Why outsource review of ‘Tobacco-gate’? by Cameraon Hutchinson, December 7, 2015, Edmonton Journal
There are good reasons to hire independent experts to review, or make recommendations concerning, government policy. Some decisions, for example climate change and royalty review, are exceedingly complex. It is appropriate — indeed critical — that all issue linkages and options are thoroughly identified and assessed. Wisely, the NDP has shown a proclivity for referring these kinds of issues to outside experts, over and above the expertise that is supposed to be offered by the upper echelons of government bureaucracy.
External reviews may also be justified when there is a real or perceived concern of bias or politicization that threatens to obscure the disclosure of information (a cover up) or distort decisions that are to be made in the public interest (getting the result you want).
But then there is the curious hiring, at taxpayer expense, of former Supreme Court of Canada Justice Frank Iacobucci (his rate of pay currently undisclosed) to conduct a review of the Redford tobacco-gate affair. This issue does not bear the hallmarks of complexity or bias that normally prompts such a move.
… The issues are straightforward — was internal information within the government held back when the commissioner previously reviewed the matter? If so, why did this happen? Would this information have had a bearing on the commissioner’s decision to exonerate Redford? This is not confounding stuff that should send us clamouring for the opinion of a former Supreme Court justice. With all due respect to Iacobucci, there are countless lawyers at Alberta Justice already on the payroll and not connected to this affair who are competent to make these kinds of judgments, and likely do so in different contexts regularly.
Appropriate internal investigations, public disclosure and informed legislative debate toward possible policy changes would be a better solution. The current government has no motivation to hide or distort the facts of what happened during a previous Tory administration. And if the concern is a bureaucratic cover-up, there is no apparent reason to believe that Alberta Justice officials would be any more willing to spill the beans to Mr. Iacobucci than they would to the Minister or her newly appointed deputy minister.
What is most baffling about the Iacobucci decision is the context in which it arises. Conflict of interest investigations, and remedies for wrongdoing, are only meaningful if you are a sitting member of legislature. If Redford was in a conflict of interest, nothing can be done now to punish her or hold her to account for her actions (assuming even that the matter could be reopened). In other words, the expert opinion will be legally toothless.
Which begs the question, what is the purpose of this report? The terms of reference indicated in the letter to Iacobucci are for his “independent review of this matter and advice on what the government should do to address it.” At most, this means recommendations for procedural safeguards or new laws to avoid future missteps and wrongdoing in similar cases. These recommendations will no doubt be useful. But again, lawyers currently on the payroll within Alberta Justice could just as effectively offer this advice.
The government should be commended for its willingness to seek expert views so as to make informed policy choices in complicated cases. But this is not such a case. Rather, this looks a lot more like a taxpayer-funded shirking of responsibility. It is a house full of plumbers hiring an outside plumber to fix their leaky faucet. The Minister should consider cancelling this contract and have her officials do the work they are paid and able to do.
Cameron Hutchison is an Associate Professor at University of Alberta Faculty of Law
Public accounts committee to hear from Alberta government officials over ‘tobaccogate’ contract by Mariam Ibrahim, November 30, 2015, Edmonton Journal
Public accounts committee to hear from Alberta government officials over ‘tobaccogate’ contract
Justice department officials will be summoned before a legislature committee next year to explain how the contract for Alberta’s $10-billion lawsuit against Big Tobacco was awarded.
MLAs on the all-party public accounts committee voted Tuesday in favour of calling senior civil servants from Alberta Justice to respond to questions about how the contract was awarded in 2010. [Why not also call senior civil servants and AER upper management/lawyers before the same legislative committee to formally respond to questions about how JSS’ (same firm that’s also in the tobacco recovery consortium) Glenn Solomon’s contract was awarded in Ernst vs AER? And ask if his contract includes defaming and lying about Ernst in official legal briefs for the case that is now before the Supreme Court of Canada (hearing set for January 12, 2016)?]
“This file looks like it merits the full scrutiny of the auditor general and the public account committee. We need to understand how this happened so it will never happen again,” said Wildrose justice critic Scott Cyr. [The AER violating the Charter while covering-up Encana’s frac’ing law violations, community drinking water contamination and water tower destruction doesn’t? How many billions of dollars in harm to the public has fracing already caused? How many billions more ahead?]
Former premier Alison Redford, while justice minister, gave the contract to the International Tobacco Recovery Lawyers consortium. The move sparked accusations of conflict of interest because Redford’s ex-husband, Robert Hawkes, is a partner at one of the firms included in the consortium.
Redford was investigated and cleared in 2013 by former ethics commissioner Neil Wilkinson, but the Alberta government this week appointed former Supreme Court of Canada justice Frank Iacobucci to review that investigation.
The public accounts committee voted to invite justice department officials to speak about contracts and the surrounding controversy in March, after Iacobucci’s review is completed.
Justice Minister Kathleen Ganley said this week a new review was necessary because concerns had emerged over recent days that Wilkinson may not have had all the information necessary for his inquiry.
CBC Edmonton reported last week that internal government documents show the International Tobacco Recovery Lawyers consortium was awarded the lawsuit contract despite being ranked third out of three possible firms. [Emphasis added]
NDP to review Redford investigation by Carrie Tait and Justin Giovannetti, with a report from Gary Mason, November 30, 2015, The Globe and Mail
Alberta’s NDP government has launched an external review into the investigation that cleared former premier Alison Redford of conflict-of-interest allegations.
The government on Monday said it hired Frank Iacobucci, a former Supreme Court of Canada judge, to examine the Alberta Ethics Commissioner’s 2013 probe into whether Ms. Redford improperly awarded a legal contract to a law firm where her former husband works. At the time, the Progressive Conservatives hired the lawyers to represent the province in a lawsuit against tobacco companies.
“Over the course of the last few days, concerns have emerged that [former Ethics] Commissioner [Neil] Wilkinson may not have had available to him all the information that was relevant to his inquiry,” Kathleen Ganley, Alberta’s Minister of Justice and Solicitor-General, wrote in a mandate letter to Mr. Iacobucci.
She asked the former judge to review documents involved in the initial investigation and “other documents that may be potentially relevant” to his examination. “Officials have been directed to speak freely with you about this matter,” her letter said.
Ms. Ganley told reporters “there was no one specific document” that prompted the government’s decision to revisit the ethics investigation. The CBC, however, has reported it obtained internal Alberta Justice documents showing the committee involved in selecting lawyers for the multibillion-dollar tobacco lawsuit had, at one point, knocked out the so-called Tobacco Recovery Lawyers consortium from the competition. The consortium is led by Calgary’s Jensen Shawa Solomon Duguid Hawkes LLP, where Ms. Redford’s ex-husband is a partner. [And is the firm representing the AER in Ernst vs AER, hearing scheduled before the Supreme Court of Canada on January 12, 2016]
The CBC has reported, citing briefing notes, that the group remained in the running after one of Ms. Redford’s staff received the committee’s recommendations in late 2010. Ms. Redford, who was the justice minister at the time, later selected the Tobacco Recovery Lawyers group. There is no indication Ms. Redford saw the original briefing note, according to the CBC.
Ms. Redford, who resigned as premier in 2014 after a spending scandal, said she would participate in Mr. Iacobucci’s review.
“I welcome any independent review to confirm the appropriateness of the Ethics Commissioner’s report. I always have, and always will, fully co-operate with any review of matters related to this topic,” she said in a statement Monday. “I am happy to answer any questions that he may have.”
Robert Hawkes, Ms. Redford’s ex-husband, on Monday said: “Personally, I welcome an independent investigation into any allegations, but as a firm we are unable to provide any substantive comment because the government of Alberta is our client.” [In more ways than one]
The New Democrats want the review wrapped up by Feb. 29, 2016. Jason Nixon, the Wildrose Party’s democracy and accountability shadow minister, said the examination should be allowed to take as long as necessary.
“As Albertans, we need to understand so we can trust the bureaucracy that is running this province,” he told reporters.
Mr. Iacobucci’s review will not necessarily overturn the original decision to clear Ms. Redford. “It will touch on matters having to do with the decision, but the thing that is specifically under review is whether or not that investigation was conducted appropriately,” Ms. Ganley said. [Emphasis added]
Review called into conflict investigation involving former Alberta premier by The Canadian Press, November 30, 2015, Calgary Herald
The Alberta government is launching an outside review of an investigation two years ago into conflict-of-interest allegations involving former premier Alison Redford.
The 2013 investigation looked into how a Calgary law firm with close ties to Redford was awarded the contract to represent Alberta in a lawsuit against tobacco companies.
One of the partners in the law firm was Redford’s former husband, who remained a strong Conservative supporter.
Neil Wilkinson, the ethics commissioner at the time, cleared Redford of any conflict in awarding the multibillion-dollar contract while she was justice minister.
The NDP government says concerns have emerged that Wilkinson may not have had all the relevant information needed for his investigation.
The review is to be handled by retired Supreme Court justice Frank Iacobucci.
“These allegations are serious. We believe that the best path forward to ensure an objective review is to have that review performed externally,” Alberta Justice Minister Kathleen Ganley said in a release.
“Our government is committed to transparency and accountability, which is why we’re taking action.”
The review is expected to be completed by Feb 29.
Alberta is one of 10 provinces suing the tobacco industry. [Emphasis added]
Alison Redford chose last-ranked legal consortium for Alberta’s $10B tobacco litigation Internal documents show ‘independent’ selection process manipulated Exclusive by CBC News, November 23, 2015
[Refer to link above to read article with snaps from documents]
A CBC News investigation has found the process which led to Alberta choosing a legal consortium to represent it in a multi-billion-dollar lawsuit against the tobacco industry was manipulated. Former premier Alison Redford, who chose the consortium while justice minister, said she was never told the winning consortium had been ranked last by a government review committee. (CBC)
The “independent” process through which Alberta chose a legal consortium for a $10-billion lawsuit against the tobacco industry was manipulated, allowing former premier Alison Redford the opportunity to select a consortium with close personal and political ties, a CBC News investigation has found.
Internal Alberta Justice documents obtained exclusively by CBC News show that a week before the legal consortium was personally selected by Redford as the “best choice” to represent Alberta, it had been ranked last of three by an independent review committee and effectively eliminated from consideration.
The documents show the review committee had eliminated International Tobacco Recovery Lawyers (ITRL) due to its “lack of depth.” The committee instead recommended Redford choose between two other consortiums: Bennett Jones, and the paired firms of Field Law and McLennan Ross.
But internal briefing notes reveal the review committee’s decision was effectively overruled, shortly after it was sent to a Redford staffer. ITRL was inexplicably inserted back into the competition, its last place ranking was removed, and within a week Redford chose ITRL, which is led by JSS Barristers, a small Calgary boutique law firm with close ties to Redford.
There is nothing in the documents which indicates Redford saw the first briefing note.
“We are talking about the people of Alberta being represented in this litigation by a [consortium] that was judged merely adequate, instead of by one of two other [consortiums] that were judged to be superior,” said Arthur Schafer, director of the University of Manitoba’s Centre for Professional and Applied Ethics.
“That seems like a betrayal of the public trust.”
Redford did not respond to an interview request but instead issued a brief statement through her lawyer to CBC News.
“Any allegation that the department informed me that ITRL was ranked last among the three firms bidding is false,” Redford said, adding that the matter had been thoroughly investigated by Alberta’s ethics commissioner.
Redford resigned as Alberta’s premier in March 2014 and as a member of the legislature in August of the same year after a series of scandals involving her travel expenses, misuse of government airplanes and the revelation she had secretly ordered construction of a private penthouse suite in a government building.
Alberta’s $10-billion lawsuit against the tobacco industry — the largest in the province’s history — is an attempt to recoup some of the health-care costs associated with smoking. [How many billions in health-care costs caused by fracing, how many billions in farms, communities and water wells destroyed by fracing, how many homes rendered too toxic or explosive to live in?]
If successful, it could provide a multibillion-dollar windfall for the province’s depleted coffers — and potentially hundreds of millions of dollars in contingency fees for ITRL.
Alberta is one of 10 provinces with tobacco lawsuits. [How many provinces will soon also have frac lawsuits?]
On Nov. 28, 2012, CBC News first revealed Redford had personally chosen ITRL and JSS Barristers to conduct Alberta’s tobacco litigation.
The story was based on an internal government memo, obtained through freedom of information, in which Redford stated ITRL and JSS Barristers were the “best choice.”
Consortium lacked ‘depth’
In the memo, Redford referred to Briefing Note AR 39999, which was essentially the report of the independent review committee, comprising senior justice and health ministry lawyers, which had assessed the three competing legal consortiums.
Citing legal privilege, Alberta Justice has fought the release of AR 39999 to Alberta’s freedom of information commissioner, CBC News and lawyers representing tobacco companies. The matter is now before Alberta’s Court of Queen’s Bench.
CBC News has obtained two leaked versions of AR 39999: an unsigned version and a second, significantly modified version signed by Redford. Both are generically dated December 2010.
“All three are capable of adequately conducting the litigation,” states the first unsigned version of AR 39999. “No one consortium stood out above the others.
“However, after considerable discussion the review committee ranked International Tobacco Recovery Lawyers (ITRL) last, primarily due to their lack of depth and the lack of any presence in Edmonton.”
In the first briefing note, the review committee effectively eliminated ITRL and instead focused on an analysis of the comparative “strengths and weaknesses” of Bennett Jones and the paired law firms of Field Law and McLennan Ross.
The committee found Bennett Jones, which was already representing New Brunswick, had the most depth and experience while Field Law and McLennan Ross had a clear plan for Alberta’s litigation and a better contingency fee. Bennett Jones now represents six provinces.
“In a nutshell, the choice is: depth plus experience versus Alberta focus and a better fee,” the first briefing note stated.
There was no discussion of the comparative strengths or weaknesses of ITRL, because the committee had already eliminated the consortium due to its “lack of depth.”
The review committee prepared the first version of Briefing Note AR 39999 for Redford sometime between Nov. 30, 2010, and Dec. 7, 2010, directly after it completed its assessment.
Other documents, including email strings obtained by CBC News, show the first version of Briefing Note AR 39999 — which recommended she choose between Bennett Jones and Field/McLennan Ross — was sent to Redford’s staffer on Dec. 7, 2010.
There is nothing in the documents that indicates why the original briefing note was modified, or who made the dramatic reversal to the original version. But within a day of the first version of the briefing note being shared with Redford’s staffer, the committee’s recommendation and assessment changed significantly.
The briefing note’s second version inserted ITRL and JSS Barristers back into the competition, and removed the fact that it had been ranked last. It still stated the consortium lacked depth and had no Edmonton presence.
But the briefing note now included a list of strengths, including that ITRL had a clear plan for Alberta’s litigation, would not represent other jurisdictions without the province’s consent, and had the lowest contingency fee.
In the briefing note’s first version, the committee eliminated ITRL and recommended Redford choose between the other two consortiums which were equal, but clearly superior to ITRL.
In the second briefing note, however, the committee now inexplicably recommended she select the “appropriate” of the three competing consortiums. There is no explanation as to why the committee had completely changed its recommendation.
Less than a week later, in a Dec. 14, 2010, memo, Redford advised Alberta Justice deputy minister Ray Bodnarek she had made her decision after reading Briefing Note AR 39999; presumably the second version of the briefing note, which she had signed.
“I note that the review committee considers all three firms interviewed to be capable of adequately conducting the litigation and believes that while no consortium stood above the others, all three have unique strengths and weaknesses,” Redford wrote.
“Considering the perceived conflicts of interest, actual conflicts of interest, the structure of the contingency arrangement and the importance of a ‘made-in-Alberta’ litigation plan, the best choice for Alberta will be the International Tobacco Recovery Lawyers.”
Conflict of interest allegations
In May 2012, CBC News first revealed the consortium chosen by the Alberta government was led by JSS Barristers. A partner in JSS Barristers is Redford’s former husband Robert Hawkes.
Redford and Hawkes divorced more than 20 years ago, but Hawkes remained a strong political supporter. He led her transition team when she won the Progressive Conservative leadership campaign and became premier in 2011.
The next CBC News story, on Nov. 28, 2012, revealed Redford had personally chosen ITRL and JSS Barristers.
The story detailed how ITRL had hired a lobbyist to lobby the Alberta government even before the tobacco litigation legislation was tabled in the legislature. It also detailed tens of thousands of dollars in political donations to the Tory party, Redford’s riding association and her leadership campaign by lawyers from ITRL and its lobbyist.
The revelations caused one of the most acrimonious debates in the history of the province’s legislature, with opposition parties accusing Redford of blatant conflict of interest.
Redford denied the allegations, claiming she had not made the decision to hire ITRL and JSS Barristers. New Democrat member of the legislature Brian Mason, now the infrastructure minister, accused Redford of lying. An investigation by Alberta’s ethics commissioner cleared Redford of the conflict allegations, but confirmed she had made the decision.
“Virtually everything [Redford] said to defend her decision was deceptive, false, and profoundly misleading,” ethics expert Arthur Schafer said after viewing the briefing notes.
Governance expert Duff Conacher said the new documents show an investigation and an independent inquiry are needed.
“The public is going to be learning, finally, the full truth,” said Conacher, co-founder of Democracy Watch and visiting professor at the University of Ottawa. “And it will raise many, many questions.” [Emphasis added]
[Refer also to:
Fracking might be as damaging as thalidomide, tobacco and asbestos, UK’s Chief Scientific Adviser warns in new report: “In all these and many other cases, delayed recognition of adverse effects incurred not only serious environmental or health impacts, but massive expense”
UPDATED: Florida jury slams tobacco company with $23.6B in punitive damages in widow’s lawsuit; We can say no to smoking near loved ones, can’t say no to being poisoned by fracing or dishonest frac promotion by regulators, companies, CAPP, CSUR and frac patent holder, Dr. Maurice Dusseault
Glenn Solomon, representing the AER in Ernst vs AER works at JSS Barristers: