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 March 6th, 2003 25

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

1 TABLE OF CONTENTS 2 Page 3 4 Brendan Power, Resumed 5 Continued Examination In-Chief by 6 Mr. Patrick Moore 32 7 8 Certificate of Transcript 182 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon commencing at 10:00 a.m. 2 3 THE REGISTRAR: The Inquiry is now in session. 4 Please be seated. 5 MADAM COMMISSIONER: Good morning. 6 MR. BRYAN McPHADDEN: Good morning, Your 7 Honour. 8 MADAM COMMISSIONER: Oh, yes. Are you saying 9 good morning first? Good morning. 10 MR. BRYAN McPHADDEN: Good morning. If I may, 11 we'd like to address the Commission with respect to Mr. Power 12 and his appearing today as a witness. 13 MADAM COMMISSIONER: Yes...? 14 MR. BRYAN McPHADDEN: Last night after we 15 adjourned for the day, I was told by Commission Counsel that 16 the City had discovered some two (2) boxes of additional 17 documents and some or perhaps all of those documents related 18 to Mr. Power. 19 I was shown a binder that apparently came from 20 one of those boxes. I was shown none of the other documents 21 in the boxes. The binder I have here that's some four (4) or 22 five (5) inches thick -- 23 MADAM COMMISSIONER: Hmm hmm. 24 MR. BRYAN McPHADDEN: -- was produced to me, 25 in that it was simply shown to me. I asked if I could take

1 the binder with me so I could review it with Mr. Power over 2 the course of the evening and I was told no, I couldn't. I 3 was offered this morning at seven (7) minutes to ten (10). 4 I also note that on my counsel table as I 5 arrived today that a new Tab 33, a document that doesn't seem 6 to have a Begdoc number on it. So I'm taking it, but I don't 7 know, that it is not in the existing volumes of productions. 8 Also on my counsel desk this morning are a 9 bundle of invoices with a note on it: 10 "Daina, Brendan Power, Invoices" 11 And something I can't read. I take it that 12 these are also documents on which Commission Counsel and 13 others intend to rely. 14 This Commission was called a year ago and the 15 City had a year to locate and identify documents. For them 16 to be producing them a year later. After the Commission has 17 been sitting for some months, try to produce documents that 18 relate directly to my client after he's on the stand is, in 19 my submission, entirely unacceptable. 20 My client should have an opportunity to review 21 these documents to see how they interrelate to the other two 22 (2) volumes of documents that have been produced relative to 23 him and perhaps in context of the other documents that form 24 part of the general record. 25 In my submission, it's grossly unfair to

1 require my client to take the stand again today without 2 having an opportunity to review these documents. 3 MADAM COMMISSIONER: Okay. 4 MR. BRYAN McPHADDEN: In my submission, the 5 Commission Inquiry should be adjourned for the day. We can 6 come back after the March break and proceed at that time, 7 perhaps, depending what these documents say and what other 8 productions the City has to produce. And in this regard I'd 9 refer you to the case that I handed out, Labbe against 10 Canada, a decision of the Federal Court of Canada, by the 11 Honourable Mr. Justice MacKay, dated February 4, 1997. 12 And in that case, Mr. Labbe took issue with 13 the fact that, inasmuch, as there was production, some three 14 hundred (300) volumes, that he had not been given a list of 15 the documents to which he was going to be referred. 16 And he had sought an adjournment on that -- on 17 the Commission of Inquiry. Therein the Court cited that they 18 weren't going to adjourn, but, it wasn't the question as we 19 are dealing with here, of whether or not, the witness has 20 ever seen these documents. 21 This witness has not seen these documents and 22 I'm told they relate directly to him. The fact in the Labbe 23 case, the relevant facts, are set out at paragraph 20, in 24 terms of the issue that he was taking with the procedure in 25 that Commission.

1 2 (BRIEF PAUSE) 3 4 MR. BRYAN McPHADDEN: And there they outline 5 the steps that were taken to provide documents to Mr. -- 6 MADAM COMMISSIONER: I've read it now. 7 MR. BRYAN McPHADDEN: You have, okay. 8 9 (BRIEF PAUSE) 10 11 MR. BRYAN McPHADDEN: There the Court was 12 satisfied that the witness had an opportunity to prepare. 13 That is not the case here. 14 To provide a binder of some four (4) inches 15 thick, seven minutes to 10:00, to have other documents which 16 have not been pointed out to me, were simply found on my 17 Counsel table, when I arrived, in my submission is unfair. 18 And until such time as, Mr. Power, has an 19 opportunity to review them, this Commission should stand 20 adjourned. I invite -- invited the City to agree to the 21 adjournment, and I'm told, no, they would like to proceed 22 today. 23 Well, this is the City's inquiry. And the 24 City wants to find out, they say, what is going on. How is 25 it that a year later, that we are just having these documents

1 produced? 2 And frankly, the day would be better spent, in 3 my submission, having a witness from the City come and 4 explain how, why and where these documents were located just 5 yesterday. 6 MADAM COMMISSIONER: Thank you. 7 On behalf of the City? 8 MR. ROBERT CENTA: Madam Commissioner, if I 9 might, the City regrets that these documents were only 10 located yesterday and allow me to explain how that came 11 about. 12 On February the 24th, Mr. Pat Moore, referred 13 Mr. Pagano, to Tab 74 of Pagano Volume 2, document 05765. 14 You may recall, Commissioner, that was a June 11th, 1999 memo 15 from Mr. Spizarsky to Mr. Brendan Power, in which Mr. 16 Spizarsky summarized the responses to the RFQ. 17 And in that memo, Mr. Spizarsky, referred to 18 an earlier letter of Brendan Power, dated May 19th, 1999. We 19 then searched the database while in the Hearing Room and were 20 unable to locate a copy of that May 19th, 1999 letter in the 21 database. 22 We then contacted internal Counsel at the City 23 of Toronto and asked their staff again, to search their files 24 and offices to see if City staff could locate a copy of Mr. 25 Power's May 19th letter.

1 That letter has not yet been located. 2 However, as they were searching for the May 19th letter, 3 staff identified other material that they believed might be 4 relevant to the Inquiry and might not yet have been produced. 5 Yesterday morning, I received an e-mail from a 6 staff member at the City of Toronto, indicating that they had 7 located a few e-mail messages in some boxes, that might 8 contain information relevant to the Inquiry. 9 More specifically, the staff member informed 10 me that she thought she had found additional files that may 11 have been kept by, Mr. Power. I received this e-mail message 12 about 8:30 yesterday morning. Ms. Harmer and I spoke to Mr. 13 Pat Moore and Ms. Groskaufmanis yesterday morning, told them 14 we had received e-mails and were taking steps to identify the 15 contents of the boxes. 16 City staff reviewed the boxes and delivered 17 them to me here in East York. I received the boxes about 18 four o'clock yesterday afternoon when I got out of a witness 19 interview that Ms. Groskaufmanis was conducting. 20 I immediately reviewed the first box which was 21 only labelled "Confidential". It contained a binder, that 22 Mr. McPhadden has referred to, that appeared to relate to Mr. 23 Power's work with the Y2K project. I quickly reviewed its 24 contents. It appeared to contain some material that might be 25 relevant to the Inquiry and at 4:15 I took the binder to Ms.

1 Groskaufmanis and explained to her what I had found. 2 The binder does not appear to, at least on 3 cursory review, does not contain documents that relate 4 specifically pertain to the leasing transaction that we're 5 here to talk about but may relate -- quite fairly relate to 6 Mr. Power's work on the Y2K project. 7 That was the first box of documents of the two 8 (2) that I received yesterday afternoon. Last night I 9 reviewed the second box of documents. The second box is 10 labelled "Corel Files". Nothing on the outside of the box to 11 indicate that it relates to the Inquiry and that box does not 12 appear to contain any files that were kept by Mr. Power. 13 I can report that the box appears to contain 14 files from a Rick Zwarun, Z-W-A-R-U-N, who is a former 15 director of planning at Information and Technology and the 16 box may also contain files from Frank Vizzacchero, a name 17 we've heard earlier in the Inquiry, Vizzacchero is spelled V- 18 I-Z-Z-A-C-C-H-E-R-O, who is the former director of IT in 19 North York. 20 This box contains some document that appears 21 to be relevant to TCLI but not specifically relevant to Mr. 22 Power; that is, they relate in some way either to the 23 preparation for Y2K or in some -- taking relevance in a very 24 broad sense, do relate to the work of the TCLI but not 25 specifically to any evidence that we anticipate Mr. Power

1 will give. Some of the documents in this box appear to be 2 duplicates of documents that are already produced and in the 3 database. 4 The second box also contains document that may 5 be relevant to the second phase of this Inquiry at TECI. 6 Specifically, documents relating to the selection of the tax 7 collection system for the amalgamated City of Toronto. I was 8 not able to determine if these documents were duplicates or 9 had already been produced in the TECI database, but they 10 don't appear to have any relevance to TCLI or to Mr. Powers 11 testimony speci -- to be specific. Our office will arrange 12 for these documents to be sent to Will Platt to be scanned 13 and included in the database. 14 The City has attempted to ensure that all 15 potentially relevant documents have been produced and the 16 City takes its responsibility to this Inquiry to produce 17 documents in a timely fashion very seriously. However, as 18 this episode indicates, no system is perfect and the City 19 hopes this will not happen again. 20 To this end, internal Counsel from the City 21 will be meeting personally with staff in the IT division to 22 once again review the steps that have already been taken to 23 identify relevant documents and City legal will be continuing 24 to emphasize the importance of locating all relevant 25 documents and will continue to communicate this in writing

1 and in person to relevant City employees. 2 City legal will again take steps to review the 3 process that has already been undertaken to produce documents 4 and to make sure that no additional gaps exist. On behalf of 5 the City, we apologize for the late production of these 6 documents; however, I don't -- I don't believe that an entire 7 day adjournment would be necessary. 8 I don't know if Mr. Pat Moore intends to take 9 the witness to the binder in any -- in any way and certainly, 10 in this Inquiry we have -- Commissioner, you've taken steps 11 to ensure fairness to witnesses by ensuring that they have an 12 opportunity to briefly review documents before they are taken 13 to them. 14 But certainly, I don't recall when other 15 witnesses have -- when Counsel have wanted to direct 16 witnesses to document that they are not familiar with or 17 haven't been put in their own binders, none of those 18 circumstances required a full day adjournment and 19 respectfully, I don't imagine that that's a necessity in this 20 case, either, but, I'm available. 21 MADAM COMMISSIONER: Are you able to help me, 22 Mr. Centa, with how many of the documents specifically refer 23 to Mr. Power or can you tell yet? 24 MR. ROBERT CENTA: In the second box none of 25 the documents refer to Mr. Power specifically. And I don't

1 believe they even generally refer to the activities of Mr. 2 Power that was involved in for the City. 3 MADAM COMMISSIONER: Okay. 4 MR. ROBERT CENTA: The binder that Mr. 5 McPhadden now has, appears to be a project book that was 6 associated with the -- with the full range of Mr. Power's 7 duties for the City of Toronto and the Y2K Project, dealing 8 with external agreements with partnership. 9 When I quickly reviewed it, I didn't see 10 anything in the binder that related specifically to the work 11 that Mr. Power did on this leasing contract, either at the 12 RFQ stage or at the contract negotiation stage. 13 However, once I identified that it related to 14 his work area and contained a document -- one that I can 15 recall is, I think it's a roles and responsibilities 16 description for his entire project, I identified that that 17 was clearly relevant to the work of the Inquiry and to Mr. 18 Power and I took the binder down to Commission Counsel. 19 So, I haven't had an opportunity to fully 20 review that binder. 21 MADAM COMMISSIONER: Thank you. 22 Mr. Moore, do you have anything lastly? 23 MR. PATRICK MOORE: If no one else wishes to 24 address the matter, I'd be pleased to make submissions. 25 MR. RAJ ANAND: I would like to address the

1 matter very briefly. 2 MADAM COMMISSIONER: Go ahead. 3 Mr. Anand...? 4 MR. RAJ ANAND: Commissioner, on behalf of Ms. 5 Viinamae, I would support the request for an adjournment, at 6 least for a sufficient time period to allow Mr. McPhadden to 7 review the documents and to assess whether they are relevant 8 to his client and whether its necessary for his client to 9 review them in greater detail. 10 I would make only three (3) brief points. 11 Firstly, I confess that from the brief descriptions that have 12 been given, I'm not able to assess and I don't know whether 13 you will be -- I expect you'll be in a better position to 14 assess the relevance from what's been described to you, to 15 Mr. Power. 16 I know only what has been said in the Hearing, 17 plus Ms. Groskaufmanis gave us a brief -- a short briefing 18 for a couple of minutes just before we began, that is Ms. 19 Ryley and I. 20 The second point I would make, is perhaps the 21 obvious one (1), that procedural fairness and the manner in 22 which the Inquiry has been conducted demands advance 23 disclosure as a basic rule. 24 And its an assumption on which we are said to 25 be able to proceed, in that we are assumed to have knowledge

1 of all of the documents that have been produced. 2 And to prepare, not only, with respect to 3 questions that relate to documents that relate to -- 4 specifically relate to this witness, but, documents which 5 relate to issues on which we may wish to question the witness 6 and on which we may wish to listen to Mr. Moore's questioning 7 and that of others. 8 I heard reference to the -- from Mr. Centa to 9 the former IT Director of North York, in relation to some of 10 these documents and we heard about him yesterday. 11 And I'm not able to assess to what extent it 12 relates to the evidence that we heard yesterday or that we're 13 about to hear today. 14 I would say this, with respect, that it's not 15 up to the City to determine whether the documents are 16 sufficiently relevant to Mr. Power and his interests and they 17 should be reviewed by, Mr. McPhadden, in my respectful 18 submission. 19 And my third point is simply that the advance 20 disclosure is not only relevant to the witness and his 21 Counsel, it's relevant to others as they -- as they make all 22 the determinations that Counsel need to make, as to whether 23 to make a judgment. 24 MADAM COMMISSIONER: Tell me how this affects 25 your client? That's what I'm more interested in.

1 MR. RAJ ANAND: I don't know whether it 2 affects my client, because I don't know the nature of the 3 documents in sufficient detail to know that. 4 If I had the documents in front of me and were 5 able to review them, I might be able to say more clearly that 6 this document is something which I would want to review with 7 my client or on which I might have some objection. 8 MADAM COMMISSIONER: Okay. 9 Well, Mr. Anand, okay, all right. I've got 10 your point. Anyone else? 11 Mr. Moore...? 12 MR. PATRICK MOORE: Thank you, Commissioner. 13 Among the principles which guide Commission 14 Counsel, and I'm sure the Commissioner in this matter, 15 overwhelmingly, the principle of fairness numbers high, 16 perhaps highest on the list. In some circumstances, 17 Commission Counsel might support this application but in the 18 circumstances here present, Commission Counsel does not 19 support the application for an adjournment and I'd like to 20 tell you why. 21 To begin with, this is the last day of 22 evidence before a two (2) week hiatus in the evidence of this 23 Inquiry. I have not yet seen the documents to which Mr. 24 Centa refers except from afar. I cannot tell you at this 25 point whether I intend to take Mr. Power to any of these

1 newly discovered documents in the two (2) boxes or not but I 2 can tell you that if I intend to do that, that's a decision 3 which we, by reason of the hiatus, have the luxury of time to 4 consider and to consider with Mr. Power and his Counsel. 5 Commission Counsel has made every effort to 6 make available to witnesses and to parties with standing and 7 I'll come back to that in a moment because it's a 8 distinction, I submit, with a difference but to provide 9 everyone who comes before you, Commissioner, with all of the 10 documents that they will be referred to, at least by the -- 11 by Commission Counsel and well in advance as far in advance 12 as we're able to assist them with. 13 Indeed, in the case of Mr. Power, I've even 14 given his Counsel a copy of my direct examination, the 15 questions, with class references to the documents, Begdoc 16 numbers and tabs and I'm quite prepared to provide a copy of 17 that to other Counsel if Mr. Power and his Counsel are of a 18 mind to agree to that being done. 19 We're interested, as I am sure you are, in 20 moving this matter forward as expeditiously and fairly as is 21 possible and by giving advance reference to documents and by 22 giving a summary of the evidence, we hope that that 23 facilitates that process. 24 Now, having said that, I would like to just 25 draw your attention to the case that Mr. McPhadden relies

1 upon briefly and then commend it to your consideration but 2 let me start at the end and at Paragraph 26 on the second 3 last page, you will see that the court concludes that the 4 application is moot because Colonel Labbe appeared that day 5 before the Inquiry accepted certain arrangements made to him 6 and that made the application unnecessary to be determined on 7 the merits. 8 It seems to me that in this case, we have the 9 opportunity to make arrangements that are fair and reasonable 10 to this witness over the upcoming hiatus so that if -- and 11 that's a very big if. If Commission Counsel takes Mr. Power 12 to any of the newly found documents that Mr. Centa referred 13 to, he will have had ample opportunity to make himself 14 familiar with them. 15 Let me just also refer you, Commissioner, to a 16 couple of other paragraphs in the decision. At Paragraph 23 17 there's reference to the principle of fairness, which we all 18 agree governs and partway into the paragraph, a sentence, 19 which I submit is of considerable relevance, reading: 20 "At this stage of its process in its 21 investigatory process, in my opinion, the 22 steps taken by this Commission to provide 23 information to witnesses, relevant for, but 24 in advance of their testifying, has been 25 extensive and thorough."

1 And I submit that's the case here but beyond 2 that, in the following paragraph, the last sentence in 3 Paragraph 24: 4 "Even if, as now appears, any person 5 against whom findings may be made will not 6 have opportunity to call witnesses or 7 adduce their own evidence in the course of 8 the pub -- public hearings as once was 9 contemplated, there can still be 10 opportunity for response in writing by any 11 person to whom the Commission gives 12 notice." 13 Now, this case that I'm referring to the 14 decision from involved a party who was a witness and not a 15 party with standing, in the proceedings. 16 There was a concern that documentary 17 production was not fulsome and timely. And the -- the Court 18 determined that even if that were the case, it could be 19 corrected by the witness and his representatives taking 20 advantages of the rules of the Inquiry and their rights and 21 pursuing those fully. 22 In the instant case, we have a somewhat 23 different situation, in that Mr. Power, no doubt following 24 considerable forethought, applied to you for standing and 25 that standing has been granted.

1 With standing, comes an obligation to make 2 documentary production and we've had one (1) document 3 produced, as you now know, from the contract which I took Mr. 4 Power to yesterday. 5 But, beyond that, it's my submission that if a 6 party with standing wishes to, he or she can, ask of all of 7 the parties in the matter, not just Commission Counsel, but 8 the City in this case, is there anything else that might be 9 relevant to me? 10 Indeed, Mr. Power, is a person who was once a 11 contract person at the City and would be well aware of what 12 documents he saw, what documents he authored, what documents 13 may be relevant to his evidence at this Inquiry. 14 And so, it's my respectful submission, that 15 it's incumbent upon him in the unique circumstance of his 16 being a party with standing, that he go to the City if he 17 wishes to, to seek out any additional documents that haven't 18 been produced. 19 He's had an opportunity for months to look at 20 the documents that have been assembled together, put into a 21 binder, and put before him. 22 And he would be in the best position to know, 23 I submit, whether those are a complete set of documents 24 relative to his evidence, or not. 25 So, for all of those reasons, it's my

1 submission that the interests of moving this matter forward 2 in a timely, expeditious way override the interest of 3 fairness. 4 The interest of fairness are fully protected 5 in Mr. Power's case, in the circumstances. If I could help 6 you further, I'd be pleased to, otherwise those are my 7 submission. 8 MADAM COMMISSIONER: Mr. McPhadden, do you 9 want to say anything more? 10 MR. BRYAN McPHADDEN: Yes, My Friend, referred 11 again to the Labbe decision, partly to paragraph 23. There 12 it is stated: 13 "The principle of fairness is applicable to 14 the Commissions processes. Particularly 15 those affecting persons given notice under 16 Section 13 of the Act. But, that statutory 17 provision relates to the duties to provide 18 notice of and opportunity to respond to, 19 findings that may be made by the Commission 20 about misconduct of a person. At this 21 stage in its process, in its investigatory 22 process, in my opinion, steps taken by this 23 Commission to provide information to 24 witnesses relevant for, but, in advance of 25 their testifying have been extensive and

1 thorough." 2 It would be clear from that decision that an 3 emphasis was put on the words, "but in advance of". 4 This is not in advance of, this is in the 5 middle of. And in the documents, no one know what the 6 documents are. So, I'm somewhat surprised by Commission 7 Counsel's submission that nothing can arise or relate to his 8 questioning that he proposes to do today, in respect of these 9 documents. 10 The documents could have a distinct bearing on 11 what questioning he wants to pursue today. Having had an 12 opportunity just to flip through the binder, one (1) of the 13 documents is titled, "External Partners and -- sorry External 14 Partners and Agreement Roles and Responsibility". 15 This is precisely the line of questioning that 16 was being pursued by Commission Counsel yesterday. Mr. 17 Power, as I understand it, or sort of discerned, is -- his 18 evidence is going to continue in that vein, when he does 19 testify again. 20 He should have this document. He should have 21 an opportunity to review it. The next page over there's a 22 document that refers to him specifically, actually the next 23 Tab over, someone tabbed the document, it refers to him by 24 name, specifically. 25 The other documents outside of the binder that

1 were left for me today, seem to have a bearing on him, 2 insofar as they seem to be invoices relating to his work. 3 I didn't hear City Counsel address those 4 documents, where those came from, whether they were in the 5 boxes or otherwise and I didn't hear City Counsel address 6 this new proposed Tab 33 of Volume 2 of Mr. Power's binders 7 although his name appears in the upper right hand page in 8 handwriting on that document at Tab 33. 9 So how is it that Commission Counsel propose 10 to be fair to this witness in terms of asking him questions 11 today when Commission Counsel doesn't even know what these 12 documents are or whether they touch upon his proposed 13 evidence? Now, in terms of Mr. Power, how is Mr. Power to 14 testify properly without having an opportunity to go through 15 these documents to know whether they touch upon the evidence 16 he might be called upon to give? 17 In my submission, until such time as that 18 opportunity is given, Mr. Power should not be required to 19 testify further. 20 MADAM COMMISSIONER: Mr. Moore, I didn't hear 21 from you about the extra tab and the invoices. Do you know 22 what those are about? 23 MR. PATRICK MOORE: Yes, I do and I'm pleased 24 to speak to those -- 25 MADAM COMMISSIONER: Would you, please?

1 MR. PATRICK MOORE: -- but I'd also like to 2 respond to My Friend on one point that he raised having to do 3 with the opportunity to see the documents in the red binder 4 and I'd be remiss if I didn't tell you that that opportunity 5 was offered to Mr. McPhadden and his client, who was still in 6 the building as I was told at the time, last night. 7 But by reason of other commitments, Mr. 8 McPhadden told me he couldn't stay and take advantage of the 9 opportunity given to him to review the binder and every 10 document in it in the Commission Counsel office. 11 Now, the document at Tab 33 is a document 12 which has just come to us. In fact, it came directly to us 13 by way of fax from Ms. Dimmer, as solicitor in the office of 14 City legal, yesterday and it's a document that, as Mr. 15 McPhadden has correctly pointed out, does refer to Mr. Power. 16 It may augment the contract document that we spoke with him 17 of in his evidence yesterday and before he answers any 18 questions about it, I'd be pleased to ask for an indulgence 19 from you to have him take whatever time he thinks necessary 20 to review this three (3) page document. 21 The invoices -- a stack of invoices was 22 produced to Commission Counsel by the City, as I'm sure Mr. 23 Centa has told you and it represents invoices submitted by 24 Mr. Power, as I understand, I've looked at it briefly and 25 evidence of payment of the accounts that he rendered to the

1 City over some, at least, of the months that he was a 2 contract -- contractor at the City. It may or may not be of 3 any assistance or help to you, Commissioner, to know that he 4 was paid or what he was paid but that's what the bundle is 5 about as I understand. 6 MR. BRYAN McPHADDEN: If I may just address 7 that one point. With respect to the opportunity to review 8 the binder, it's true I had a pressing commitment immediately 9 after the Inquiry adjourned yesterday and it was for that 10 reason that I asked to be given the binder because I couldn't 11 review it at that instant, I would have had an opportunity 12 later in the evening -- and Mr. Power to review it or to 13 review it this morning. I was specifically told I could not 14 have the binder. 15 MADAM COMMISSIONER: Okay. Well, the 16 documents just came to light yesterday and it's unfortunate 17 because I know that the current CAO sent an e-mail to all 18 staff very early on after the Inquiry was established asking 19 that all staff ensure that any documents that they have or 20 any e-mails that they have relating to the Inquiry be turned 21 over immediately to the Legal department at the City. So I 22 gather these documents came to light as a result of some 23 examination of Mr. Pagano and but for that may never have 24 come to light. 25 There -- there might be times when it would,

1 indeed, be appropriate to have an adjournment but I don't 2 think this is one of those times. I see no prejudice 3 whatsoever to any of the parties with standing, dealing with 4 that first. 5 Because we're just about to take a two (2) 6 week break, with including tomorrow, tomorrow is a day off as 7 well, as Friday and then we'll be off for two (2) weeks. 8 So party's with standing will have plenty of 9 time to have copies of these documents before they are in a 10 position of having to cross-examine Mr. Power. 11 Mr. Moore, is going to be examining Mr. Power, 12 from what I recall, at least all of today and into the time 13 that we return. 14 So, it's not as though he's finished and 15 there's no more time. He is not even going to be finished 16 his examination of Mr. Power until after the March break, in 17 any event. 18 So, with respect to Mr. Power, I don't see any 19 prejudice. I know, Mr. McPhadden, that you haven't been here 20 for the eleven (11) weeks or so that we've been proceeding 21 and I know Mr. Anand, personally hasn't been here for a lot 22 of that time, although ably represented by Ms. Ryley. 23 But, it has happened, gosh, just trying to 24 think off the top of my head, of the number of witnesses 25 where this -- this has happened. Just off the top of my

1 head, I know it happened at the very beginning with Mike 2 Garrett. 3 It's happened with Mike Flanagan, Dash Domi, 4 Lou Pagano, and I haven't -- and I'm not thinking about who 5 else it's happened to, but, I know Mr. MacKenzie, brought in 6 something in the course of cross-examination of someone. 7 And I recognize that it's very difficult when 8 documents have been stored in various places, or as in the 9 case of an Inquiry where information comes up in the course 10 of the Inquiry, it's difficult for everyone to have all of 11 the documents in advance. 12 So, the position I have taken, is that in 13 order to ensure that no witness, be they a party with 14 standing, or a witness, is put in the position of having to 15 answer questions on documents that they have not had an 16 opportunity to read in advance. 17 Sometimes with some of the witnesses, the 18 documents have been two (2) or three (3) pages, and they've 19 read them at the morning recess. 20 Sometimes it's been longer than that, and 21 they've read them at the lunch break. Or sometimes we've had 22 an extended lunch break in order to accommodate that, or 23 we've finished a little earlier. 24 So, Mr. Power will be on the stand, I think 25 from what I understand, for at least a week in any event,

1 whether by -- whether being examined by Mr. Moore or by other 2 Counsel for parties with standing. 3 In this two (2) week time that we will be 4 having the break, the parties with standing, including Mr. 5 Power will have the opportunity to review these documents and 6 Mr. Moore, will not be asking any questions today on that 7 particular binder. 8 If anything does come up, as a result of -- if 9 anything does come up in his examination today that turns out 10 to have been affected by the binder, I am quite comfortable 11 with having Mr. Power have an opportunity to explain. 12 So, we're trying to get this Inquiry moving 13 along and I don't think there's any prejudice to Mr. Power 14 and definitely not to the parties with standing with 15 continuing to proceed right now. 16 Now, finally one (1) last point, Mr. Moore 17 indicated that -- Mr. Moore, I think you said, you have your 18 direct examination and -- of Mr. Power and cross reference to 19 Begdoc numbers in the tabs that you have given to Mr. 20 McPhadden. 21 And you mentioned something about providing a 22 copy of that to Counsel. I take it you mean a more 23 comprehensive Will Say statement, is that the idea? 24 MR. PATRICK MOORE: That's right, 25 Commissioner. The document I'm referring to runs to some

1 fifteen (15) pages. It's not entitled, "Summary of 2 Anticipated Evidence of Brendan Power". 3 It's slightly revised from the -- from the 4 document that I'm working from. But, it is a comprehensive 5 listing of the topics and some of the questions, but, 6 certainly the document that I propose, likely, to take Mr. 7 Power to. 8 MADAM COMMISSIONER: Okay. Now, the process 9 as I understand it is that Will Says have been given to 10 parties with standing but before the Will Say is given to the 11 party with standing -- or the summary I should call it, the 12 witness to whom it applies has an opportunity to sign off on 13 the document. 14 MR. PATRICK MOORE: Just so. 15 MADAM COMMISSIONER: Right? Now, with respect 16 to this document. Has that been done? 17 MR. PATRICK MOORE: Mr. McPhadden has been 18 given the document last week and I've invited him to consider 19 it and to consider it with Mr. Power and to provide me with a 20 sign off or an authority to share the document with Counsel 21 for other parties with standing and of course, it would be 22 done on the basis that the document could not be used to 23 cross-examine the witness from as though it were a prior, 24 inconsistent statement in the event that he gives an answer 25 that's somewhat different from what I'm anticipating in this

1 summary document that he might say. 2 MADAM COMMISSIONER: As it has been with all 3 our -- all the summaries. All right. 4 MR. PATRICK MOORE: Yes, Commissioner. 5 MADAM COMMISSIONER: Mr. McPhadden, have you 6 been in the position to speak with Mr. Power about that and 7 have that signed off so we can give that to Counsel? 8 MR. BRYAN MCPHADDEN: The request that has 9 originally been made of me was to produce the whole document. 10 My position was in light of its content, no. It isn't simply 11 a summary of his evidence. It contains, if you will, 12 editorial comments or points of highlight that Commission 13 Counsel intend to note. The invitation to vet it or edit it, 14 if you will, was made only yesterday so from that context -- 15 MADAM COMMISSIONER: Okay. 16 MR. BRYAN McPHADDEN: -- yes. 17 MADAM COMMISSIONER: Well, Mr. McPhadden, I 18 wonder if you might then take the opportunity maybe today at 19 some point to go through it with Mr. Moore and if there are 20 comments like that that you think would not be appropriate in 21 the sum -- in a summary that we would provide to Counsel for 22 parties with standing, then I'm quite happy to have those 23 removed but I would like Counsel for parties with standing to 24 have the summary of the evidence. All right? 25 MR. BRYAN McPHADDEN: Yes and if I may, I'd

1 ask for however short an adjournment so that Mr. Power at 2 least had an opportunity to look at the documents -- 3 MADAM COMMISSIONER: Well, we take an hour and 4 a ha -- we take twenty (20) minutes for a recess. You don't 5 have to do it right this second. 6 MR. BRYAN McPHADDEN: Well -- 7 MADAM COMMISSIONER: We take twenty (20) 8 minutes for a recess at 11:30 and an hour and a half at lunch 9 and fifteen (15) minutes in the afternoon. So I think I'd 10 like to get this moving and I don't think the Counsel for the 11 parties with standing were expecting to have it right this 12 second, anyway and I see some nodding. 13 So why don't we just move on and then if you 14 could meet with Mr. Power first to go through that and then 15 let Mr. Moore know. If it's not done today, it's not the end 16 of the world because, as I say, we're adjourning for two (2) 17 weeks in any event but I would like the parties with standing 18 to have that, certainly, long before we carry on. All right? 19 Okay. Can we have Mr. Power, please, on the 20 witness stand? 21 22 BRENDAN POWER, Resumed; 23 24 MADAM COMMISSIONER: Good morning, again. 25 THE WITNESS: Good morning.

1 MADAM COMMISSIONER: Now, I just want you to 2 know that you have been sitting here so you've heard my 3 judgment -- 4 THE WITNESS: Hmm hmm. 5 MADAM COMMISSIONER: -- on that motion for an 6 adjournment and it has happened in the past that witnesses 7 end up having a document given to them that day and somebody 8 wants to ask questions about the document and my practice has 9 been that the witness doesn't have to address that until they 10 have an opportunity to look at those documents. 11 So if it's just a page, then obviously it 12 doesn't take you that long to read that. If it's more than 13 that, it will take more time but you won't have to answer and 14 the -- and that binder will not be put to you until after 15 you've had an opportunity to look at it. All right? 16 THE WITNESS: Okay. 17 MADAM COMMISSIONER: Okay. Mr. Moore...? 18 19 CONTINUED EXAMINATION-IN-CHIEF BY MR. PATRICK MOORE: 20 Q: Mr. Power, rather than going to the newly 21 produced document, let's go to a document that you may be 22 familiar with. If you can go with me to Tab 124 in the first 23 book of your documents. This is Document 0084. 24 25 (BRIEF PAUSE)

1 A: Tab 44? 2 Q: Tab 124, sir -- 3 A: Oh, 124 -- 4 Q: -- towards the back of that book. 5 6 (BRIEF PAUSE) 7 8 A: Okay. 9 Q: So, you remember we closed off yesterday 10 afternoon with a reference to an internal process for hiring 11 staff document, which was part of, but, a little on the 12 fringe of what you were typically doing in the Y2K project 13 management office. 14 This document at Tab 124, is a briefing note 15 which describes a piece of work that you were involved in, as 16 I understand it, that was also a little outside of the 17 ordinary from a contract analysis standpoint. 18 So, if we just look at the first paragraph, 19 under issue, I'll just read it. 20 It says: 21 "Several request for proposal were raised, 22 issued and received by Works and Emergency 23 Services that have resulted in work being 24 done without appropriate contracts and or 25 letters of intent being in place, to govern

1 the business relationship. This has 2 resulted in suppliers not being paid. The 3 Year 2000 project office has declined to 4 pay the invoices for this work until 5 directed to do so by the Steering Committee 6 according to the recommendations below." 7 And if you just flip over the page, you'll see 8 that this briefing note was apparently prepared for the Year 9 2000 Steering Committee by you on March 24th, 1999. 10 A: Yes. 11 Q: Okay. So, can we fairly conclude from 12 this, Mr. Power, that in addition to everything else that you 13 had been doing in 1998 and analyzing contracts and 14 negotiating Y2K compliance matters, you also, at least on 15 this one (1) occasion, involved yourself in -- in getting an 16 outside supplier or series of suppliers paid? 17 A: Yes, we had several of these situations 18 that came up. The intent was that a contract had to be in 19 place, a proper contract, before payment will be made under 20 the Year 2000 work. 21 And we came across several where no contracts 22 were in place, and the ones addressed here are some of them, 23 yes. 24 Q: Okay and so in the first paragraph where 25 it refers to several requests for proposal were raised and

1 received, those would have been raised and received, before 2 your time at the new City? 3 A: Yes, that's correct. 4 Q: And so what you were trying to do is to 5 ensure Y2K compliance so that the outside service providers 6 could be paid and so that the City's governance bylaws and 7 procedures would be adhered to? 8 A: Yes. 9 Q: Certainly by that point, in March of 1999, 10 you were fully aware of how the City operated and the 11 importance of proper approvals for supporting payments? 12 A: Yes. 13 Q: And if you go down the page under 14 background, the third paragraph -- second paragraph, first 15 sentence first: 16 "The RFP's were neither issued through the 17 purchasing department nor were they sent to 18 the City's approved vendor's list." 19 So, these were one off transactions which 20 skirted outside of the normal purchasing protocols, it 21 appears? 22 A: It appears, yes. 23 Q: And the next paragraph may be makes it 24 clearer. There you say: 25 "Although this transaction did not convene

1 any City bylaws -- 2 MADAM COMMISSIONER: Contravene. 3 4 CONTINUED BY MR. PATRICK MOORE: 5 Q: Sorry, "-- contravene the City bylaws --". 6 Thank you, Commissioner. 7 "-- the bylaws do not state that the 8 purchasing department has to release all 9 RFP's. It did not follow the business 10 practices of the Year 2000 Project. The 11 Year 2000 Project continuity plan approved 12 by Council in November of 1998 gave 13 extraordinary powers to the CAO to approve 14 new contracts and to extend or renew 15 existing contracts. Acquisition outside 16 the Year 2000 Project, require management 17 or Council approval per the bylaws." 18 So what you're telling the reader there, Mr. 19 Power, accords with your understanding and I think your 20 evidence thus far that a Y2K spending could be authorized 21 under the extraordinary powers granted the CAO but if not 22 under that umbrella, the normal purchasing bylaw protocols 23 needed to be adhered to? 24 A: That's correct. 25 Q: And so having considered that, you were

1 drawing to the attention of the reader the status of the 2 situation and making a recommendation which would allow of 3 payment? 4 A: Yes. 5 Q: The document doesn't say who the reader 6 was, but can you tell us who this was designed or intended 7 for? 8 A: It was -- it went to the Y2K Steering 9 Committee. It would have been presented by me to -- 10 typically to Lana who I reported to. 11 Q: And you would have consulted with Ms. 12 Viinamae during the process of this individual project -- 13 A: Yeah. 14 Q: -- and the writing of this report? 15 A: Yes. 16 Q: Was it ordinarily the case, Mr. Power, 17 that you worked closely with Ms. Viinamae and kept her 18 informed on all of the projects that you were doing? 19 A: Yes, that was the way we worked. 20 Q: And on a project like this one that the 21 briefing note refers to, would there have been people in 22 addition to yourself working on the project or was this 23 simply yours to follow through from start to finish? 24 A: No, I think this is probably be of a 25 combination of efforts. People trying to dig through the

1 files to see if there are contracts. People contacting the 2 business areas to see what arrangements have been made. So, 3 probably a lot of work had been done before we got to this 4 stage. 5 Q: And you would review the work of others, 6 satisfy yourself that it was complete -- 7 A: Yeah. 8 Q: -- and accurate, discuss the matter with 9 Ms. Viinamae and then make a report like this one? 10 A: Yes. 11 Q: And that was your ordinary practice? 12 A: Yes. 13 Q: In addition to Ms. Viinamae, would you 14 ordinarily work in concert with or report to anyone outside 15 of the project management office? For instance, Jim Andrew? 16 A: No. The only people I reported to was 17 Lana and she had an assistant director, Jack Schachner, who 18 filled in when she wasn't there, so -- 19 Q: And -- 20 A: Typically nothing went outside of the 21 project. 22 Q: All right. 23 MADAM COMMISSIONER: Can you just give me the 24 spelling of that name, please? I can't remember if I have 25 that one.

1 THE WITNESS: Schachner, S-C-H -- 2 MADAM COMMISSIONER: If anybody knows that 3 one, then maybe -- I like to make sure that the court 4 reporting facilities have the correct spelling. So if you 5 don't know it right now, if you could make sure you tell 6 them -- 7 MR. RAJ ANAND: I -- 8 MADAM COMMISSIONER: -- Mr. Moore. 9 MR. RAJ ANAND: I believe it's 10 S-C-H-A-C-H-N-E-R. 11 MADAM COMMISSIONER: S-C-H-A-C-H-N-E-R? 12 MR. RAJ ANAND: Yes. 13 MADAM COMMISSIONER: Thanks very much. 14 15 CONTINUED BY MR. PATRICK MOORE: 16 Q: And you mentioned the Y2K Steering 17 Committee. We've heard something about that committee but 18 can we just confirm that you weren't a member of that 19 committee yourself? 20 A: I was not, no. 21 Q: And typically, Mr. Power, would you attend 22 with briefing notes such as the one we're talking about at 23 Tab 124 to present the case in favour of the recommendation 24 you were putting forward? 25 A: I believe this is the only occasion that I

1 -- that I did attend there. 2 Q: I'm sorry. That you did? 3 A: That I -- I think this is the only 4 occasion where I did attend the meeting. 5 Q: I see. All right and typically is it your 6 understanding that Ms. Viinamae attended on meetings with the 7 Steering Committee and represented the interest of you and 8 others -- 9 A: Yes. 10 Q: -- in your department? 11 A: Yes, that's correct. 12 Q: Now, this briefing note represents a 13 project which was part of but perhaps out of the ordinary for 14 the work that you were doing in the Y2K program project 15 management office and so it -- it makes us wonder if you were 16 involved in other projects outside of the four (4) corners of 17 the job description that we've talked about yesterday. 18 For instance, were you involved, Mr. Power, in 19 the spring of 1998, when the preliminary budget for the Y2K 20 office was prepared and submitted to Council? 21 A: Yes, I was. 22 Q: And that was a process that, as I recall, 23 but, you correct me if I'm wrong, that authorized the 24 spending of several millions of dollars to identify Y2K 25 issues and to come back to Council with a thorough report and

1 a firmer budget? 2 A: Yes. 3 Q: And then what was your involvement in the 4 analysis leading to the preparation of the preliminary report 5 to -- to Council? 6 A: Not very much in the analysis. I was 7 working with Lana in the development of the report. I 8 probably wrote most of the report. 9 Q: So you would be given information that, 10 Ms. Viinamae, had sourced from others and you worked to craft 11 language that would fairly express Ms. Viinamae's view for 12 the benefit of Council? 13 A: Yes. 14 Q: Okay. 15 MADAM COMMISSIONER: Did you say, you probably 16 wrote most of the report, is that right? 17 THE WITNESS: Yes. 18 MADAM COMMISSIONER: Okay. Thanks. 19 20 CONTINUED BY MR. PATRICK MOORE: 21 Q: Drawing upon your experience from your 22 years at the Provincial Government in writing reports to 23 government? 24 A: Hmm hmm, yes. 25 Q: Okay. But, at the time that you were

1 involved in that, am I correct in assuming, Mr. Power, that 2 you hadn't personally conducted an inventory of, for 3 instance, the hardware that the City had and that IT may be 4 considering upgrading or replacing? 5 A: No, I wasn't personally involved with 6 that, no. 7 Q: Or software? 8 A: Or software. 9 Q: And ultimately a report went forward to 10 Council in November of 1998, as I'm sure you know -- 11 A: Yes -- 12 Q: -- resulting in an authorized budget of 13 the order of $149 million for the Y2K office? 14 A: Yes. 15 Q: So, in advance of that report going 16 forward, did you have some involvement in the preparation of 17 the report? 18 A: Yes, I did. 19 Q: And, Mr. Power, was your involvement 20 there, as it had been earlier, in the year, 1998, that of 21 word sniffing, if you will? 22 A: Yes, that's correct. 23 Q: And did it go beyond that into sourcing 24 information or verifying the accuracy of information, or did 25 you leave that to others?

1 A: Mostly to others, but, we -- we tried to 2 ensure that what was being put in the report was correct. 3 Q: And was that something that you would do 4 in concert with Ms. Viinamae by speaking to the departments 5 involved? 6 A: Yes. 7 Q: For instance, in the case of hardware and 8 software, I would presume that there would have been a 9 business case made perhaps in IT, supporting the suggestion 10 that several tens of millions of dollars of hardware and 11 software would need to be acquired. 12 Am I correct in that? 13 A: Yes, that's correct. 14 Q: And so, in the lead up to the November 15 report going forward to Council, did you have access to the 16 -- any report in IT on the business case? 17 A: I don't recall specific business cases, 18 but, I would have had access to any report that had been 19 produced up to that time, yes. 20 Q: And you would have spoken with Mr. Andrew, 21 I take it about his vision for the IT needs to the City on a 22 going forward basis? 23 A: I would suspect so. I don't recall any 24 specific conversation, but, it doesn't seem unreasonable. 25 Q: And was it your understanding at that

1 time, now we're in, say, November of 1998, before the report 2 went to Council? Was it your understanding that the 3 intention of IT included the acquisition of hardware and 4 software for the purpose firstly of Y2K compliance? 5 A: Yes. 6 Q: And secondly, did it include acquisitions 7 for meeting the general needs of the Corporation following 8 upon amalgamation? 9 A: Yeah, I believe they were trying to do two 10 (2) things in concert. A lot of the work that had to be done 11 for the year 2000 project in terms of the hardware and 12 software was dealing with equipment from the -- in place at 13 the other cities so getting an idea of what was there, what 14 had to be replaced and how much of an effort that would be. 15 I think that formed the -- the basis of the business case 16 going forward. 17 Q: And we haven't -- we haven't seen, Mr. 18 Power, the business case document if there was one. Do you 19 have a recollection of the document itself that may assist us 20 in ongoing efforts to find it? Do you remember, for 21 instance, when it was created or by whom? What department? 22 A: I think it was created as part of the 23 business plan for the year 2000. It would be in somebody's 24 project plan to scope out the requirements and define the 25 issues and the problems.

1 Q: And that would be what you would expect 2 from your experience at the Provincial Government as well? 3 That acquisitions would be preceded by a business case 4 prepared for the department seeking the acquisition? 5 A: Yes. 6 Q: Do you recall, Mr. Power -- I remember you 7 telling me yesterday that on occasion, the Provincial 8 Government would hire outside experts. Do you recall whether 9 that business case that supported the IT portion of the 10 November recommendation to Council had contributions to it 11 from outside experts? 12 A: It's possible. I'm not quite sure of the 13 timing because we started bringing a lot of consultants on 14 board for the year 2000 project and somewhere in that area, 15 the desktop project area. 16 Q: But I'm taking it from what you're saying 17 that if there were outside experts, you can't identify them 18 for us now and you didn't work with them closely then? 19 A: That's correct. 20 Q: On both counts? All right. Can I move 21 you to a document in Book 1 at Tab 127, sir. This is 22 Document 01096 and this is a document which does not have 23 your name on it but I'm wondering if you can help me with 24 some of the information that it contains as you may or may 25 not have been familiar with the information, at least, if not

1 the document. 2 This is a 10 March, 1999 document addressing 3 year 2000 funding by type of expenditure and if I can take 4 you to the paragraph toward the bottom of the first page. It 5 reads: 6 "Council adopted the year 2000 business 7 continuity plan, Report 24, Clause 2 of the 8 Strategic Policies and Priorities 9 Committee, at its meeting on November 25, 10 26, 27, 1998." 11 If I stop you there, Mr. Power, that's the 12 meeting that the report to Council we've been talking about 13 was presented at? 14 A: That's correct, as I recall. Yes. 15 Q: Yeah and it goes on to say: 16 "This report identified eighty-four (84) 17 priority 1 business functions to be 18 re-mediated for the City of Toronto in 19 requested funding in the amount of 149.6 20 million." 21 The 149.6 million ties in with your 22 recollection of the original budget amount for the Y2K 23 project? 24 A: Yes. 25 Q: And the eighty-four (84) priority 1

1 business functions, of course, ties in with what we discussed 2 yesterday and the overhead presentation -- 3 A: Yes. 4 Q: -- you prepared. So then if we move over 5 to the next page under the heading Comments and or discussion 6 and or justification it reads: 7 "The following is an estimate of how the 8 $149.6 million year 2000 budget by category 9 of expenditure." 10 Leaving aside the grammar of that, what 11 follows then is a list and you'll see on the list, hardware 12 and the cost in millions beside that, is stated to be 49.1? 13 A: Yes. 14 Q: Software with a cost of 16.3, so that if 15 my math is correct, Mr. Power, that appears to be a total for 16 hardware and software on that chart of $65.4 million? 17 A: Yes. 18 Q: The hardware in the box under the heading, 19 hardware it reads: 20 "Acquisition or upgrade of desktop PC's, 21 mid-range servers and mainframes and 22 network hardware." 23 Is it your understanding that that's what 24 broadly speaking the drafters of the recommendation to 25 Council supporting this request for funding, had in mind?

1 A: Yes. 2 Q: And that, of course, would be hardware 3 that the business case for which, would have come from IT and 4 perhaps elsewhere? 5 A: Yes. 6 Q: Under software it reads: 7 "Acquisition of upgrade of software 8 licenses for network operating systems, 9 operating systems office information and 10 business applications." 11 My questions there are the same, that is the 12 -- what you understood the need to be supported by a needs 13 department by IT and others? 14 A: Yes. 15 Q: Okay. Now, the need having been 16 identified and documented and Council having approved of the 17 budget in November of 1998, we understand that certain 18 acquisitions of hardware and software began in early 1999. 19 Do you have a recollection of that? 20 A: I think that's correct, yes. 21 Q: And those acquisitions were apparently 22 made by outright purchase in the first instance? 23 A: That's right. 24 Q: And did you have any involvement in your 25 function at the Y2K Project Management office in preparing or

1 reviewing documentation supporting those acquisitions in 2 early 1999? 3 A: I believe I reviewed the request for 4 proposal document before it went out. 5 Q: Let me just -- let me just back up for a 6 second. Are you talking about the request for proposal that 7 followed the November '98 Council budget authority and that 8 would source hardware suppliers? 9 A: That's right. That's what I'm referring 10 to, yes. 11 Q: Okay. Thank you. And so do you have a 12 recollection of when that request for proposal was prepared 13 and when it, as you say, went out? 14 A: I don't recall exactly, but, I seem to 15 think it was before Christmas of that year. 16 Q: And do you remember who the project lead 17 would have been, managing that RFP process? 18 A: Yeah, I think there were two (2) people 19 working on it, Kathryn Bulko and I believe, Kathy Savage. 20 Q: And what was the position in the Y2K 21 office held by Ms. Bulko, at that time? 22 A: At that time, I'm not exactly sure, she 23 took over management of the desktop implementation project at 24 some point, but, I'm not sure it was exactly there or not, 25 but, she was involved in this document.

1 Q: And what was the position of Ms. Savage? 2 And by the way, would the spelling of that be S-A-V-A-G-E? 3 A: Yes. 4 Q: Thank you. What was her involvement in 5 that project and her position in the office? 6 A: I'm not exactly sure, where she came from 7 on this project. She wasn't a part of the Year 2000 project 8 itself, at that time. 9 She may have just been assigned to work with 10 Kathryn to get the document done. 11 Q: All right. 12 A: I'm not clear on why she was there. 13 Q: And was there a line or chain of authority 14 between Ms. Bulko and you, such that she reported to you at 15 that time? 16 A: No, she did not. 17 Q: And I take it from your description of Ms. 18 Savage's role, that she would not have reported to you 19 either? 20 A: That's right. 21 Q: So, then what was your involvement in the 22 -- the process, was it a matter of reviewing the form and 23 content of the RFP document? 24 A: Yes, and any issues around the Year 2000 25 Project, it was our responsibility to review all of those

1 documents before they went out. 2 Q: And you were reviewing them for what 3 purpose? Compliance with Y2K needs? 4 A: Yes, compliance with Y2K needs and 5 compliance with any legal issues around Y2K. 6 Q: And in respect of that RFP, and again we 7 haven't seen it yet, but did you -- do you have a 8 recollection of you or anyone else in your office involving 9 Legal, either City Legal or outside legal? 10 A: They wouldn't have been outside legal. 11 Yes, I believe we recommended that the document go to be 12 reviewed by Legal, as they had the provisions in the document 13 that the City wanted as far as the Year 2000, but I can't 14 confirm that. That would be our recommendation that it would 15 go to Legal. 16 Q: All right, and that would flow from your 17 experience, and your customary practice at the Provincial 18 Government that RFP's be vetted by -- by Legal before they go 19 out? 20 A: Yes. 21 Q: Okay, well then do you remember what the 22 result of that RFP process was? 23 A: I -- I'm guessing here, but I think that 24 was the one (1) where they selected the three (3) -- the 25 three (3) main vendors for the supply of hardware and

1 services. 2 Q: Right. And presumably a report 3 recommending the selection of three (3) main vendors would 4 have been made to Council? 5 A: Yes. 6 Q: Do you have a recollection of seeing that 7 report before it went forward? 8 A: No, I don't. 9 Q: And from that can we conclude, Mr. Power, 10 that you likely played no part in the creation of that 11 document? 12 A: Not that I recall, no. 13 Q: All right. And then do you have a 14 recollection of seeing the -- the result of that 15 recommendation to Council, a Council authority document for 16 instance? 17 A: I don't recall seeing it, no. I may have, 18 but it doesn't stand out as something I remember. 19 Q: Okay. Do you remember whether any other 20 vendors were added to the list of the three (3), which flowed 21 from the RFP process? 22 A: I don't think so. 23 Q: All right. And then for the acquisitions 24 that were made as the result of that process, what was the 25 involvement of -- of your office in general, and of you, in

1 particular, in the preparation of paperwork supporting the 2 acquisitions? For instance, purchase requisitions? 3 A: No, all of the acquisitions were done by 4 that particular project, they worked with the Purchasing 5 people on it. 6 Q: When you say the particular project, now 7 can you help me with what you mean? Is this -- is this a 8 group within the Y2K PMO -- 9 A: No. 10 Q: -- or is this a group in IT? 11 A: No, it's a group within the PMO. 12 Q: Right. And that group didn't include you? 13 A: I wasn't involved in that project, no. 14 Q: And were you -- whether involved or not, 15 were you given access to, or do you have a recollection of 16 having seen the paperwork, such as purchase requisitions or 17 contract documents? 18 A: I probably would have seen the contract 19 documents, but not too much in the way of requisitions, no. 20 Q: All right. Now, at some stage it appears, 21 Mr. Power, that a decision was made to lease rather than 22 purchase acquisitions which flowed from the November '98 23 Council authority; is that your understanding? 24 A: Yes. 25 Q: And can you tell me about the process

1 leading toward that decision. Do you know who at the City 2 was involved in deliberations leading to that decision? 3 A: I can't tell you who, my recollection is 4 that it was the outcome of discussions held between the IT 5 Department and the Finance Department. 6 Q: And -- 7 A: -- finance, hardware and software going 8 forward, but -- 9 Q: Right, and did the Y2K Project Management 10 Office participate in those discussions, to your knowledge? 11 A: Not to my knowledge. 12 Q: And from that I take that -- that you 13 personally had no involvement in discussions leading to that 14 decision? 15 A: Not that I can recall, that would be 16 considered decision making conversations, no. 17 Q: Do you remember having any discussions, 18 whether formal or informal, with Mr. Andrew, about how to 19 finance these acquisitions? 20 A: Not specifically, we may have had some 21 conversations about it, because we had just done that kind of 22 thing at the Province, but nothing that stands out as a -- 23 you know, as a -- as a meeting kind of thing, where decisions 24 were made, no. 25 Q: Because the reason I ask that is because

1 you told us yesterday that you and Mr. Andrew went back many 2 years in association to mutual employment at the Provincial 3 Government. 4 And I forgot to ask you then, but let me ask 5 you now, did you and he at any time work in the same Ministry 6 or office? 7 A: Yes, at one (1) time he reported to me, 8 yeah. 9 Q: And when -- when was that, what office 10 were you in and what time frame? 11 A: It was at the Queen's Park Computer 12 Centre, it was probably -- I'd say '82/83. 13 Q: Right. And what was your understanding of 14 where he went from there, through his time at the Province? 15 A: Well, I left there before he did, he left 16 I think about '85 and went to work with the Ministry of 17 Natural Resources. 18 Q: Right, and you were never there at MNR? 19 A: No. 20 Q: Then at some stage we know Mr. Andrew went 21 to the -- the amalgamated City. Now, was he with one (1) of 22 the amalgamating Municipalities before that, to your 23 knowledge? 24 A: Yes, he was with Metro. 25 Q: And did you stay in touch with Mr. Andrew

1 after you had worked together with him over the years? 2 A: Yes. 3 Q: And -- and was yours a -- a reasonably 4 close personal relationship? 5 A: Yeah. 6 Q: Well, was he instrumental at all in your 7 achieving the job function that you held at the City? 8 A: I don't know about influential, he was the 9 one who advised me that the position was suddenly open. 10 Q: Right, and he may or may not have 11 recommended you to Ms. Viinamae at the time she made her 12 first assessment -- 13 A: Yeah, I don't -- 14 Q: -- of you? 15 A: -- I don't know that. 16 Q: All right, in any event, after you went to 17 work for Ms. Viinamae, did you begin then to re-establish 18 your relationship with Mr. Andrew? 19 A: Yeah, it didn't change an awful lot from 20 when we had it before, we'd go on what we'd call golf on 21 Sunday mornings, but maybe the occasional lunch, but it was 22 never much more than that, even when I was at the Province 23 and he was at the City. 24 Q: And -- and on those social and -- and 25 other occasions that you spent time with Mr. Andrew, did the

57
  1  topic of conversation ever move toward IT and IT needs at the
  2  City?
  3                 A:  Well, quite possibly, yeah.
  4                 Q:  Did he tell you anything about his vision
  5  for IT at the City, and for instance, the number of desktops
  6  that he envisioned would need to be replaced at the City?
  7                 A:  I don't think I recall speaking of numbers
  8  specifically.  They -- they did a lot of thinking and
  9  planning around areas of what they called a total cost of
 10  ownership and centralized management of the IT function and
 11  consolidating it more, in from the various departments into a
 12  more centralized function of --
 13                 Q:  And you, of course, were familiar with
 14  centralized purchasing at least?
 15                 A:  Yes.
 16                 Q:  Were you also familiar from your years at
 17  the government, with centralized management of IT generally?
 18                 A:  Yes.
 19                 Q:  That was the direction that the Province
 20  was going in, as well, was it?
 21                 A:  That's correct. 
 22                 Q:  And so, I suppose you would have been able
 23  to give them the benefit of your wisdom on that subject,
 24  either informally or otherwise?
 25                 A:  Yes.

1 Q: And as you appreciated it, did he welcome 2 your input? 3 A: I would think so, yes. 4 Q: All right. Did you understand from your 5 discussions with, Mr. Andrew, that he personally was part of 6 the decision making process that lead to the decision to 7 acquire assets in 1999 by way of lease? 8 A: I'm not sure I understand your question. 9 Q: Do you know what role, Mr. Andrew, played 10 if any, in the decision to lease IT hardware and software, in 11 1999? 12 A: I don't specifically, but, I would assume 13 that he had a role in making that decision, yes, because it's 14 a big budget issue for them, so that would affect their 15 budgeting issues in the years coming. 16 Q: And I suppose what I'm really asking is, 17 do you make that conclusion from the position or title that 18 Mr. Andrew held at the City, or from your discussions with 19 him, or both? 20 A: Probably from both. 21 Q: Do you remember now, Mr. Power, when that 22 decision was made? 23 A: No, I don't know when that decision was 24 made. 25 Q: We know that an RFQ went forward in May of

1 1999 relative to that, can you help me with when, 2 approximately, you first learned that there was interest at 3 the City in acquiring IT assets by way of lease financing? 4 A: I guess the most definite thing about it 5 was when I was asked to start working on the RFQ to acquire a 6 leasing company. 7 Q: All right. So before that, there were 8 discussions with Mr. Andrew, but, very informal, nothing 9 communicated to you in any formal or documented way, until 10 you were brought onto this project, is that it? 11 A: Yes. 12 Q: All right. So, let's talk then about 13 that. When were you brought onto the project, which we'll 14 call here, the RFQ of 1999? 15 A: Probably -- I don't know, I would say 16 April, probably. 17 Q: Probably in April of 1999? 18 A: Yes. 19 Q: Tell us then, as best you can recall it, 20 how that came about. What was your first knowledge or 21 indication that you would become part of this process? 22 A: When I was asked by Lana to do -- to put 23 together the purchasing process to get it started. 24 Q: Okay. Now, do you remember when that was, 25 this was what you told us before, sometime probably April?

1 A: Yes. 2 Q: And did it happen in her office or yours? 3 A: I don't recall, it may have been in her 4 office. 5 Q: Just the two (2) of you? 6 A: Possibly, but, I couldn't -- I couldn't 7 say for sure. 8 Q: I don't know if you still have it turned 9 up, Mr. Power, but, if you look at Tab 127 in Book 1 of your 10 documents, again it's 01096, and that's the document that we 11 spoke of that referenced $65.4 million in hardware and 12 software and a total of $149.6 in Y2K budget numbers. 13 Do you remember in the discussion with Ms. 14 Viinamae, that -- at the first meeting, whether numbers of 15 that order of magnitude or this document were discussed? 16 A: No, I don't recall that. 17 Q: Okay. You'd been assigned to various 18 projects and had a good working relationship with Ms. 19 Viinamae, as you told us, so tell us if you can about that 20 first meeting and the way in which Ms. Viinamae assigned you 21 to the project and what you recall she told you about what 22 your role in it would be? 23 A: Well, I guess she went over the list of 24 what they were trying to do in terms of funding and financing 25 and looking at ways of financing the -- the big expenses

1 coming up and she asked me to work with Purchasing and 2 Accounting -- or the Treasury people to get the project 3 underway. 4 Q: Did she tell you at that time, Mr. Power, 5 that the intent of the RFQ, among other things, was to 6 acquire a vendor of record for leasing? 7 A: That's what we talked about, yeah. 8 Q: Tell us about that conversation. What was 9 a vendor of record in your mind at the time? 10 A: Well, we would select one (1) leasing 11 company that would be centrally managed and the departments 12 would have access to it as well to lease products and 13 services. 14 Q: And I think you told us that in your time 15 at the City in the '90s, that a similar process -- 16 MADAM COMMISSIONER: In the City or the -- 17 MR. PATRICK MOORE: Sorry. I'm sorry. 18 19 CONTINUED BY MR. PATRICK MOORE: 20 Q: The province in the '90s, that a process 21 was undertaken whereby a vendor of record was appointed in 22 the early '90s and then replaced in -- what was it? '96 or 23 so? 24 A: Yeah. That's correct. 25 Q: All right and in both instances was it a

1 single vendor -- leasing vendor that was selected by the 2 province? 3 A: Yes. 4 Q: And so did you and Ms. Viinamae discuss at 5 that first meeting the wisdom of selecting a single vendor 6 and following the provincial experience? 7 A: I think so. I -- I don't recall the 8 specifics of it, but I don't -- that would probably be the 9 discussion, yes. 10 Q: And you -- personally, were you 11 comfortable that the selection of a single vendor at the 12 Province worked well for the province? 13 A: The things -- yeah, it worked well for the 14 Province, a single vendor, sure. 15 Q: All right and in the case of the City and 16 still dealing with your initial discussions with Ms. 17 Viinamae, how long a period of time was contemplated for the 18 vendor of record to be the sole leasing vendor to the City? 19 A: You mean the term of the agreement? 20 Q: The term of the entitlement, if you will, 21 for the successful leasing company to be the vendor of 22 record? 23 A: We're probably talking about three (3) 24 years. 25 Q: Did you discuss other periods of time?

1 A: We may have but I think three (3) years 2 was the -- was the outcome of the -- or the decision we took. 3 Yeah. 4 Q: And was that the result of your 5 recommendation or was that something that Ms. Viinamae just 6 simply told you would happen? 7 A: It may have been both. I mean, I had some 8 conversations with other people on the project as to what 9 their experiences had been. 10 Q: At the first meeting, were there other 11 people on the project already? 12 A: Other people for the project at the 13 meeting? 14 Q: Firstly, yes, that's -- 15 A: No, I don't think so. 16 Q: All right. Were other people assigned to 17 the project before you were? 18 A: No. 19 Q: And so at the time of the first meeting, 20 just focussing on the discussion around the three (3) year 21 selection, what was your input? And if you can recall it, 22 what was Ms. Viinamae's position? 23 A: I think I supported the three (3) year 24 thing. I believe she did as well. And conversations we had, 25 the subsequent meetings with the people from the Finance

1 Department, that I think that three (3) years was the -- was 2 the period we were looking at. 3 Q: In your mind, what drove the wisdom of the 4 selection of three (3) years, as opposed to some other period 5 of time, or even an unlimited period of time? 6 A: Well, I think from a contract management 7 point of view, three (3) years is a reasonable -- a 8 reasonable time. Things change in the -- in the market 9 place, and it gives the vendor an opportunity to -- they have 10 a place in the -- in the marketplace. 11 It also, from the technology point of view, 12 three (3) years is a reasonable term and a reasonable turn, I 13 guess in terms of the life of some of this equipment, so it 14 coincides with things like manufacturer's warranties. 15 Q: Returning to the document at Tab 127, and 16 the reference there to hardware, the acquisition or upgrade 17 of desktop PCs, was it your view at that time, Mr. Power, 18 that -- and this is sometime around April of 1999, that the 19 useful life expectancy of desktop PCs was of the order of 20 three (3) years? 21 A: Yes. 22 Q: And mid-range servers? 23 A: Probably in that range as well. 24 Q: And mainframes and network hardware? 25 A: Probably a longer term.

1 Q: And so in speaking of three (3) years as 2 the period of time that the vendor of record would have 3 entitlement to that status, you had it in mind that that was 4 a -- a reasonable period of time, after which other vendors 5 would have an opportunity to compete? 6 A: Yes. 7 Q: And that the period of time would roughly 8 track the useful life expectancy of the majority of the 9 hardware to be acquired and put on lease with that vendor? 10 A: That's correct, yes. 11 Q: Was anything else going into that decision 12 that you can think of? 13 A: Nothing that comes to mind right now, no. 14 Q: And anything that Ms. Viinamae expressed 15 to you, that you hadn't already thought of in respect of the 16 wisdom of the three (3) year selection? 17 A: No, I can't think of anything at the 18 moment. 19 MR. PATRICK MOORE: Commissioner, this might 20 be, if you think so, a useful time? 21 MADAM COMMISSIONER: Okay. We'll break for 22 twenty (20) minutes. 23 THE REGISTRAR: Order. The Inquiry will 24 recess until ten (10) to 12:00. 25

1 --- Upon recessing at 11:30 a.m. 2 --- Upon resuming at 11:53 a.m. 3 4 THE REGISTRAR: The Inquiry will resume, 5 please be seated. 6 MADAM COMMISSIONER: I can't start without 7 you, Mr. Powers, so -- 8 THE WITNESS: Sorry? 9 MADAM COMMISSIONER: I said I can't start 10 without you, so if you can make sure that we're -- if people 11 need more time on the breaks, I'm quite happy to give more 12 time, but I need to know before I get here, all right? Okay. 13 THE WITNESS: We just lost track of the time, 14 we apologize. 15 MADAM COMMISSIONER: I know, it's easy to do, 16 we're having such a good time. 17 All right, Mr. Moore. 18 MR. PATRICK MOORE: Thank you, Commissioner. 19 20 CONTINUED BY MR. PATRICK MOORE: 21 Q: Mr. Power, before we go forward, can we 22 just sort of step back to yesterday, when we spoke of your 23 CV, I mean to ask you this earlier, I should have. But you 24 remember it was a two (2) page document, which we find at Tab 25 27 in the second book. And you thought -- you thought that

1 perhaps there was another page to it, and I think you were 2 going to have a look for it. 3 Did you manage to -- to accomplish that? 4 A: No, I think I forgot about that, sorry. 5 Q: All right, well maybe you can do that when 6 you have a chance? 7 A: Yeah. 8 Q: All right. So, if I can take you back in 9 your -- in your mind to the first meeting that you had with 10 Ms. Viinamae about this upcoming RFQ project, you told us 11 about some of the things that you discussed. 12 How long was that meeting? 13 A: I don't recall the specifics of that 14 meeting, we had a more detailed meeting with members of the 15 Finance or Treasury Department, with Mr. Brittain and Mr. 16 Altman and Mr. Ribardi (sic). 17 Q: Mr. Rabadi? 18 A: Rabadi, yes. 19 Q: Okay, right. 20 A: Sorry, mispronounced his name. 21 Q: And that was sometime later, but before we 22 get to that, I'm just wondering, did Ms. Viinamae tell you 23 that she would deploy staff from the Y2K Project Management 24 Office to assist you? 25 A: No, I think it was implicit that I would

1 have access to the people that I needed. 2 Q: And how many people would you implicitly 3 think that you would have access to and need? 4 A: Well, mostly from the technical operations 5 area, just to get accounts of things and types of equipment, 6 levels of software and those kind of things. 7 Q: Were these people that you had some 8 familiarity with, a working relationship with already? 9 A: Yes. 10 Q: And are they people that would take their 11 directions from you, in terms of the chain of command in the 12 City? 13 A: I don't think they would look at it that 14 way, they have funneled the request through Lana's office, 15 sometimes, if we weren't getting things we needed quickly 16 enough, but I don't think it was looked at as a chain of 17 command, it was just a -- an information gathering exercise. 18 Q: Right, it's probably my fault through the 19 way I asked the question, but do we take it from your answer 20 fairly, Mr. Power, that the people you're talking about in 21 terms of technical support, were people from outside of the 22 project management office? 23 A: Yes, yeah -- it could be yes and no, some 24 of the people from the project offices were involved in -- in 25 the day to day operation as well, so, it could be both.

1 Q: Some were people in, for instance, IT -- 2 A: Yes. 3 Q: -- or other Departments that might have 4 acquisition needs, that this RFQ would address? 5 A: Yes. 6 Q: And on that subject, did Ms. Viinamae tell 7 you anything about which Department or Departments, other 8 than the Y2K Project Management Office, would be served by 9 this RFQ? 10 A: The intent was it would serve the whole 11 Corporation, and -- when it was fully executed. 12 Q: And from that did you understand that it 13 would involve, in addition to Y2K, general amalgamation and 14 Corporation IT needs concerns? 15 A: Yes. 16 Q: Right. So, did Ms. Viinamae tell you at 17 that time, whether the assets that had been acquired in 1999 18 to that point, or others that may be acquired by outright 19 purchase later in 1999 were to be added to this RFQ? 20 A: Yes, that was the intent, that was I guess 21 one (1) of the things that put so much time pressure on it, 22 because we were acquiring the resources. 23 And -- and for two (2) things, I guess one (1) 24 where the supplier was being paid, and secondly, the age of 25 the equipment, when we actually had the leasing company in

1 place as to how much negotiation would have to be to get the 2 full purchase price from the leasing company. So, it was 3 kind of -- 4 Q: Sorry -- 5 A: -- pressures that were driving us. 6 Q: And those pressures you were made aware of 7 at that first meeting? 8 A: I -- I'm not sure about the first meeting, 9 but the series of discussions that we had, yeah. 10 Q: But it was early on in the process and 11 before you started the actual drafting of the document was 12 it? 13 A: I would suspect so, yeah. 14 Q: Right. Let's talk for a moment about the 15 importance of the age of the assets purchased, and to be put 16 on lease. From your perspective, what was -- what was the 17 concern there? 18 A: Well, the -- the concern would be that we 19 wouldn't get the full purchase price from the sale of the 20 assets to the leasing company, because they would have had 21 too many miles on it; that would be one (1) concern. 22 Q: And -- and let's just focus on that for a 23 moment if you could, Mr. Power. Did you have a concern at 24 that time that the process by which acquired assets would be 25 sold and then placed on lease, would be governed by some

1 procedure at the City? 2 A: No, I don't think that ever occurred to me 3 that the people involved in this wouldn't have the authority 4 to do this, no. 5 Q: If you hadn't been able to accomplish a 6 sale at the original purchase price, and there was a 7 shortfall to the City, looking back on it now, would you 8 think that that would contravene a disposition of assets 9 procedure or bylaw at the City? 10 A: I'm not sure how that would have worked 11 out, I really don't know. 12 Q: And were you relying on the -- on the 13 input of Ms. Viinamae or others, to address those concerns, 14 and -- and to ensure compliance with Purchasing and 15 disposition of assets considerations at the City? 16 A: I'm not sure we considered the disposition 17 of those assets to be along the lines of the City's bylaws 18 regarding asset disposal. 19 I'm not even sure we took into account 20 typically disposal of what assets is, that simply had -- is 21 no longer of any value to anybody and they dispose of them in 22 various ways. 23 Q: Surplus or obsolete, you're referring to? 24 A: Yes. 25 Q: Hmm hmm.

1 A: If it's just a sale/leaseback and you 2 continue to use the equipment that you already have. 3 Q: But at the time that you -- that the -- of 4 the original discussion with Ms. Viinamae, it wasn't clear 5 that the sale and leaseback could be accomplished in a net 6 even position for the City? 7 A: Well, that was our hope that we could do 8 that, but it wasn't -- it wasn't a given that we could do it, 9 no. 10 Q: And did you know at that time whether 11 assets had been acquired and actually paid for by the City, 12 or whether the acquisitions were made, but accounts were 13 outstanding for payment? 14 A: That's the case, yes. 15 Q: And did you consider whether or not in 16 addition to the original acquisition cost -- 17 MADAM COMMISSIONER: I don't understand the 18 answer. 19 THE WITNESS: Sorry. 20 MADAM COMMISSIONER: The payment was 21 outstanding, is that -- 22 MR. PATRICK MOORE: Yeah, unmade. 23 MADAM COMMISSIONER: Okay. 24 25 CONTINUED BY MR. PATRICK MOORE:

1 Q: And did you consider when you're talking 2 about -- or when I've been talking about the net even 3 position for the City, in terms of the acquisition and 4 rolling it into a lease, whether the City had either paid or 5 would be obliged to pay provincial sales tax on the 6 acquisition by purchase? 7 A: Well, the provincial sales tax would have 8 been applied at the time of the invoicing of the equipment by 9 the original supplier. 10 Q: And did you give any thought at that time, 11 Mr. Power, to whether the provincial sales tax, which had 12 been paid or the obligation for it to be paid, could be 13 reversed? 14 A: I don't think I gave it any thought at 15 that time, no. 16 Q: Was there any discussion about it with, 17 Ms. Viinamae, or with anyone else at the City, in the early 18 stages? 19 A: Not that I recall. 20 Q: All right. And did you talk with, Ms. 21 Viinamae, in that first meeting about the City's refresh 22 strategy and whether it had one (1)? 23 A: Well, it didn't have one (1) to my 24 knowledge, it was implicit I guess, in all discussions we had 25 going forward that there would need to be a refresh. I think

1 it probably wasn't on the front burner or first page of the 2 thing, because the first priority for us was getting those 3 nine or fourteen thousand (14,000) desktops installed in the 4 first place. 5 So, the refresh strategy would be a subsequent 6 planning exercise. 7 Q: Now, you told us that you were thinking 8 about a three (3) year term, one (1) of the reasons for which 9 is that it matched to a considerable extent the useful life 10 of the assets under lease. 11 So, let me ask you this, in your initial 12 thoughts and the first meeting with Ms. Viinamae, was it your 13 expectation that whatever number and value of assets, would 14 go onto this lease for which the RFQ was about to be issued, 15 would all come off lease at the same time and be replaced? 16 A: Well, no, we couldn't -- we weren't 17 anticipating that happening. There would have to have been 18 some other arrangements during the term. You just couldn't 19 manage again, fifteen thousand (15,000) co-terminus leases 20 and desktops being replaced. 21 Q: So -- 22 A: There would have to have been some 23 strategy thought through as to what we do with them. 24 Q: And typically among the options would be 25 an option to refresh some number of the asset base at one (1)

1 time and another number at another time, so that process 2 could be rolled out in a manageable fashion? 3 A: Yes. 4 Q: Without undue expenditure of City staff 5 time or expense? 6 A: Hmm hmm, yes. 7 Q: All right. So, in the initial meeting, 8 was there some discussion about how and when refreshes would 9 be accomplished? 10 A: Not that I recall, no. 11 Q: And in the initial meeting was there any 12 discussion with Ms. Viinamae, on just what asset value all of 13 these nine (9) or thirteen thousand (13,000) desktops and 14 other items that ultimately went on this RFQ would be worth? 15 A: The total value of it? 16 Q: Yes. 17 A: Well, we weren't sure. The only number we 18 could work with were these numbers that we knew for the Year 19 2000 Project. 20 Q: That was the $65 million worth -- 21 A: And they were -- 22 Q: -- hardware and software? 23 A: Hmm hmm. 24 Q: But, in addition to that, Mr. Power, did I 25 understand you to tell us that you also knew that there would

1 be input to this RFQ from other departments? 2 A: There would be use of this resulting 3 contract by other departments, yes. 4 Q: And so the $65 or so million worth of 5 hardware and software that would be attributable to the Y2K 6 Project would grow by whatever use other departments would 7 make of the process? 8 A: That was the intent, yes. 9 Q: And that was discussed at your first 10 meeting with Ms. Viinamae? 11 A: I'm not sure in those precise terms, but 12 that was -- that was the general direction, yeah. 13 Q: Okay. Use by other departments was 14 something that you were familiar with, I think you told me, 15 from your experience at the Province? 16 A: Hmm hmm, yes. 17 Q: The leasing vendor having been 18 established, the departments would then get appropriate 19 approval for expenditure and then use that vendor. That was 20 the idea there? 21 A: That's correct. 22 Q: And so, was that the idea that you had in 23 mind at the time of your initial discussions with Ms. 24 Viinamae for how this would work at the City? 25 A: Yes, that was the model that I was

1 suggesting to them, yeah. 2 Q: And so you told her about how it worked 3 and how well it worked at the Province, so that she would 4 understand that it could work at the City? 5 A: Yes. 6 Q: Now, let's just talk about the Province, 7 if -- if we can, just for a moment. I'm sorry to take you 8 back in time, but I gather that the leasing program that you 9 were part of, if not instrumental in putting in place at the 10 City, began in the early 1990s. 11 Do you remember exactly when that was? 12 A: The exact year? Probably '92, maybe. 13 Q: All right. And that was the program that 14 was then re-tendered and the leasing vendor was replaced in, 15 did you say '96? 16 A: '96, yeah. 17 Q: Okay. The -- 18 A: '96/97. 19 Q: -- the -- the initial vendor of record at 20 the Province was who? 21 A: MFP. 22 Q: And the -- the tender process in '96 23 resulted in the contract being awarded to what company? 24 A: GE Capital. 25 Q: And so after 1996, am I correct in my

1 assumption that there would be some ongoing MFP leases for a 2 time? 3 A: Yes. 4 Q: Until they were replaced or ran their 5 course? 6 A: Yes. 7 Q: Okay. Now, when you were at the 8 Provincial Government then, and -- and managing the lease 9 process to the extent that you did, did you have an 10 opportunity to meet representatives of MFP? 11 A: Yes, we had fairly frequent meetings with 12 MFP, especially Irene Payne, and occasionally Rob Wilkinson. 13 Q: And what did you understand to be the 14 function of Ms. Payne, in connection with the leasing at the 15 Province? 16 A: Well, she was our chief contact with MFP. 17 Q: And did you come to know her reasonable 18 well? 19 A: Well, reasonably well in a business sense, 20 yes. 21 Q: All right. Did you ever have contact with 22 her outside of the office? 23 A: Not that I recall, we've had lunches and 24 things, but nothing -- 25 Q: The business lunches --

1 A: -- yes. 2 Q: -- you had talked about yesterday? 3 A: Hmm hmm. 4 Q: All right, what about Mr. Wilkinson, what 5 did you understand that he brought to the table for MFP at 6 the Province? 7 A: Well, he brought their -- I guess the 8 leasing expertise, the -- he was their financial guy. 9 Q: He was their numbers man? 10 A: Yeah. 11 Q: And did you, in your role, deal directly 12 with Mr. Wilkinson, or did he deal with technical or 13 accounting people under you? 14 A: Sometimes both. If we -- if a Ministry 15 was about to go into a serious leasing proposal, leasing 16 situation, then we would probably sit with them and have 17 their people and Rob Wilkinson there as well. 18 Q: And was yours a professional relationship 19 with Mr. Wilkinson? 20 A: Yes. 21 Q: While at the Province? 22 A: Yes. 23 Q: Without social contacts? 24 A: That's right. 25 Q: Let me give you some other names of people

1 that we've heard associated with MFP and maybe you can tell 2 me if you knew or worked with them, while at the Province. 3 Rob Ashbourne? 4 A: Didn't know him. 5 Q: Peter Wolfraim? 6 A: I've met Peter Wolfraim, yes. 7 Q: In connection with work at the City or 8 other reasons? 9 A: No, at the Province. 10 Q: All right, at the Province? 11 A: Yeah. I attended one (1) meeting with him 12 just shortly before I left the Province. 13 Q: Was he instrumental in the process by 14 which MFP came to be the vendor of record at the Province? 15 A: No. 16 Q: And was he involved in a -- 17 MADAM COMMISSIONER: I'm sorry, did you say no 18 or yes? 19 THE WITNESS: No. 20 MADAM COMMISSIONER: No. 21 22 CONTINUED BY MR. PATRICK MOORE: 23 Q: And was he involved in a day to day basis 24 in the creation or alteration of leases at the Province? 25 A: No not at all.

1 Q: All right. Sandy Pessione, do you know 2 that name? 3 A: Yes, I do. 4 Q: Did you know him when he was at the 5 Province? 6 A: Yes, I did. 7 Q: And what did he do at the Province, to 8 your understanding? 9 A: Well, when I met Sandy, he was working for 10 the Ministry of Community and Social Services. And they were 11 -- he was part of the project, major project -- I think it 12 was called "Caseworker Technology" and it was -- I guess the 13 -- I can't recall the fundamentals of the program, but, the 14 government was providing certain equipment and other services 15 to the municipal caseworkers. 16 And hardware was going -- notebooks and 17 desktops was going to be a part of it. 18 Q: And so did that bring him into a working 19 relationship with you? 20 A: Yes, because we used their huge 21 requirement for these desktops and notebooks as the basis for 22 doing our first leasing contract. 23 Q: Back in the early 90's? 24 A: Yes. 25 Q: All right. And at some point, I gather

1 that Mr. Pessione, left the Province and went to work for 2 MFP. Were you aware of that? 3 A: Yes. 4 Q: And did you continue your contact with Mr. 5 Pessione, while he was at MFP and you were at the Province? 6 A: Not very often. He may have been at some 7 meetings occasionally, but, I don't think neither I or my 8 staff had much of a day to day involvement with him. 9 Q: All right. Mr. Flanagan, Michael 10 Flanagan. 11 A: I don't know him. 12 Q: And Dash Domi? 13 A: Dash Domi I met after MFP had been awarded 14 the City contract. 15 Q: But, not while you were at the Province? 16 A: No. 17 Q: And the people who we've talked about with 18 associations with MFP, we were focussing on your time at the 19 Provincial Government, but, after you came to work with the 20 City, did you have contact with any of those people up until 21 the time that Ms. Viinamae assigned you to this RFQ project? 22 A: No, not at all. 23 Q: Now, returning to the RFQ project and your 24 initial meeting with, Ms. Viinamae, can I ask, did you keep a 25 calendar or diary of appointments that might help us to a

1 date for that meeting? 2 A: No, nothing specific like that. 3 Q: Were you in the habit of putting meetings 4 in your computer on your desktop, as opposed to a paper 5 record? 6 A: Mostly a paper record. 7 Q: All right. And have you looked for any 8 paper records that might help us with meetings that you had 9 about the RFQ project, while you were at the City? 10 A: I don't have too many notes or documents 11 from my time at the City. Typically on doing that kind of 12 work, I keep around me working papers and working documents, 13 but, when I finish with them, they become City -- City 14 property and part of their files, so -- 15 Q: You've undertaken to do this, of course, 16 by way of your seeking standing here, but, just so it's 17 clear. 18 Can I ask you, Mr. Power, would you make 19 inquiries and review your records and see if you can find 20 calendars, notes working papers, that sort of thing, and 21 share them with Mr. McPhadden, so that we can consider their 22 applicability here? 23 A: Okay, I will look. 24 Q: Thank you, sir. Well, then going back to 25 your recollections, following that first meeting, how long a

1 time, would you say it was before you next met with anyone at 2 the City about this project? 3 A: I would say a couple of weeks, but, that's 4 a guess. 5 Q: And in that interval of a couple of weeks, 6 did you have ongoing discussions, even informal ones with Ms. 7 Viinamae? 8 A: Well I had contact with her almost every 9 day. I don't -- I guess we didn't do anything substantial 10 until we had that meeting with the -- the Finance people. 11 Q: Now, I may have missed them, Mr. Power, 12 but I haven't seen any documents that were generated with 13 your name on them, in April, sug