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 December 12th, 2002 25

2
  1                        APPEARANCES
  2  
  3  Ronald Manes            )Commission Counsel 
  4  Patrick Moore           )
  5  Diana Groskaufmanis     ) 
  6  
  7  Linda Rothstein         )City of Toronto 
  8  Lily Harmer (np)        )
  9  Robert Centa            )
 10  
 11  David Moore             )MFP 
 12  Fraser Berrill          ) 
 13  Ken Jones (np)          ) 
 14  Brian Heller   (np)     )Ball Hsu and Associates Ltd.
 15  Melissa Kronick (np)    )CUPE 
 16  Raj Anand (np)          )Lana Viinamae
 17  Bay Ryley               )
 18  William Anderson        )Wanda Liczyk
 19  Valerie Dyer (np)       )Dell Computers
 20  Jennifer Lynch (np)     )
 21  Edward Greenspan (np)   )Jeff Lyons
 22  Todd White (np)         )
 23  Joyce Ihamaki           )Registrar
 24  
 25

1 2 TABLE OF CONTENTS 3 Page 4 BAS BALKISSOON, Resumed 5 Cross-Examination by Mr. William Anderson 4 6 Cross-Examination by Ms. Bay Ryley 56 7 Cross-Examination by Mr. Fraser Berrill 102 8 9 Certificate of Transcript 161 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon commencing at 1:00 p.m. 2 3 THE REGISTRAR: The Inquiry is now in 4 session, please be seated. 5 MADAM COMMISSIONER: Good afternoon. 6 7 (BRIEF PAUSE) 8 9 MADAM COMMISSIONER: Mr. Manes, are you still 10 around? 11 MR. RONALD MANES: Yes, I am, Commissioner, 12 but I'm just about to be seated. 13 MADAM COMMISSIONER: Mr. Anderson, for Wanda 14 Liczyk. 15 MR. WILLIAM ANDERSON: Madam Commissioner. 16 17 BAS BALKISSOON, Resumed 18 19 CROSS-EXAMINATION BY MR. WILLIAM ANDERSON: 20 Q: Councillor Balkissoon. In your evidence 21 yesterday, you said something with respect to when you were 22 giving your evidence about the sale/leaseback agreement. You 23 gave some evidence with respect to your discomfort and 24 unfamiliarity with the language which was in the memo that 25 Mr. Manes was referring to.

1 And I'm going to read it to you, because I 2 want to get a clarification of your understanding of how a 3 leasing transaction works. You said, when you were asked the 4 question: 5 "What do you say -- what do you say as to 6 the words, purchased by MFP and leased back 7 to the City, is that -- do -- do you 8 understand what that --" 9 And your answer was: 10 "It's a difficult term to interpret unless 11 you're familiar with leases. I would say 12 that I would struggle with that if I saw it 13 the first time around, because that would 14 give me the impression that this equipment 15 is owned by MFP and the City is being given 16 access to use it through a payment 17 arrangement." 18 Do you remember saying that? 19 A: Yes. 20 Q: Okay. But that's precisely what a lease 21 transaction is, isn't it? 22 A: Well I -- I look at a simple lease 23 transaction is that you know, in terms of I go out and lease 24 something, I -- I have the possession of it, but I will not 25 have the kind of restrictions that Mr. Domi was trying to

1 explain to me, and that's where my thoughts were coming from. 2 Q: But you understand that a commodity 3 leasing arrangement is simply a form of financing? 4 A: Yes, I do. 5 Q: Right. A third party, such as MFP, would 6 have ownership of the assets and then they would lease it 7 back to the City, for the use of the City? 8 A: I -- I agree. But as I say to you, the 9 explanation I had from Mr. Domi on the phone call -- phone 10 conversation we had, he was trying to imply that they own the 11 network and they would have sole rights to say what can be 12 connected to the network, and I wouldn't interpret it that 13 way. Because if I buy a car and I wanted to put a stereo in 14 it, I would think I'm able to do that. 15 Q: Right. I didn't understand your answer 16 to go that far. 17 A: Well that's -- that's where I was coming 18 from. 19 Q: Okay, but you understand then, that 20 commodity leases are simply a different form of financing? 21 A: Absolutely. 22 Q: Okay, and you understood that in 1998, 23 the City approved the purchase of $149.6 million of hardware, 24 software and services for the Y2K Project? 25 A: I -- I do not believe that we approved

1 the -- the expenditure per se, we approved a plan that this 2 is what it will cost Y2K, and the plan was supposed to be 3 over a period of time. And certain funding will show up in 4 the budget for each year, that's my understanding. 5 Q: Do you recall seeing a document dated 6 November 3rd, which was authored by the Chief Administrative 7 Officer and the Chief Financial Officer, making 8 recommendations with respect to spending for the Y2K Project? 9 A: I may have, but without seeing the 10 document, no, I would not say I -- 11 Q: Perhaps we should -- perhaps we should 12 take a look at it then? 13 A: Do I have it? 14 MADAM COMMISSIONER: I think -- I'm sure 15 he'll lead you to it. 16 17 CONTINUED BY MR. WILLIAM ANDERSON: 18 Q: It's at tab 38 of your brief of 19 documents. 20 21 (BRIEF PAUSE) 22 23 Q: It's document number 30334. Page 2 of 24 that document is the first recommendation, which I will 25 advise you was adopted by Council at the end of November

1 1998. It was recommended that: 2 "Project approval in the amount of $149.6 3 million be approved for the ongoing 4 management of the Year 2000 Program, and 5 for ensuring that the Year 2000 solutions 6 for Priority 1 business functions and 7 Citywide initiatives are implemented." 8 Do you recall that? 9 A: Again, if I read this document, I don't 10 read recommendations standing freely by themselves. As I say 11 to you, I would read Recommendation 1 and I read 12 Recommendation 2, and it clearly states to me, I'm giving the 13 okay to the 149 million to be included in the budget process 14 and the budget statement is made in Recommendation 2. 15 Q: Right. 16 A: And -- and that's where I would see the 17 multi-year plan and the multi-year commitments for finances. 18 Q: Presumably the commitments would have 19 been over the years 1999 and 2000, in relation to the Y2K 20 Project? 21 A: I -- I don't have the budget document in 22 front of me, so I -- I would have to say I'm not sure until I 23 see it. 24 Q: If I were to suggest to you, sir, that 25 this recommendation was adopted by City Council at the end of

1 November 1998, would you have any reason not to believe that 2 were the case? 3 A: No, I -- I -- I would -- I would believe 4 that, again that Recommendation 2 would be the caveat for me 5 in -- in quoting it, is that there's another kick at the cat. 6 Q: If you could turn to the next page of the 7 same document, item 12. 8 A: Yes. 9 Q: Could you read that to yourself, sir? 10 A: Okay. 11 Q: Sir, am I right to suggest to you that 12 City Council approved expenditures of $149.6 million dollars 13 for the Y2K project, and gave the CAO authority to enter into 14 agreements in support of that recommendation for the full 15 amount of expenditures until June of the year 2000? 16 A: I would not have interpreted it that way. 17 Q: How would you interpret that then, sir? 18 A: I see the budgetary process as the main 19 document and the controlling factor and the monitoring 20 factor, so that the expenditures will be geared based on what 21 is approved in the budget on an annual basis. 22 Q: Sir, I'm suggesting to you that for the 23 Y2K project, City Council approved expenditures of $149.6 24 million. Are you saying that's not correct? 25 A: Well, when I read Recommendation 2, it

1 says it's to be incorporated in the financing strategy in the 2 1999 to the 2003 capital budget, capital financing plan. 3 I would see that plan to fall into the 4 picture. 5 Q: Right. 6 A: And it would go along with -- well -- I'm 7 not denying that. So I read the recommendations that they're 8 all inclusive, that they're not free standing. 9 Q: Two (2) different recommendations, sir. 10 One (1) approval for spending of $149.6 million, second 11 aspect is how that $149.6 million was going to be financed, 12 correct? 13 A: That's correct. 14 Q: Right. And when this recommendation was 15 written, City Council's proposed financing for the Y2K 16 project was through debenture spending? 17 A: That's correct as far as we're -- I 18 remember. 19 Q: And in July of 1999, City Council approved 20 a leasing program to finance the purchase of $43 million of 21 the Y2K project, which was $149.6 million, at that time, 22 correct? 23 A: As far as I remember. 24 Q: Right. And at that time, MFP was given 25 approval to act as the financier for that part, the $43

1 million of the spending for the total Y2K project? 2 A: That was my understanding. 3 Q: Now, I understand from your evidence that 4 the difficulty arose when the City appeared to start using 5 MFP as its lease financier for other purchases, without re- 6 tendering for the financing of those purchases? 7 A: That's correct. 8 Q: Right. So, the funding for the project 9 changed and increased from $43 million up to what we expect 10 is going to be a number around $80 million? 11 A: I don't know how you're concluding to 12 that. 13 Q: Well, I expect that we're going to hear 14 evidence about what the total amount of the leases were at 15 the end of the year 2000. You don't know what the number is? 16 A: I have different numbers being thrown at 17 me over time and I believe it amounts to somewhere around $80 18 something million, that it will eventually cost the City, I 19 believe, $106 or $109 million. I don't have accurate figures 20 in front of me, no. 21 Q: But, sir, you'd agree with me that the 22 actual number that was approved by City Council of $149.6 23 million for purchases didn't change? 24 A: No, the -- the plan that Council had for 25 Y2K did not change.

1 Q: Right. The only thing that changed was 2 how those purchases were going to be financed? 3 A: And how the equipment was going to be 4 acquired. 5 Q: Well, the equipment was acquired through 6 the vendors of the commodity, the Dells, the Compaqs, the 7 Toshibas, correct? 8 A: That's correct. 9 Q: You don't acquire the equipment through 10 MFP which is a third party financing company? 11 A: That's correct. 12 Q: Right. So, the only thing that changed 13 was the financing mix for the purchase of the commodities? 14 A: Yes. 15 Q: Okay. And I understand from your evidence 16 that this issue specifically arose in the context of the 17 photocopiers? 18 A: Yes. 19 Q: I understand that the vendors of the 20 photocopiers approached you because they were unhappy that 21 they weren't able to finance the purchase of the photocopiers 22 as well as sell photocopiers? 23 A: Sorry, would you repeat that? 24 Q: Were you ever approached by any vendors - 25 - so Canon, Xerox, et cetera who actually sell the commodity

1 and were asked questions about why they couldn't finance 2 those commodities? 3 A: Not to my knowledge until the report was 4 dealt with by Council. 5 Q: Now, are you aware of any correspondence 6 from For-Office Automation Limited with respect to their 7 express desire to finance the purchase of the photocopiers? 8 A: Not prior to. I believe I received 9 material from them after. 10 MADAM COMMISSIONER: Which -- 11 THE WITNESS: I don't recall being prior to. 12 If it did, it might have been in my office and I may not have 13 read it until after the Council meeting. 14 MADAM COMMISSIONER: Something from which 15 company was it? 16 MR. WILLIAM ANDERSON: It's For-Office 17 Automation Ltd. 18 19 CONTINUED BY MR. WILLIAM ANDERSON: 20 Q: You didn't have a problem with the 21 expenditure of $3.5 million for the photocopiers. You had a 22 problem with how those photocopiers were going to be 23 financed? 24 A: Well, I'm sure from the video you can 25 tell that was my position and it still is.

1 Q: Right. So you were given authority to 2 purchase or spend $3.5 million for photocopying, right? 3 A: Yes. 4 Q: But you were not going to give your 5 authority to finance those photocopiers through MFP? 6 A: Not without a proper open-tender process. 7 Q: And that's the same situation with the 8 $149.6 million that was approved by Council to be spent for 9 Y2K hardware/software. Correct? 10 A: That's correct. 11 Q: And the real issue is how that $149.6 12 million was going to be financed? 13 A: That's correct. 14 Q: If you could go to Tab 3 of your book of 15 documents. 16 17 (BRIEF PAUSE) 18 19 A: That's -- 20 Q: Again, I don't have a document number on 21 the top -- 22 MADAM COMMISSIONER: 95 -- 23 MR. WILLIAM ANDERSON: -- of mine. 24 MADAM COMMISSIONER: 9581. 25 MR. WILLIAM ANDERSON: Thank you.

1 2 CONTINUED BY MR. WILLIAM ANDERSON: 3 Q: Now you read this report in advance of 4 the Council meeting? 5 A: Yes. 6 Q: Right and I take it you make it a 7 practice of reading reports prior to attending a Council 8 where you are going to vote on a recommen -- vote on the 9 adoption or rejection of the recommendations of a report? 10 A: As best as I can because it's a lot of 11 material. 12 Q: So your evidence is that you read these 13 reports on more-or-less an ad-hoc basis? 14 A: I -- I wouldn't say ad-hoc. I try to do 15 my reading on the weekend prior to the -- the Council and I 16 read as much detail as I can to feel comfortable. 17 Q: So your evidence is that you don't read 18 reports before you vote on recommendations at Council? 19 A: Sorry, would you repeat that? 20 Q: Is your evidence that you don't read all 21 of the reports prior to you voting on those recommendations 22 at Council? 23 A: Not in total detail. 24 Q: You skim over the reports? 25 A: I -- I go over the report. If I feel the

1 recommendations and the body of the report satisfies my 2 concerns and -- and that I feel comfortable that the 3 recommendation is the be -- is in the best interest of the 4 City, I will proceed to the next report. 5 Q: So in other words, you read the 6 recommendations or the head note but you don't bother reading 7 the report -- 8 A: No, I do -- 9 Q: As we would say, as lawyers, the actual 10 decision. 11 A: I do the reverse. 12 Q: You read the recommendations -- 13 A: I read the body of the -- 14 Q: -- and the body? 15 A: -- report first because I've known in my 16 career over the years there's always buried in the body of 17 the report -- the background and the source information is 18 sometimes material that is not covered in the 19 recommendations. 20 Q: Right and I would suggest to you, sir, 21 that's a prudent course of action for all Council members to 22 take. 23 A: And I -- I do my best at that. 24 Q: Right and not all Council members do? 25 A: I wouldn't know.

1 Q: Okay. I also understand through the 2 committee process, that it's the committees that are actually 3 charged with the responsibility at the first level to review 4 the reports and ensure their adequacy. That's why you have 5 committees, don't you? 6 A: Well, committees are geared to vet 7 reports, raise issues and if there's a requirement to provide 8 further information that they -- they -- I guess accomplished 9 that by requesting the staff to provide further information, 10 further investigation, and the report moves on to Council, 11 when the Committee feels comfortable that there is enough 12 information there that warrants Council giving final approval 13 of the recommendations, plus amendments or whatever changes 14 that are necessary. 15 Q: There are -- 16 A: The Committee level is -- is -- is 17 strictly to do vetting, and also the Committees were set up 18 to listen to the deputation, because we don't have 19 deputations at Council. 20 Q: All right, there are two (2) checks, in 21 terms of approving the recommendations that are set out in 22 these reports. 23 The first check is at the Committee level, 24 where it's a smaller number of people, and a smaller number 25 of agenda items, and they're expected to go through the

1 reports and to flesh them out if the reports aren't adequate; 2 right? 3 A: That's the basic understanding. 4 Q: Right. And in this report that we're 5 discussing, dated March the 14th, that's exactly what 6 happened at the Administrative Committee; correct? 7 A: It -- I would have expected it to -- 8 Q: Well, if you can turn to tab 2 of the 9 book of documents. 10 11 (BRIEF PAUSE) 12 13 Q: At the bottom of page 1, Council members 14 asked for -- for further information at paragraph 'A' at the 15 bottom of page 1, and they asked for: 16 "Lease rental costs, departmental needs, 17 use of refillable cartridges, cost per 18 copy, control of departmental requirements, 19 unit specifications and options for 20 saving." 21 Correct? That's at the top of page 3? 22 A: Yeah. 23 Q: So the process was working as it ought to 24 have, Committee reviewed the report, they had further 25 questions and they asked staff to satisfy those questions?

1 A: To the best of the ability of those 2 members. 3 Q: Right. The Committee members obviously 4 reviewed this report in advance of asking for that further 5 information? 6 A: That's correct. 7 Q: Right. They never made any comment with 8 respect to the actual funding or financing, for the 9 photocopiers? 10 A: I was not at the meeting, so I -- I -- I 11 can't tell you what discussions took place. 12 Q: Nowhere does that appear from the record 13 that we have that went to City Council? 14 A: Well, Committee meetings are not recorded 15 verbatim, they're recorded in -- in a format if there's 16 amendments or requirements for further reports, but many 17 members will speak and those -- those speeches, if they don't 18 get recorded, if -- if you happen to be there, you'll 19 probably hear someone's concern that is not recorded. 20 Q: You'll agree with me, sir, that nowhere 21 does that appear in the report that was recommended to City 22 Council for approval? There's no discussion or a request for 23 further analysis with respect to the financing of the 24 purchase of the photocopiers? 25 A: There doesn't seem to be.

1 Q: Right. This report came from -- went to 2 and then came from the Administrative Committee; correct? 3 A: I believe so. 4 Q: And that's the right Committee for this 5 type of report? 6 A: Yes. 7 Q: That's where it would naturally go? 8 A: Right. 9 Q: Okay. 10 11 (BRIEF PAUSE) 12 13 A: If it had a recommendation on it for 14 acquisition and financing, it would have to find its way to 15 the P&F Committee also, and -- and I think that was a -- 16 probably an issue to be dealt with. 17 Q: So this report would have found its way 18 to Policy and Finance Committee? 19 A: If the recommendations were written 20 clearly about the financing, but as I -- as I indicated, and 21 the issues that I raised, buried in the body of the report 22 was a statement how to finance it, but it wasn't in the 23 recommendation, and it may well have slipped through the 24 crack if I had not raised my issue. 25 Q: You're specifically referring to, and I'm

1 still on tab 2, it's on page 4, the paragraph, the second 2 last paragraph, the large paragraph at the bottom: 3 "Lease agreement with Departments, 4 Information and Technology, Finance, and 5 our current technology lease provider, will 6 provide for the cost to be charged to 7 Department budgets at an annual cost 8 estimated at $1.3 million, a reduction from 9 estimated current ann -- current annual 10 costs of $3 million." 11 That's what you're saying was buried in the 12 report? 13 A: That's right. 14 Q: Okay. And this report is three (3) pages 15 long? 16 A: The original would have been, yes. 17 Q: Yeah, the March 14th, 2001 report is 18 three (3) pages long? 19 A: That's correct. 20 Q: All right. And by definition, can you 21 bury information in a three (3) page report? 22 A: Yes, you can. 23 Q: That's -- your understanding is that a 24 three (3) page report is actually too voluminous for City 25 Council members to review, not at a Council meeting?

1 A: No, no -- I wouldn't say that. It's -- 2 it's the way the reports are laid out. Council members or -- 3 or the writers focus you to look at the purpose, the 4 financial implications, the recommendations. 5 And many people after they finish reading the 6 recommendation, because the purpose gives them enough 7 material to their satisfaction, they don't proceed to read 8 the rest of it. 9 I have to say that I've seen various versions 10 of writing. I've seen where reports are written that you -- 11 all of the report is at the front and the recommendation is 12 the very last paragraph. 13 So, it all depends on style and what a 14 particular administration and Council chooses as style. The 15 style of the current Council, I believe, leads many Members 16 of Council to just read up to the recommendations and 17 probably just a portion of the background and quit. 18 Over the years, I've learned to choose not to 19 do that. 20 Q: If a City Council Member elected to only 21 read the recommendations and then quit, whose fault is that? 22 The City Council Member or the author of the report? 23 A: Well, I -- I would have to say it's that 24 Member's choice, not mine. 25 Q: Right. And the IT Department didn't

1 simply go out and the Purchasing Department, they didn't 2 simply go out and arrange to have these photocopiers on the 3 MFP lease, did they? 4 A: I would say based on a phone call I 5 received from Mr. Domi, obviously, there was some indications 6 and discussions between staff and MFP that that was probably 7 going to happen. 8 Q: There was an expectation, I agree with 9 you, sir, and -- 10 A: And that was based on a visit that I got 11 from Mr. Lyons. 12 Q: The report indicates that the intention of 13 the authors was to put the photocopiers on the MFP lease? 14 A: That's correct. 15 Q: And that's what the report states? 16 A: Yes. 17 Q: Okay. It wasn't withheld from you that 18 that was the intention of the authors? 19 A: It did not state who that provider was, 20 when the agreement was signed and if it was a valid agreement 21 approved by Council. And that was my concern. I just wanted 22 to verify it. 23 Q: Right, and that's the issue that you 24 raised with Lana and with Mr. Doyle? 25 A: That's correct.

1 Q: But, if you look at the actual report, it 2 indicates that the financing is going to come from the 3 current technology lease provider, and there was a current 4 technology lease provider at the City and that was MFP? 5 A: Not to my knowledge. 6 Q: Did it matter -- it didn't -- not to your 7 knowledge, who it was, or that there was someone providing 8 leasing for technology? 9 A: As far as I understood, that if Council 10 made a commitment to lease one (1) year. We never had an 11 agreement to have a permanent lease provider or a lease 12 provider for a specific duration time that I was aware of. 13 Q: You never agreed to have a vendor of 14 record? 15 A: I do not recall that. 16 Q: Right. Nowhere in this report, does it 17 ever use the term, vendor of record, does it? 18 A: It says, lease provider, I think English 19 is a tough language to interpret definitions. 20 Q: Vendor of record was a term that was used 21 by employees back at the Metro government, wasn't it? 22 A: I wasn't at Metro and -- 23 Q: You don't know -- 24 A: -- and I've never worked in a purchasing 25 department, so I couldn't tell you.

1 Q: So, to be clear, what the report says is, 2 current technology lease provider and there, in fact, was a 3 technology lease provider at the City of Toronto, and it 4 happened to be MFP? 5 A: Not to my knowledge. 6 Q: You didn't know that it was MFP? 7 A: Council never approved that. 8 Q: Council -- sir, Council did approve a 9 leasing arrangement for technology with MFP in July of 1999. 10 A: For a portion of the Y2K program. 11 Q: Right. And we're going to get to that in 12 a minute, because that's where you're dispute came with Mr. 13 Doyle. 14 But for the purpose of this report, there was 15 disclosure that the financing was intended to be put through 16 the current technology lease provider and there was one (1) 17 at the City of Toronto? 18 A: I don't have any information that proves 19 that to me. Not then, not now. 20 Q: Is MFP a technology lease provider? 21 A: Not to my knowledge. 22 Q: Thank you. 23 MADAM COMMISSIONER: Mr. Balkissoon, was your 24 concern with respect to whether MFP was the technology lease 25 provider for the City, or whether it was a technology lease

1 provider? 2 THE WITNESS: Well, the way I read this, it 3 says, a lease agreement with the departments will be done 4 with this current technology lease provider. I do not 5 remember Council approving any report that says this will be 6 our technology lease provider. 7 MR. WILLIAM ANDERSON: Sir -- 8 THE WITNESS: And because I don't remember 9 any such report and approval given by Council I have to say I 10 -- to my knowledge the Council did not approve a current 11 technology lease provider of record. 12 13 CONTINUED BY MR. WILLIAM ANDERSON: 14 Q: Sir, I think we're in agreement and we'll 15 see that when we start talking about Mr. Doyle and what he -- 16 what his explanation was. There was no exclusive agreement 17 with a technology lease provider. Correct? 18 A: Not to my knowledge. 19 Q: But there was an agreement with a 20 technology lease provider. 21 A: The City had an agreement, yes, with MFP. 22 Q: Right, thank you. So they were the 23 technology lease provider at that time? 24 A: That's correct. 25 Q: But non-exclusive.

1 A: Well, my discussion with Ms. Viinamae at 2 the onset and the briefing memo that was given to me gave me 3 the firm confirmation based on our discussion that the intent 4 was clear to give this particular contract to MFP. 5 Q: Correct. 6 A: And that's where my disagreement with the 7 report got stronger and stronger. 8 Q: You didn't agree with that because you 9 thought the financing for the photocopier should go out to 10 tender? 11 A: She made it clear that we have a lease 12 provider and -- and this was going to be given to MFP and she 13 brought me the MFP documents to make me satisfied that yes, 14 she was doing the right thing. 15 Q: And that's contained in this report where 16 she says that's what we're going to do with the financing. 17 Right? 18 MADAM COMMISSIONER: I'm not sure -- 19 THE WITNESS: I'm not sure. It says that in 20 the report. 21 MADAM COMMISSIONER: Hang on, Mr. Balkissoon. 22 MS. LINDA ROTHSTEIN: If Mr. Anderson could 23 just repeat the question so it's clear what he's suggesting 24 to the witness is apparent in the language of the report. 25 I'd be obliged Madam Chair -- or Madam Commissioner.

1 MADAM COMMISSIONER: Mr. Anderson? 2 MR. WILLIAM ANDERSON: In this report drafted 3 by Ms. Viinamae -- 4 MADAM COMMISSIONER: That's the one (1) at 5 Tab 2, is it? 6 MR. WILLIAM ANDERSON: At Tab 2 -- both at 7 Tab 2 and Tab 3. 8 At Tab 2 she indicates that the intention of 9 the authors in the IT Department was to finance those 10 photocopiers through the current technology lease provider 11 and that was disclosed to you and you disagreed with that, 12 right? 13 THE WITNESS: Correct. 14 MR. WILLIAM ANDERSON: Okay. 15 16 CONTINUED BY MR. WILLIAM ANDERSON: 17 Q: And the reason why she wanted to put it 18 through the current technology lease provider was because she 19 could reduce the cost to an estimated $1.3 million annually 20 from the current annual cost of $3 million; so a $1.7 million 21 savings to the City of Toronto. Right? 22 A: I wouldn't agree with that statement at 23 all. 24 Q: Well, I'm just reading the report here 25 and it says that annual estimated costs that would be $1.3

1 million and prior to that they were $3 million. 2 A: The reduction in cost is changing from 3 the current form we have to the new equipment. The fact that 4 it's going to MFP has nothing to do with the savings. You 5 would achieve that savings regardless of what financial tool 6 you use, or institution. You would know the actual savings 7 by going out to the financial institutions based on a tender 8 process. 9 Q: Right and that was your problem with the 10 report. There was no tender process in place and you and 11 City Council rejected the report. Correct? 12 A: Right but I want it to be understood 13 clear your statement that there were savings in this report 14 because it was going to be given to the current lease 15 provider is incorrect. The savings are there because of the 16 change from old equipment to new equipment and a -- and a 17 different format of operating which is moving towards 18 efficiency. 19 Q: Have you done a financial analysis with 20 respect to the savings on the change of old photocopiers to 21 new photocopiers? 22 A: Have I done it? 23 Q: Yes. 24 A: No, I haven't. 25 Q: So it's not really fair for you to give

1 evidence about whether or not the savings were $1.7 million 2 or otherwise. 3 A: No, but if -- if I read this report -- 4 MADAM COMMISSIONER: No, I don't think -- I 5 don't think that -- I -- I didn't get the impression that Mr. 6 Balkissoon was giving evidence about what the costing would 7 be. 8 He's saying that in the way he read it -- he 9 reads it, that he's not giving an opinion that another 10 provider would be giving it at a different rate. He's saying 11 this has nothing to do with MFP. 12 MR. WILLIAM ANDERSON: I understood that 13 that's what he was saying and I expect we're going to have to 14 hear from the author of the report as to why she indicates 15 there would be a $1.7 million annual reduction from the 16 budget. 17 I'll move on then. 18 MADAM COMMISSIONER: Okay. 19 20 CONTINUED BY MR. WILLIAM ANDERSON: 21 Q: So your question was to City Council, why 22 is MFP getting the financing deal for these photocopiers? 23 A: That was one (1) concern. 24 Q: And the explanation from Ms. Viinamae was 25 that there was a three (3) year deal with MFP?

1 A: That was her interpretation. 2 Q: Right, and she also talked about savings 3 and integration of different lease arrangements and 4 administrative efficiencies, as a result of giving the 5 financing to MFP? 6 A: I believe she only made one (1) comment 7 to that effect, that in her opinion, it -- it would be better 8 to administer one (1) lease than multiple lease, but that's a 9 decision that has to come from Council, not staff. 10 Q: Right, and Council rejected that 11 recommendation? 12 A: Based on my motion to re-tender, I have 13 to say I agree. 14 Q: If you could turn to tab 39 of your book 15 of documents, which is 32202? 16 17 (BRIEF PAUSE) 18 19 MADAM COMMISSIONER: And, Mr. Anderson, I 20 wonder if I could just ask you how much longer you think 21 you'd be. I think you told me yesterday -- 22 MR. WILLIAM ANDERSON: A half an hour -- 23 MADAM COMMISSIONER: -- between a half an 24 hour. 25 MR. WILLIAM ANDERSON: -- and I'm -- I'm

1 awfully close. 2 MADAM COMMISSIONER: Okay. Okay, good. 3 Thank you. Thirty-nine (39)? 4 MR. WILLIAM ANDERSON: Thirty-nine (39). 5 6 CONTINUED BY MR. WILLIAM ANDERSON: 7 Q: And Ms. Viinamae's opinion came from 8 Recommendation number 1 of this report: 9 "That the City of Toronto enter into a 10 leasing contract with MFP Financial 11 Services for leasing computer equipment and 12 related software for three (3) years." 13 That was your understanding of how she was 14 supporting her opinion? 15 A: That is what she tried to explain to me. 16 Q: Right, and you had the honest belief that 17 what that really meant was a one (1) time deal with MFP for 18 three (3) year term leasing? 19 A: Again, as I stated earlier, I read all 20 recommendations that are tied together. If you read 21 recommendation number 2 and number 3, I think it clarifies 22 recommendation 1, as a one (1) year allotment. 23 Q: Right, that was your honestly held 24 belief? 25 A: I -- I believe that's the opinion of

1 myself and many others. 2 Q: And Ms. Viinamae's honestly held belief 3 was that there was some type of a three (3) year deal with 4 MFP, as a non-exclusive financier for technology? 5 A: I believe she said to me that Finance has 6 given her instructions that we have an agreement with MFP, to 7 be the leasing provider for the next three (3) years. 8 Q: Three (3) years. 9 A: I -- I'm not -- I'm not sure she's making 10 that opinion on herself, I believe she was trying to tell me 11 that she was instructed by Finance of Purchasing and Material 12 Management, as they're called, that that is the direction 13 that she should follow. 14 Q: So someone believed that there was a 15 three (3) year deal? 16 A: Someone, I don't know who that is. 17 Q: On the basis of this recommendation? 18 A: Obviously. 19 Q: And in order to clarify the confusion and 20 the dispute between the two (2) of you -- two (2) of you, you 21 referred the question to Ossie Doyle? 22 A: I did not refer the question to Ossie 23 Doyle, I -- I requested to see the master agreement myself. 24 I was denied access, and in the denial of access, the only 25 alternative presented to me was I should question Mr. Doyle.

1 Q: Who denied you access to that document? 2 A: Mr. Doyle. 3 Q: Right. Not the Finance Department? 4 A: Well, I was told that the Legal 5 Department has the document, and if I have a -- an interest 6 in the document, I have to deal with Mr. Doyle. 7 I -- I requested a copy of it and he said, no. 8 And he said to me, if you have concerns or questions, raise 9 them on the floor, and I'll answer them. 10 So I -- I -- I saw that as being denied 11 access. 12 Q: Right. And when Mr. Doyle was asked the 13 question with respect to his understanding of recommendation 14 number 1, he said, it appears to me in my legal opinion, 15 there's a three (3) year deal that's non-exclusive, with MFP? 16 A: And we disagreed. 17 Q: Right. And that added to the confusion 18 about what the deal was with MFP? 19 A: I -- I suppose there -- there wasn't more 20 of the tape, I would have to say to you if you'd seen an 21 earlier portion of the tape, I don't know if there was 22 prompting going on, but there was a lot of discussion between 23 Ms. Viinamae and Mr. Doyle before he answered those 24 questions, and that was missing on the tape you saw 25 yesterday.

1 Q: Well, we haven't seen that tape. The 2 tape -- the tape that we saw shows Mr. Doyle, who I believe 3 is the senior City Solicitor? 4 A: That's right. 5 Q: Giving his opinion that there was some 6 type of a three (3) year non-exclusive deal with MFP? 7 A: I believe that tape was almost at the end 8 of my questioning of staff. So there's a portion that's 9 missing before and if I remember correctly, when I was called 10 to the floor to ask my questions, most of my questions were 11 answered after Mr. Doyle consulted with Ms. Viinamae. 12 So I don't know what conversation they had in 13 private. So I really don't know whose interpretation I was 14 getting, but I was getting one. 15 Q: Okay. And I hope and expect that we'll 16 actually hear that. My point is, you believed one (1) thing, 17 Ms. Viinamae and apparently Mr. Doyle, believed that the -- 18 believed something else with respect to the arrangements with 19 MFP? 20 A: That's true -- 21 MS. LINDA ROTHSTEIN: Madam Commissioner -- 22 MADAM COMMISSIONER: Yes -- 23 MS. LINDA ROTHSTEIN: Just so it's clear, I 24 saw the tapes and I read the transcripts and I'm not sure 25 it's fair to suggest to the witness that Ms. Viinamae and Mr.

1 Doyle, gave the same interpretation to the arrangement with 2 MFP. 3 I think they differed in at least one (1) 4 material respect. And specifically, I don't recall Ms. 5 Viinamae ever suggesting to this Councillor that it was a 6 non-exclusive arrangement whatever the term of it was. 7 So, I don't think it's fair to lump together 8 in a single question, the views of Ms. Viinamae and Mr. 9 Doyle, as expressed in answer to the questions of the 10 Councillor. 11 MADAM COMMISSIONER: Okay. Now, maybe I could 12 have some assistance in this respect, as well. 13 Mr. Balkissoon is referring to a part of the 14 tape that doesn't appear to be in what we presented. And I'm 15 just wondering, if there -- is there another tape, or was 16 that one (1) edited or -- 17 MS. DAINA GROSKAUFMANIS: Madam Commissioner, 18 maybe I can help with that. 19 There are two (2) tapes. What we have is tape 20 number two (2). I have watched both tapes. The exchange 21 that Mr. Balkissoon is referring to is not -- is not on 22 either tape. 23 That doesn't mean it's not there. My 24 understanding is it's in City Hall. And perhaps the City of 25 Toronto lawyers can assist me with that.

1 But, there's a stationary camera and it's 2 picking up a couple of different -- it is focussed on 3 Councillors or it will focus on staff, but, it won't 4 necessarily pick up every exchange that's there. 5 But, I have the -- both tapes and neither tape 6 has any reference to -- it doesn't show any discussion 7 between Ms. Viinamae and the City Solicitor. 8 MADAM COMMISSIONER: Okay. Which is not to 9 say that the discussion didn't occur, as Mr. Balkissoon is 10 saying, it's just the camera didn't pick up that part of 11 conversation that was going on, because it was picking up 12 something else? 13 MS. DAINA GROSKAUFMANIS: That's right. 14 MADAM COMMISSIONER: But, it's not the one (1) 15 that you -- that was put in as Tab 14 -- or the transcript at 16 Tab 14, is edited by Commission Counsel, in any way. 17 MS. DAINA GROSKAUFMANIS: It hasn't been 18 edited and, in fact, the video tape, if you'll recall from 19 yesterday, actually has a break in it that's -- 20 MADAM COMMISSIONER: Yes, it did have a -- 21 MS. DAINA GROSKAUFMANIS: It's in the original 22 video tape as well. 23 MADAM COMMISSIONER: I see. Okay. Thank you. 24 Does that help, Mr. Balkissoon? 25 THE WITNESS: I hope it helps Mr. Anderson,

1 because I clearly remembered every question I asked, Mr. 2 Doyle consulted with Ms. Viinamae. 3 MADAM COMMISSIONER: I think what I'm hearing 4 the lawyer saying, is that you're not not telling the truth, 5 if I can use a lot of negatives, but, that the video tape 6 itself, doesn't necessary capture that -- 7 THE WITNESS: That's fair -- 8 MADAM COMMISSIONER: -- because while the 9 video tape may be -- the camera might be on you, at the time 10 -- 11 THE WITNESS: -- they were consulting. 12 MADAM COMMISSIONER: -- they were consulting. 13 Just as now, the -- 14 THE WITNESS: I understand. 15 MADAM COMMISSIONER: -- camera is probably on 16 you, even though I'm the one (1) asking the questions. 17 THE WITNESS: Yes, that's probably correct. 18 MADAM COMMISSIONER: All right. Now, Mr. 19 Anderson, you have Ms. Rothstein's concern, as well? 20 MR. WILLIAM ANDERSON: Yes, I do. 21 MADAM COMMISSIONER: Okay. 22 23 CONTINUED BY MR. WILLIAM ANDERSON: 24 Q: Is it fair to say, it was a honestly held 25 belief by Ms. Viinamae, as expressed by her, that there was

1 some type of three (3) year agreement with MFP? That was her 2 understanding? 3 A: I can't explain Ms. Viinamae's 4 understanding. I can only explain my own. 5 Q: And what she explained to you, during the 6 course of that exchange? 7 A: When she came to me, she said that we have 8 an agreement with MFP and that all our leasing arrangements 9 for the three (3) years, the leases were to be given to MFP, 10 if I could put it in simple terms. 11 That was my simplistic understanding, and 12 that's where we disagree. 13 14 (BRIEF PAUSE) 15 16 Q: Ms. Viinamae also expressed to you at that 17 meeting that she was there that day and the report was there 18 that day, in order to get approval for the MFP financing of 19 the photocopiers? 20 A: I can't say I remember that to that exact 21 term. 22 Q: One last question and it has to do with 23 when you became aware that there were other assets that were 24 included with the MFP leases in the year 2000. 25 A: I -- it may have been either the meeting

1 that the Mayor summoned me to his office when the CAO and 2 senior staff gave us a little bit of a background into their 3 review. 4 Or it may have been the first audit committee 5 following that review that they reported out to committee and 6 KPMG and Mr. Lenczner was there but it was either one of 7 those two meetings. 8 I was summoned to the Mayors office to get a 9 briefing as the Chairman of Audit Committee, along with the 10 Chairman of Administrative Committee to that Mayor's office, 11 following Ms. Hoy pulling the reports and doing the 12 investigation. 13 So it could have happened at either one (1) 14 those two (2). I could not tell you exactly. 15 MADAM COMMISSIONER: Ms. Hoyle? 16 THE WITNESS: Ms. Hoy. 17 MADAM COMMISSIONER: Hoy -- Hoy -- Hoy. 18 Sorry. 19 20 CONTINUED BY MR. WILLIAM ANDERSON: 21 Q: So the first you learned that assets were 22 put on the MFP leases in the year 2000 was after May 2, 2001? 23 A: That's correct. 24 Q: In your -- in the evidence of the 25 transferate it says -- and this is a question from you:

1 "So they were entitled to the 1999 business 2 of our City. They were not entitled to the 3 2000 and I believe they were given the 4 2000. I'm saying to you that they were 5 given the 2000 without the rights of this 6 Council." 7 A: When I had discussion with Ms. Viinamae I 8 did not have the exact -- I thought you were asking me if I 9 knew of the exact values that were given to them for 2000, 10 sorry. 11 Yes, I knew with my discussions with Ms. 12 Viinamae that 2000 business was given to them. We never had 13 any detailed discussion as to what it was. 14 Q: When did you have those discussions? 15 A: Well, after she said to me that they are 16 entitled to three (3) years of business, we're now in the 17 year 2001. So clearly I understood that and -- and she 18 confirmed that. 19 Q: Did she tell you that at the May 2 20 Council meeting or prior to that? 21 A: We had no discussions prior to the May -- 22 April/May time frame meeting on this or any other contract. 23 So it would have started at that point in time. 24 Q: It started at the Council meeting of May 25 2nd?

1 A: That was the first time we have any conf 2 -- consa -- conversations with regards to these types of 3 agreements. 4 Q: The passage that I just referred to is on 5 Page 8 of the transcripts. On Page 15 of the transcripts, 6 you ask another question. 7 "My question of the IT staff is the 19 -- 8 the year 2000 IT equipment that was 9 secured, were they all given to MFP?" 10 And the answer was, Yes they were. You 11 obviously knew before that answer that there were assets from 12 the year 2000 that were put on the MFP leases? 13 A: During the Council meeting. 14 Q: There's no reference to it in this 15 transcript. 16 A: Well based on her interpretation of 17 Recommendation 1 it's clear to me I'm now in the year 2001. 18 The agreement was issued in 1999. 19 Her interpretation is they have three (3) 20 years of purchases so it's clear to me that 2000 was 21 obviously given to them and that's in -- on the transcript or 22 -- or the video. 23 I'm asking that question for verification. I 24 had no knowledge of it and I had no evidence of it. That's 25 why I stood up at the Council and asked a question to confirm

1 it. 2 Q: Prior to that you had a suspicion that 3 there was actually assets that were put on that MFP in the 4 year 2000. 5 A: Not until I was told that we had a three 6 (3) year commitment to MFP. 7 Q: With respect to access to information, I 8 understood your evidence to be your were frustrated by lack 9 of access to information and one of the things was the MFP 10 contracts. Right? 11 A: At the Council meeting I -- 12 Q: Right. 13 A: -- requested it and it was denied. 14 Q: And that was Mr. Doyle? 15 A: Mr. Doyle had it and said no -- he asked 16 me questions on it, this is proprietary information. 17 Q: I also understood, from your evidence, 18 some of the other frustration that you were expressing with 19 respect to access to information came from financial 20 information? Now you weren't able to access that information 21 on line? 22 A: No, I think Mr. Manes was probably going 23 through some questioning yesterday about how the new City 24 worked and what my opinion of the new City is. 25 Q: Right. And you expressed a frustration

1 by not having accessing to financial information? 2 A: As -- as a member of the Budget 3 Committee, I expressed that frustration throughout the three 4 (3) years I was on the Committee. 5 Q: And you wanted access to information on 6 line so that you could have it in your office or at home? 7 A: No, we started the -- the -- let's -- 8 let's go back on this. 9 We started the City on the manual process 10 because we had seven (7) systems, so a lot of the things were 11 on paper, in year two (2) a lot of it started to -- to be put 12 onto the systems, and -- and we were given material that was 13 printed out of the systems. 14 In year three (3), and I -- I believe part of 15 year two (2), the documents that were the background 16 documents to the line items that were given to us in that 17 global budget was computerized. 18 Access was only limited and I did complain 19 about it, because limited access -- it gave me the 20 connotation that if I could only access it from the office, 21 then I -- I can't study my documents, because the best place 22 to review, read, and understand is at home. 23 So it's -- it's being done to deny me access 24 in a sense, because there is no other access, and there's no 25 other way to get it, unless I go to my office and print it in

1 hard form and take it home and read it. So it was 2 frustrating. 3 Q: Right, and that was a systems problem 4 which was eventually remedied through the CAPDOR computer 5 technology that they introduced? 6 A: I -- I'm not sure what the problem was. 7 Q: But it was a problem with the logistics 8 of being provided with copies of information and tech -- a 9 technological transfer of that information? 10 A: I -- I don't think it was mainly that, 11 because I can tell you I had one (1) -- one (1) situation in 12 year number 4, where -- 13 Q: When was that, sir? 14 A: -- year 4 of the amalgamated City. 15 Q: Okay, it was after June of 2001? 16 A: No, I think it was prior. 17 Q: Just prior? 18 A: Yes. Where the budget Chairman came to 19 my Works Committee and -- and made a very elaborate speech 20 that he expected the Committee members to do a detailed 21 budget analysis line by line, and I interrupted him in his 22 speech and I says, excuse me, you are asking me to do a 23 function, and I don't have access to the information. 24 And it -- it was made clear then that the 25 information was available, but Finance can't provide it to me

1 until they get authorization from the Commissioner of the 2 Works Department, and the Commissioner is saying, I don't 3 have it, so why do they need my permission to give it to you? 4 So I -- I think there was -- it was -- my personal perception 5 there is -- this was intentionally being done. 6 Q: By Public Works? 7 A: No, by the City Operation, the 8 Administration, whoever. And I can tell you that the 9 Treasurer walked in my office during that year of the budget 10 process and dumped me a package like this. She made a lot of 11 statements with foul language and walked out. 12 Q: She gave you the information that you 13 requested? 14 A: At the end of the process, it was too 15 late. 16 Q: Is it fair to say, sir, that the 17 Treasurer or CFO reports to Council as a whole, and cannot 18 respond to the individual requests of fifty-seven (57) City 19 Councillors? 20 A: If the Treasurer and the Budget Chairman 21 will come to my Committee and state that my Committee is 22 given the mandate to do a review in detail, I expect that 23 they both should be prepared to give me the information to 24 allow me to do that review. 25 And if -- if they -- if they believe that I'm

1 asking for information that is -- should not be given to me, 2 they should make it very clear that if I want that 3 information, then -- then it is my duty to go to Council with 4 a resolution requesting that Council authorize that 5 information to me. 6 And at no point in my career in the new City, 7 was I ever told by any Administrative Officer, that what I'm 8 requesting, requires Council to give approval for me to see 9 it. I have never been told that. If I was I would have been 10 the first person marching in with a Notice of Motion. 11 Q: And this is a frustration that you 12 experienced for the first four (4) years of amalgamation, at 13 various departments and various levels of staffing? 14 A: I -- my main contact was three (3) years 15 at budgets. And year four (4) was -- I was on the Works 16 Committee. The majority of my work and contact would have 17 been restricted to those areas -- concentrated efforts. 18 MR. WILLIAM ANDERSON: Those are all of my 19 questions. 20 Thank you. 21 MADAM COMMISSIONER: Thank you. 22 Mr. Balkissoon, when you mention that someone 23 had dropped a pile of information on your desk with foul 24 language and walked out. Was that -- was that a staff 25 person?

1 THE WITNESS: It was the Treasurer. 2 MADAM COMMISSIONER: With the foul language? 3 THE WITNESS: Yes. 4 MADAM COMMISSIONER: You mean Ms. Liczyk? 5 THE WITNESS: Yes. 6 MADAM COMMISSIONER: And what -- I'm having 7 difficulty understanding how the foul language came about and 8 what that was. 9 And Mr. Anderson, if you have any questions 10 arising out of mine, I'll assume you're not finished your 11 cross examination yet, all right? 12 MR. WILLIAM ANDERSON: I hadn't heard the 13 story before, so I had no reason -- 14 MADAM COMMISSIONER: Okay. 15 MR. WILLIAM ANDERSON: -- to tell it. 16 MADAM COMMISSIONER: Would you tell me the 17 story. Because one (1) of the things I have to look at is 18 the relationship also between staff and elected 19 representatives. 20 THE WITNESS: There is -- I sit on the Works 21 Committee, starting this new term of Council in the year 2001 22 and this year 2002. As a Member of the Works Committee, the 23 operating budget was tabled at the Works Committee. 24 The Chairman of the Budget Committee appeared 25 at our committee, and made a very elaborate speech that he

1 expects the committee to do the detail work so that we would 2 make the appropriate cuts and send the final recommendation 3 of the Works Committee to Budget, such that the Budget 4 Committee would have an easier job to do and probably clearly 5 understand the direction the Works Committee would like to 6 have. 7 So, I questioned the fact, how can I do it, 8 because the information that was in front of me, was at a 9 very high level. 10 As an example, it will give you snow removal, 11 district four (4), x number of millions of dollars. But, in 12 between that envelope, there's got to be forty (40) or fifty 13 (50) program lines that, if you expect me to make changes to 14 millions without knowing where the dollars are being spent, 15 it's a very difficult task. 16 So, I raised the issue with him, that how can 17 I do the job, if I don't have the detailed budget. 18 MADAM COMMISSIONER: And this is -- is this 19 Mr. Jakobek? 20 THE WITNESS: No, this is Mr. Shiner. 21 MADAM COMMISSIONER: Mr. Shiner, okay. 22 THE WITNESS: Yes. Subsequent to that, at 23 that meeting, discussions went on about the detailed budget 24 and it was clear that it was the Commissioner's authority to 25 give us that information. It was not the Treasurer's

1 authority. 2 And in action, the Commissioner, he indicated 3 he did not have the information at the present time, and 4 therefore he can't give it either. 5 Subsequently, there was a task force of the 6 Works Committee set up. It was myself, Councillor Irene 7 Jones, Councillor Peter Li Preti. The three (3) of us 8 reviewed the Works Department budget in the detail form, as 9 detailed as possible. 10 We actually sat with the Directors of the 11 Department and they provided us as much information as they 12 had and what they had used to prepare the documentation. 13 There was a lot of issues that the three (3) 14 Councillors raised and information was lacking and it was 15 left to staff to try and resolve it and come back to the 16 Works Committee. 17 Eventually, the Works Committee dealt with the 18 operating budget. I was not 100 percent satisfied that we 19 saw all the information, but based on time schedules that 20 Council put you under, you sometimes have to let things go, 21 although you might be very passionate about it, so that you 22 could meet schedules. 23 Somewhere after that process, before the whole 24 budget process was finished at Council, I believe, there was 25 just a couple of days before the main Council meeting, Ms.

1 Liczyk walked into my office and started with the statement, 2 you're interested in the detail budget, you want detail 3 budget, well, here they are with all this foul language 4 connected to it, that I wish not to repeat. 5 And I -- I'll be honest, I looked over the 6 information and it was not accurate, it was not complete, and 7 that has been one (1) of my concerns, because Council has 8 been advised over and over that the SAP system the City 9 purchased is functioning properly, and I believe as of that 10 point in time, that system was not functioning properly. 11 So, the reality versus what Council was being 12 told was not, in my opinion, accurate. If the reality that 13 the SAP system was working, which is our financial system, 14 then the information that I was requesting could readily have 15 been printed out of that system and provided to me. 16 But obviously something was wrong, and the 17 information that was coming out of it was not pure, and 18 because I was being denied access, I think people were 19 concerned that if I had it, I would be able to identify the 20 failure of the SAP system, because I've been a critical -- 21 critic of that system. 22 MADAM COMMISSIONER: And with respect to the 23 -- the language, I'm actually interested in the language, I 24 know you don't want to have to say it, so let me ask you 25 first of all.

1 Does the foul language have to do with the 2 details or was it directed at who you are? 3 THE WITNESS: I think it was directed at who 4 I am. 5 MADAM COMMISSIONER: Okay. 6 THE WITNESS: That I was prying into areas 7 that some people think I should not. 8 MADAM COMMISSIONER: And I would -- it would 9 be helpful for me actually, I understand you don't want to 10 have to give me the details, but it would be helpful for me 11 to have it? 12 THE WITNESS: Well, I think the document was 13 described as being your F'ing so and so document. 14 MADAM COMMISSIONER: Okay. So it was about 15 the documents that -- 16 THE WITNESS: Well, the adjectives were -- 17 MADAM COMMISSIONER: It was yours -- 18 THE WITNESS: -- based on the document, but 19 it's the tone of the voice and the language that were -- that 20 the statement was made to me, made me a little uncomfortable 21 at the time, but I left it at that and didn't pursue it, 22 because I thought that maybe under frustration, people do 23 lose their cool, I do lose my cool sometimes, and you -- you 24 have to walk away from situations like that, and -- and hope 25 that it never happen again.

1 MADAM COMMISSIONER: Okay. 2 THE WITNESS: But you know, it was at the end 3 of the budget process, or late in the budget process. In 4 fact, receiving the information at that time was too late for 5 me, as the Works Committee had done their job. 6 MADAM COMMISSIONER: And this was in 2001, 7 did you say? 8 THE WITNESS: 2001, yes. 9 MADAM COMMISSIONER: Okay. Mr. Anderson, do 10 you have any questions arising out of that? 11 MR. WILLIAM ANDERSON: A slight follow up 12 question. 13 14 CONTINUED BY MR. WILLIAM ANDERSON: 15 Q: You indicated that this was at the end of 16 the budget process? 17 A: Some -- somewhere there, I -- I don't 18 remember the exact date, but I knew it was after the Works 19 Committee had finished their job. 20 Q: Right. And how long did the budget 21 process go on for? 22 A: Well, it normally starts in an election 23 year in January, and it could go up until April the 30th. 24 Q: And I understood from previous witnesses, 25 that this process is incredibly gruelling and demanding on

1 everyone involved in it? 2 A: I'm a member of the Committee, I 3 performed on that Committee for three (3) years, I accept the 4 job, and I accept the challenge -- 5 Q: I understand that Mr. Jakobek can tend to 6 be very difficult in relation to the staff who sit on the 7 Budget Committee and assist with that process? 8 A: Everyone will have a different opinion of 9 that. 10 Q: You don't agree with that? 11 A: Well, you have a job as a Committee 12 Member to -- to get information, and how people get it is 13 their own style, and how people interpret that is their 14 opinion, I can't -- I can't express an opinion on that. 15 Q: I also -- 16 A: I've always had a good working 17 relationship with Mr. Jakobek. 18 Q: So he was pretty easy to get along with 19 then, that's your evidence? 20 A: From my perspective? 21 Q: Yes. 22 A: I've never had a conf -- I had one (1) 23 confrontation in my three (3) years that I knew of Mr. 24 Jakobek. 25 Q: I also understand that you at times,

1 during the Budget Committee meetings, could get exercised and 2 express your frustration in strong language? 3 A: I was very professional, kept to the 4 topic and requested the data I needed. 5 Q: I've been told that you would jump on the 6 Tom Jakobek band wagon and berate staff at the Budget 7 Committee meetings? 8 A: I ask you to provide evidence. 9 Q: Well, I suspect there will be evidence on 10 that. 11 A: All right. 12 Q: And your evidence is never happened? 13 A: No, I never berated staff. 14 Q: Your evidence is that the Budget 15 Committee meetings weren't highly charged and emotional? 16 A: That's an individual's opinion. 17 Q: Thank you. 18 MADAM COMMISSIONER: Okay, the next person 19 for -- Ms. Ryley, on behalf of Lana Viinamae. 20 21 (BRIEF PAUSE) 22 23 MADAM COMMISSIONER: And how long -- just give 24 me some idea how long you're -- 25 MS. BAY RYLEY: I would think about forty five

1 (45) minutes. 2 MADAM COMMISSIONER: Okay. Thank you. 3 Just so you know, I expect we'll take a break 4 around 2:30 for fifteen (15) - twenty (20) minutes and then 5 continue until 4:30. 6 7 CROSS EXAMINATION BY MS. BAY RYLEY: 8 Q: Good afternoon, Councillor Balkissoon. 9 A: Good afternoon. 10 Q: If you could please turn to Tab 46 of your 11 binder, and that's COT0 15578. 12 A: Okay mine this is not numbered, but, it's 13 an e-mail? 14 Q: Yes, it's e-mail correspondence between 15 Wanda Liczyk and Ms. Viinamae -- 16 A: Yes, I've got it. 17 Q: -- and those are dated July 14th, 2000. 18 This is amount nine (9) months prior to the Council meeting 19 in May 2nd, 2001, isn't it? 20 A: It's dated July 14th, 2000, so yeah, it 21 would be about nine (9) months before May 2001. 22 Q: I'm going to read out Ms. Viinamae's 23 question of Ms. Liczyk: 24 "Wanda, we are planning to release the 25 photocopier RFP within the next couple of

1 weeks. In my discussions with Purchasing 2 there is agreement that as photocopy, print 3 and fax technologies are converging (multi- 4 functional devices which can be networked) 5 that these technologies should be treated 6 like workstations and servers from a lease 7 perspective and therefore would fall under 8 the MFP lease agreement. If you agree, 9 please confirm, otherwise we'll need to 10 change the RFP." 11 Now -- 12 MADAM COMMISSIONER: Now, just so I have that 13 correct, that's from Lana Viinamae to Wanda Liczyk not -- 14 MS. BAY RYLEY: This is from Wanda -- 15 MADAM COMMISSIONER: No -- 16 MS. BAY RYLEY: -- sorry, I'm sorry, Ms. 17 Viinamae she's asking Ms. Liczyk, this question. 18 MADAM COMMISSIONER: Right. All right. Okay. 19 MS. BAY RYLEY: If you agree, please confirm. 20 So she's asking Ms. Liczyk to confirm. 21 22 CONTINUED BY MS. BAY RYLEY: 23 Q: And Councillor Balkissoon, if you could 24 please read out the response, from Ms. Liczyk? 25 A: What's in front of me it says:

1 "I agree that this should be treated as an 2 extension of our PC's and printers and 3 therefore fall under our leasing program as 4 peripherals." 5 Q: So, you would agree with me that here Ms. 6 Viinamae was seeking guidance from the CFO and Treasurer of 7 the City? 8 A: It seems that way. 9 Q: And Ms. Viinamae stated that she'd been 10 told by Purchasing that the photocopiers would fall under the 11 MFP lease agreement, didn't she? 12 MS. LINDA ROTHSTEIN: Commissioner, she didn't 13 say she'd been told to be fair to this document. 14 The document only references the fact that 15 it's described as, there is an agreement. And it's not clear 16 who told who -- 17 MADAM COMMISSIONER: I think she says, in my 18 discussions with Purchasing -- 19 MS. LINDA ROTHSTEIN: There is agreement. 20 MADAM COMMISSIONER: There is agreement, 21 right. 22 MS. LINDA ROTHSTEIN: But, it's not clear who 23 initiated, who suggested, and who agreed. 24 MADAM COMMISSIONER: Right. It doesn't say, 25 in my discussions with Purchasing they tell me there is

1 agreement, it just says, there is agreement. 2 So, I guess Ms. Rothstein's point is, we're 3 not really sure from this whether the -- whether it's 4 Purchasing telling Ms. Viinamae or Ms. Viinamae confirming 5 with Purchasing what she thinks. 6 7 CONTINUED BY MS. BAY RYLEY: 8 Q: Okay, well out of the discussion with 9 Purchasing, the agreement is that, photocopiers should fall 10 under the MFP lease agreement, correct? 11 A: Sorry, would you repeat that? 12 Q: From what -- from what Ms. Viinamae writes 13 to Ms. Liczyk -- 14 A: I can interpret Ms. Viinamae's notes two 15 (2) ways. That she's trying to clarify that the photocopier 16 is part of the network, because maybe that was a question, 17 whether it's part of the network or not, because photocopiers 18 are not normally connected to a network. And until you 19 connect them to the network they wouldn't be part of that 20 network. 21 So, there is the issue there in reading that 22 note, that there's two (2) concerns. The connectivity and if 23 the connectivity is approved as being, yes, it is a 24 connectable item, or it is going to be connected, which it 25 doesn't state in the note, then how can we interpret it to

1 belong to either a lease or a RFP. So it's not quite very 2 clear. So when you ask me if she's seeking advice, I say, it 3 seems that way. 4 Q: But, regardless of the connectivity issue, 5 she -- she says: 6 "... therefore the photocopiers would fall 7 under the MFP lease agreement..." 8 Correct? 9 A: But it's saying that on the basis of 10 connectivity. 11 Q: Okay. 12 A: And I believe that's why it's put in the 13 note and bracketed. 14 Q: But in the response -- could you say 15 again what the response is from Ms. Liczyk? 16 MADAM COMMISSIONER: No, I think we've -- 17 MS. BAY RYLEY: Okay. Yes. 18 MADAM COMMISSIONER: -- heard, that we have 19 it in the record what it is, because he read the whole thing 20 word for word. 21 22 CONTINUED BY MS. BAY RYLEY: 23 Q: She says: 24 "It should be treated as an extension of 25 our PCs and printers, and therefore fall

1 under the leasing program as peripherals." 2 Correct? 3 A: That's what Ms. Liczyk has responded. 4 Q: And here, Ms. Viinamae asked Ms. Liczyk 5 to confirm that the information she had was correct, didn't 6 she? 7 A: It seems that way. 8 Q: And you'd agree that in this e-mail, Ms. 9 Liczyk, who was the CFO and Treasurer, does in fact confirm 10 and agrees, that the photocopiers should be leased under the 11 -- the lease agreement with MFP? 12 A: I don't see MFP being mentioned in Ms. 13 Liczyk's response. 14 Q: She says: 15 "... fall under our leasing program." 16 A: That's all it says. 17 Q: And she's replying to the question from 18 -- she's replying to Ms. Viinamae's question and that they 19 would follow under the MFP lease agreement; correct? 20 A: It seems that way. 21 Q: And Ms. Viinamae refers to this agreement 22 as our leasing program, doesn't she? 23 A: Now, I believe Ms. Liczyk refers to our 24 leasing program. 25 Q: I -- I wanted to ask some questions about

1 your interaction with Ms. Viinamae on -- at the time of the 2 May 2nd, 2001 Council meeting. Are you aware that Ms. 3 Viinamae was present at the Council meeting that day to 4 answer questions about the master accommodation plan and the 5 Metro Hall sale? 6 A: That's a good possibility, I wouldn't 7 know. 8 Q: Are you aware that Joan Anderton, the 9 Commissioner of Corporate Services, nevertheless asked Ms. 10 Viinamae to come and speak to you about the City's contract 11 with MFP? 12 A: There was no discussion to that effect 13 between myself and Ms. Viinamae, that I'd be aware of, no. 14 Q: And -- and Ms. Viinamae did come and 15 speak to you about the contract, didn't she? 16 A: She came to me and said -- I held the 17 item, and she said, Councillor, is there anything I can 18 provide to assist, if you had concerns? And I did tell her 19 what my concerns were and that's where our discussions went 20 from there. 21 And that's what I've repeated in the past, 22 that's all the discussions we've had. 23 Q: And in response to your questions, Ms. 24 Viinamae did give -- gave you a briefing note? 25 A: A couple of days later.

1 Q: And it would -- it would be unusual for a 2 staff member to provide a Councillor with a briefing note in 3 response to questions they might have about particular 4 issues, would it? 5 A: This has been my first instance in my 6 entire political career. 7 Q: A -- a briefing note generally would help 8 assist a Councillor with understanding a complicated issue, 9 wouldn't it? 10 A: I have never had it done to me before. 11 Q: You testified yesterday, that you made it 12 clear to Ms. Viinamae when she brought you the briefing note, 13 rather than a Council -- the Council report, that you were 14 unhappy with this; correct? 15 A: No, I -- what I said yesterday, is when I 16 was given the briefing note, I reconfirmed with her, and I 17 made it very clear that my interest was -- she was stating 18 that we had a three (3) year agreement, that I would like the 19 Council report where that approval was given. 20 I wanted the Council report so I could read it 21 myself. In fact, I said that to her, I'd like to read it 22 myself. I do not wish you to translate it and interpret that 23 document for me. I'd like to have it so I can read it 24 myself. 25 Q: And you did testify yesterday that you

1 may not have made it clear when you first asked, you may not 2 have made it clear to her that you wanted the Council report? 3 A: I -- I can't remember on our first 4 contact, exactly what I told her, but I did tell her what my 5 concerns were, she did tell me that we had a three (3) year 6 agreement, and I did tell her I -- I don't believe we did, I 7 do not recall Council approving that, and I'd like to see 8 proof of it. 9 Q: And so in response she gave -- she did 10 give you a briefing note? 11 A: Right. And I made it clear to her, that 12 briefing note is not proof. I need proof. 13 Q: And at that point, she -- she gave you the 14 Council report -- 15 A: Not there -- 16 Q: -- after that? 17 A: -- not there and then, several days later. 18 Q: Several days later -- 19 A: Right. 20 Q: -- after she gave you the briefing note? 21 A: That's correct. 22 Q: And I think you testified yesterday that 23 you got the briefing note a day or two (2) after you asked 24 her about Council authorization? 25 A: Yes, I believe we had contact on the first

1 day of Council when we vetted the agenda. The briefing note 2 probably would have been the following day. 3 The Council report did not come that day or 4 the day after. Probably the third day late in the afternoon, 5 I approached her boss and Mr. Ridge, with my concern because 6 I thought the response was not coming as rapid as I would 7 expect, because that should be a readily available document. 8 Q: I'll tell you, sir, that our client's, we 9 anticipate that our client's testimony will be quite 10 different on this issue. And we anticipate that she'll 11 testify that she actually gave you the briefing note within 12 one (1) to two (2) hours after your discussion. 13 And that later the following day, she gave you 14 the Council report. And she recalls this very distinctly 15 because of the urgency of the matter. 16 A: Well, I recall it very distinctly too 17 because maybe the City Auditor will recall me calling him and 18 complaining, it's not coming. 19 Q: Ms. Viinamae agreed to speak to the issue 20 of the MFP contract at the May 2nd, 2001 Council meeting, 21 correct? 22 A: That's correct. 23 Q: And she answered all the questions that 24 you had for her at this meeting? 25 A: I believe so, not necessarily I got the

1 answers the way I would interpret the document, but, she did 2 answer. 3 Q: And she answered Councilman Mihevc's 4 questions as well? 5 A: That's correct. 6 Q: And if could -- Madam Registrar is this a 7 Tab -- this is a transcript of the May -- 8 MADAM REGISTRAR: Tab 14. 9 MS. BAY RYLEY: Okay. 10 11 CONTINUED BY MS. BAY RYLEY: 12 Q: I'm sorry -- Tab 14, if you could turn to 13 Tab 14, which is the transcription of the May 2nd, 2001 14 Council meeting. 15 16 (BRIEF PAUSE) 17 18 Q: If you could please turn to page 11, lines 19 14 to 17. And here Councillor Mihevc asks Ms. Viinamae, 20 whether the City was contractually bound to MFP, correct? 21 A: That's correct. 22 Q: And she responds at line 16 to -- line 16, 23 not exclusively, doesn't she? 24 A: That's what she says here, but that's not 25 what she told me in private.

1 Q: She told you, in private, when? 2 A: Well, she said we had an agreement to give 3 MFP all the technology equipment for three years. 4 Q: And this is in the meeting you had with 5 her prior to the Council meeting? 6 A: Yeah, just the two (2) of us, either in 7 the hallway or the Council lounge. Because if I was told 8 this, then I would -- in hindsight, I would say if there was 9 no exclusivity, my amendment to tender the process would have 10 been a simple thing and there would not have been the ongoing 11 discussion and I would not have insisted on seeing the master 12 agreement. 13 But because I was told by her that MFP is 14 entitled to this business, I now wanted to see the master 15 agreement. 16 So, I would have to say, this statement is 17 quite different than what I was told before, which led to my 18 actions being quite different. 19 Q: And how -- so how far -- how many -- what 20 was the time -- the amount of time between when she -- when 21 you had this meeting with her, was it in the Member's lounge 22 -- and when she said, when she was saying this in the Council 23 meeting, then, not exclusively? 24 A: This statement in the Council meeting was 25 on the last day of Council and I think Council went for five

1 (5) days -- 2 Q: But what -- 3 A: -- I can't remember. 4 Q: How much time passed between the time -- 5 A: Well -- 6 Q: -- when you had your discussion and the 7 Council meeting? 8 A: Okay Council started on April the 23rd, I 9 think the record states, which is the first day of Council. 10 And this would have been on May the 2nd, so that's the 11 time -- 12 Q: So your conversation was -- you had with 13 her was on May 2nd, and her appearance in the Council meeting 14 was on -- 15 THE WITNESS: No, no. 16 MADAM COMMISSIONER: No, no, no, no. The 17 opposite. 18 THE WITNESS: The opposite. I spoke to her 19 on the first day of Council. 20 MS. BAY RYLEY: Okay. 21 THE WITNESS: Our first contact where I was 22 told we have an agreement with MFP, was on the first day of 23 Council. 24 This excerpt is the last day of the Council 25 meeting.

1 2 CONTINUED BY MS. BAY RYLEY: 3 Q: So you're -- at this point when you're in 4 a Council meeting, the discussion you'd had prior with Ms. 5 Viinamae was quite fresh in your mind? 6 A: Oh, yes, it was you know, a couple days 7 ago. 8 Q: So when she said something that seems to 9 be the opposite viewpoint of what she said in a meeting 10 prior, you didn't correct her, did you -- did you? 11 A: It -- it was -- it was a very trying time 12 for me, because as you can see from the debate, I was trying 13 to get information and I -- I wouldn't preach to be perfect 14 that I'll pick up everything and question everything that I 15 see. And obviously in hindsight, I -- I missed that, sure. 16 Q: So you let the other Councillors hear her 17 give a completely -- apparently completely opposite viewpoint 18 from what she'd told you? 19 A: And -- and she might have been doing that 20 because -- 21 MADAM COMMISSIONER: Mr. Balkissoon, there's 22 an objection. Yes, Mr. Manes...? 23 MR. RONALD MANES: This is probably a bit 24 difficult for counsel, I appreciate, Commissioner, but one 25 (1) would have to read the entire transcript to appreciate

1 the exchange that Councillor Balkissoon and Ms. Viinamae and 2 Mr. Doyle were involved with, because if you go to page 3 of 3 the transcript. 4 MADAM COMMISSIONER: Yes. 5 MR. RONALD MANES: At line 5, Mr. Balkissoon: 6 "All right, but definitely the contract we 7 signed with MFP gives them no exclusive 8 rights." 9 Mr. Doyle: 10 "That's my opinion from reading the 11 document. Okay, thank you." 12 And then it is only after that, if you go on 13 in the transcript, from where My Friend is reading at 11, and 14 this starts at page -- actually at page 9, with a long 15 discussion between Ms. Viinamae and Mr. Mihevc, Councillor 16 Mihevc, about whether it is exclusive or not. 17 And if you read the exchanges, you see that 18 Ms. Viinamae ultimately, when questioned, after -- up to her 19 page 11, says then: 20 "So are we contractually bound to MFP? 21 Mr. Mihevc, after these long pages of 22 questioning, and then Ms. Viinamae at that point says: 23 "Not exclusively." 24 So one has to appreciate that, and especially 25 -- and this is all I'll point out, at page 10, 16 to 18. Ms.

1 Viinamae says: 2 "In terms of, do you recommend that we 3 lease from MFP?" 4 Quote: 5 "To be honest, I'm quite satisfied with the 6 service that we -- that we're receiving 7 from MFP today, for all of our equipment." 8 So the progression was my -- Councillor 9 Balkissoon's discussion with Ms. Viinamae, then Mr. Doyle 10 giving the opinion that it's not an exclusive contract to -- 11 to Council, Ms. Viinamae agreeing ultimately with that, and 12 then saying, I'm satisfied that the service that we receive 13 from MFP today for all of our equipment. 14 MADAM COMMISSIONER: So, if what you're 15 saying then is that the question that Ms. Ryley is putting 16 forward is not being put forward as fairly as it should be? 17 MR. RONALD MANES: Yes, it's not -- it 18 doesn't appreciate the entire context from the -- from the 19 discussion with Councillor Balkissoon, to the intervention of 20 -- of the City Solicitor, with his opinion. 21 MADAM COMMISSIONER: Okay. 22 THE WITNESS: Madam Commissioner, if I may 23 also, I think you have to take the context of my -- my 24 interaction with Ms. Viinamae, the briefing note that was 25 handed to me, because the briefing note clearly gives the

1 indication that the $1.3 million worth of contracts belonged 2 to MFP. And that was my impression up until that point. 3 MADAM COMMISSIONER: Ms. Ryley, do you want 4 to continue with your questioning? I think you understand 5 what Mr. Manes is saying, is that the -- that -- in any 6 event, I understand your question. 7 You're saying that Mr. Balkissoon was at the 8 meeting, that your client will say, that she gave the answer 9 that it was not exclusive and that it's in the transcript. 10 But, I'm not sure what you're expecting Mr. 11 Balkissoon, to then do with the information, even at that 12 time. 13 We all watched the video, there was a lot of 14 back and forth and to and fro and -- 15 MS. BAY RYLEY: I was just wanting him to 16 acknowledge that -- Councillor Balkissoon, that if both Mr. 17 Doyle and Ms. Viinamae were saying things that were opposite 18 to what he'd been told previously, that he might have pointed 19 that out to the Councillors so they could understand the 20 context themselves. 21 MADAM COMMISSIONER: Well, is -- Mr. 22 Balkissoon, did Mr. Doyle or Ms. Viinamae, ever tell you 23 before they actually went into -- into City Council, did they 24 ever tell you that information that we ended up seeing on the 25 video yesterday?

1 Or was that the first time you heard it? 2 THE WITNESS: My recollection of the process 3 or of the interaction is, my discussion with Ms. Viinamae on 4 the first day of Council meeting. The briefing note that was 5 handed to me. Then I requested to see the master agreement. 6 Mr. Doyle -- we had a short conversation and 7 he basically said to me, I cannot let you see the master 8 agreement. Ask me any questions you want on the floor and I 9 will provide you with the answer. 10 So, beyond any -- beyond that is what you saw 11 on the tape. 12 MADAM COMMISSIONER: Okay. 13 THE WITNESS: So my impression up until this 14 transcript and my belief was that we had a three (3) year 15 agreement with MFP. And that this contract through leasing 16 agreements would have been given to MFP because there was 17 some kind of exclusivity. 18 And that's why I started my questioning to 19 just make sure that there's confirmation that there is 20 exclusivity, because that's what I was being given to 21 perceive up until that point. 22 So, the video you saw, is me trying to clarify 23 that there is no exclusivity because I was being told there 24 is. 25 MR. RONALD MANES: Commissioner, it may be of

1 some assistance if Councillor Balkissoon was taken back to 2 that briefing note to which he refers, which anchored his 3 view, as I understand it, that there was -- that he had been 4 told by Ms. Viinamae, that there was exclusivity. 5 And that's at Tab 45, number 40286. 6 MADAM COMMISSIONER: 45 okay, is that the 7 briefing note, sir? 8 THE WITNESS: That's the briefing note. 9 10 (BRIEF PAUSE) 11 12 MR. RONALD MANES: And, in particular, the 13 tendering process, first paragraph and the approval, last 14 paragraph. 15 MADAM COMMISSIONER: Ms. Ryley, do you have 16 that yet? Do you have the briefing note? 17 MS. BAY RYLEY: Yes. 18 19 (BRIEF PAUSE) 20 21 MADAM COMMISSIONER: And so, Mr. Balkissoon, 22 if I understand correctly, you're saying that this briefing 23 note that you haven't had a chance to read completely yet, 24 but that you're saying that this briefing note, just gave you 25 Ms. Viinamae's interpretation --

1 THE WITNESS: Of the Council approval. 2 MADAM COMMISSIONER: -- of the Council 3 approval -- it didn't give you the Council approval that you 4 wanted to look at for yourself. 5 THE WITNESS: That's correct. 6 MADAM COMMISSIONER: But, in any event, 7 appeared to say that MFP was, in fact, exclusive -- 8 THE WITNESS: Well it -- 9 MADAM COMMISSIONER: -- not vendor of record, 10 but whatever they're calling it now. 11 THE WITNESS: Right. 12 MADAM COMMISSIONER: And is that how you read 13 that? 14 THE WITNESS: I read this document to tell me 15 that the contract that we were debating that day, MFP was 16 entitled to that business. 17 MADAM COMMISSIONER: Okay. 18 THE WITNESS: And my belief was, they were 19 not. 20 MADAM COMMISSIONER: Okay. 21 Ms. Ryley? 22 MR. FRASER BERRILL: It just might help the 23 Commissioner -- 24 MADAM COMMISSIONER: Yes, sir. Sorry? 25 MR. FRASER BERRILL: -- the wording of the

1 briefing note, just on the reading of it, is taken right out 2 of the P&F report, if that assists you. 3 MADAM COMMISSIONER: The wording of -- at the 4 very end the specific recommendation. 5 MR. FRASER BERRILL: And I think the body of 6 the whole briefing notes is in fact found in the body of the 7 P&F report. 8 MADAM COMMISSIONER: All right. We'll look. 9 I'm not sure which P&F report you're talking about. 10 MS. LINDA ROTHSTEIN: July one (1) nine (9). 11 MADAM COMMISSIONER: July 9th? 12 MS. LINDA ROTHSTEIN: Which we have. 13 MADAM COMMISSIONER: Okay. Thank you, Mr. 14 Berrill. 15 MR. RONALD MANES: I'm sorry, just on My 16 Friend's observation, the title of the briefing note is 17 Information and Technology Leasing Program. 18 MADAM COMMISSIONER: Yes. 19 MR. RONALD MANES: I don't know -- Councillor 20 Balkissoon can testify as he wishes but the recommendation 21 that was considered in July of 1999 by Policy and Finance had 22 nothing in it about an Information and Technology leasing 23 program which MFP was the front-runner or the winner as said 24 -- 25 MADAM COMMISSIONER: Okay, I --

1 MR. RONALD MANES: -- termed in that 2 agreement. 3 MADAM COMMISSIONER: I -- I'm wondering 4 whether we're -- what we're engaging here -- in here instead 5 of a bi -- arguing about what Ms. Viinamae intended. 6 I suspect that what happened was she was asked 7 for information by Councillor Balkissoon. She went back to 8 her office and put together a briefing note, some of which 9 she may have cut and paste from various documents that were 10 already there but why don't we wait to hear from her on how 11 this came about and why she chose the title that she did and 12 et cetera. 13 And that takes us to 2:30 so why don't we have 14 our break. We'll break for twenty (20) minutes and I'll see 15 you at ten (10) to. 16 REGISTRAR: This inquiry will recess until 17 ten (10) to 3:00. 18 19 --- Upon recessing at 2:28 p.m. 20 21 --- Upon resuming at 2:50 p.m. 22 23 REGISTRAR: The inquiry will resume. Please 24 be seated. 25 MADAM COMMISSIONER: Ms. Ryley...?

1 2 CONTINUED BY MS. BAY RYLEY: 3 Q: I think we -- we left off at the briefing 4 note at Tab 45 which is COT0 40286 and on the second page 5 there under the approval section, there's reference to the 6 July 1999 report, isn't there? 7 A: Yes, there is. 8 Q: There's nothing -- there's nothing in 9 this briefing note that states that there's an exclusive 10 contract that the City has with MFP, is there? 11 A: But if you read the next paragraph, this 12 Recommendation 1 which Ms. Viinamae was trying to point me 13 to, that there is a three (3) year agreement. But if you 14 read Recommendation 1 on its own, hanging by itself, without 15 Recommendation 2 of that report you would have the impression 16 that there is a three (3) year agreement. You would have to 17 read Recommendation 2. 18 Q: And there is a three (3) year agreement, 19 isn't there? 20 A: There is no three (3) year agreement on a 21 master agreement process the way Ms. Viinamae was 22 interpreting it to me. What it is is each allotment of 23 equipment we get is leased for a three (3) year period. 24 Q: That's your -- that was your 25 interpretation?

1 A: I believe that is the correct 2 interpretation. 3 Q: Well, I'll -- I'll go to what Mr. Doyle's 4 interpretation was in a moment, but if we could return to the 5 transcript, I just wanted to go to page -- back to page 10. 6 MADAM COMMISSIONER: That's tab 14? 7 MS. BAY RYLEY: Tab 14. 8 9 CONTINUED BY MS. BAY RYLEY: 10 Q: And I believe Mr. Manes took us here 11 earlier, where Ms. Viinamae said that: 12 "To be honest I'm quite satisfied with the 13 service we're receiving from MFP." 14 You'd agree with me, that's not the same thing 15 as saying that this is an exclusive contract? 16 A: Sorry, what page? 17 Q: By saying -- sorry, I'm sorry, page 10, 18 line 20 to 22? 19 A: Hmm hmm. 20 Q: Saying that -- by her saying that she was 21 satisfied with the service is not the same as saying that 22 there's an exclusive contract with the City; correct? 23 A: I don't see any reference to an exclusive 24 contract, no. I'm not sure what you're trying to clarify 25 there, because --

1 Q: And if we could please go to page 16 of 2 the transcript? 3 4 (BRIEF PAUSE) 5 6 Q: And at the -- sorry, you asked, at line 7 21 -- 22, you asked Mr. Doyle whether the City has an 8 exclusive contract with MFP? 9 A: Yes, I did. 10 Q: And his response there is at the bottom 11 of the page, lines 24 to 25, and he says: 12 "There's a three (3) year contract. I said 13 that there's a three (3) year contract, 14 it's in effect today. I said it's non -- 15 non-exclusive. So if you want to look for 16 another fin -- lease finance provider, we 17 can do so." 18 Correct? 19 A: That's what Mr. Doyle is stating, but as 20 -- if you look at the video further on, you'll find that I 21 clearly stated that I'm in total disagreement with Mr. Doyle, 22 because the master agreement is just a whole lot of clauses, 23 it really has no dates in it. 24 Q: So you did not -- 25 A: Mr. Doyle and I had a difference of

1 opinion. 2 Q: You did not adopt the same opinion as Mr. 3 Doyle? 4 A: No, and I think Mr. Doyle has -- there's 5 -- there's difficulty here. There's the leasing schedules, 6 which is one (1) contract, and there's the master agreement. 7 And I think Mr. Doyle, I was trying to -- to 8 clarify that the master agreement is a three (3) year 9 contract with MFP, that MFP gets all the business from the 10 City for the next three (3) years from the date of signing. 11 And he's interpreting that the leasing 12 agreements, which has a three (3) year life, so there was 13 some confusion, so this is why I think we disagreed, because 14 it was very difficult when you're limited to five (5) minutes 15 of questioning, for me to question Mr. Doyle on the floor and 16 get clarification, because remember, I was denied access to 17 the master agreement. 18 Q: And the opinion that Mr. -- Mr. Doyle and 19 Ms. Viinamae had the same opinion of what the three (3) year 20 agreement meant, and you -- you -- 21 A: I -- 22 Q: -- did not agree with their opinion? 23 A: -- I'm -- 24 MADAM COMMISSIONER: Let her finish with the 25 question.

82
  1                 THE WITNESS:   -- I can't -- I can't say that
  2  Mr. Doyle and Ms. Viinamae had agreement, I would have to say
  3  that Mr. Doyle gave one (1) opinion in public, and Ms.
  4  Viinamae, through a briefing note and discussions with me,
  5  and there was a different opinion.
  6  
  7  CONTINUED BY MS. BAY RYLEY:
  8                 Q:   There was a different opinion between the
  9  briefing note and her discussion with you?
 10                 A:   The briefing note, she attempted to have
 11  me focus on Recommendation 1, at the end of the briefing
 12  note.
 13                 Q:   We -- 
 14                 A:   And in the public process, it turned out
 15  that she's saying there's not exclusivity, so there is quite
 16  a difference of the discussion that went on privately and in
 17  our discussion of this briefing note, versus her answering
 18  the questions on the floor to Councillor Mihevc.
 19                 Q:   They're on the public record in front of
 20  -- how many Councillors would you say were there that day?
 21                 A:   I wouldn't know.
 22                 Q:   Approximately?
 23                 A:   I wouldn't want to guess.
 24                 Q:   In front of all the Councillors who were
 25  present, she did, on the public record say, that the contract

1 was not exclusive; correct? 2 A: She did say that, but she also gave me a 3 briefing note. 4 Q: Can you point to anything in the briefing 5 note that indicates the contract is exclusive, does it say 6 those words? 7 A: She attempted to have me focus on 8 recommendation one (1), stand alone by itself. And that -- 9 you cannot interpret that any other way than it was trying to 10 say, there was a three (3) year agreement. 11 If you look at Recommendation 1, all by 12 itself. 13 Q: And when -- in the Council meeting when 14 Ms. Viinamae said, it was -- she said, not exclusively, that 15 the contract was not exclusive, you didn't clarify to the 16 rest of Council that, in fact, she had a different opinion -- 17 A: You're not -- 18 Q: -- in your discussion with her? 19 A: -- you have to understand Council 20 procedure. I was not on the floor. Councillor Mihevc had 21 the rights of the floor, asking questions at the time. 22 I'm not entitled to jump up and intervene. We 23 have a process that people put their name to ask questions 24 and you have to wait your turn. 25 I had already been on the floor asking my

1 questions, so my turn was over. 2 Q: Could I ask you to please turn to your, 3 Will Say, is that -- 4 A: Sorry? 5 Q: -- is that provided in the binder? 6 MADAM COMMISSIONER: I don't think so. I 7 think you'll need to speak with Mr. Manes, about that. 8 Why don't you have a quiet conversation with 9 Mr. Manes, and it may be that he can assist you with what it 10 is that you're trying to do. 11 12 (BRIEF PAUSE) 13 14 MS. BAY RYLEY: Thank you. 15 16 CONTINUED BY MS. BAY RYLEY: 17 Q: Did you review the Will Say statement that 18 you received from Commission Counsel? 19 A: I'm not sure what you're talking about? 20 MADAM COMMISSIONER: Yes, Mr. Manes? 21 MR. RONALD MANES: I've explained to My 22 Friend, that the statement that was provided to Counsel on a 23 -- was on the basis that it was a general statement of 24 evidence which we anticipated the witness would give. 25 And was not intended whatsoever to be anything

1 more than the general parameters, together with the documents 2 that were involved. 3 It was understood that it was not a document 4 that would be used to -- as a sworn statement from the 5 witness or as a statement that could be used by Council, 6 fairly, to compare the witness' evidence to, or impeach the 7 witness from. 8 And I said to my Counsel -- to My Friend, that 9 I think that that -- what she in effect is doing by asking 10 the witness if he has read his Will Say statement, because 11 what that will lead to is a comparison between general Will 12 Say statement compared to -- prepared by Commission Counsel 13 to what his evidence is in the witness box. 14 MADAM COMMISSIONER: Hmm hmm. 15 MR. RONALD MANES: So, it's of no, I submit, 16