficult position, 3 certainly would put you in a very difficult position to be 4 coming here this morning and suggesting that, well, the first 5 order of business after we get over standing, let's deal with 6 this difficult and -- and important issue of -- of costs in 7 relation to my client. 8 I mean, that -- that's not a realistic 9 expectation or a realistic request to make of you and it may 10 be more appropriate, once we get into the matter further, 11 once more of the context is -- is apparent to you, to revisit 12 it then; but -- but I would expect discussing that with your 13 counsel and -- and cooperating to come up with the best time 14 to -- to revisit that issue. 15 MADAM COMMISSIONER: Thank you very much. 16 MR. DAVID MOORE: Thank you. 17 MADAM COMMISSIONER: Mr. Anand, it's looking 18 like you're next; is it? 19 MR. RAJ ANAND: Madam Commissioner, I won't 20 keep you in the dark any longer. After I make my 21 presentation, Mr. Anderson and then Ms. Kronick will be 22 making theirs and that was the tail end of the order that we 23 agreed to. 24 MADAM COMMISSIONER: Thank you. 25 MR. RAJ ANAND: As you know, I represent Ms.

1 Lana Vinamae and she is seeking standing and funding and I 2 intend to address both of those issues. In -- in light of 3 Ms. Dimmer's comments on the funding issue, I intend -- I 4 intend to address those reasonably fully; if you wish me to 5 do otherwise, you'll let me know. 6 MADAM COMMISSIONER: No, I'd rather you dealt 7 with it fully, actually. 8 MR. RAJ ANAND: All right. The mandate of 9 this Commission has been set out in the form of lengthy 10 recitals and preambles which are then incorporated into some 11 fairly brief formal paragraphs of the terms of reference. 12 And, as I point out in my June 7th letter to 13 you, the recitals which are incorporated include allegations 14 and descriptions of many varied events or circumstances in 15 which my client, as Director of the Y2K Project, was involved 16 and where her actions and her knowledge and her understanding 17 of documents will be in issue in relation to these matters. 18 For example, the leasing in 1998 of computer 19 equipment from MFP; the sale and leaseback of City computer 20 equipment; thirdly, the leasing of up to $85 million of 21 computer equipment through equipment schedules; fourth, the 22 lease terms of five (5) years as opposed to three (3); fifth, 23 the implicit interest rates in lease rates that were 24 contained in equipment schedules; sixth, the recommendation 25 by her, she's specifically named, with respect to the

1 acquisition of Oracle licences, subsequent approvals and 2 their acquisition by lease through MFP; seventh, the, and I 3 quote, 4 "Serious miscalculation in the acquisition 5 of ten thousand (10,000) Oracle licences," 6 And, finally, the reports by the City auditor 7 and the CAO concerning many of these matters, the MFP 8 transactions, the Oracle transaction and the 1998 computer 9 lease. 10 And I might say, as Mr. Moore did earlier, 11 that in naming and quoting some of these recitals and the 12 description given to them by the City in the terms of 13 reference, I don't mean by any means to be accepting the, I 14 would say, heavily laden judgments in many of those recitals 15 in the way in which they've been characterised, such as 16 serious miscalculation, which I stated just a moment ago. 17 My client is referred to and, in some cases, 18 criticized in some of the reports which I've just indicated, 19 reports by the City auditor and the CAO. She is one (1) of 20 the senior staff, referred to there, who played key roles, 21 referred to there, in these transactions and, indeed, in some 22 of the reports which are bundled together as part of the 23 resolution giving rise to this Inquiry, there is reference to 24 possible misconduct against her and other senior officials of 25 the City and, indeed, in that -- those reports, in the

1 consideration of different forums in which further 2 investigation could take place such as a munic -- an audit 3 and -- and other matters, the report acknowledges the need 4 for procedural fairness in discussing these various 5 alternatives and, as you will well be aware, fastens upon a 6 public inquiry under the Public Inquiries Act and -- and the 7 Municipal Act for this purpose. 8 So my submission to you, Madam Commissioner, 9 is that Ms. Vinamae has a substantial and direct interest in 10 the subject matter of the Inquiry, as measured by these 11 recitals. 12 Secondly, that her assistance and continued 13 cooperation with this Commission and with Commission Counsel 14 will be helpful to the Commission to understand what 15 transpired. 16 And, indeed, with reference to the 17 investigations that took place within the City, such as the 18 KPMG investigation, Ms. Vinamae has already, at great lengths 19 and over several months, provided substantial information to 20 those investigators. There was not only the KPMG report, but 21 there was also highly focussed and accusatory questions put 22 to her by the City's Labour Relations counsel; all of which 23 she responded to. 24 And, in brief, although I'm -- I don't intend 25 to get into this in any detail, she provided information to

1 these investigators which appears in many respects to -- from 2 my review, to contradict the recitals which the City 3 published as part of the terms of reference. 4 Clearly, as much as one can predict this at 5 this early point, findings made by the Commission may be 6 adverse to my client. 7 Now, as I've set out in my submissions very 8 briefly and I -- I mention this not in order to get into 9 collateral litigation, that is, the -- the civil action which 10 she has commenced against the City, in any detail, but simply 11 in line with what Mr. Moore said a few moments ago to 12 illustrate why Ms. Vinamae has, indeed, no choice but to seek 13 standing before this Commission. And in -- in that sense, is 14 in very much the same position, I would say, perhaps even 15 more so than Mr. Moore's client. 16 She was providing information to KPMG in its 17 audit of the 1999 leasing contract with MFP when she was put 18 on so-called vacation on November 1st of last year for a few 19 days. 20 As it turned out, that vacation - and I use 21 the term advisably - never ended. She was never permitted to 22 return and, during the next period of more than two (2) 23 months, she was -- she dutifully answered the enquiries both 24 by KPMG and by the City's outside Labour Relations solicitors 25 and she provided a great deal of documentation.

1 She was not provided with any of the reports 2 that resulted from her participation and any others and she 3 was promised many times that she would be given particulars 4 of any allegations against her and she was not. 5 She was terminated purportedly for cause on 6 February 7th of 2002 and, even in the termination letter, 7 there is very little that could be characterised as 8 particulars. Her then counsel asked for details and they 9 have never been provided. 10 She was not given any pay, even employment 11 standards pay, at the point of termination and I mention that 12 in light of the financial issue that I'll come to in terms of 13 standing -- in terms of funding. 14 Given this situation where, after well over a 15 decade with the City and its predecessor, she was fired with 16 no notice and with no pay, she was faced with no choice but 17 to sue. And, in circumstances, I should say that, during her 18 so-called vacation, resulted in numerous apparently leaked 19 stories in the press about the fact that she was being fired 20 or words to that effect which have had an enormous 21 devastating impact on her reputation. 22 So, I say that she was faced with no choice 23 but to sue. I don't intend to go any further into that 24 lawsuit which has been commenced and in which we are awaiting 25 for a defence and which we might be given the particulars

1 that have never previously been given. 2 But then the City commenced this Inquiry a few 3 days after firing her, covering much of the same subject 4 matter that she had been responding to and that she 5 presumably will be responding to. 6 So I say, moving to the issue of funding in an 7 Inquiry, which was commenced by a party which is clearly 8 adverse in interest to her that, assuming that Ms. Vinamae 9 obtains standing, she must be represented by legal counsel 10 for purposes of satisfying the various roles, which I've 11 outlined, and in terms of protecting her interests. 12 Absent such funding, she would not be able to 13 afford counsel and her interests would not be adequately 14 represented and, as I've said in my submissions, a grant of 15 standing absent adequate funding would be illusory; the word 16 used by Commissioner Moshansky and -- I'm sorry, and 17 Commissioner Killeen and access to justice would be denied. 18 Now, I have asked in the alternative that you 19 make one (1) of the following rulings: Firstly, that to 20 order that Ms. Vinamae's legal costs be funded by either the 21 City or the Commission. 22 Secondly, that you recommend to the City that 23 it provide full funding, and I'll come to the fifty thousand 24 dollars ($50,000), which I learned about on Friday and which 25 I've had a quick glance at the report, which I actually don't

1 have in my possession today. 2 And in any event, my second submission is that 3 the City -- that you recommend that the City provide funding 4 for the legal costs incurred by Ms. Vinamae during the 5 Inquiry. 6 Or thirdly, that you recommend that the City 7 amend its -- its resolution, if I have that correctly, I'm 8 not sure that I do, its adoption of the Audit Committee 9 report in part as of last Thursday to provide full funding 10 for people with standing who have financial need. 11 Now, I want to address these submissions in a 12 bit more detail, but I say in -- in overview that -- 13 MADAM COMMISSIONER: So your third position, 14 just so I have it right, is different from what it was in 15 your letter to me of June the 7th then? At that time you 16 were asking that I recommend that the City amend its terms of 17 reference and now you're asking that I ask the City to amend 18 its resolution that it passed with respect to the fifty 19 thousand dollars ($50,000)? 20 MR. RAJ ANAND: Well, we have -- we have -- 21 yes, we have changed -- 22 MADAM COMMISSIONER: Right. 23 MR. RAJ ANAND: -- changed ground in the 24 meantime. 25 MADAM COMMISSIONER: Okay. I just wanted to

1 make sure I had that right. 2 MR. RAJ ANAND: Yes. 3 MADAM COMMISSIONER: Okay. 4 MR. RAJ ANAND: My overall submission and -- 5 and I think this is evidenced by the Inquiry excerpts, which 6 I have provided to you, is that -- that permitting full 7 representation for a party with standing is essential to the 8 fulfilment of your mandate and, secondly, it is essential to 9 providing procedural fairness to Ms. Vinamae. 10 In a nutshell, you will have City counsel or 11 counsel as my municipal law colleagues in my firm say to 12 distinguish it from council, which they are prepare -- 13 perpetually dealing with, the City's lawyers will be, by the 14 indication in the report which Mr. Moore has excerpted as 15 well, will be -- will be sufficiently I would say well- 16 funded, they will be essentially adverse in interest to Ms. 17 Vinamae and, if there is not adequate funding, and by that I 18 mean essentially full funding, you will be left without a 19 balance in terms of the -- in terms of my client, in terms of 20 the subject matter which she can address and will be forced 21 to address and in terms of the adverse interest. 22 And that lack of balance will result in 23 incompleteness from your purposes, from your vantage point 24 and, in my respectful view, damage to the integrity of the 25 Commission's work, as well as a risk of significant harm to

1 Ms. Vinamae's interests and her reputation. 2 Now, in the Marshall Inquiry, which is not 3 referred to in my submissions, but which I've provided an 4 excerpt of it at tab 1 of my book of authorities. 5 MADAM COMMISSIONER: If it helps you, I have 6 read it all. 7 MR. RAJ ANAND: All right. I won't -- I 8 won't go -- leave the lengthy passages which I have 9 highlighted, but I simply want to -- to stress two (2) points 10 about the -- this very well-known and important Royal 11 Commission, which you're, I'm sure, well aware of. 12 And there -- at page 335, the first page 13 that's copied, and it's -- firstly, it's the point in the 14 first paragraph that the Commission did not actually decide 15 whether it has the power to order the Province, in that case 16 Nova Scotia, to provide payment for legal counsel for 17 parties, but they said: 18 "However, we do believe that, absent any 19 prohibition..." 20 And you have no prohibition: 21 "...it is implicit in the terms of 22 reference of any Royal Commission that it 23 has the capacity, and indeed the 24 obligation, to respond to any party who has 25 been granted standing and who raises an

1 issue of participant funding. To refuse to 2 respond to such a request would be 3 inconsistent with a tradition of Royal 4 Commissions, a tradition which encourages 5 full participation in a public and 6 independent forum. In recent times, 7 similar requests have been responded to by 8 then Mr. Justice Berger, Mr. Justice 9 Grange, Mr. Justice Estey and Mr. Justice 10 Parker." 11 And the -- and, again, I won't read the next 12 paragraph, but it relates to my point about the integrity and 13 completeness of this Commission's work and the public 14 interest and then further on, the second point which I made 15 regarding the specific interests of my client being adversely 16 affected. 17 Now, as has been noted earlier, there -- there 18 has not been, to my knowledge, a Commission of Inquiry 19 decision or ruling which has positively confirmed its 20 jurisdiction to order that funding be provided and that is 21 perhaps, to -- to sort of descend to the practical for a 22 moment, has been because in this relatively rarified 23 atmosphere of Royal Commissions and Commissions of Inquiry, 24 including inquiries under -- under Section 100 of the 25 Municipal Act, it's I think fair to say that a strong

1 recommendation by a Commissioner, such as yourself, may serve 2 the same purpose as -- as an Order. 3 But I simply want to stress that, in my -- in 4 my client's respectful submission to you, there is the 5 authority and that it's -- it's a necessary adjunct of your 6 ability to fulfill the statutory direction in Section 100 and 7 in the terms of reference to order adequate funding in the 8 event that a strong recommendation is made and it's not met. 9 And, indeed, that is what I understand, 10 although it doesn't appear from the public record, that is 11 what I understand took place in Justice Killeen's Inquiry, 12 the Sarnia Inquiry, where a -- where he had submissions put 13 before him by individual counsellors and, indeed, by his 14 Commission Counsel, Mr. Ritchie, that he had authority to 15 order funding; in -- in the case of Mr. Ritchie, it was under 16 Section 100(3) of the Municipal Act, as you're well aware. 17 And he, in fact, recommended funding in the 18 last portion of the excerpt, which I have given you at tab -- 19 I shouldn't say the last portion, the penultimate portion of 20 the excerpt I've given you at tab 3, he recommended funding. 21 He doesn't -- I don't think it's fair to say that he rejects 22 the -- his ability to order funding, but he recommends it. 23 I understand from Sarnia counsel in that case 24 that there was -- that his recommendation did not take place, 25 let's put it that way, and he -- it had to come back and it

1 was dealt with informally and it eventually did take place. 2 Now, I acknowledge that he states in -- and 3 I've -- I think I've quoted this in my submissions, in his 4 first recommendation, which I've excerpted at the end of the 5 -- of -- at the end of tab 3, that Section 100 doesn't 6 provide express power to order funding for legal counsel for 7 the parties and he quotes Section 100(3) and states that it's 8 not sufficiently broad to permit him to order funding for the 9 parties with standing and he regards that as a significant 10 weakness. 11 My submission to you, and I've -- I've set it 12 out in writing, is that the -- is that, where such funding is 13 required in order to fulfill the mandate and to protect the 14 fairness interests, which as you quite properly noted are 15 paramount in this Hearing, that Section 100(3) does extend, 16 if you consider it advisable, for the proper conduct of the 17 investigation and I'm -- or Inquiry and I'm quoting from -- 18 from Section 100(3), 19 "It is within your authority to order that 20 funding to be provided." 21 Now, I don't intend to repeat the submissions 22 which I've made in writing and which you have obviously had a 23 chance to review. I want to just, as I say, highlight a 24 couple of points in the course of those submissions before 25 addressing more directly the fifty thousand dollar ($50,000)

49
  1  limit.
  2  
  3                       (BRIEF PAUSE)
  4  
  5                 MR. RAJ ANAND:   The proposition that I quoted
  6  about, the right of standing being illusory without adequate
  7  funding, is -- is, indeed, in Justice Killeen's first
  8  recommendation at tab 3 and it's also adopted by Justice
  9  Moshansky who provides, I think it's fair to say, a useful
 10  review of the conclusions of several recent Commissions of
 11  Inquiry.
 12                 In the Dryden Inquiry, which is at tab 2, and
 13  he says and I've quoted this at page 7 of my submission,
 14  that:
 15                   "It would be manifestly unfair to exclude
 16                   the applicant group from the process of
 17                   this Inquiry by reason of impecuniosity. 
 18                   To hold otherwise would be to reduce the
 19                   grant of special participant status to the
 20                   applicants to a hollow victory.  Indeed, it
 21                   is, in my view, in the public interest that
 22                   they be included in the process."
 23                 And a similar articulation of the importance
 24  of public participation is set out by Justice Reed of the
 25  Federal Court Trial Division at Tab 4 and this was in

1 relation to the RCMP Inquiry in Vancouver arising out of the 2 Asia Pacific Cooperation Conference and she stresses at 3 paragraph 7 of her decision, and this was on, indeed, a 4 judicial review application to challenge the failure of the 5 Inquiry to recommend funding -- that funding be provided to 6 students and others. 7 At paragraph 7 on page 3, she cites the level 8 playing field proposition 9 "...without state-funded legal 10 representation the complainants/applicants 11 will be at a great disadvantage..." 12 and she deals with the potential unfairness. 13 And at paragraph 18 she stresses the 14 characteristics of the Inquiry which militate in favour of -- 15 of on-going funding. She says that 16 "the Inquiry is expected to be unusually 17 long, six (6) weeks ...". 18 We have an estimate of more than that, I 19 think, of on-going funding. She says: 20 "If the hearing were only for one or two 21 days counsel could appear on a pro bono 22 basis. The amount of evidence including 23 testimony and documents that is expected 24 to become part of the record will be 25 very difficult for unrepresented

1 complainants to deal with. The 2 proceedings will be complex involving, 3 for example, issues relating to the 4 disclosure of classified government 5 documents. There are parallel civil 6 proceedings pending to which the 7 applicants are parties. The issue at 8 stake is of fundamental public 9 importance addressing..." 10 And then she describes the situation in that 11 case. Freedom of expression and so on. 12 So in principle, all of those factors are 13 relevant here as well. And in terms of the public interest 14 in the integrity and completeness of the Inquiry, she states 15 at paragraph 25 that of crucial consideration 16 "...is whether legal representation of the 17 complainants would improve the quality of 18 the proceedings before it. My observation 19 is that when decision-makers have before 20 them one party who is represented by 21 conscientious, experienced and highly 22 competent counsel, a description that we 23 all know from experience applies to [the 24 RCMP's counsel] Mr. Whitehall, they prefer 25 that the opposite party be on a similar

1 footing. They prefer that one party not be 2 unrepresented. An equality in 3 representation usually makes for easier and 4 better decision-making." 5 And in my submission, you have those 6 circumstances here as well, given that you have Commission 7 Counsel, and I'll be coming to this in terms of the City's 8 committee recommendation when this Inquiry was created, and 9 the City's counsel, as of last Friday, who will be adequately 10 funded. 11 I don't intend to say much more with respect 12 to my alternative submissions. They -- I've attempted to set 13 them out in my earlier letter. I just wanted to address very 14 briefly on that point, the issue of the Inquiry's rules of 15 procedure. Your Inquiry's rules of procedure and I -- I 16 apologize if I didn't read them carefully enough but wasn't 17 aware that -- in any event, I wasn't aware that they were in 18 draft. 19 MADAM COMMISSIONER: I do not think it said 20 that they were in draft. 21 MR.RAJ ANAND: All right. 22 MADAM COMMISSIONER: I felt that in 23 fairness we had -- we had put them out there so everyone 24 would know what we were looking at. But if there is anything 25 there that's -- that is glaringly off, then I would rather

53
  1  have good rules of procedure than not so good ones.  So I'll
  2  -- I'll invite counsel afterwards if there's anything that
  3  you think should be changed to let us know.
  4                 But I --
  5                 MR. RAJ ANAND:   Yes.
  6                 MADAM COMMISSIONER:   -- have your submission
  7  on one of them --
  8                 MR. RAJ ANAND:   Right.
  9                 MADAM COMMISSIONER:  -- that should be changed
 10  to allow the -- allow funding.
 11                 MR. RAJ ANAND:   That -- that was all that I
 12  was going to address.  And I -- and I -- and I apologize if
 13  I've -- given that they were draft, if I put them as -- as
 14  final rules which we hadn't had a chance to make submissions
 15  with respect to.
 16                 MADAM COMMISSIONER:   Mr. Anand, you don't
 17  have to apologize because I never said that they were draft
 18  other than today.
 19                 MR. RAJ ANAND:   All right, thank you.  Let me
 20  -- let me address the cap of fifty-thousand dollars
 21  ($50,000).
 22                 MADAM COMMISSIONER:   It is probably close to
 23  11:30, I think.  I don't -- there it is.
 24                 MR. RAJ ANAND:   At least, that -- that's what
 25  that clock says, yes.

1 MADAM COMMISSIONER: Why don't we take a 2 recess for fifteen (15) minutes. I'm not sure if you know, 3 but there's a cafeteria downstairs with very helpful people, 4 good coffee, I'm told. And we will see you all back here in 5 fifteen (15) minutes. 6 MR. RAJ ANAND: Thank you. 7 MADAM COMMISSIONER: All right. 8 THE REGISTRAR: Order. The Inquiry will 9 recess for fifteen (15) minutes. 10 11 --- Upon recessing at 11:29 a.m. 12 --- Upon resuming at 11:45 a.m. 13 14 THE REGISTRAR: Order. The Inquiry will 15 resume. Please be seated. 16 MADAM COMMISSIONER: Yes, Mr. Anand...? 17 MR. RAJ ANAND: Thank you, Madam 18 Commissioner. 19 I wanted to move to the fifty thousand dollar 20 ($50,000) cap. And my submission is that the -- the figure 21 that's been chosen is entirely unrealistic. And I'm not 22 going to get into a, sort of, detailed assessment of accounts 23 or anything to that effect in front of you. 24 But I want to draw certain analogies which I 25 think may be helpful to you. The first is a comparison with

1 the budgeted amount for the City's counsel. 2 Second is a comparison with the amounts 3 estimated for Commission counsel in the Appendix B to the 4 City solicitor's report. 5 And the third is by analogy to other 6 proceedings involving a trial or Hearing of this sort of 7 length and you -- you heard Ms. Dimmer refer to it as -- in 8 terms of the reasoning, as being perhaps a twenty (20) day 9 involvement of individual participant's counsel. 10 I question whether that's the case, but I'm 11 not in a very good position to give you a more precise 12 estimate at this point. Needless to say, standing hasn't 13 been granted, but apart from that very important issue, a 14 more precise estimate will presumably be more available or 15 possible after production of documents and after Commission 16 counsel forms some, at least preliminary, conclusions as to 17 the manner in which the proceedings will take place and how 18 they might be segmented or something to that effect. 19 I'm sorry to be so imprecise, but I'm really 20 groping in the dark at this point. But I simply want to say 21 that the twenty (20) day estimate, to me, given what I've 22 said with regarding the terms of reference and the preambles, 23 seems short. 24 With respect to the comparison with the 25 budgeted amount for the City. You've already heard that that

1 is five hundred to seven hundred and fifty thousand dollars 2 ($750,000) for the City's outside counsel. So what's being - 3 - what has been provided by the City, purportedly provided. 4 I'll come back to the issue of ordering versus recommending. 5 But what has been provided is -- is one-tenth 6 (1/10th) to one-fifteenth (1/15th) of the amount that's been 7 allocated for its own counsel. Now, Ms. Dimmer, I think 8 quite properly, sought to draw some distinctions between the 9 City's counsel and the -- and counsel for the -- for other 10 participants. One of which was forty (40) days versus twenty 11 (20) and I've said something about that and I'm not sure I 12 can be of more assistance about that. Another was the 13 involvement in assembling documents. 14 And to that, I would simply say that while 15 clearly my client doesn't have anything like the numbers of 16 documents which presumably the City does have - although I 17 obviously haven't seen those at this point - she will be 18 required to assemble documents herself. 19 But more importantly, all counsel, I presume, 20 will be required to review the thousands of documents which 21 have been, or will have been, assembled. And that -- that 22 will be part of the very significant preparation time and 23 expense which presumably is factored into the City's estimate 24 of the cost for its own counsel and which has been factored 25 into the City's estimate of the costs for Commission counsel,

1 which I will come to in a moment. 2 The other distinction that was drawn was 3 partial versus full indemnification. And, with respect, I 4 take issue with that proposition. Given what I've said about 5 who has established this Commission, who had a say in 6 establishing it, or who didn't, that is to say my client, and 7 who was forced, like perhaps others, to seek standing and to 8 participate because she'll be involved anyway and because, 9 for the reasons I've given earlier, which in terms of 10 completeness and fairness. 11 Given all of that, it is a recipe for an 12 uneven playing field for one side to be given full indemnity 13 and the other side to be given partial indemnity; especially 14 given the circumstances which I've already described in terms 15 of my own client and her termination without any 16 compensation. 17 Ms. Dimmer also addressed the issue of scale 18 of costs and pointed to some earlier Commissions and their 19 recommendations regarding Federal or Provincial scales being 20 adopted and she answered, quite properly and accurately, in 21 my understanding, that the City does not have a scale of that 22 kind. 23 I would say a couple of things about that 24 though. One is that when these earlier Commissions 25 recommended funding for individuals who were given standing

1 and I think it's fair to say, certainly in the case of 2 Justice O'Connor and the Walkerton Inquiry, that it was in 3 his terms of reference that he was to recommend and that the 4 Attorney General's Ministry was -- I don't have the exact 5 language in front of me, but was to -- to decide. 6 The rates that were given were the full rates 7 for the Attorney General's Ministry engaging outside counsel. 8 They were not partial indemnity rates. They may not have 9 been the rates that outside law firms would have preferred, 10 but they were full indemnity in terms of the Provincial 11 engagement of outside counsel. 12 And as you've heard, and as I understand, the 13 City does not have such a scale and my understanding is that 14 outside firms are engaged at their commercial hourly rates 15 and that would appear to be the case with respect to their 16 outside counsel in this case, from the amounts involved. 17 My second comparison is with the amounts 18 estimated for Commission counsel. And as I indicated, this 19 was in Appendix B to the City solicitor's report. It's dated 20 January 30th of this year. It's a report to the Audit 21 Committee and I have it. I'm -- it's part of the package 22 upon the creation of this Inquiry and I -- I haven't put a 23 copy in front of you, but I'm sure you've -- you've looked at 24 it. And I'm referring to page 21 for your reference, Madam 25 Commissioner.

1 It was published as part of Report Number 1 of 2 the Audit Committee and it was adopted by the Council at its 3 meeting February 5th -- 13th to 15th of this year. And at 4 page 21 the City solicitor's recommendation is six hundred 5 and sixty-five thousand dollars ($665,000) or as a cheque six 6 hundred and seventy-five thousand (675,000). It's calculated 7 in two (2) ways: One in terms of hourly rates and one in 8 terms of comparisons with Sarnia. And they come out very -- 9 to very similar amounts. 10 They refer to senior and junior Commission 11 counsel. They refer to a combined hourly rate of eight 12 hundred dollars ($800) an hour. They refer to specific hour 13 -- numbers of hours. Ten (10) hours per day for each of 14 forty (40) Hearing days. Fifty (50) hours for preparation of 15 the Inquiry report; that's obviously something that we would 16 have no involvement with. Two hundred (200) hours involved 17 in preparation. Two hundred (200) hours for investigation. 18 And I would simply indicate that, setting 19 aside for the moment the unknown exact number of Hearing 20 days, the estimate of ten (10) hours a day would seem to be 21 realistic for actual Hearing days. 22 The amounts of preparation and investigation 23 will obviously, I would suggest, be greater in the -- in the 24 case of Commission counsel than in the case of counsel for 25 the parties. But -- and again, it's difficult to estimate

1 exactly what the comparable figures would be, but they would 2 be some large proportion, I would suspect, of those -- of 3 those numbers for -- for a party with standing for a 4 substantial portion of the Inquiry. 5 And I simply note that the largest amounts are 6 preparation and Hearing days. And -- and those are common, 7 at least in principle, between outside -- I'm sorry, between 8 Commission counsel and counsel for parties with standing. 9 And so, let me just throw out a figure and I 10 don't -- I do this with great trepidation, but to throw out a 11 figure of even a third or a quarter of Commission counsel's, 12 the estimate, amounts to three (3) or four (4) times what has 13 been allocated by the City. 14 Finally, I wanted to come to the -- to perhaps 15 other proceedings and again to do this in a fairly general 16 way. But my -- Ms. Dimmer responded to your question 17 regarding the estimate of fifty thousand dollars ($50,000) by 18 pointing you to a twenty-three hundred dollar ($2300) per day 19 amount per Hearing day. And I take it that times twenty (20) 20 is almost fifty thousand dollars ($50,000) so that's how the 21 arithmetic works. 22 I'm not sure where twenty-three hundred 23 ($2300) comes from actually. Because the -- the -- 24 MADAM COMMISSIONER: I think she was 25 referring to the partial indemnity scale, the new cost grid.

1 MR. RAJ ANAND: I think it's actually twenty- 2 four (24) but I don't have it in front of me. In any 3 event -- 4 MADAM COMMISSIONER: In any case, that's not 5 the amount that you're seeking? 6 MR. RAJ ANAND: No. 7 MADAM COMMISSIONER: You're seeking more than 8 just a hundred dollars ($100) a day more than that, 9 presumably? 10 MR. RAJ ANAND: Yes, and -- and -- I mean 11 those are, if I understand Ms. Dimmer correctly, those are 12 amounts for actual Hearing days. They don't take into 13 account preparation. And -- and -- and in this case 14 investigation, which brings me to my point about an analogous 15 proceeding, like a trial or a Hearing before an 16 administrative tribunal. 17 Let me use the trial analogy for a moment. 18 Clearly, trials involve production of documents and -- I 19 should say actions, involve productions -- production of 20 documents and review of productions from the other side, 21 usually examinations for discovery and then trial preparation 22 and -- and attendance at the trial. I'm only mentioning, 23 obviously, the major time expenditures. 24 And while you don't have discoveries in this 25 case, you have something which is very comparable to that in

62
  1  terms of investigation in which my client will, presumably,
  2  be asked to come forward and certainly would -- will agree,
  3  if asked to come forward, to interview and -- and the review
  4  of voluminous documentation and the preparation for those
  5  steps, which are in a sense, analogous to discoveries.
  6                 And then you have preparation for the
  7  Commission's Hearing days, as well as attendance at those
  8  Hearing days.  And I'm -- to -- as I say, to throw out one
  9  example, the legal costs for a twenty (20) day trial or a
 10  forty (40) day trial would be far in excess, by any scale, of
 11  fifty thousand dollars ($50,000) in terms of the action from
 12  the outset and you're undoubtedly -- have undoubtedly fixed
 13  costs of that kind under the new rules.
 14                 So, I would simply submit that the -- that the
 15  figure is not realistic.  Now, I ask that you express your
 16  view that this amount is entirely unrealistic.  I ask you to
 17  order payment of reasonable legal fees and disbursements and
 18  -- and as I've indicated in my earlier written submissions,
 19  I'm obviously content to abide by any reasonable terms in
 20  term -- in -- in the sense of monitoring and -- and checks
 21  for reasonableness and so on.  And --
 22                 MADAM COMMISSIONER:   With respect to that,
 23  Mr. Anand, your client, as you say, has sued the City and can
 24  you help me with, just from a public interest point of view
 25  and public expenditure point of view, how would I, or the

1 City, be able to ensure that the money that is going to you 2 and your client for the public Inquiry is not money that's 3 actually going to assist her to sue the City? 4 MR. RAJ ANAND: All right. The -- 5 MADAM COMMISSIONER: Because that, if -- as 6 you know the cost issue on that can be dealt with in another 7 forum. 8 MR. RAJ ANAND: Yes. 9 MADAM COMMISSIONER: I am not saying she 10 would or would not be entitled to her costs there, but that 11 would be dealt with in another place. 12 MR. RAJ ANAND: No that's -- that's a very 13 valid point. And in fact I -- when it became clear that a 14 request for standing would be made here, I, indeed, opened a 15 separate file in order to segregate time and I've done my 16 best to do that. 17 But more precisely to address your point, the 18 provisions of the Public Inquiries Act and other statutes 19 which prevent the use of information obtained -- plus the -- 20 the implied undertaking which prevent the use of information 21 obtained in this proceeding to be used in the civil 22 proceeding, and including the -- I think it's actually 23 addressed in your rules of procedure, as to the use of 24 documentation that's been shared -- that will be shared with 25 parties obtaining standing, will prevent the use of that

1 information, either documentary or otherwise in the civil 2 proceeding. 3 And that proceeding will -- will go forward in 4 parallel. One would hope, given the thrust of the rules and 5 of civil litigation and case management and so on, that the 6 civil proceeding may be settled at a fairly early stage. I 7 have no way of predicting that. We haven't yet received the 8 defence. We have received a notice of the requirement to 9 mediate and that will, I expect, be done by the end of August 10 in our case; that's the timetable that's required. 11 And so, apart from anything else, I would be 12 pleased to give you an undertaking in terms of -- in 13 appropriate terms. I can't draft them on my feet at this 14 moment. But, in terms of the use of information and the use 15 of documentation obtained or reviewed in the context of this 16 Inquiry and, indeed, in terms of the expenditure of time in 17 this Inquiry, that it not be duplicative. 18 MADAM COMMISSIONER: Thank you. 19 MR. RAJ ANAND: So, I -- I was saying that I 20 would ask you to express your view that the amount put 21 forward is entirely unrealistic and to order payment of 22 reasonable legal fees and disbursements. 23 Or as an alternative, to recom -- to express 24 that view and to recommend payment of reasonable fees and 25 disbursements. And I -- I put that as before, as an

1 alternative request. 2 And in terms of needing a more precise amount, 3 I'm obviously prepared to work with Commission counsel to the 4 extent that they want to or can be involved in this or City 5 counsel to -- to -- to be more precise when the circumstances 6 allow me to be more precise. 7 I just wanted to close by addressing in this 8 context what I set out in my submissions as part of the first 9 submission, and that is the -- the right and obligation of 10 you, as Commissioner, to have control of your own process. 11 Master of your own process in the jargon of administrative 12 law. 13 And I've attempted to put before you several 14 authorities which -- and indeed, they're mirrored in your 15 opening statements that it's the tribunal, including this 16 one, has a duty and a power to ensure that its process is 17 fair and I would add efficient. 18 MADAM COMMISSIONER: And what, sorry? 19 MR. RAJ ANAND: Efficient. And -- and I 20 don't dispute that for a moment. And that's why the checks 21 and analyses of accounts to the extent that it's appropriate 22 is -- are certainly implied in the submissions that I make to 23 you. 24 The Commission has to ensure that there is 25 balance and fairness in all facets of its inquiry, including

1 the investigative, evidentiary and submission phases. And 2 both the Law Reform Commission excerpt and many of the 3 Commissioner's rulings make clear this obligation to ensure 4 fairness in its proceedings. 5 And my submission is simply that like an 6 administrative tribunal, you have -- where there is -- 7 certainly, where there is no prohibition as there is not in 8 this case, you have a right to do what is necessary, what is 9 reasonably necessary, to ensure fairness and completeness 10 looked at from the public interest and the individual 11 interest standpoints. And to put it somewhat differently, 12 you have a right and an obligation to prevent an abuse of 13 your process. 14 And it's my respectful submission that that 15 would result if an individual at the centre of the matters in 16 issue were prevented by financial barriers from defending her 17 direct and substantial interest; and concomitantly, if the 18 Commission were thereby prevented from achieving a balanced 19 report. 20 Now, administrative tribunals of all kinds, 21 and that is clearly what you are for this purpose, have 22 exercised that right and I -- although it's not in my book of 23 authorities, I used the recent Ocean Port example as a case 24 in point. And that was a case involving a Liquor Licence 25 Tribunal in British Columbia which -- which actually on

1 judicial review, the Court of Appeal looked at the 2 appointment terms of the Liquor Licence Board, determined 3 that these were individuals who were appointed at pleasure, 4 that is to say, they could be removed from their order in 5 council positions at any time by the executive of British 6 Columbia. And determined that as a result, parties before 7 the Liquor Licence Board would not be assured of a fair 8 Hearing because of the possible chilling effect on tribunal 9 members of the power of the executive in that case. 10 And the British Columbia Court of Appeal 11 terminated the proceedings before the Liquor Licence Board, 12 it was actually called the Liquor Licence Appeal Board, I 13 believe. It's the equivalent of the Alcohol and Gaming 14 Commission in Ontario. Terminated those proceedings because 15 a fair Hearing could not be obtained. 16 That was appealed to the Supreme Court of 17 Canada and the Supreme Court of Canada reversed that 18 decision. They reversed it not because there could not be 19 fairness or that there could be fairness, they reversed it 20 because there was a binding statutory authority for the 21 Lieutenant Governor in Council to appoint at pleasure. And 22 therefore the Supreme Court applied the, I would say well 23 worn, principle that the principles of procedural fairness 24 and natural justice are those that are dictated by the 25 statute. In other words, the statute trumps principles of

1 common law. 2 But in the absence of a statutory direction, 3 principles of common law will prevail. And my submission to 4 you is simply that you have no statutory impediment and the 5 principles of procedural fairness in this case speak 6 eloquently, in my submission, in favour of granting the 7 balance and the fairness that is -- that is required. 8 And that as a tribunal, you have the power to 9 ensure that your process is not derailed or otherwise abused 10 as, in my submission, it would be if there were this 11 imbalance or an inability on the part of my client to 12 effectively exercise a grant of standing which I have asked 13 you to make. 14 MADAM COMMISSIONER: Thank you, Mr. Anand. 15 MR. RAJ ANAND: Thank you. 16 MR. BILL ANDERSON: Good afternoon. 17 MADAM COMMISSIONER: Good afternoon. 18 MR. BILL ANDERSON: I will direct my 19 submissions to the two (2) points of standing and with 20 respect to the issue of funding. 21 As a general rule, with respect to the issue 22 of standing, any person whose rights are affected in a manner 23 or to a degree different than the general public should 24 automatically be considered a participant of an Inquiry such 25 as this.

1 As a matter of procedural fairness, an 2 individual whose rights are going to be affected by the 3 tribunal's process or by their decision has the right to 4 participate in the process. 5 That test is enunciated in a Divisional Court 6 decision which Mr. Moore passed up to you earlier. It's not 7 necessary for an individual to have an economic interest in 8 the outcome of the Inquiry. However, that will be one (1) of 9 the relevant criteria and I will address that issue. 10 My client is in a similar but not identical 11 position to Mr. Anand's client with respect to this. She is 12 an individual and former employee of the City of Toronto. 13 MADAM COMMISSIONER: Can you help me with the 14 pronunciation of her name please? 15 MR. BILL ANDERSON: I was afraid you were 16 going to do that. Because now I have heard it three (3) 17 different ways today. I call her Wanda Liczyk. 18 MADAM COMMISSIONER: How does she call 19 herself? 20 MR. BILL ANDERSON: Well, she's never 21 corrected me but that doesn't mean that she wouldn't 22 pronounce it a different way. 23 MADAM COMMISSIONER: I've heard Wanda Liczyk. 24 MR. BILL ANDERSON: I have too. 25 MADAM COMMISSIONER: It's not that either?

1 Okay. All right. Maybe -- 2 MR. BILL ANDERSON: I should have heeded your 3 warning earlier. 4 MADAM COMMISSIONER: And maybe if you could - 5 - I'd like to pronounce it in the way that she -- 6 MR. BILL ANDERSON: Absolutely. 7 MADAM COMMISSIONER: -- that she pronounces 8 it. All right. So, if you could let us know at some point? 9 MR. BILL ANDERSON: Absolutely, I will. 10 MADAM COMMISSIONER: It will be easier the 11 sooner we know. So we won't have to be learning three (3) 12 months from now of how to pronounce her name. 13 MR. BILL ANDERSON: In fairness to her, I 14 think that that would be appropriate. 15 And I take it from your comment, and I 16 understand this to be the case because no party that's 17 present here, nor the Commission counsel have ever indicated 18 that Ms. Liczyk should not be a participant in these 19 Hearings. I expect that she will be. However, I will 20 briefly address those issues, because it will be relevant 21 with respect to the issue of funding. 22 The rules of this Inquiry have set out two (2) 23 independent tests for standing: Substantial and direct 24 interest in the subject matter of the Inquiry; or secondly, 25 whose participation may be helpful to the Commission

1 fulfilling its mandate. In our submission, our client 2 satisfies both of those criteria. 3 In Ms. Liczyk's former position she was a 4 person directly involved in the decision-making process into 5 the transactions in question. She was the City's former 6 Chief Financial Officer and Treasurer and a senior staff 7 member. One (1) of those people referred to in the many 8 reports with respect to these issues and directly referred to 9 in the preamble to the resolution calling for this Inquiry. 10 She has also been openly criticised by certain 11 individuals and by members of the press and should be given 12 an opportunity to be heard with respect to the specific 13 issues that are being addressed here so she can clarify her 14 position with respect to these issues. 15 So she's certainly had, historically, a direct 16 and substantial interest in the issues which are going to be 17 addressed in this Inquiry. She also has a substantial and 18 direct interest in the process and the outcome of the subject 19 matter of this Inquiry. 20 Our client's professional and personal 21 reputation are at issue with respect to the issues raised in 22 this Inquiry. It's not required, as I said earlier, that she 23 have a direct economic interest. However, it is not 24 inconceivable that by virtue of these issues that are being 25 addressed, it will compromise her professional reputation if

1 she does not have the opportunity to properly and fully 2 respond to the issues which are being addressed. If her 3 professional reputation is compromised, it will affect her 4 economic interest. 5 As importantly is the second branch of the 6 test with respect to standing: Whether or not she might be 7 helpful to the Commission? That answer, we would submit, is 8 also in the affirmative. Because of her position with the 9 City she will have information and insight into the questions 10 and the evidence which will be entertained by this 11 Commission. 12 Her ability to participate in this Inquiry in 13 a fulsome and organized manner will not only benefit herself, 14 by providing her with an opportunity to respond, but also 15 that of the Commission and the Commission's counsel. The 16 more difficult and perplexing issue is the funding issue. 17 How does she fully participate in this process? 18 She obviously is not an institutional player 19 in this Inquiry nor is she a corporate player which 20 distinguishes her, obviously, from MFP. It would be unfair, 21 in our submission, to put her in a position where she was 22 required to read on the website following a day's evidence or 23 to read in the newspapers what the evidence had been at this 24 Inquiry during the day. And then to have to subsequently try 25 to respond to that either with her own evidence by calling

1 evidence or alternatively, with respect to recalling 2 witnesses. 3 The worst thing for this Commission to do, in 4 my submission, is to not grant full and proper standing to an 5 individual who may then be put in a position to duplicate 6 certain issues and address certain evidence which has already 7 been addressed in the course of the Inquiry. Why recall 8 witnesses during the course of the Inquiry if it can be 9 avoided? 10 I understand and appreciate the issue with 11 respect to the costs associated with an Inquiry such as this. 12 But we are not talking about tens or hundreds of 13 participants. At this point, we are talking about two (2) 14 individuals who have requested the right to be heard and 15 ought to be heard and to participate fully. 16 I understand from comments made by My Friend 17 from the City of Toronto that there will be funding available 18 and that funding is being recommended to be capped at fifty 19 thousand dollars ($50,000). 20 Obviously, and I appreciate and adopt the 21 submissions made by Mr. Anand with respect to the adequacy of 22 that funding, it's difficult at this point for us to truly 23 appreciate how expensive this process might be for our 24 individual clients. 25 Unfortunately, the number that's been chosen

1 by the City of Toronto is completely arbitrary with respect 2 to what the real legal costs will be. Even on the basis of 3 their own calculations of twenty (20) days, twenty-three 4 hundred dollars ($2300) a day and, importantly, one (1) hour 5 of preparation time per each hour of Hearing, that number is 6 a hundred thousand dollars ($100,000). 7 I would also strenuously disagree that twenty 8 (20) days, if the estimate of forty (40) days is accurate, 9 will satisfy my client's needs with respect to the 10 participation in this Hearing. Because I suspect, and I 11 don't know because I haven't seen documents yet, but I 12 suspect that our client -- my client's name and evidence 13 affecting my client will be called on almost a daily basis, 14 given her role, directly or indirectly with respect to the 15 subject transactions. 16 I was a little surprised when I heard the 17 amount of money which was being set aside for funding for 18 counsel to the City of Toronto. And their proposal that the 19 individuals involved receive a maximum of fifty thousand 20 dollars ($50,000). As Mr. Anand points out, that's at 21 minimum 10 percent set aside for our clients to a maximum of 22 15 percent. 23 So, what we have is an institutional party 24 with a war chest of funds to do investigation, research, 25 analysis on these issues and possibly, and we don't know this

1 yet, but quite possibly start looking around at other people 2 to lay blame upon. I trust and hope that that won't be the 3 case, but Ms. Liczyk has to be properly represented which 4 means that she's got to be here, not necessarily by me, but 5 she has to be able to properly monitor, review documents and 6 conduct research in order to fairly and fully participate. 7 In our submission, putting a cap, an arbitrary 8 cap, on it at this time is inappropriate. I, like My Friend 9 Mr. Moore, do not necessarily object to revisiting this issue 10 once there's been full documentary production and we sort of 11 see the direction that Commission counsel and the 12 Commissioner intends to direct these proceedings. 13 However, it would be inappropriate, in our 14 submission to fix an amount at this time without fully 15 knowing that the issues will be and how they will be 16 addressed. 17 MADAM COMMISSIONER: I got the impression 18 from the City's solicitor that she was essentially saying the 19 same thing that you're saying; that we might want to revisit 20 this once we have more information. If I'm wrong on that, 21 she can correct me. 22 MS. DIANA DIMMER: You're correct. 23 MR. BILL ANDERSON: And then, I guess, that 24 goes to the issue of how we might address those issues? I am 25 not going to take a position with respect to your current

1 jurisdiction to make an award with respect to the costs. 2 However, I will be making the submission that 3 you strongly recommend to the City of Toronto that in order 4 to fulfil your mandate within the parameters which you 5 defined as the scrupulous fairness and impartiality, that you 6 recommend to the City of Toronto that you be put in the 7 position where you can determine the fairness and propriety 8 of the funding of the individuals that are seeking and have, 9 at that point, who have obtained standing. 10 I don't think it's appropriate for the City of 11 Toronto who's already decided that they are going to have 12 five hundred thousand (500,000) to seven hundred thousand 13 dollars ($700,000) for legal counsel to then be dictating 14 over the course of these proceedings what would be fair to 15 the individual participants. 16 In order for our clients to properly 17 participate, I would submit that you're in the best position 18 to determine whether or not counsel ought to be in attendance 19 throughout the duration and what type of funding might be 20 available to -- to the individuals involved. 21 In fact, so what I'm asking you to do is to 22 recommend that you obtain the jurisdiction. If you decide 23 you don't have jurisdiction, and again, I'm not going to make 24 submissions on that, but if you determine you don't have 25 jurisdiction, that you obtain jurisdiction to make those

1 determinations. 2 MADAM COMMISSIONER: I am not sure that I 3 have got your point on that. 4 MR. BILL ANDERSON: My Friend, Mr. Anand, has 5 suggested to you that you have the inherent jurisdiction to 6 determine cost and funding consequences to the participants. 7 I do not intend to make submissions with respect to your 8 current jurisdiction. 9 MADAM COMMISSIONER: Okay. 10 MR. BILL ANDERSON: However, I do believe 11 that it would be appropriate for the Commission to recommend 12 to the City of Toronto that you be given such jurisdiction. 13 So rather than saying, I don't believe that 14 fifty thousand dollars ($50,000) is appropriate for the 15 duration of this Commission and have the City of Toronto 16 decide what's appropriate in the circumstances, that you be 17 provided with that jurisdiction, that you request to be 18 provided with it. 19 MADAM COMMISSIONER: Okay. 20 MR. BILL ANDERSON: My last submission is 21 with respect to the timing of those issues. In fairness to 22 the individual participants, if they are allocated certain 23 funding at this point to do the preparatory work in advance 24 of September, assuming that the Inquiry does proceed in 25 September, that we be allowed an amount of funding in order

1 to properly prepare for the Hearings and that the issue of 2 funding be resolved prior to the commencement of the 3 Hearings, so that the parties know to what degree they will 4 be able to participate. 5 Because, as I've indicated, our client will 6 not be able to fully participate in the event that she 7 doesn't receive some funding from the City, which I think 8 would be a shame for the Commission because she does have a 9 valuable and important position to play in this -- the role 10 of this Inquiry. 11 MADAM COMMISSIONER: Okay. Can you help me 12 on that -- with that respect -- on that regard. It's just 13 that when I look at the cases that Mr. Anand has provided, 14 there seems to be some sort of general feeling that there 15 should be something before the Commissioner that explains 16 that the person could not be here without the funding and I 17 think this is actually the first time I've heard this. 18 So, I'd like to know, if I were to make a 19 recommendation to the City about funding, what would I have 20 from you, or your client, to hang my hat on essentially? How 21 do I know that she can't proceed without funding and what 22 would you do with the money if you got it? 23 MR. BILL ANDERSON: I'm not in a position at 24 present to disclose or define what our client's financial 25 situation is because I don't know. I know that she's an

1 individual. I do not expect that she has copious resources 2 to spend with respect to this Inquiry because she is an 3 individual, which completely distinguishes her from the 4 institutional and corporate interests that are before this 5 Inquiry. 6 I do know that from my discussions with her, 7 we would be instructed to play a limited role with respect to 8 this board of Inquiry, if at all possible. She has a 9 balancing act to conduct, which is, I'm very concerned about 10 the nature of this public Inquiry and on the other hand, I 11 can appreciate when the City of Toronto says it's going to 12 cost them five hundred thousand (500,000) to seven hundred 13 and fifty thousand dollars ($750,000), I don't have that type 14 of money. Mr. Anderson, you must appreciate that. 15 We'll deal with that in the course of time. 16 We'll determine what the issues are going to be. We'll 17 determine whether or not there is going to be funding 18 available. So, it's not as if my client has indicated to me, 19 you will represent me throughout the balance of this Inquiry 20 and I have funding to do that. 21 The other important issue, I think to keep in 22 mind, is that this is an Inquiry which was called upon by the 23 City of Toronto in relation to activities that transpired 24 while Ms. Liczyk was employed by the City of Toronto. So, 25 she was an employee at that time.

1 And in the ordinary course of events, an 2 employee would be entitled to indemnification by his or her 3 employer for the purpose of the questioning or circumstances 4 arising from their employment relationship. 5 Now, what would I do with the funding? Like 6 Mr. Anand, I'm quite prepared to provide a billable rate and 7 a litigation proposal with respect to this matter once we 8 have the issues more clearly defined and maybe we can do that 9 through negotiation with Commission counsel. I don't intend 10 to go off and spend hours and hours and hours on the public 11 purse. Nor -- I don't think it's appropriate, nor do I think 12 that it would be appropriate necessarily for the Commissioner 13 not to keep absolute strict tabs on what money is being spent 14 and how it's being spent. 15 In the ordinary course of our billing process, 16 we define how much time is spent on a matter, what lawyer was 17 involved, the hourly rate and a description of what occurred 18 with respect to that time docket. And I would certainly 19 undertake to the Commission to provide that type of detail in 20 order for there to be an accounting with respect to the 21 efforts made in relation to this Inquiry. 22 MADAM COMMISSIONER: Okay. Let