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Judge to inquiry participants: submit your documents quickly

One participant has stated he no longer has documents, and some might have been destroyed.
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Those charged with investigating the 2012 share sale of Collus and subsequent use of the sale funds in Collingwood have been pouring over thousands of documents and expect thousands more by the end of next month.

The Judicial Inquiry is underway, but there’s still no dates set for public hearings as the judge and counsel work through interviews and documents related to the inquiry.

Yesterday Justice Frank Marrocco called together those who will be participating in the hearings for a public status hearing.

“What I want to do to day, to start with, is in a formal way get everyone committed to concluding the production of documents so we can move on to the next phase,” said Marrocco during the hearing. “We have to decide which witnesses are going to be called, and what documents we’re going to put to them.”

Associate Inquiry Counsel Kirsten Thoreson gave a report of all participants and the status of their document submissions to the inquiry.

First on the report was Alectra Utilities (formerly PowerStream). According to Thoreson, Alectra had submitted several documents, but there are more outstanding and she said Alectra had not stated when the rest of the documents would be submitted.

“We identified additional relevant witnesses and documents related to Alectra and we understand those documents will be provided by Nov. 9,” said Thoreson.

Alectra was represented by Michael Watson and Belina Bain at the status hearing.

Watson told Marrocco he and his team have been in contact with the inquiry counsel about submitting the documents constantly since June. He said the documents were split into transaction and post-transaction period, the latter of which is still outstanding.

Watson said Alectra has already produced more than 4,000 documents.

“What they’re seeking is … essentially emails searching back to 2011 for nine custodians,” said Watson during the hearing. He said those custodians had several other business items during that time, but their emails were not separated by transaction, so the file includes emails unrelated to the Collingwood transaction. He said the previous search was for emails from three custodians, which resulted in 40,000 documents to be sorted through and separated based on their connection to the inquiry subject matter.

Searching for emails of nine custodians, he said, will be expensive and yield many more documents.

“What that probably means is that instead of 40,000 documents, we’re going to end up with somewhere between 100,000 and 200,000 documents, all of which have to be ingested into a database,” said Watson. “[It’s] sort of a needle in a haystack for Collus in the transaction period where what is being searched for is any other commercial relationship other than the transaction.”

Watson told Marrocco it hadn’t been decided if Alectra was going to sort through the documents or if the Inquiry team would sort through all the documents.

Marrocco told Watson he could do both by producing the master file of documents right away to the Inquiry and also continue to search the documents themselves.

“You have an obligation … to produce what’s relevant and then we will do the searches that we want to do on the entire file,” said Marrocco.

Watson agreed to do so.

Thoreson reported Paul Bonwick and his counsel said he had no documents in his possession and would not be obtaining them from third parties such as banks due to his financial situation.

“He has, therefore, no documents to produce,” said Thoreson. “Mr. Bonwick has advised that he does not maintain records for several years after his company is no longer providing consulting services to a client.”

Thoreson further explained she had been told Bonwick had previously discarded, deleted or destroyed all documents relevant to the inquiry.

Ed Houghton, formerly the president of COLLUS and acting CAO for the town of Collingwood from 2012 to 2013, was asked to provide documents. He said he had none other than some that were given to him by others, and he provided those.

According to Thoreson, Tim Fryer also stated he has no documents to produce.

“Anything previously in his possession has been returned to others,” said Thoreson during the hearing.

Finally, Thoreson went over the Town of Collingwood’s plan to submit documents. She said the town had made no formal submissions yet apart from some background documents and those submitted by employees who were interviewed.

Thoreson said the town committed to submitting some documents by the end of October and the rest by the end of November.

William McDowell, the lawyer representing the town, confirmed the town had 4,200 documents nearly ready to submit, and he expected the next batch to be bigger than that.

Marrocco asked McDowell to stick to the submission date of the end of November. Marrocco said if all parties adhere to the submission dates as agreed upon there would be no more public hearings about it. But if any party missed a submission date, he would call another public hearing at the end of November.

“In terms of the failure to produce, in a timely way, documents and so on, I can draw a negative inference if it comes to that,” said Marrocco before adjourning the hearing. “I don’t really want to do that, but I can and that carries with it the reputational implications that it does.”




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