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·2· · · · · · ELLIOT LAKE COMMISSION OF INQUIRY
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12· ·---· This is Day 54 in the Inquiry proceedings held
13· ·before the Honourable Justice P.R. Belangér,
14· ·Commissioner, at the White Mountain Academy of the
15· ·Arts, 99 Spine Road, Elliot Lake, Ontario, on the
16· ·4th, day of June, 2013 commencing at 9:00 a.m.
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18· · · · · · · · · · · · ·--------
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21· · · · · · · REPORTED BY:· Helen Martineau
22· · · · · · · ·Certified Shorthand Reporter
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·1· ·A P P E A R A N C E S:
·2· ·MARK WALLACE, Esq.,
·3· ·DUNCAN AULT, Esq.,· · · ·Commission Counsel
·4· ·IVANA NENADIC, Ms.,· · · Articling Student for
·5· · · · · · · · · · · · · · Commission Counsel
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·7· ·ROBERT MACRAE, Esq.,· · ·Robert Wood
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·9· ·JOE BISCEGLIA, Esq.,· · ·Greg Saunders
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11· ·SHAWN RICHARDS, Esq.,
12· ·JEFF BROADBENT, Esq.,· · ELMAC
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14· ·DOUG KEARNS, Esq.,· · · ·Retirement Living and
15· · · · · · · · · · · · · · NorDev
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17· ·KRISTIN SMITH, Esq.,· · ·Government of Ontario
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19· ·PAUL CASSAN, Esq.,· · · ·City of Elliot Lake
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21· ·CHUCK MYLES, Mr.· · · · ·SAGE
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·1· · · · · · · · · · · · I N D E X
·2· ·WITNESS· · · · · · · · · · · · · · · · · · · ·PAGE
·3· ·TOM TURNER, sworn
·4· ·EXAMINATION-IN-CHIEF BY MR. WALLACE......12683-12768
·5· ·CROSS-EXAMINATION BY MR. BISCEGLIA.......12768-12772
·6· ·CROSS-EXAMINATION BY MR. MACRAE..........12772-12780
·7· ·CROSS-EXAMINATION BY MR. RICHARDS........12780-12798
·8· ·CROSS-EXAMINATION BY MR. CASSAN..........12798-12810
·9· ·CROSS-EXAMINATION BY MR.KEARNS...........12810-12818
10· ·RE-EXAMINATION BY MR. WALLACE............12818-12828
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12· ·DON DENLEY, sworn
13· ·EXAMINATION-IN-CHIEF BY MS. NENADIC......12828-12857
14· ·CROSS-EXAMINATION BY MR. BISCEGLIA.......12857-12866
15· ·CROSS-EXAMINATION BY MR. CASSAN..........12866-12869
16· ·CROSS-EXAMINATION BY MR. RICHARDS........12869-12881
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·1· ·---· Upon commencing at 9:05 a.m.
·2· · · · · · · · · THE COMMISSIONER:· Morning,
·3· ·everybody.
·4· · · · · · · · · MR. WALLACE:· Morning, Commissioner.
·5· ·Commissioner, Mr. MacRae has asked to address you
·6· ·very briefly.
·7· · · · · · · · · MR. MACRAE:· Good morning, Mr.
·8· ·Commissioner.· I just wondered if I could as the
·9· ·indulgence.· I have a second first appearance for
10· ·Mr. Wood this morning at 10:00, but the Counsel for
11· ·the Ministry of Labour has been kind enough to stand
12· ·it down.· So if we could -- at the morning break,
13· ·if I might go down, address that, and then return?
14· · · · · · · · · THE COMMISSIONER:· You don't
15· ·anticipate being very long, Mr. MacRae?· It's at the
16· ·POA Court.
17· · · · · · · · · MR. MACRAE:· It's actually the
18· ·Ontario Court of Justice, the OCJ.
19· · · · · · · · · THE COMMISSIONER:· Thank you.· We'll
20· ·bear that in mind, sir.· Mr. Wallace.
21· · · · · · · · · MR. WALLACE:· Yes, thank you,
22· ·Commissioner.· This morning we're joined by Mr. Tom
23· ·Turner.· He is present.· If you'd come forward
24· ·please, sir.
25· · · · · · · · · THE COMMISSIONER:· Morning,
·1· ·Mr. Turner.
·2· · · · · · · · · THE WITNESS:· Morning, sir.
·3· · · · · · · · · THE REGISTRAR:· Good morning, sir.
·4· ·Could you please state your name in full and spell
·5· ·it for the record?
·6· · · · · · · · · THE WITNESS:· My name is Thomas John
·7· ·Turner.· T-H-O-M-A-S, Turner, T-U-R-N-E-R.
·8· · · · · · · · · THE REGISTRAR:· Thank you.· And would
·9· ·you prefer to swear on a religious document or would
10· ·you rather affirm?
11· · · · · · · · · THE WITNESS:· Bible, please.
12· · · · · · · · · THE REGISTRAR:· All right.· Please
13· ·put your right hand on the Bible.
14· · · · · · · · · TOM TURNER, sworn.
15· · · · · · · · · EXAMINATION-IN-CHIEF BY MR. WALLACE:
16· · · · · · · · · Q.· You can have a seat, Mr. Turner.
17· ·Make yourself comfortable.
18· · · · · · · · · Mr. Turner, I understand that you
19· ·were the manager of the Algo Centre Mall from July
20· ·of 2006 until February of 2008?
21· · · · · · · · · A.· That's correct.
22· · · · · · · · · Q.· And I briefly would like to run
23· ·through your employment history.· Not -- this is not
24· ·intended to be all inclusive, but hit on some
25· ·highlights.· Your working career started with a five
·1· ·year stint with the RCMP?
·2· · · · · · · · · A.· That's right, sir.
·3· · · · · · · · · Q.· And later you were employed with
·4· ·the Ontario Securities Commission as an
·5· ·investigator?
·6· · · · · · · · · A.· Yes, sir.
·7· · · · · · · · · Q.· And you have also acted as a
·8· ·consultant to nonprofit groups, assisting them,
·9· ·among other fashion, in obtaining lottery licences?
10· · · · · · · · · A.· Yes.
11· · · · · · · · · Q.· And you moved to Elliot Lake in
12· ·1995?
13· · · · · · · · · A.· Yes.
14· · · · · · · · · Q.· And when you came to Elliot Lake
15· ·that was part of a business arrangement with the
16· ·ELNOS organization?
17· · · · · · · · · A.· Yes.
18· · · · · · · · · Q.· And you came here to run a
19· ·magazine, it was titled Canadian Gaming and
20· ·Fundraising Magazine?
21· · · · · · · · · A.· Yes.
22· · · · · · · · · Q.· And you ran that for a couple of
23· ·years and then sold it to outside interest?
24· · · · · · · · · A.· That's right.
25· · · · · · · · · Q.· And you've also worked as a
·1· ·freelance writer as well as doing some writing for
·2· ·the Elliot Lake Standard?
·3· · · · · · · · · A.· Yes.
·4· · · · · · · · · Q.· And currently you enjoy the rank
·5· ·of Lieutenant Commander in the Naval Reserves?
·6· · · · · · · · · A.· Yes.
·7· · · · · · · · · Q.· And you have been doing that for
·8· ·the -- you've been in the reserves, that is, for the
·9· ·last 16 years?
10· · · · · · · · · A.· Yes, I work.
11· · · · · · · · · Q.· And your work, although
12· ·classified as part-time, occupies about 30 weeks a
13· ·year?
14· · · · · · · · · A.· Just about, yes.
15· · · · · · · · · Q.· Okay.· Now, sir, you were living
16· ·here in Elliot Lake for a little more than 10 years
17· ·before you took the job at the Algo Centre Mall.
18· ·I'd like you to tell us what knowledge you had of
19· ·the leaking in the mall before you signed on to work
20· ·there.
21· · · · · · · · · A.· Well, my knowledge of the mall
22· ·was fairly limited.· I'd usually visit Peaches or
23· ·Foodland and then perhaps go upstairs to the library
24· ·to search out a good book.
25· · · · · · · · · Q.· Okay.
·1· · · · · · · · · A.· The lower level stores seldom
·2· ·were inflicted with leaking problems.· The library
·3· ·was often disrupted by leaks at different locations
·4· ·in the library.
·5· · · · · · · · · Q.· What signs of leakage did you
·6· ·observe, sir?
·7· · · · · · · · · A.· Well, stained ceiling tiles.
·8· ·Sometimes a bucket would be placed somewhere in the
·9· ·library to catch water coming in.· And at its worst,
10· ·sometimes they'd have to put tarps over some of the
11· ·stacks.
12· · · · · · · · · Q.· The stacks of books?
13· · · · · · · · · A.· Yes.
14· · · · · · · · · Q.· Okay.· And this was to prevent
15· ·the water, that was active leaks, landing on the
16· ·books themselves?
17· · · · · · · · · A.· Yes.
18· · · · · · · · · Q.· And were you ever a customer in
19· ·the Zellers store?· And, if so, did you make any
20· ·observations there?
21· · · · · · · · · A.· Occasionally I was in the Zellers
22· ·store and on the odd occasion I would see evidence
23· ·of leaking.
24· · · · · · · · · Q.· And again what sort of things
25· ·would you be seeing?
·1· · · · · · · · · A.· Similar to the library.· Stained
·2· ·tiles or buckets in place to catch the water.
·3· · · · · · · · · Q.· Okay.· Now, I understand that you
·4· ·answered an ad in the newspaper for the position of
·5· ·manager at the mall?
·6· · · · · · · · · A.· Yes.
·7· · · · · · · · · Q.· And you were interviewed
·8· ·initially by the former manager.· And his name was?
·9· · · · · · · · · A.· Dan Bouffard.
10· · · · · · · · · Q.· And did you ask him why he was
11· ·leaving the job?
12· · · · · · · · · A.· Yes, I did.· He told me that he
13· ·was moving south to Midland area with his wife.
14· · · · · · · · · Q.· Okay.
15· · · · · · · · · A.· That's about all I could get out
16· ·of him.
17· · · · · · · · · Q.· Okay.· And did you -- did you ask
18· ·what your prospective employer was like?
19· · · · · · · · · A.· Yes.
20· · · · · · · · · Q.· And what did he tell you?
21· · · · · · · · · A.· The only thing he said was
22· ·interesting.
23· · · · · · · · · Q.· And how did you take that?
24· · · · · · · · · A.· I didn't quite know how to take
25· ·it at the time.· I just thought I'd find out as time
·1· ·evolved.
·2· · · · · · · · · Q.· Did you ask him what the job
·3· ·entailed?
·4· · · · · · · · · A.· Yes.
·5· · · · · · · · · Q.· And what did he tell you?
·6· · · · · · · · · A.· He gave me a general description
·7· ·of the functions of the general manager.· It was to
·8· ·ensure rents were collected, spaces were rented, the
·9· ·mall was maintained, cleaned.· At that time, I don't
10· ·think -- I don't think we got into a discussion
11· ·about the leaks in the mall.
12· · · · · · · · · Q.· Okay.· You were of course were
13· ·aware of the existence of the problem?
14· · · · · · · · · A.· I was aware of the existence of
15· ·the problem.
16· · · · · · · · · Q.· Did you have -- at the time you
17· ·took -- took the job, did you have any idea of the
18· ·extent of the problem?
19· · · · · · · · · A.· No, I had absolutely no idea.
20· · · · · · · · · Q.· And had you -- had you any
21· ·experience in running a mall?
22· · · · · · · · · A.· No, I had none.
23· · · · · · · · · Q.· Now, you met Mr. Nazarian before
24· ·or after you were hired?
25· · · · · · · · · A.· Essentially at the same time.
·1· ·Mr. Bouffard selected me as the candidate that he
·2· ·promoted to replace him.· About a week later, I met
·3· ·with Dan Bouffard and Bob Nazarian, we had lunch and
·4· ·that was the end of the deal.· I was the GM of the
·5· ·Algo Mall.
·6· · · · · · · · · Q.· During that lunch meeting, did he
·7· ·ask you any questions about whether you had any
·8· ·prior experience managing a mall?
·9· · · · · · · · · A.· No.· We discussed a bit of my
10· ·background, but mainly what his business was.· And
11· ·he told me what he thought of the mall and a little
12· ·bit about where he wanted to take it.
13· · · · · · · · · Q.· Okay.· And what did he tell you
14· ·and where did he want it to go?
15· · · · · · · · · A.· Well, it was in simplest terms
16· ·the mall had vacancies.· He wanted to get them
17· ·filled.· There were -- there were no specific plans
18· ·at that time to -- on how it was going to get done.
19· ·It seemed to be more directed to falling into my
20· ·bailiwick.
21· · · · · · · · · Q.· And did -- did -- since you've
22· ·had no experience at running a mall before, did you
23· ·have any idea how you'd go about this?
24· · · · · · · · · A.· I had a plan formulating at the
25· ·time.· I wasn't familiar with running a shopping
·1· ·center such as the Algo Centre was.· I did have some
·2· ·familiarity with leasing retail space.· It was
·3· ·limited, but the formula seemed the same.· Find the
·4· ·right match for the right location.
·5· · · · · · · · · Q.· Okay.· Did he ask you to provide
·6· ·any references?
·7· · · · · · · · · A.· Not in that meeting.· I believe I
·8· ·offered to supply references in my resume or in my
·9· ·application.
10· · · · · · · · · Q.· And do you recall whether you
11· ·actually did provide any references?
12· · · · · · · · · A.· No, I don't.
13· · · · · · · · · Q.· You don't recall or you didn't
14· ·provide any?
15· · · · · · · · · A.· I don't recall providing any or
16· ·being asked to provide any.
17· · · · · · · · · Q.· Okay.· Did you ask -- did he ask
18· ·you if you had any experience with fixing roofs?
19· · · · · · · · · A.· No, I was not asked.
20· · · · · · · · · Q.· Okay.· And what was your overall
21· ·impression of your first meeting with Mr. Nazarian?
22· · · · · · · · · A.· I really didn't have much of an
23· ·impression.· Everything was still new to me at the
24· ·time.· The staff, the building, the owner.· So I was
25· ·-- everything was evolving and when it came to
·1· ·impressions, I didn't really know what to think.
·2· · · · · · · · · Q.· Okay.· Now, when you started as
·3· ·the manager, was there any preventative maintenance
·4· ·program in place with respect to the rooftop parking
·5· ·and the leaking problem?
·6· · · · · · · · · A.· Yes.· The -- the maintenance
·7· ·staff told me that they had a process where they
·8· ·were able to identify where a leak was coming from,
·9· ·they would go up to that area, remove caulking in
10· ·the area where they had identified the leak as
11· ·coming in from, and then try and dry out the area,
12· ·and then replace the caulking.
13· · · · · · · · · Q.· Okay.· This -- what you're
14· ·describing sounds to me more like a reactive thing.
15· ·The leak happens and they go and they tend to it.
16· ·What I'm interested in knowing is did they have any
17· ·program in place that would anticipate and prevent
18· ·leaks from happening down the road?
19· · · · · · · · · A.· No.· There was nothing pro-active
20· ·going on at that time.
21· · · · · · · · · Q.· Did Mr. Nazarian give you any
22· ·instructions when you started, or shortly after you
23· ·started, on how to deal with the roof?
24· · · · · · · · · A.· No.
25· · · · · · · · · Q.· Did you seek his advice at any
·1· ·point in time, and I'm dealing now with when --
·2· ·shortly after starting the job, did you seek his
·3· ·advice on this issue or did you bring it to his
·4· ·attention that you had this problem?
·5· · · · · · · · · A.· Well, during the first few months
·6· ·working there, the roof became an issue fairly
·7· ·quickly because we had heavy rains on a number of
·8· ·occasions.· It caused leaks in numerous locations in
·9· ·the mall.· And as result of that, I was in telephone
10· ·conversation with Bob Nazarian during the -- during
11· ·my initial learning stage at the mall.· We discussed
12· ·the roof pretty much daily as to what the situation
13· ·was.· Whether leaks had been stopped, whether there
14· ·were new ones, where they were.· So it was a regular
15· ·update and a regular discussion.
16· · · · · · · · · Q.· And these discussions it sounded
17· ·to me like were really simply a question of you
18· ·reporting the daily events and what's happened and
19· ·what's been leaking.· Was there any input from his
20· ·side in terms of how to deal with the problem?
21· ·Other than what was happening.
22· · · · · · · · · A.· Nothing different.· It was just
23· ·to get the guys up on the roof and plug the holes.
24· · · · · · · · · Q.· And from your -- from your
25· ·discussion with the maintenance people -- and these
·1· ·would be mall employees, correct?
·2· · · · · · · · · A.· Yes.
·3· · · · · · · · · Q.· And was this a change or was this
·4· ·simply how things have been done for -- in the past?
·5· · · · · · · · · A.· To my understanding, it was just
·6· ·a carrying on with the regime that had been set in
·7· ·place years before.
·8· · · · · · · · · Q.· Now, in your discussions with
·9· ·Mr. Nazarian or your reports to him about the
10· ·leaking on a daily basis, did he at any point in
11· ·time indicate to you the state of his knowledge as
12· ·to the leaking at the time he bought the building?
13· · · · · · · · · A.· The only thing that I can think
14· ·of is that during discussions, the clear impression
15· ·I got from talking with him was that the roof had
16· ·always leaked.· It was nothing new.· Plug the holes.
17· · · · · · · · · Q.· Now, I understand that in an
18· ·effort to deal with the problem, you consulted with
19· ·a chap by the name of Brian England, who eventually
20· ·was hired by Mr. Nazarian and, in turn, became your
21· ·successor as the manager of the mall, is that
22· ·correct?
23· · · · · · · · · A.· That's correct.
24· · · · · · · · · Q.· And what led you to consult with
25· ·Mr. England?
·1· · · · · · · · · A.· I'd met Brian England through
·2· ·friends.· We'd often gather on a Friday after work.
·3· ·During one of those gatherings in the beginning of
·4· ·the summer of that year, I was introduced to Brian
·5· ·England.· And during conversation with him, I
·6· ·learned that he had experience in the construction
·7· ·industry.· He told me that he had worked for Dow
·8· ·Corning.· And within a week of the initial
·9· ·conversation, he told me that problems like we were
10· ·having on the roof of the mall could be resolved by
11· ·using silicone products.· The reason being that
12· ·silicone did not react to ultraviolet and that it
13· ·was harder wearing.
14· · · · · · · · · As a result of that, I started to
15· ·search online seeking examples where silicone had
16· ·been used on roofs or to seal parking lots,
17· ·multi-storied parking lots.· It began to seem like
18· ·it might be an idea worth trying.
19· · · · · · · · · And so I took the idea to
20· ·Mr. Nazarian that -- and told him that I'd come
21· ·across someone in town who had experience with this
22· ·product, said it worked, and could act as the
23· ·qualified rep for the manufacturer in the
24· ·application of it.
25· · · · · · · · · Q.· And this would allow the company
·1· ·to offer a warranty for the work?
·2· · · · · · · · · A.· That's right.
·3· · · · · · · · · Q.· Okay.· At any point in time in
·4· ·this process or around this time did Mr. Nazarian
·5· ·ever come and accompany you and take a tour through
·6· ·the mall?
·7· · · · · · · · · A.· Yes.· On multiple occasions we'd
·8· ·walk the mall, the roof, and the interior.
·9· · · · · · · · · Q.· And do you recall whether around
10· ·this time that that took place?
11· · · · · · · · · A.· No, I don't.
12· · · · · · · · · Q.· Okay.· When you did take these
13· ·tours, just explain to the Commissioner the
14· ·observations that Mr. Nazarian would make and what
15· ·he'd tell you about the situation.
16· · · · · · · · · A.· Well, we would walk the whole of
17· ·the mall.· He would make observations on the
18· ·condition of anything and everything, depending what
19· ·caught his eye.
20· · · · · · · · · Q.· Including the leaking?
21· · · · · · · · · A.· Including the leaking.· The thing
22· ·to recall here is that it didn't always leak.· It
23· ·leaked when it rained or when the snow melt was on.
24· ·So it could have been on a particular visit when he
25· ·came up that there was no rain and there were no
·1· ·leaks, so.· But we would discuss the leaks and the
·2· ·locations and what was being done.
·3· · · · · · · · · Q.· Now, the solution that
·4· ·Mr. England talked about and that you brought to
·5· ·Mr. Nazarian, did this involve replacing the
·6· ·defective seals or did it involve replacing all of
·7· ·the seals, whether it needed it or not?
·8· · · · · · · · · A.· Well, there were two parts to the
·9· ·plan.· The plan in total was to replace all of it.
10· ·I believe the product that was in the joints was
11· ·called Dymonic.
12· · · · · · · · · Q.· Okay.
13· · · · · · · · · A.· I seem to recall that was the
14· ·name of it.· And it was a urethane-based product.
15· ·It was failing regularly.· And it was everywhere.
16· ·It was in all the joints.· So the plan was or the
17· ·proposed plan was to replace the weak areas first
18· ·and then, as time and money allow, to replace the
19· ·rest of the roof joints.
20· · · · · · · · · Q.· Okay.· And just jumping ahead
21· ·here, was the plan -- was the plan ever executed?
22· · · · · · · · · A.· Yes, in part.
23· · · · · · · · · Q.· Would you explain that?
24· · · · · · · · · A.· Well, I proposed the plan to the
25· ·owner and he approved the use of the silicone
·1· ·product and hiring England to oversee its
·2· ·installation in the roof.· We proceeded with a
·3· ·casual labour crew that we recruited.
·4· · · · · · · · · Q.· This would be in addition to the
·5· ·mall staff?
·6· · · · · · · · · A.· Yes, in addition to the regular
·7· ·staff.
·8· · · · · · · · · Q.· These would be skilled or
·9· ·unskilled labourers?
10· · · · · · · · · A.· Unskilled or varying skills.
11· ·Some had construction backgrounds.
12· · · · · · · · · So during that summer, we started on
13· ·the areas we considered most urgent and replaced the
14· ·caulking with silicone.· And the process was
15· ·different than the urethane.· The urethane had been
16· ·used to plug the leaks, so it was essentially just
17· ·injected into the hole.
18· · · · · · · · · The silicone was treated a little
19· ·differently.· We ground down the edges of the joint
20· ·to rough the surface essentially for adhesion
21· ·purpose.· We placed a backer rod into the V created
22· ·by the joint, the backer rod lay below, the silicone
23· ·was poured on top.· The purpose of the backer rod
24· ·was to ensure that there was only adhesion on two
25· ·sides and that was on the horizontal sides to the
·1· ·cement itself.· It was applied so that it was
·2· ·subsurface so that the car tires couldn't pick it
·3· ·up.
·4· · · · · · · · · We worked through the summer and into
·5· ·the fall period with that project and then weather
·6· ·shut us down.
·7· · · · · · · · · Q.· And up until February of 2008, am
·8· ·I right that not -- you never did replace all of the
·9· ·-- all of the seals?
10· · · · · · · · · A.· No.· When time came to start the
11· ·following spring, at that point Mr. Nazarian decided
12· ·that it was -- told me that it was too expensive a
13· ·product and to use the Dymonic.
14· · · · · · · · · THE COMMISSIONER:· Just so I
15· ·understand, Mr. Turner, the commencement of the
16· ·replacing with silicone commenced in the summer of
17· ·-- sorry, '06 or '07?
18· · · · · · · · · A.· '06.
19· · · · · · · · · THE COMMISSIONER:· Thank you.
20· · · · · · · · · BY MR. WALLACE:
21· · · · · · · · · Q.· If we could, Ms. Kuka, if you
22· ·could bring up Exhibit No. 235.· You'll find that at
23· ·tab eight of volume one, Mr. Turner, if you'd care
24· ·to choose the paper.
25· · · · · · · · · Now, this is a written report that
·1· ·you're making to Mr. Nazarian.· And as we can see in
·2· ·the third paragraph, you've only been on the job at
·3· ·this point three weeks and we're looking at the
·4· ·8th of August, 2006.· See that, sir?
·5· · · · · · · · · A.· I do.
·6· · · · · · · · · Q.· Okay.· And I just want to bring
·7· ·to your attention to a couple of points.· The first
·8· ·is under the heading "The Roof."· It says -- it
·9· ·starts off with:· "while I love the idea of a tent
10· ·over the roof, I am sure it would be incredibly
11· ·expensive."
12· · · · · · · · · What was this?
13· · · · · · · · · A.· Well, Bob Nazarian had an idea
14· ·for installing a tent structure over the parking lot
15· ·area, the roof of the mall.
16· · · · · · · · · Q.· And was that idea ever pursued?
17· · · · · · · · · A.· No.
18· · · · · · · · · Q.· Okay.· And then you go on to talk
19· ·about:· "Last week I had a retired executive with
20· ·Dow-Corning look at the overhead parking."
21· · · · · · · · · This would be Mr. England?
22· · · · · · · · · A.· Yes.
23· · · · · · · · · Q.· And he told me that there is a
24· ·solution involving silicone instead of urethane. And
25· ·you go on to say:
·1· · · · · · · · · "I have asked for the technical
·2· · · · · · · · · specifications and a sample of the
·3· · · · · · · · · product and I expect it to arrive
·4· · · · · · · · · this week.· My initial estimates of
·5· · · · · · · · · the size of the lot and the amount of
·6· · · · · · · · · product required indicates the job
·7· · · · · · · · · might be done for under $50,000 in
·8· · · · · · · · · materials."
·9· · · · · · · · · And then you go on to say that you
10· ·can find more information on the Dow Corning
11· ·website.
12· · · · · · · · · My first question is, the $50,000
13· ·figure was a figure that you arrived at or you
14· ·arrived at in collaboration with Mr. England?
15· · · · · · · · · A.· It would have be in collaboration
16· ·with England and with the maintenance staff that I
17· ·had there.
18· · · · · · · · · Q.· Now, did you ever buy $50,000 in
19· ·materials?
20· · · · · · · · · A.· I don't know if it added up to
21· ·$50,000 because we purchased it in small lots at a
22· ·time.
23· · · · · · · · · Q.· Okay.
24· · · · · · · · · A.· So in essence we were looking at
25· ·just-in-time delivery.
·1· · · · · · · · · Q.· Okay.· And your work in 2006
·2· ·would have stopped on account of weather
·3· ·approximately when?
·4· · · · · · · · · A.· I suspect it would have been
·5· ·towards the end of October.
·6· · · · · · · · · Q.· Okay.· So that would -- I'll show
·7· ·you some documents that would indicate that it went
·8· ·into early November.· But, in any event, that would
·9· ·really have only left you about two and a half
10· ·months to do this job?
11· · · · · · · · · A.· Essentially, yes.
12· · · · · · · · · Q.· Yeah.· And then as you indicated
13· ·from -- in your earlier remarks the -- when the
14· ·spring came around in 2007, this process was
15· ·abandoned?
16· · · · · · · · · A.· That's my recollection.
17· · · · · · · · · Q.· Okay.
18· · · · · · · · · A.· We were going to continue with
19· ·it, but it was canceled.
20· · · · · · · · · Q.· Now, if you could just go to the
21· ·next page, Ms. Kuka.
22· · · · · · · · · There's two points I want to ask you
23· ·questions about.· One it said:· "Banking
24· ·arrangements - I need some direction here.
25· ·Apparently Dan," that would be the former manager?
·1· · · · · · · · · A.· Yes.
·2· · · · · · · · · Q.· Yeah.· "had cheques here and a
·3· ·signing authority.· I have been using petty cash and
·4· ·it is not working very well."
·5· · · · · · · · · What was the financial arrangement
·6· ·that you had?· What ability did you have to spend
·7· ·money on behalf of Mr. Nazarian?
·8· · · · · · · · · A.· It wasn't spelled out in writing
·9· ·anywhere.· Generally it came in in the neighbourhood
10· ·of 1,000, $2,000.· But it was always -- if I would
11· ·be spending that, it was always discussed over the
12· ·telephone first, and that would only apply if we had
13· ·the actual cash on hand otherwise I'd have to ask
14· ·for a cheque.
15· · · · · · · · · Q.· And so is it fair to say that any
16· ·disbursement over $1,000 would have been approved by
17· ·Mr. Nazarian?
18· · · · · · · · · A.· Oh, yes.
19· · · · · · · · · Q.· And what is the -- what is the
20· ·lower limit of that statement then?· What amount of
21· ·money did -- were you authorized to spend without
22· ·getting his approval?
23· · · · · · · · · A.· That was never stated either.
24· ·What I would -- I'd feel comfortable using petty
25· ·cash to spend a couple of hundred dollars, and -- on
·1· ·tools or supplies.· If it started exceeding that
·2· ·then it was always something that I brought up in
·3· ·discussion with him on the phone.
·4· · · · · · · · · Q.· And --
·5· · · · · · · · · A.· Sought approval there.
·6· · · · · · · · · Q.· Got his approval?
·7· · · · · · · · · A.· Yeah.
·8· · · · · · · · · Q.· Okay, fair enough.· And then the
·9· ·last issue is "Business Plan."
10· · · · · · · · · "as General Manager, I think my job
11· · · · · · · · · is to help make the company money and
12· · · · · · · · · to help avoid problems.· I could do
13· · · · · · · · · this better if you could share your
14· · · · · · · · · long term vision with me.· If I know
15· · · · · · · · · where you want to go, I can help get
16· · · · · · · · · us there."
17· · · · · · · · · Which is a pretty reasonable
18· ·statement.· Did you ever discuss with him, that is
19· ·Mr. Nazarian, a long-term vision that he had?
20· · · · · · · · · A.· I tried to.· I never did succeed
21· ·in getting his vision of where we're going.· Whether
22· ·it was to pretty up the mall and sell it or to fill
23· ·it and run it forever.· I never did have a clear
24· ·idea as to where we were going.
25· · · · · · · · · Q.· Of what his idea of the future
·1· ·held?
·2· · · · · · · · · A.· Right.
·3· · · · · · · · · Q.· And the mall?
·4· · · · · · · · · A.· Yes.
·5· · · · · · · · · Q.· Now, getting back to the roof,
·6· ·how significant in terms of your job did the roof
·7· ·and dealing with leaking problems become?
·8· · · · · · · · · A.· As time progressed, it became the
·9· ·job.· It was a distraction to 70% of my day.
10· ·Dealing with the tenants who were suffering from the
11· ·roof leak or dealing with the staff trying to repair
12· ·it, looking for alternatives.· It was just constant.
13· · · · · · · · · Q.· So it became as much as 70% of
14· ·your time?
15· · · · · · · · · A.· At times, yes.
16· · · · · · · · · Q.· Yes.· And during your tenure as
17· ·the manager, how frequently would Mr. Nazarian come
18· ·on site?
19· · · · · · · · · A.· He'd come down every couple of
20· ·months and visit for either overnight or two nights.
21· · · · · · · · · Q.· And how was he keeping himself
22· ·informed on a day-to-day basis?
23· · · · · · · · · A.· He would telephone or I would be
24· ·telephoning him.· I would also use faxes.· And we
25· ·were just starting to get into e-mail.
·1· · · · · · · · · Q.· And how would -- what degree of
·2· ·awareness would you say that Mr. Nazarian had as to
·3· ·what was happening in the mall on a day-to-day
·4· ·basis?
·5· · · · · · · · · A.· I think on a -- he had a good
·6· ·overview of what was going on in the mall on a daily
·7· ·basis.· We didn't often get down into the minutiae
·8· ·and real small stuff unless it was something that I
·9· ·thought he should be aware of or I needed him to
10· ·make a decision on.
11· · · · · · · · · Q.· How was the leaking impacting on
12· ·the business?
13· · · · · · · · · A.· On the business of the shopping
14· ·centre itself, it had a huge impact on it.· We had
15· ·difficulty finding retailers willing to set up shop
16· ·in Elliot Lake in that mall.· A lot of them had
17· ·heard of the problems or particularly the more
18· ·experienced ones had already surveyed the mall
19· ·themselves and were aware of the problems.· And so
20· ·they weren't interested in coming.
21· · · · · · · · · Q.· Did you bring this fact, that is
22· ·there is an actual business consequence from this
23· ·leaking roof, did you bring this fact to
24· ·Mr. Nazarian's attention?
25· · · · · · · · · A.· I think on one occasion.· But
·1· ·after that, I think I thought it was pretty obvious
·2· ·what the consequences were.
·3· · · · · · · · · Q.· Right.· And when you did bring it
·4· ·to his attention, what was his reaction?
·5· · · · · · · · · A.· I think essentially that I had
·6· ·pointed out the obvious, you know.· It wasn't a
·7· ·surprise to him.
·8· · · · · · · · · Q.· You had a penetrating glimpse
·9· ·into the obvious?
10· · · · · · · · · A.· Yes.
11· · · · · · · · · Q.· Did you ask him what he planned
12· ·to do?· I mean, as you say, it's obvious you've got
13· ·this leaking problem, it's impacting on the
14· ·business.· Did you say to him, well, what's the plan
15· ·here, boss?
16· · · · · · · · · A.· Well, I think that to answer that
17· ·question there's -- we have to look at it at what
18· ·time frame are we talking about?· During the summer
19· ·of '06, there was a plan.· And that was to replace
20· ·with the silicone and that went up into November.
21· · · · · · · · · Then we hit the winter period.· And
22· ·during the winter period, it's only during the warm
23· ·days that we would suffer from any water coming into
24· ·the building.· So winter was almost a break.
25· · · · · · · · · And then spring would come and it was
·1· ·-- when spring hit then it was essentially man the
·2· ·lifeboats, you know, we'd be totally focused on the
·3· ·parking deck.
·4· · · · · · · · · When we changed plans from the
·5· ·silicone to go back to using the urethane, at that
·6· ·point I was a little concerned as to how we're going
·7· ·to resolve the deck issue.
·8· · · · · · · · · Discussions over the coming year
·9· ·ranged again from putting a tent-like structure over
10· ·the roof, to a canopied structure, to closing the
11· ·parking deck itself, which was not feasible because
12· ·just by by-law we needed so many parking spaces
13· ·per square feet of retail space.
14· · · · · · · · · We discussed putting a membrane and
15· ·three inches of pavement down on top of it and
16· ·closing it.· And we also discussed putting a canopy
17· ·over it.
18· · · · · · · · · Q.· Ultimately what was chosen as the
19· ·means of dealing with the roof?
20· · · · · · · · · A.· At one time or another they were
21· ·all chosen.
22· · · · · · · · · Q.· Okay.· What I meant was as
23· ·opposed to choosing executing, which were actually
24· ·-- what was actually done about it?
25· · · · · · · · · A.· During my tenure, we moved as far
·1· ·as bringing architects in to lend their opinion on
·2· ·the canopy, the tent structure, the membrane, and
·3· ·pavement.· And that's as far as we got with them.
·4· ·They generally got fired not long after -- or let go
·5· ·not long after they had given their first opinions
·6· ·on issues.
·7· · · · · · · · · Q.· The professionals?
·8· · · · · · · · · A.· Yes.
·9· · · · · · · · · Q.· And were any of those plans that
10· ·you've talked about, were any of those actually
11· ·developed?· By that I mean, did any of those things
12· ·come to fruition?
13· · · · · · · · · A.· No, nothing was developed.· We
14· ·never -- we never got as far as the drawing stage.
15· ·So we -- we talked about it a lot.· It was the
16· ·flavour of the month for a while and then we'd move
17· ·on to another idea.
18· · · · · · · · · Q.· When you'd go from one idea to
19· ·the other, what was the underlying reason for
20· ·rejecting idea one?
21· · · · · · · · · A.· I think in all cases it was the
22· ·expense.
23· · · · · · · · · Q.· And is it fair to say then that
24· ·during your tenure as the manager, the roof problem
25· ·was dealt with simply by reacting to leaks and
·1· ·replacing the sealant with, in the first case,
·2· ·either silicone or later with a urethane product?
·3· · · · · · · · · A.· Yes.· Except in the summer of '06
·4· ·where we were actually working pro-actively.· We
·5· ·were replacing material in areas that were not
·6· ·leaking.
·7· · · · · · · · · Q.· Well, I think what -- at least as
·8· ·I understood your evidence that was the plan in the
·9· ·summer of '06.· It never actually progressed to that
10· ·stage because you were simply -- your time was taken
11· ·up with fixing existing defective seals.· Did I get
12· ·that right?
13· · · · · · · · · A.· Not totally.· At times when there
14· ·were no leak areas identified, we would work in the
15· ·-- on the next line and continue trying to be
16· ·pro-active there.· As soon as rain would come, we
17· ·would be faced with another leak somewhere else and
18· ·have to move, so.
19· · · · · · · · · Q.· If we could look at Exhibit No.
20· ·11-21.· And that is at your tab 19, sir.
21· · · · · · · · · A.· Yes.
22· · · · · · · · · Q.· Now, this is a memo that
23· ·Mr. Derreck, who was the CAO -- it was directed to
24· ·him and it was from Mr. Allard, the Chief Building
25· ·Official of the City, reporting on an inspection
·1· ·that took place on the 19th of October 2006.· And in
·2· ·the first paragraph he indicates that he met with a
·3· ·number of people in this inspection.· Sue Morin, the
·4· ·librarian, yourself, the mall manager, and Brian
·5· ·England.
·6· · · · · · · · · Do you recall this inspection, sir?
·7· · · · · · · · · A.· Just briefly, yes.
·8· · · · · · · · · Q.· Okay.· Now, the observations that
·9· ·I want to bring to your attention here is -- are
10· ·start to be contained in the third paragraph it
11· ·said:
12· · · · · · · · · "Three tenant areas of the building
13· · · · · · · · · were briefly reviewed; Library,
14· · · · · · · · · Northern Reflections, Zellers.· These
15· · · · · · · · · are locations where roof leakage is
16· · · · · · · · · evident.· Dollarama apparently has
17· · · · · · · · · leakage problems, as well, but we did
18· · · · · · · · · not review this area.· Northern
19· · · · · · · · · reflections [sic] was closed due to
20· · · · · · · · · the leakage and some of the stock was
21· · · · · · · · · removed to other areas of the mall.
22· · · · · · · · · We were only able to see into this
23· · · · · · · · · tenant space through the glazed
24· · · · · · · · · partition doors.· The Zellers Store
25· · · · · · · · · has ceiling tiles removed and tubs
·1· · · · · · · · · placed on the floor where leakage was
·2· · · · · · · · · occurring.· In one area of the store
·3· · · · · · · · · that we looked into the ceiling
·4· · · · · · · · · space. . .a steel beam was found to
·5· · · · · · · · · be missing a portion of it's [sic]
·6· · · · · · · · · fire protection material where
·7· · · · · · · · · leakage and rust occurred.· In
·8· · · · · · · · · Zellers there appeared to be quite a
·9· · · · · · · · · number of isolated leakage points
10· · · · · · · · · through-out [sic] the store."
11· · · · · · · · · And then he goes on to describe the
12· ·situation in the library where he says:
13· · · · · · · · · "The Library tenant space appeared to
14· · · · · · · · · be the most extensively damaged of
15· · · · · · · · · the locations reviewed.· At the time
16· · · · · · · · · of the inspection there did not
17· · · · · · · · · appear to be a lot of water entering
18· · · · · · · · · the building in the fiction book
19· · · · · · · · · area, however, a small amount of
20· · · · · · · · · dripping was occurring from soaked
21· · · · · · · · · insulation.· Tiles were removed along
22· · · · · · · · · a beam and drain pipe run; tarp
23· · · · · · · · · covered book shelves; large
24· · · · · · · · · containers to collect water on the
25· · · · · · · · · floors and fans & dehumidifiers were
·1· · · · · · · · · running to dry out the area."
·2· · · · · · · · · And it goes on at the bottom.· It
·3· ·says:
·4· · · · · · · · · "The main roof beam in this area had
·5· · · · · · · · · approximately a ten foot length of
·6· · · · · · · · · fire protection area missing from the
·7· · · · · · · · · bottom flange and had a crust of rust
·8· · · · · · · · · over the entire exposed area."
·9· · · · · · · · · So it appears that at least on the
10· ·19th of October, the leakage problem had not been
11· ·successfully dealt with.· That is, that despite the
12· ·efforts that Brian England and his men were making,
13· ·they weren't stopping the leak problems.· You agree
14· ·with that?
15· · · · · · · · · A.· That's correct, yeah.
16· · · · · · · · · Q.· And so it would appear that their
17· ·efforts -- at least I assume that their efforts were
18· ·directed towards trying to get a handle on the
19· ·existing leaks as opposed to acting pro-actively.
20· ·Is that fair?
21· · · · · · · · · A.· Yes.
22· · · · · · · · · Q.· Okay.· And, now, did Mr. Allard
23· ·speak to you about what was happening or were you
24· ·present when he spoke to Mr. England about what was
25· ·happening, what efforts were being done on the roof?
·1· · · · · · · · · A.· I wasn't with him all the time.
·2· · · · · · · · · Q.· Okay.
·3· · · · · · · · · A.· We did speak.· I explained to
·4· ·them -- to him and to Chris Clouthier I believe was
·5· ·the other inspector.
·6· · · · · · · · · Q.· Yes.
·7· · · · · · · · · A.· I explained what our plan was,
·8· ·what we were doing and how long we'd been doing it.
·9· ·And I believe at that point I passed them over to
10· ·Brian to take them up on the roof.
11· · · · · · · · · Q.· Okay.· Did you accompany him on
12· ·that part of the inspection, like where he went
13· ·through in Zellers and the library and these parts?
14· · · · · · · · · A.· I don't believe so.
15· · · · · · · · · Q.· Were you aware or did he bring it
16· ·to your attention the fact that the -- there was
17· ·rusting on the beams and the fire proofing had come
18· ·off?
19· · · · · · · · · A.· No.
20· · · · · · · · · Q.· You were not aware of that?
21· · · · · · · · · A.· I was aware of it, but not as a
22· ·result of conversing with him on that day.
23· · · · · · · · · Q.· You were aware of that through
24· ·prior knowledge?
25· · · · · · · · · A.· Sure, yes.
·1· · · · · · · · · Q.· And you -- is this because you'd
·2· ·seen it with your own eyes?
·3· · · · · · · · · A.· I'd seen it with my own eyes.
·4· ·The rust on a beam not being -- well, the rust on
·5· ·the beam didn't really mean anything to me because,
·6· ·as I'd said, you put down a brand new railroad
·7· ·track, there's rust on it.· Doesn't mean that it's
·8· ·broken or unsafe, it's just exposed to water.
·9· · · · · · · · · Q.· Did Mr. Allard indicate to you
10· ·that you could expect to get a Notice of Violation
11· ·in fairly short order as a result of this
12· ·inspection?
13· · · · · · · · · A.· No.
14· · · · · · · · · Q.· If we could go to Exhibit No.
15· ·1185.· That's at tab 20, sir.
16· · · · · · · · · MS. KUKA:· 11-85?
17· · · · · · · · · MR. WALLACE:· No, it's Exhibit No.
18· ·1185.
19· · · · · · · · · BY MR. WALLACE:
20· · · · · · · · · Q.· Now, if you could turn to the
21· ·last page.· Yes, thank you.· This -- you've seen
22· ·this before, sir?
23· · · · · · · · · A.· Yes.· But I don't have the tab
24· ·number for this.
25· · · · · · · · · Q.· Oh, it's tab 20, and it's the
·1· ·very last page.
·2· · · · · · · · · A.· Not in my book.· I'm sorry.
·3· · · · · · · · · Q.· Just look on the screen.
·4· · · · · · · · · A.· I know what it is and I can read
·5· ·it.
·6· · · · · · · · · Q.· In any event this -- you received
·7· ·this from the City.· Your signature's at the bottom
·8· ·of the document.· If you could just scroll up there,
·9· ·please.· Thank you.
10· · · · · · · · · And you would have reviewed this
11· ·document when you got it?
12· · · · · · · · · A.· Yes, absolutely.
13· · · · · · · · · Q.· And you were aware of what -- of
14· ·what it required Eastwood Mall to do in response to
15· ·this document?
16· · · · · · · · · A.· Yes.
17· · · · · · · · · Q.· What firstly it says with respect
18· ·to the leakage, this is in the first box:
19· · · · · · · · · "Carry out repairs of the existing
20· · · · · · · · · mall roof/parking surface to prevent
21· · · · · · · · · leakage of water into the building
22· · · · · · · · · including repairs to the roof
23· · · · · · · · · drainage system.· Within 14 days of
24· · · · · · · · · receipt of this notice, provide a
25· · · · · · · · · written description of a repair
·1· · · · · · · · · program that will be undertaken to
·2· · · · · · · · · achieve a watertight roof and include
·3· · · · · · · · · a schedule outlining the time frames
·4· · · · · · · · · necessary to have the work
·5· · · · · · · · · completed."
·6· · · · · · · · · And then with respect to the second
·7· ·box dealing with the structural capacity, the last
·8· ·sentence says:
·9· · · · · · · · · "Water leakage over a long period of
10· · · · · · · · · time at various locations in the mall
11· · · · · · · · · has caused extensive rust on
12· · · · · · · · · structural members and their
13· · · · · · · · · connections in some areas."
14· · · · · · · · · And then the remedy for this
15· ·particular issue is:
16· · · · · · · · · "A review by a Professional Engineer
17· · · · · · · · · of building structural frame in
18· · · · · · · · · leakage areas must be conducted
19· · · · · · · · · forthwith and a report certifying the
20· · · · · · · · · acceptability of the existing
21· · · · · · · · · condition or the remediation steps
22· · · · · · · · · necessary to be taken to ensure
23· · · · · · · · · structural capacity must be provided
24· · · · · · · · · to the Chief Building Official by
25· · · · · · · · · December 15, 2006."
·1· · · · · · · · · When you got this document, I gather
·2· ·you understood what was required?
·3· · · · · · · · · A.· Yes.
·4· · · · · · · · · Q.· What did you do?· Did you contact
·5· ·Mr. Nazarian?
·6· · · · · · · · · A.· Yes.
·7· · · · · · · · · Q.· And what discussion did you have
·8· ·with him about this notice and what it required and
·9· ·the timeframes and --
10· · · · · · · · · A.· Well, I sent him a copy of the
11· ·notice.
12· · · · · · · · · Q.· Yes.
13· · · · · · · · · A.· And talked to him on the phone
14· ·and explained the timeframe that we had to react
15· ·within.· I said that as for the plan for the repair
16· ·of the roof that I could take care of that end of
17· ·it, but that we needed, on the second violation
18· ·portion, we need an engineer.· And at that time,
19· ·there were no engineers in this area, particularly a
20· ·structural engineer.· So I asked him to assist me
21· ·with the requirement for the engineer and he said he
22· ·would take care of that.
23· · · · · · · · · Q.· And what -- did he give you any
24· ·indication of how he was going to take care of that?
25· · · · · · · · · A.· Not at that time.· I had
·1· ·suggested that Bruce Caughill, who was an
·2· ·architect/engineer in Sault Ste. Marie, was familiar
·3· ·with the building and that he might be the best
·4· ·option.
·5· · · · · · · · · At that time I didn't know Bruce
·6· ·well, but he was the only name that I did know.
·7· · · · · · · · · Q.· Now, you also received, and I
·8· ·won't take you to it, but you also received a notice
·9· ·issued by the Fire Department, correct?
10· · · · · · · · · A.· Yes.
11· · · · · · · · · Q.· And this had to do with the fact
12· ·that, as is mentioned in this notice, that there was
13· ·fireproofing missing from steel beams and that had
14· ·to be replaced?
15· · · · · · · · · A.· That's correct.
16· · · · · · · · · Q.· And that particular document you
17· ·received on the 1st of November and did you, in like
18· ·fashion, bring that to his attention?
19· · · · · · · · · A.· Yes.
20· · · · · · · · · Q.· And what was his reaction with
21· ·respect to this additional notice?
22· · · · · · · · · A.· Again, he told me that he would
23· ·take care of it.· It was something that required us
24· ·to bring a company in from outside of the area.· So
25· ·when Bob said he would take care of it, that seemed
·1· ·like the best course of action.
·2· · · · · · · · · Q.· Now, the first notice, that is
·3· ·the one from the Chief Building Official, was issued
·4· ·on the 24th of October and the one from the Fire
·5· ·Department was issued on the 1st of November.
·6· · · · · · · · · As far as the one for the Fire
·7· ·Department was concerned, during your time as the
·8· ·mall manager was that situation ever rectified?
·9· ·That is, was the fireproofing reinstated on the
10· ·steel beams?
11· · · · · · · · · A.· No.
12· · · · · · · · · Q.· Okay.· And do you have any idea
13· ·why it wasn't?
14· · · · · · · · · A.· No.· My suspicion that it was
15· ·just a matter of the cost, but I didn't know for
16· ·sure.
17· · · · · · · · · Q.· Okay.· When you received these
18· ·notices and discussed them with Mr. Nazarian,
19· ·firstly, were you aware of what the significance of
20· ·the missing fireproofing was on the beams?
21· · · · · · · · · A.· To a limited degree. I
22· ·understood its purpose.
23· · · · · · · · · Q.· Which was?
24· · · · · · · · · A.· To slow down the passage of the
25· ·fire from one area to another.· I didn't quite
·1· ·appreciate that it was to protect the beams
·2· ·themselves.· That's about the limit of my
·3· ·appreciation.
·4· · · · · · · · · Q.· Did you see it as a safety issue?
·5· · · · · · · · · A.· Yes.
·6· · · · · · · · · Q.· And when you discussed it with
·7· ·Mr. Nazarian, did you present it in that -- in those
·8· ·terms?
·9· · · · · · · · · A.· Well, I presented it not in any
10· ·dramatic form to say, hey, we have a safety issue
11· ·here.· It was the Fire Department says we have a
12· ·safety issue and here's their notice and this is
13· ·their requirement.· So it struck me as another point
14· ·of obvious.
15· · · · · · · · · Q.· Was Mr. England made aware of, in
16· ·the first case, the notice from the City?
17· · · · · · · · · A.· Yes.
18· · · · · · · · · Q.· And you ultimately did provide a
19· ·plan to the City and a schedule for work, correct?
20· · · · · · · · · A.· Yes.
21· · · · · · · · · Q.· And did Mr. England assist you in
22· ·the preparation of that?
23· · · · · · · · · A.· Yes.· All the maintenance staff
24· ·contributed to that.· I needed their input to
25· ·determine what speed we could move at and I put
·1· ·together a project timeline that laid things out on
·2· ·a daily basis and then weekly basis as to how far we
·3· ·could progress.· And I needed the input from
·4· ·everybody in order to complete that.
·5· · · · · · · · · Q.· Okay.· If we could have Exhibit
·6· ·No. 1487, please.· That's at tab 44.· If we could go
·7· ·to the next page, please.
·8· · · · · · · · · This is a memo that you sent to
·9· ·Mr. Fabris on the 1st of November of 2006.· You got
10· ·that there?
11· · · · · · · · · A.· Yes, I do, sir.
12· · · · · · · · · Q.· Okay.· And in this you send him a
13· ·copy of the Notice of Violation.· And just out of
14· ·curiosity, why did you send it to Mr. Fabris?
15· · · · · · · · · A.· Well, because there was a
16· ·potential here for a legal issue arising if we
17· ·failed to comply with the Notice of Violations.
18· ·He's our lawyer and quite often he was my contact
19· ·through to Mr. Nazarian on issues like this.
20· · · · · · · · · Q.· And if you look at the first
21· ·larger paragraph in there, it says:
22· · · · · · · · · "I just wanted to keep you appraised
23· · · · · · · · · of this issue as I am preparing a
24· · · · · · · · · response regarding the first
25· · · · · · · · · violation and will forward it to them
·1· · · · · · · · · within the 14 day time limit.· The
·2· · · · · · · · · second violation noted requires the
·3· · · · · · · · · hiring of a professional engineer and
·4· · · · · · · · · I am awaiting authority from Bob
·5· · · · · · · · · Nazarian in order to hire one."
·6· · · · · · · · · It appears, and I'll take you to the
·7· ·documents in a few moments, but it appears that you
·8· ·contacted Mr. Caughill in January.· Do you have any
·9· ·idea why it took so long to get the authority to
10· ·hire Mr. Caughill?
11· · · · · · · · · A.· I don't know why it took so long,
12· ·but the decision belonged to the owner, to Bob
13· ·Nazarian.· And I contacted Bruce after I finally
14· ·received the decision or the okay to do it.
15· · · · · · · · · Q.· Okay.· And if we could go to
16· ·Exhibit No. 11-23, and this would be at tab 42.· And
17· ·if we could go to the page ending in 0006.
18· · · · · · · · · This is the written response that you
19· ·gave to Mr. Derreck.· And it's dated on the 13th of
20· ·November 2006.· And I gather from the opening words
21· ·of the letter, you had a meeting in fact with him to
22· ·discuss the issue of the notices and what you're
23· ·going to be doing?
24· · · · · · · · · A.· Yes, I did.
25· · · · · · · · · Q.· And you then talk about the
·1· ·timeframe and in the third paragraph you've
·2· ·indicated:
·3· · · · · · · · · "As you are aware, this roof has
·4· · · · · · · · · leaked for the last 25 years and
·5· · · · · · · · · during that time a multitude of
·6· · · · · · · · · methods were used to patch joints and
·7· · · · · · · · · plug holes.· Contrary to previous
·8· · · · · · · · · practices, our company has decided to
·9· · · · · · · · · repair the roof completely."
10· · · · · · · · · And that statement, "repair the roof
11· ·completely" what did you mean by that statement?
12· ·What was going to be the complete?
13· · · · · · · · · A.· This was written at the time when
14· ·the plan was to replace all the caulking on the roof
15· ·with the silicone product.· And as I'd said, we'd
16· ·attack the urgent areas first and, as time allowed,
17· ·move on to the other areas.
18· · · · · · · · · Q.· Okay.· And so it's just what you
19· ·had described to us earlier?
20· · · · · · · · · A.· Yes, it is.
21· · · · · · · · · Q.· Okay.
22· · · · · · · · · "As much as we might wish otherwise,
23· · · · · · · · · this is not an overnight project.· We
24· · · · · · · · · believe that the end of August 2007
25· · · · · · · · · might be a reasonable time to expect
·1· · · · · · · · · completion of the work."
·2· · · · · · · · · And I gather that the time frame 2007
·3· ·would have been something that you would have
·4· ·received from Mr. England in consultation with the
·5· ·other chaps working there?
·6· · · · · · · · · A.· Yes, in consultation with all of
·7· ·them.
·8· · · · · · · · · Q.· Right.
·9· · · · · · · · · A.· That was our determination.
10· · · · · · · · · Q.· And then you go -- you talk about
11· ·the -- about the plan, which is simply a reflection
12· ·of what you've told us already.
13· · · · · · · · · And then at -- on the next page in
14· ·the second paragraph you say:
15· · · · · · · · · "We expect to have an engineer's
16· · · · · · · · · report available to us in the near
17· · · · · · · · · future and I will forward it on to
18· · · · · · · · · you once it is received."
19· · · · · · · · · What was the basis for that
20· ·statement?
21· · · · · · · · · A.· The reason I was able to make
22· ·that statement was I talked with Bob Nazarian.· He
23· ·told me that we would have an engineer's report.
24· · · · · · · · · Q.· Now, is this -- is this a
25· ·discussion you had with Mr. Nazarian after you had
·1· ·initially presented him with the Notice of
·2· ·Violation?
·3· · · · · · · · · A.· Yes.
·4· · · · · · · · · Q.· Okay.· So that would have been --
·5· ·that discussion would have taken place sometime
·6· ·after the 24th when the notice was issued and the
·7· ·writing of this letter?
·8· · · · · · · · · A.· That's correct.
·9· · · · · · · · · Q.· Okay.· And did he give you, that
10· ·is, did Mr. Nazarian give you any indication of what
11· ·he was doing on that -- in that regard in terms of
12· ·lining up an engineer?
13· · · · · · · · · A.· No, not specifically.· Just what
14· ·I received was his assurance that he would take care
15· ·of it and we'd get an engineer's report.
16· · · · · · · · · Q.· Now, if we could look at Exhibit
17· ·No. 990, and that's at tab 57.
18· · · · · · · · · And this is a letter to Mr. Caughill
19· ·dated the 9th of January of 2007 from yourself.· And
20· ·you have sent to him the documentation with respect
21· ·to the building and the Fire Code violations?
22· · · · · · · · · A.· That's correct.
23· · · · · · · · · Q.· And at this point in time, you
24· ·would have received, I assume, the authorization to
25· ·engage his services?
·1· · · · · · · · · A.· That's correct.
·2· · · · · · · · · Q.· And you made arrangements with
·3· ·him to attend at the mall for the purposes of an
·4· ·inspection in February?
·5· · · · · · · · · A.· Yes.
·6· · · · · · · · · Q.· And if we could just go to the
·7· ·next tab, that's tab 58.· This would be Exhibit No.
·8· ·2348.
·9· · · · · · · · · A.· Yes.
10· · · · · · · · · Q.· And this is an e-mail from
11· ·yourself to Mr. Allard simply informing him of the
12· ·fact that you've got an engineer, you're going to
13· ·line up a meeting, and then you'll keep him advised
14· ·of what's happening?
15· · · · · · · · · A.· That's correct, yes.
16· · · · · · · · · Q.· Now, you had a conversation prior
17· ·to drafting of this -- of the e-mail.· Did you have
18· ·any discussions with Mr. Allard about the structural
19· ·situation at the mall?
20· · · · · · · · · A.· I don't remember having any
21· ·discussions with him about the structure of the
22· ·mall.· I would often see staff from City Hall in the
23· ·mall during lunch hour.· They'd come into the food
24· ·court to pick up a sandwich or something.· I've had
25· ·the opportunity to talk to them at that time.· We
·1· ·would often discuss how it was going in the mall.
·2· · · · · · · · · You know, it was a standing piece of
·3· ·conversation around Elliot Lake when there was heavy
·4· ·rains going on.· You know, instead of saying, hi,
·5· ·how are you?· It would be more like, hi, how are the
·6· ·leaks?· So very common.
·7· · · · · · · · · Q.· And the people from City Hall,
·8· ·would that -- would that have included Mr. Allard?
·9· · · · · · · · · A.· Mr. Allard, Tom Derreck, Chris
10· ·Clouthier, sure.
11· · · · · · · · · Q.· And all appeared to be aware of
12· ·the fact that the roof was leaking.
13· · · · · · · · · A.· Clearly, no doubt.
14· · · · · · · · · Q.· Now, if we could look at Exhibit
15· ·No. 819, and you'll find that at tab 64.
16· · · · · · · · · Now, this is an e-mail from
17· ·Mr. Caughill to Syl Allard with a copy to yourself
18· ·and Fire Chief Paul Officer.· And he is -- he is
19· ·reporting to all the fact that he has met on site
20· ·with you on the 20th of February.· The fact that he
21· ·has been retained and that he provided a copy of the
22· ·Halsall structural condition assessment dated May of
23· ·1999 to you.· You acknowledge that you received that
24· ·from Mr. Caughill?
25· · · · · · · · · A.· Yes, I did.
·1· · · · · · · · · Q.· And that he also suggested that
·2· ·you provide a copy of this report to the City.· And
·3· ·did you do that?
·4· · · · · · · · · A.· I did that, yes.
·5· · · · · · · · · Q.· And was it Mr. Allard you gave it
·6· ·to?
·7· · · · · · · · · A.· It went to the Building
·8· ·Department and I'm pretty sure it was Syl Allard
·9· ·that I gave it to.
10· · · · · · · · · Q.· And it says in terms of the
11· ·services that he's going to render is that:
12· · · · · · · · · "We will be working with the Algo
13· · · · · · · · · Centre Mall as they continue to
14· · · · · · · · · repair the water leakage paths and
15· · · · · · · · · any damaged members/components they
16· · · · · · · · · come across.
17· · · · · · · · · An overall assessment will be
18· · · · · · · · · conducted and report submitted within
19· · · · · · · · · six months.· Copies of inspection
20· · · · · · · · · reports will be submitted as they
21· · · · · · · · · occur.
22· · · · · · · · · Should any changes in our
23· · · · · · · · · relationship with the Algo Centre
24· · · · · · · · · Mall. . .change in the interim, we
25· · · · · · · · · will advise you immediately."
·1· · · · · · · · · Now, when you -- you met with
·2· ·Mr. Caughill at the mall when he was there on the
·3· ·20th?
·4· · · · · · · · · A.· Yes, I did.
·5· · · · · · · · · Q.· And what -- was it just you or
·6· ·was Mr. England there as well?
·7· · · · · · · · · A.· Mr. England would have been there
·8· ·at times, but not necessarily for all of the time
·9· ·Bruce was there.
10· · · · · · · · · Q.· Did -- did you discuss with him,
11· ·that is with Mr. Caughill, what you were doing to
12· ·address the leaking problem?
13· · · · · · · · · A.· Yes, we went over the whole
14· ·program --
15· · · · · · · · · Q.· Right.
16· · · · · · · · · A.· -- with him.
17· · · · · · · · · Q.· Okay.· And did he have any
18· ·suggestions as to what you were doing?
19· · · · · · · · · A.· I don't believe he had any
20· ·specific suggestions.· He understood what the plan
21· ·was.· Also at that -- by that time, I believe I took
22· ·the opportunity to discuss with him what he thought
23· ·of the idea of putting some sort of a roof structure
24· ·over the parking lot or paving it.
25· · · · · · · · · Bruce was, for me, presented an
·1· ·excellent opportunity to get information, get
·2· ·advice, conduct whatever kind of brain drain I could
·3· ·to help solve that roof problem.
·4· · · · · · · · · Q.· What -- what was his reaction to,
·5· ·firstly, the idea of a structure being built on top
·6· ·of the roof?
·7· · · · · · · · · A.· Well, the immediate reaction, as
·8· ·I recall, was that the issue would be whether or not
·9· ·the building could take the load.· It was always an
10· ·issue of load on the roof.· And I didn't have the
11· ·authority to engage him to conduct any kind of study
12· ·or to move ahead with it.· So the conversation was
13· ·-- we just touched the surface of the idea.
14· · · · · · · · · Q.· What did he say about the idea of
15· ·putting pavement on top of the roof?
16· · · · · · · · · A.· That I recall was at -- it wasn't
17· ·a new idea.· That the difficulty was the equipment
18· ·that would be required to pave the roof.· It'd be an
19· ·incredibly expensive job.· The biggest concern was
20· ·do you lose -- would we lose all the parking space
21· ·because of the weight load that would be incurred by
22· ·pavement.· And would it work?· So that's where the
23· ·conversation went.· And it was a conversation.· It
24· ·wasn't a case where a professional had been
25· ·contracted to come up with answers.· It was just a
·1· ·casual conversation.
·2· · · · · · · · · Q.· Now, he was -- he was being
·3· ·engaged to provide an opinion on the structural
·4· ·integrity of the building.· He was wasn't being
·5· ·engaged to come up with a solution to stop the
·6· ·leaks?
·7· · · · · · · · · A.· That's correct.
·8· · · · · · · · · Q.· With respect to the structural
·9· ·integrity, did you accompany him?· Did you show him
10· ·some the beams and things like that on the 20th of
11· ·February?
12· · · · · · · · · A.· What we did was we toured the
13· ·mall.· He was familiar with the mall.
14· · · · · · · · · Q.· Hmm hmm.
15· · · · · · · · · A.· He had been engaged by Retirement
16· ·Living during their time as owners or their
17· ·subsidiary NorDev's time as owner.· So there wasn't
18· ·much I was going to tell him about the building. I
19· ·got the impression he might have known it better
20· ·than I did.
21· · · · · · · · · Q.· And did you discuss with him what
22· ·he was actually going to do?
23· · · · · · · · · A.· No, not at that time.· It was
24· ·just the beginning of his engagement, and.
25· · · · · · · · · Q.· Now, the -- in his reporting
·1· ·letter to Mr. Allard, he indicates that he was going
·2· ·to do the assessment and submit a report within six
·3· ·months' time which would bring us roughly to August
·4· ·of 2007, which coincidentally is the same time frame
·5· ·you spoke of in your letter as to when the roofing
·6· ·efforts were hoped to be completed?
·7· · · · · · · · · A.· Yes, yes.
·8· · · · · · · · · Q.· Did -- did he ever produce a
·9· ·report?
10· · · · · · · · · A.· No.
11· · · · · · · · · Q.· Okay.· Can you tell us why not?
12· · · · · · · · · A.· My understanding from talking to
13· ·Bruce was that there was not going to be a report
14· ·because he and Nazarian had a dispute about getting
15· ·paid.· Bruce said I don't work for nothing, or
16· ·essentially those words.
17· · · · · · · · · Q.· And other than the site visit on
18· ·the 20th of February, are you aware of any other
19· ·work that Mr. Caughill did with respect to this
20· ·particular issue?· That is, the structural integrity
21· ·assessment.
22· · · · · · · · · A.· He was up on another occasion.
23· ·I'm not sure whether he incorporated the structural
24· ·assessment into, you know, another reason for being
25· ·in the mall.· He was still consulting with NorDev
·1· ·and Retirement Living.· I didn't really have much
·2· ·reason to question him at the time as to what he was
·3· ·there for and what he was doing.
·4· · · · · · · · · Q.· Okay.· So you -- I guess the
·5· ·short answer is you don't know if he did anything
·6· ·other than going on the 20th of February with
·7· ·respect to the structural integrity?
·8· · · · · · · · · A.· That's a fair statement, yes.
·9· · · · · · · · · Q.· Okay.· I'm just going to show you
10· ·some reports.· And ask if we could go, firstly,
11· ·Exhibit No. 70, please.
12· · · · · · · · · This is the Halsall Report that you
13· ·were given and that you passed on to the City?
14· · · · · · · · · A.· That's correct.
15· · · · · · · · · Q.· I want to show you a number of
16· ·other reports and get your comment as to whether or
17· ·not you have ever seen any of them.· And the first
18· ·one will be Exhibit No. 35, please.
19· · · · · · · · · This one is a report prepared by Trow
20· ·Consulting Engineers and it was prepared for, as you
21· ·can see, for Algoma Central Properties.· And it was
22· ·prepared in May of 1991.
23· · · · · · · · · Now, you and I reviewed a number of
24· ·reports late last week where you've actually looked
25· ·at them.· Can you tell us whether you have seen this
·1· ·report at any time prior to me showing it to you
·2· ·last week?
·3· · · · · · · · · A.· No, I had not seen that before.
·4· · · · · · · · · Q.· Okay.· And Exhibit No. 44.· This
·5· ·is another Trow report.· This is dated the 9th of
·6· ·November 1994.· Have you seen that before?
·7· · · · · · · · · A.· No, I had not seen that before.
·8· · · · · · · · · Q.· Exhibit No. 51.· This again is a
·9· ·work product of Trow dated November of '95.· Have
10· ·you seen that?
11· · · · · · · · · A.· No, I had never seen it before.
12· · · · · · · · · Q.· And Exhibit No. 65.· This is a
13· ·report by Mr. Meyer again for Algoma.· And this is
14· ·October of '98.· Do you see that?
15· · · · · · · · · A.· Yes, I see it.· I had not seen it
16· ·before.
17· · · · · · · · · Q.· Okay.· And the last one I'll show
18· ·you is Exhibit 67.· And this is a report prepared by
19· ·an architectural firm from Sudbury by the name of
20· ·Nicholls Yallowega Bélanger.· And its date is
21· ·November 12th, 1998.· And this was a report
22· ·commissioned by Elliot Lake Retirement Living.· Had
23· ·you seen that report before?
24· · · · · · · · · A.· No, I hadn't.· I wish I had.· It
25· ·might have been helpful
·1· · · · · · · · · Q.· So in summary, the only reports
·2· ·that you saw was the Halsall Report that was
·3· ·provided to you by Mr. Caughill?
·4· · · · · · · · · A.· That's correct, sir.
·5· · · · · · · · · Q.· Now, were there any other reports
·6· ·that I haven't shown you?· Did you see any other
·7· ·reports in the office?
·8· · · · · · · · · A.· There were other reports in the
·9· ·office that I had discovered in the filing cabinets.
10· ·There was nothing that I recalled dealt with the
11· ·structure of the mall or structural integrity. I
12· ·remember that specifically because it had been a
13· ·topic of conversation since my arrival there.
14· · · · · · · · · Q.· What had been a topic of
15· ·conversation?
16· · · · · · · · · A.· The structural integrity of the
17· ·mall.· I had only been there a few months when the
18· ·City showed up with these violation notices.· And so
19· ·I had talked with staff.· I talked with -- well,
20· ·when I talked with staff, they told me they didn't
21· ·have any concerns with the building.· I talked with
22· ·Mr. Nazarian.· He told that he had engineers'
23· ·reports and that the building was just great.
24· · · · · · · · · Q.· Did you see any reports from
25· ·Mr. Nazarian?
·1· · · · · · · · · A.· No.
·2· · · · · · · · · Q.· Did you ever ask to see a report?
·3· · · · · · · · · A.· Yes, and they were going to be
·4· ·sent up.· I never received anything.· There was a
·5· ·limit to how much they would benefit me, unless they
·6· ·were laid out in layman's terms similar to what the
·7· ·Halsall Report was.
·8· · · · · · · · · Q.· Speaking of that report, did --
·9· ·did you provide that to Mr. Nazarian?
10· · · · · · · · · A.· Yes, it was sent down as a copy.
11· · · · · · · · · Q.· Okay.· And did you discuss that
12· ·report with him at all?
13· · · · · · · · · A.· I don't believe so.
14· · · · · · · · · Q.· Okay.· And one last question
15· ·before I leave that.· When you provided that report,
16· ·that is, the Halsall Report --
17· · · · · · · · · A.· Yes.
18· · · · · · · · · Q.· -- to the City, did you seek
19· ·permission from Mr. Nazarian to do that?
20· · · · · · · · · A.· No.
21· · · · · · · · · Q.· And just out of curiosity why
22· ·not?
23· · · · · · · · · A.· He had contracted Bruce Caughill
24· ·as the professional to get the job done.· The way I
25· ·looked at it was Bruce had asked me to pass this on
·1· ·to City Hall and I was just passing it on.· So ergo
·2· ·I was the messenger as opposed to the catalyst to
·3· ·some action.
·4· · · · · · · · · MR. WALLACE:· This might be a good
·5· ·time to break, Commissioner.· I'm just about to
·6· ·start on something else.
·7· · · · · · · · · THE COMMISSIONER:· Thank you.· We'll
·8· ·take our morning break, Mr. Registrar.
·9· · · · · · · · · ---· Break taken at 10:35 a.m.
10· · · · · · · · · ---· Upon resuming at 11:00 a.m.
11· · · · · · · · · THE COMMISSIONER:· Okay, Mr. MacRae.
12· · · · · · · · · MR. MACRAE:· Yes, thank you very
13· ·much, Mr. Commissioner.
14· · · · · · · · · BY MR. WALLACE:
15· · · · · · · · · Q.· Mr. Turner, you had mentioned
16· ·this morning in connection with the structural
17· ·integrity assessment that Mr. Caughill was going to
18· ·do that no report was ever prepared.· And the reason
19· ·for that was that there was a falling out over fees
20· ·between Mr. Caughill and Mr. Nazarian.· And the
21· ·initial report that Mr. -- or the heads up that
22· ·Mr. Caughill gave to Syl Allard on the 22nd of
23· ·February indicated that he was going to have a
24· ·report or thought he'd have a report done by the
25· ·month of August.· Clearly August came and went
·1· ·without any report, correct?
·2· · · · · · · · · A.· That's correct, yeah.
·3· · · · · · · · · Q.· And it's my understanding that
·4· ·the disagreement over fees started roughly in July
·5· ·of '07.· Does that sort of accord with your
·6· ·recollection?
·7· · · · · · · · · A.· Yes.
·8· · · · · · · · · Q.· Okay.· Now, you indicated that
·9· ·you spoke to Mr. Caughill and he said that there
10· ·wasn't going to be a report because, as you said, I
11· ·don't work for free, correct?
12· · · · · · · · · A.· I'm not sure if those were his
13· ·exact words, but that was definitely the meaning of
14· ·the conversation.
15· · · · · · · · · Q.· My question to you is, when you
16· ·became aware of the fact that no building condition
17· ·assessment was going to be done by Mr. Caughill, did
18· ·you contact Mr. Nazarian and say, listen, whether
19· ·you use Caughill or not, we still need to do this?
20· · · · · · · · · A.· We had that conversation.
21· · · · · · · · · Q.· And what did he say?
22· · · · · · · · · A.· I will take care of it.
23· · · · · · · · · Q.· And, I mean, I'm not going to pin
24· ·you down to the exact time frame, but, roughly
25· ·speaking, when did you have that conversation?· If
·1· ·we use July-August as the time when you became aware
·2· ·of it that there's going to be no report, when would
·3· ·you have had that conversation?
·4· · · · · · · · · A.· It would have been within days of
·5· ·me learning from Bruce Caughill that he wasn't
·6· ·continuing as our engineer/architect.
·7· · · · · · · · · Q.· Now -- okay.· So if we move into
·8· ·-- if we move forward into the fall, are you being
·9· ·contacted by any professional indicating to you that
10· ·they have been retained to do this work?
11· · · · · · · · · A.· No.· You mean to replace
12· ·Caughill?
13· · · · · · · · · Q.· Yes.· On that piece of work.
14· · · · · · · · · A.· No.
15· · · · · · · · · Q.· Okay.· Do you have a follow-up
16· ·discussion with Mr. Nazarian that, look it, we got
17· ·to get moving here?
18· · · · · · · · · A.· Not after the discussion on the
19· ·fact that Caughill had been terminated.
20· ·Mr. Nazarian was very clear that he was going to
21· ·take care of it and essentially it's not my affair.
22· ·So I backed off.
23· · · · · · · · · Q.· And during this timeframe, and
24· ·I'll go back to February 22nd, which is the date
25· ·that Mr. Caughill has informed Syl Allard and Paul
·1· ·Officer that he's going to be looking after things,
·2· ·at any point after that date, the 22nd of February,
·3· ·up to the date that you -- your services were
·4· ·terminated by Mr. Nazarian, did you have any contact
·5· ·from anybody from the City trying to push you
·6· ·forward on this?· Like to get it done.
·7· · · · · · · · · A.· I don't recall any conversation
·8· ·with staff at the City to push us forward with it.
·9· ·As I had said, I maintained frequent contact with
10· ·staff at the City so that they always knew where we
11· ·were in the process.
12· · · · · · · · · Tom Derreck, while he was there, was
13· ·an excellent CAO.· Initially when I first got his
14· ·little gift of the violation notices followed up
15· ·with the Fire Department, I didn't have a very high
16· ·first opinion of him.· And I went over --
17· · · · · · · · · Q.· And why was that?
18· · · · · · · · · A.· Well, I thought -- I couldn't
19· ·help but think that this was incredibly convenient
20· ·now that Retirement Living doesn't own it anymore
21· ·and Bob Nazarian owns it, suddenly they're
22· ·interested in fixing the roof all in 14 days.· So it
23· ·certainly was irritating.
24· · · · · · · · · And I knew that the library manager
25· ·had -- she had gone the smart way.· She had gone
·1· ·through the Health and Safety Committee to make
·2· ·complaints about the leaks in the library that I
·3· ·suspected forced the hands of management over at
·4· ·City Hall.
·5· · · · · · · · · And the new CAO was the -- got the
·6· ·marching orders to go send the Building Department
·7· ·after us.· That was my interpretation of the whole
·8· ·scenario at the time.
·9· · · · · · · · · I knew we had to respond to it. I
10· ·still wasn't impressed by the fact they had done it
11· ·like that instead of picking up the phone and
12· ·calling and saying, What are you doing?· And I don't
13· ·think there was anyone in Elliot Lake who didn't
14· ·know we were working on the roof.· The sand blasters
15· ·and the little grinders were going all day long for
16· ·the months prior.
17· · · · · · · · · So it just struck me as a nasty
18· ·action on their part to have this sudden interest in
19· ·the mall and the roof certainly didn't -- I wasn't
20· ·feeling very charitable towards the CAO when I
21· ·initially got it.
22· · · · · · · · · After I had the opportunity to meet
23· ·with the man, I found him very reasonable.
24· ·Explained the situation to him and we agreed to stay
25· ·in frequent contact and we did so and got along very
·1· ·well.
·2· · · · · · · · · Q.· On this particular issue, that is
·3· ·the Building Code and the Fire Code, would
·4· ·Mr. Derreck have been your primary point of contact
·5· ·within the City?
·6· · · · · · · · · A.· I liked to keep him as my primary
·7· ·contact.· Of course I recognized that he couldn't
·8· ·give direction or change the judgment on the behalf
·9· ·-- on the part of the building officers.· So I
10· ·maintained contact with both, but my preference was
11· ·to deal with the CAO, Derreck.
12· · · · · · · · · Q.· Now, I understand that Mr.
13· ·Derreck left in July of '07?
14· · · · · · · · · A.· Yes.
15· · · · · · · · · Q.· And did you maintain contact with
16· ·his successor or did you revert back to the other
17· ·officials?
18· · · · · · · · · A.· I had limited contact with his
19· ·successor.
20· · · · · · · · · Q.· Okay.· And did you advise anybody
21· ·at the City that Mr. Caughill was not going to be
22· ·preparing a report?
23· · · · · · · · · A.· No, I did not.
24· · · · · · · · · Q.· Any reason for that?
25· · · · · · · · · A.· Well, my reasoning was that Bruce
·1· ·had already indicated that he would advise the City
·2· ·if the relationship changed, so I didn't think it my
·3· ·place to do it for him.
·4· · · · · · · · · Q.· Okay.· Now, I want to review with
·5· ·you a few e-mails from the Zellers store.· And the
·6· ·first one is Exhibit No. 12-05.· And you would find
·7· ·that at tab 77.
·8· · · · · · · · · Now, if we can look at the one at the
·9· ·bottom, the one that's first in time.· You know who
10· ·Rica Taylor is?
11· · · · · · · · · A.· Yes, I do.
12· · · · · · · · · Q.· And she was the person from head
13· ·office that was carrying the ball for Hudson's Bay
14· ·and the Zellers store?
15· · · · · · · · · A.· Yes, she was the real estate
16· ·officer.
17· · · · · · · · · Q.· And you can see and we're looking
18· ·at the first e-mail here from her to you on the
19· ·1st of June of 2007.· And in this -- in this one
20· ·she's notifying of leakage that on the 27th of May
21· ·"we once again experienced water damage as a result
22· ·of the roof leaking in five separate areas in the
23· ·Zellers Store at the Algo Centre."· And she's asking
24· ·you to deal with the problem.
25· · · · · · · · · And if we look up at the one at the
·1· ·top of the page?
·2· · · · · · · · · A.· Yes.
·3· · · · · · · · · Q.· And she says to you, and this is
·4· ·on the 25th of June:
·5· · · · · · · · · "At the beginning of this month, I
·6· · · · · · · · · was advised by your office that our
·7· · · · · · · · · area of the roof was to be given top
·8· · · · · · · · · priority.· To date the problem has
·9· · · · · · · · · not been fixed and we now have seven
10· · · · · · · · · areas within our store that are being
11· · · · · · · · · affected by these roof leaks."· And
12· · · · · · · · · then:
13· · · · · · · · · "Kindly explain the reason for the
14· · · · · · · · · delay and advise when we can expect
15· · · · · · · · · to have the roof repaired."
16· · · · · · · · · Now, clearly whatever was going on in
17· ·the roofing world at the Algo Mall it wasn't
18· ·working, correct?· I mean, they're going from five
19· ·to seven leaks in the month of June.
20· · · · · · · · · A.· I'm not sure if at this specific
21· ·time if it was a case of what we were doing wasn't
22· ·working or these were leaks occurring in areas that
23· ·we hadn't repaired yet.
24· · · · · · · · · Q.· Okay.· How about we'll go then to
25· ·Exhibit No. 12-106, and this would be at tab 82.
·1· · · · · · · · · And this is now at the end -- towards
·2· ·the end of August.· And this is from the -- from the
·3· ·store back to Rica.· And it says -- Brian
·4· ·Cuthbertson is the author.
·5· · · · · · · · · "I talk [sic] to Tom from the mall
·6· · · · · · · · · this week because of the amount of
·7· · · · · · · · · new leaks we are up to 15 leaks and
·8· · · · · · · · · lot of tiles have come down."
·9· · · · · · · · · So clearly the situation is getting
10· ·worse?
11· · · · · · · · · A.· It was worsening, absolutely.
12· · · · · · · · · Q.· And there's one other one that I
13· ·want to bring to your attention here.· Just one
14· ·second, please.· And this is Exhibit No. 12-20.
15· · · · · · · · · And this is now dated the 5th of
16· ·December.· And this is from Rica Taylor to a Donald
17· ·Rogers and Ann Shaw she says:
18· · · · · · · · · "The landlord has been working on the
19· · · · · · · · · roof all summer without success.
20· · · · · · · · · From what I understand, leaking has
21· · · · · · · · · been an issue at the mall since it
22· · · · · · · · · was constructed because the roof is
23· · · · · · · · · essentially a parking lot.· When I
24· · · · · · · · · spoke with Tom Turner from the mall
25· · · · · · · · · management office late last week, he
·1· · · · · · · · · was making arrangement [sic] for a
·2· · · · · · · · · tinsmith and plumbers to install
·3· · · · · · · · · troughs above the ceiling tiles to
·4· · · · · · · · · divert the water.· He was going to
·5· · · · · · · · · co-ordinate this with the store
·6· · · · · · · · · manager.
·7· · · · · · · · · I requested that he send us a recent
·8· · · · · · · · · engineer's study and something in
·9· · · · · · · · · writing to confirm how he plans [to]
10· · · · · · · · · rectify the situation permanently."
11· · · · · · · · · So we can see that throughout the
12· ·summer and leading right up until the month of
13· ·December, we've got some problems here with Zellers,
14· ·correct?
15· · · · · · · · · A.· That's an understatement.
16· · · · · · · · · Q.· Right.· And so I'll repeat my
17· ·earlier question, that is, it seems pretty apparent
18· ·from looking at the e-mail traffic here that the
19· ·plan as envisioned wasn't working.· It wasn't
20· ·stopping the leaking.
21· · · · · · · · · A.· That's correct.
22· · · · · · · · · Q.· Now, in the context of this
23· ·realization are you saying to Mr. Nazarian or
24· ·questioning him, like this isn't working and we've
25· ·got to come up with something better?
·1· · · · · · · · · A.· Yeah.· Well, even prior to this
·2· ·latest e-mail traffic dated December 5th, 2007, I
·3· ·knew that the most recent method we were using, the
·4· ·silicone product, even that had failed in places.
·5· · · · · · · · · Q.· This is the system that Brian
·6· ·England instituted?
·7· · · · · · · · · A.· Yes.
·8· · · · · · · · · Q.· Okay.
·9· · · · · · · · · A.· By that time I'd also determined
10· ·that perhaps Brian was a good salesman as to how
11· ·good the product was and that it wasn't going to
12· ·solve all our woes.· In fact, I was pretty sure of
13· ·it by this time.
14· · · · · · · · · Also remember that during that year
15· ·we had determined not to continue with the silicone
16· ·product, but to go back to the urethane product.
17· · · · · · · · · Q.· Correct.
18· · · · · · · · · A.· And so during that summer of
19· ·2007, we were tearing up damaged urethane and
20· ·replacing it with the same.
21· · · · · · · · · The Zellers store was becoming a very
22· ·difficult place to deal with.· It had developed
23· ·leaks in its loading bay areas that had never leaked
24· ·before.· Leaks were happening in places we'd never
25· ·seen them before.
·1· · · · · · · · · And, although the engineers and
·2· ·architects prior to me indicate differently, my
·3· ·suspicion was is that if water was able to get into
·4· ·the second layer of concrete, the hollow core, then
·5· ·it could travel 30 feet down those tubes.
·6· · · · · · · · · Q.· You mean if it actually got
·7· ·inside the core itself?
·8· · · · · · · · · A.· Yes.
·9· · · · · · · · · Q.· Okay.
10· · · · · · · · · A.· So if it was cracked at all, then
11· ·it would give it a highway and we'd have even more
12· ·difficulty determining its source.
13· · · · · · · · · And Zellers, over its store, water
14· ·pooled along long areas on the joints.· And it --
15· ·the maintenance crew were forever up there.· They
16· ·checked the drains daily.· They checked -- they
17· ·walked the roof every day to look for problems.
18· ·Zellers was just an incredibly difficult problem to
19· ·resolve.
20· · · · · · · · · Q.· Getting back to my question, did
21· ·you say to Mr. Nazarian, you know, this is a serious
22· ·problem and it's a very serious problem for you
23· ·because it impacts on the businesses and we've got
24· ·to come up with something because obviously isn't
25· ·working?
·1· · · · · · · · · A.· Well, we'd had that discussion on
·2· ·quite a few occasions.· He was looking at the idea
·3· ·-- I believe at that time we were -- the discussion
·4· ·was on a canopied roof.· And Brian England was
·5· ·agitating [sic] to have John Clinckett, an architect
·6· ·from the Cambridge area, look at the problem. I
·7· ·believed that Bob Nazarian was familiar with
·8· ·Clinckett.
·9· · · · · · · · · I was running out of options by this
10· ·time and, I'm sorry, did I get distracted from your
11· ·question and not answer?
12· · · · · · · · · Q.· No.· The question was, did you
13· ·raise the issue, we should be doing something else?
14· ·And you've indicated that one of the things was that
15· ·to have Mr. Clinckett have a look at it?
16· · · · · · · · · A.· Yes.
17· · · · · · · · · Q.· So if we could have a look at tab
18· ·131.· You can look at 131.· The Exhibit No. 12-112.
19· · · · · · · · · Now, this is a letter that you sent
20· ·to Rica Taylor.· And it references a telephone
21· ·conversation and you are advising her in the second
22· ·paragraph:
23· · · · · · · · · "As I advised you and Mark Ganier,
24· · · · · · · · · our architect is working concurrently
25· · · · · · · · · on a plan to cover the overhead
·1· · · · · · · · · parking area.· He is investigating
·2· · · · · · · · · all types of structure with the aim
·3· · · · · · · · · of eliminating the leak problem by
·4· · · · · · · · · keeping the elements out of the
·5· · · · · · · · · problem areas.· At this time he is in
·6· · · · · · · · · the preliminary reporting stage and I
·7· · · · · · · · · have no results that I can share with
·8· · · · · · · · · you yet."
·9· · · · · · · · · The information that you are
10· ·conveying here to Rica Taylor, where did that come
11· ·from?
12· · · · · · · · · A.· That came from discussions with
13· ·Bob Nazarian, with discussions with John Clinckett.
14· · · · · · · · · Q.· And the -- during your tenure,
15· ·because we're now about the middle of January here,
16· ·was anything decided between Mr. Clinckett and
17· ·Mr. Nazarian?
18· · · · · · · · · A.· No, not at the -- not by this
19· ·point.· There was another project that was also
20· ·being taken on by Mr. Clinckett and that was to
21· ·utilize a space on the ground floor level that had
22· ·been a theatre at one time and Bingo hall and I was
23· ·proposing that we move the library to that location.
24· · · · · · · · · The library was the other high
25· ·maintenance area.· And again we were not succeeding
·1· ·in resolving their problems.· So Clinckett was
·2· ·working on a design for essentially a two-storey
·3· ·library in that area.
·4· · · · · · · · · So in discussions with him about the
·5· ·library, we'd also get onto the roof and how are we
·6· ·doing with that?
·7· · · · · · · · · And at this point, there was no final
·8· ·resolution for the roof.
·9· · · · · · · · · Q.· Okay.· You're familiar with a
10· ·chap by the name of Alex Sennett?
11· · · · · · · · · A.· Yes.
12· · · · · · · · · Q.· And who is Alex Sennett?
13· · · · · · · · · A.· Well, Alex Sennett is a gentleman
14· ·who came up with Bob Nazarian during the winter of
15· ·2007 and 8.· Was introduced to me as the security
16· ·specialist.· Bob introduced him in my office and
17· ·told me that Mr. Sennett was going to be hired to
18· ·put cameras throughout the mall, including my
19· ·office, which I told Mr. Sennett he was going to be
20· ·disappointed because that wasn't going to happen.
21· · · · · · · · · But I gave him a tour of the mall and
22· ·showed him the dozen or so spots where I thought we
23· ·could use cameras.
24· · · · · · · · · At that point, he told me we were
25· ·actually going to increase to over 60 cameras.· And
·1· ·I just shook my head because I just couldn't imagine
·2· ·we were spending the money on cameras when we
·3· ·couldn't spend it on other things.
·4· · · · · · · · · Q.· Well, that was -- do you have an
·5· ·idea what the camera installation would cost?
·6· · · · · · · · · A.· He indicated to me that it could
·7· ·cost up to a thousand dollars a location, depending
·8· ·on the system that we used.· The -- it's not just
·9· ·the camera that costs the money, it's the cable that
10· ·we'd have to run through the whole mall.· The
11· ·servers that would be required to hold all this
12· ·video memory, the playback systems and the
13· ·monitoring screens.· Plus part of his instructions
14· ·were that the owner would be able to monitor the
15· ·cameras remotely online.
16· · · · · · · · · So my conclusion after talking with
17· ·him is that we were going to move this up into the
18· ·75,000 range.· That was my guesstimate.
19· · · · · · · · · Q.· So did anybody ever share with
20· ·you what the cost was?
21· · · · · · · · · A.· I'd only heard that it was
22· ·pushing a couple of hundred thousand, but I had a
23· ·hard time believing it.· I just, I couldn't see Bob
24· ·spending the money, or not that much.
25· · · · · · · · · Q.· Did you ask Mr. Nazarian about
·1· ·this expenditure and what -- you're coping on a
·2· ·day-to-day basis with the leaking -- with the
·3· ·leaking roof.· Did you ask him about the disconnect
·4· ·between the leaking roof and spending all this money
·5· ·on the surveillance equipment?
·6· · · · · · · · · A.· Yes, I did.· By that time, our
·7· ·relationship had -- we were becoming farther apart.
·8· · · · · · · · · Q.· And why was that?
·9· · · · · · · · · A.· Well, I had -- he was phoning
10· ·staff like Brian England, Henri the receptionist and
11· ·--
12· · · · · · · · · Q.· Is that Henri Laroue?
13· · · · · · · · · A.· Henri Laroue, yes.· Al Labreche,
14· ·the maintenance supervisor, and getting information
15· ·from them or asking them opinions on things that he
16· ·generally should have been asking me for.· He wasn't
17· ·listening to my advice anymore.· We'd just gone
18· ·through a situation where we had succeeded in taking
19· ·back the hotel from NorDev.
20· · · · · · · · · Q.· This was in --
21· · · · · · · · · A.· Just in the months -- early or
22· ·the late part of 2007.
23· · · · · · · · · Q.· Okay.
24· · · · · · · · · A.· We were -- the plan was that it
25· ·was going to become a Best Western Hotel.· I had
·1· ·gone to Montreal to attend their annual conference.
·2· ·Met with the numerous owners and executives from
·3· ·Best Western.· Determined that we could redo the
·4· ·rooms and halls and in the hotel area at a cost of
·5· ·about $2500 a room.
·6· · · · · · · · · Q.· Was that a good deal?
·7· · · · · · · · · A.· It was massive buying power that
·8· ·Best Western had.· They could strip a room down to
·9· ·the concrete and replace it with granite, and
10· ·flat-screen TVs, and the best beds for $2500.· You
11· ·couldn't get anywhere near that at your home.
12· · · · · · · · · So it was determined that $75,000 a
13· ·floor, Best Western's people could come in, strip
14· ·the thing bare, and $75,000 later you'd have a first
15· ·class hotel or floor on your hand.
16· · · · · · · · · So that had been part of the ongoing
17· ·plan, you know, where we're going in the future.
18· · · · · · · · · And when Mr. Sennett arrived and was
19· ·wanting to spend all this money on cameras, and at
20· ·the same time Bob had told me that it was too much
21· ·for the hotel, I was losing faith.· I didn't see we
22· ·had a direction anymore.· I was really --
23· · · · · · · · · Q.· What were you telling the tenants
24· ·about this problem that wasn't going away?· I mean,
25· ·they must have been pretty upset.
·1· · · · · · · · · A.· Well, by then I had learned not
·2· ·to say -- include myself in the resolution of the
·3· ·problem by saying I'm working on this.· I'm going to
·4· ·do that.· By that time, I was saying, Bob says that
·5· ·this is what he's going to do to resolve your
·6· ·problem.
·7· · · · · · · · · Q.· Why did you shift the approach?
·8· · · · · · · · · A.· Well, because I wanted to divorce
·9· ·myself from promises that I suspected weren't going
10· ·to be kept.
11· · · · · · · · · Q.· Okay.
12· · · · · · · · · A.· Or could be kept even.
13· · · · · · · · · Q.· I wanted to ask you a couple of
14· ·questions about a number of different topics.· What
15· ·role, if any, did Irene Nazarian play in the
16· ·operation of the mall?
17· · · · · · · · · A.· Generally I think she was -- the
18· ·role she played was more as a conduit for messages
19· ·from Bob.· She sometimes played a more active role
20· ·when it came to the -- some of the bookkeeping.· But
21· ·generally I think she was the messenger.
22· · · · · · · · · Q.· How -- speaking of bookkeeping,
23· ·what was the system here dealing with the tenants'
24· ·rent?· It was collected and then what happened?
25· · · · · · · · · A.· Well, we would collect the rent,
·1· ·deposit it at the Royal Bank branch in town.· And we
·2· ·would, by fax or by e-mail, generally by fax, we
·3· ·would send down the information on what the
·4· ·transactions were that day.
·5· · · · · · · · · The bookkeeper there was a gentleman
·6· ·by the name of Ramsey Hermiesie.· And I would be in
·7· ·touch with Ramsey as to what the transactions were,
·8· ·any changes in the rent roll.· We would discuss
·9· ·taxes.· We would discuss things like common area
10· ·charges.· Generally the operating financials of the
11· ·mall.
12· · · · · · · · · Q.· Were you able to determine
13· ·anything about the profitability of the mall?· Did
14· ·you see income and expenses or would all the
15· ·documentation end up out of your sphere and end up
16· ·down in Richmond Hill?
17· · · · · · · · · A.· On occasion I would see the
18· ·income and expense statements for the financials
19· ·that had been prepared in Richmond Hill.· And to
20· ·assist myself in managing the operation, I created
21· ·financials locally in Elliot Lake on expenses that
22· ·we were incurring in that month against income that
23· ·we were bringing in.· And so I had a sense of
24· ·whether we were making money or not making money.
25· · · · · · · · · Q.· And what was the answer?
·1· · · · · · · · · A.· The answer was that we were
·2· ·making money.· It was profitable.
·3· · · · · · · · · Now, the thing I didn't see is large
·4· ·lump expenses that -- for example, you were speaking
·5· ·about the surveillance cameras.· That bill, if I had
·6· ·been there when that came in, I wouldn't see that
·7· ·bill.· It would go to Richmond Hill because that's
·8· ·where the contract was made.· So I wouldn't have a
·9· ·sense of that kind of cost.
10· · · · · · · · · Q.· Did -- during the course of your
11· ·tenure, would you be the one who is doing the
12· ·deposits?
13· · · · · · · · · A.· Sometimes.
14· · · · · · · · · Q.· Sometimes.
15· · · · · · · · · A.· Generally it would be -- it was
16· ·the receptionist, office assistant.
17· · · · · · · · · Q.· We have heard evidence to date in
18· ·the person of Henri Laroue that she was requested to
19· ·do some improper things as far as the manipulation
20· ·of the rent rolls were concerned.· Were you ever
21· ·asked to do anything that you deemed to be improper?
22· · · · · · · · · A.· Only initially in the first
23· ·couple of months that I had been there there was
24· ·something happening with regard to one of the banks
25· ·and a refinancing I believe it was.
·1· · · · · · · · · And I told the bookkeeper that there
·2· ·if there was going to be any of that that he was the
·3· ·one that was going to make the adjustments, not me.
·4· · · · · · · · · Q.· What -- what was it you were
·5· ·being asked to do?
·6· · · · · · · · · A.· To enhance the income.
·7· · · · · · · · · Q.· How so?
·8· · · · · · · · · A.· I believe the idea was to leave a
·9· ·couple of tenants on the rent roll who were no
10· ·longer there and demonstrate income from them.
11· · · · · · · · · Q.· And who asked you to do that?
12· · · · · · · · · A.· That came from Bob.
13· · · · · · · · · Q.· Mr. Nazarian?
14· · · · · · · · · A.· Yes.
15· · · · · · · · · Q.· And you're -- did you react to
16· ·that?· Sorry.· Did you react to that to
17· ·Mr. Nazarian?
18· · · · · · · · · A.· I don't think so.· I just wanted
19· ·to step back and think about this one for a minute
20· ·or two.· So I -- I think I just said fine, I'll have
21· ·a look at it and with the intention of dealing with
22· ·the bookkeeper and not following through with it. I
23· ·just wasn't going to play that game.
24· · · · · · · · · Q.· And what did you do because I
25· ·think I cut you off in --
·1· · · · · · · · · A.· Well, I talked to the bookkeeper.
·2· · · · · · · · · Q.· And this is this Ramsey chap?
·3· · · · · · · · · A.· Yeah.· And I said, listen, these
·4· ·tenants are gone.· If you want to adjust the rent
·5· ·roll and put them back on, you guys do that down
·6· ·there.· But I'm not playing a game here, so that's
·7· ·your stuff.· You take care of it.
·8· · · · · · · · · Ramsey seemed sympathetic to my
·9· ·position and said he would talk to Bob and that's
10· ·the last I heard of that.
11· · · · · · · · · Q.· Did you -- were you ever asked
12· ·again to do anything of this nature?
13· · · · · · · · · A.· Of that nature?
14· · · · · · · · · Q.· Yeah.
15· · · · · · · · · A.· No.· I think my message had gone
16· ·out fairly clearly.
17· · · · · · · · · Q.· Now, I think you'd alluded to the
18· ·answer, but I'll just be more specific.· Do you know
19· ·why it was he wanted this adjustment on the -- so
20· ·this is the rent roll, eh?
21· · · · · · · · · A.· Yes.· The purpose?· I could only
22· ·surmise that as he had already explained to me there
23· ·was some refinancing going on.· Income and expense
24· ·statements were required.· The rent roll was part of
25· ·the supporting documents.· I can only assume that it
·1· ·was to enhance the income aspect of the financials.
·2· · · · · · · · · Q.· When you gave us some evidence a
·3· ·short while ago about your tracking the financials
·4· ·from Elliot Lake and you indicated that --
·5· · · · · · · · · A.· Yes.
·6· · · · · · · · · Q.· -- in some cases your view wasn't
·7· ·going to be accurate because you didn't see like,
·8· ·for example, the Alex Sennett accounts?
·9· · · · · · · · · A.· That's correct.
10· · · · · · · · · Q.· Would you see the expenditures
11· ·for materials with respect to the roof?
12· · · · · · · · · A.· Yes.
13· · · · · · · · · Q.· Okay.· And are you able to give
14· ·us an indication of what they would be?· How much
15· ·was being spent on the roof?
16· · · · · · · · · A.· It's a question that's difficult
17· ·to answer in that we purchased supplies on an
18· ·as-needed basis.
19· · · · · · · · · Q.· And on an as-needed would be,
20· ·roughly speaking, for how long?
21· · · · · · · · · A.· Well, I recall invoices coming in
22· ·and the invoice would be for around $3500, and that
23· ·would be a skid of product.· Depending on the
24· ·weather and how large a crew I had available to me,
25· ·we might use that all up in a week.· And on the
·1· ·other hand, it might last us up to three weeks.
·2· · · · · · · · · So the frequency of these invoices is
·3· ·something that escapes me right now.· And I would
·4· ·just have a difficult time identifying because, as I
·5· ·said, we might get three weeks in a row of spending
·6· ·3500, or we might have spent 3500 in one month.
·7· ·Just depending on our ability to use it up.
·8· · · · · · · · · Q.· And would it be accurate to say
·9· ·that there would be very little spending on product
10· ·in the winter months?· That is, when you were --
11· · · · · · · · · A.· Clearly.· We had product on hand,
12· ·but very little of it was required during the
13· ·winter.· I don't -- I don't believe we would use the
14· ·equivalent of a week's worth of summer product
15· ·during the winter.
16· · · · · · · · · Q.· All winter long?
17· · · · · · · · · A.· Yeah.
18· · · · · · · · · Q.· Okay.· And this would be that
19· ·$3500 figure, roughly?
20· · · · · · · · · A.· That's my best recollection, yes.
21· · · · · · · · · Q.· Okay.· And were there -- you've
22· ·told us that the people doing the work on the roof
23· ·were comprised of the maintenance crew from the
24· ·mall, plus they were supplemented, I gather in the
25· ·summer months, by some temporary workers?
·1· · · · · · · · · A.· That's correct.
·2· · · · · · · · · Q.· Okay.· And was there ever any
·3· ·companies hired during your time frame to perform
·4· ·repairs on the roof or was it simply the in-house
·5· ·efforts?
·6· · · · · · · · · A.· I don't believe there were any
·7· ·outside companies brought in during my tenure.· We
·8· ·used casual staff when the opportunity was available
·9· ·to us during the summer.· And the rest of the time,
10· ·it was the three maintenance staff in the mall.
11· · · · · · · · · Q.· Recognizing that this may not be
12· ·-- well, you've told us it's not a complete figure.
13· ·What were the sort of the average profits that you
14· ·were seeing on a monthly basis?· Because that's what
15· ·you'd be looking at, on a monthly basis?
16· · · · · · · · · A.· Yes.· I can't remember the
17· ·monthly basis, but my estimate was that we were over
18· ·a million a year.
19· · · · · · · · · Q.· As revenue or as a profit?
20· · · · · · · · · A.· That we were netting.· But it
21· ·depended on when I did that.· So, for example,
22· ·during the last months that I was there, we brought
23· ·in two new stores.· So that rental income was
24· ·significant and it alone would add a hundred
25· ·thousand dollars to the bottom line.
·1· · · · · · · · · Q.· On a yearly basis?
·2· · · · · · · · · A.· On a yearly basis.
·3· · · · · · · · · Q.· And what stores were they?
·4· · · · · · · · · A.· Pet Valu.
·5· · · · · · · · · Q.· And Color Your World?
·6· · · · · · · · · A.· Yes, Color Your World or Interior
·7· ·Solutions, yes.
·8· · · · · · · · · Q.· Did you become aware of any other
·9· ·questionable issues?· You've told us about the
10· ·attempt to ask you to fix up the rent rolls.· But
11· ·did you become aware of any other issues that, to
12· ·your way of thinking, didn't appear to be proper?
13· · · · · · · · · A.· No.· I think that we would ensure
14· ·-- the fact that we would ensure the mall was
15· ·spruced up and looking good when appraisers were
16· ·known to be coming through.· I think that's just
17· ·normal, the way I would want to spruce up my house
18· ·before selling it and similar.
19· · · · · · · · · Q.· Right.
20· · · · · · · · · A.· I can't think of any other
21· ·occasions when I was asked to do something like you
22· ·described.
23· · · · · · · · · Q.· Okay.· Did you become aware of a
24· ·person by the name -- whose first name was Sonya?
25· · · · · · · · · A.· Yes.
·1· · · · · · · · · Q.· And who is she?
·2· · · · · · · · · A.· My -- she was the maid at Bob
·3· ·Nazarian's house.
·4· · · · · · · · · Q.· And did you ever meet her?
·5· · · · · · · · · A.· Yes.
·6· · · · · · · · · Q.· And where did you meet her?
·7· · · · · · · · · A.· At his home, yes.
·8· · · · · · · · · Q.· And what connection, if any, did
·9· ·she have to Eastwood Mall?
10· · · · · · · · · A.· Well, she had -- she did not work
11· ·for Eastwood Mall.· I did see her name on the
12· ·payroll.· It bothered me at the time because I'm
13· ·trying to create a situation in Elliot Lake where
14· ·we're running a profitable operation and I can
15· ·demonstrate it's profitable for a potential buyer.
16· ·And so when I accidentally saw her name on the
17· ·payroll, I was upset by it because it sucked out of
18· ·the bottom line of the operation.
19· · · · · · · · · Q.· Did you speak to anybody about
20· ·that?
21· · · · · · · · · A.· I spoke to the bookkeeper, to --
22· ·or no, not Ramsey, but his son, who was, I believe,
23· ·the company's accountant at the time.
24· · · · · · · · · Q.· Was his name Sam?
25· · · · · · · · · A.· Sam.· And Sam said, you're right,
·1· ·but, Tom, we're not going to change it.
·2· · · · · · · · · Q.· I'm sorry.
·3· · · · · · · · · A.· We're not going to be able to
·4· ·change him, referring to the owner.
·5· · · · · · · · · Q.· And did she ever do any work in
·6· ·Elliot Lake?
·7· · · · · · · · · A.· No, no.
·8· · · · · · · · · Q.· Did you see her doing anything
·9· ·when you saw her at Mr. Nazarian's house?· Did you
10· ·see her doing anything that would be described as
11· ·office work?
12· · · · · · · · · A.· No.· The only thing I saw this
13· ·lady do was serve us some food and coffee.
14· · · · · · · · · Q.· Now, did you ever become aware --
15· ·and I'm switching topics here, I'm going back to the
16· ·condition of the building -- of a phenomenon where
17· ·there's some bouncing associated with the rooftop?
18· · · · · · · · · A.· Yes.
19· · · · · · · · · Q.· And what was that?
20· · · · · · · · · A.· I became aware of it during the
21· ·first days of being employed there.· And --
22· · · · · · · · · Q.· What was it you're talking about
23· ·here?
24· · · · · · · · · A.· Well, during the first couple of
25· ·days I was with one of the maintenance staff and we
·1· ·walked through the shipping corridor at the back of
·2· ·the stores in the mall.· Cars traveling overhead
·3· ·would cause this drumming noise and it was very loud
·4· ·and very distinct.· And I asked Al LaBreche what
·5· ·that was about.· And he explained to me that that
·6· ·was the concrete slabs bouncing, which I found
·7· ·unsettling because I didn't realize that concrete
·8· ·bounced.· I got used to it over time.
·9· · · · · · · · · Q.· Did you ever discuss it with
10· ·Mr. Nazarian?
11· · · · · · · · · A.· Yes, it was one of the
12· ·discussions we had, you know, in our initial
13· ·meetings and during my initiation to the job at the
14· ·mall.
15· · · · · · · · · Q.· Do you know where that area that
16· ·you're talking about, do you know where that was on
17· ·the upside -- when you're on top of the roof?
18· · · · · · · · · A.· This was not -- yes, I can relate
19· ·to the top of the roof on -- for that specific walk
20· ·through the corridor, but this happened everywhere.
21· ·Okay?· It wasn't -- it wasn't just in the corridors.
22· ·It echoed in the corridors because there was nothing
23· ·to muffle the sound, so it was most pronounced
24· ·there.· But you could hear this walking through the
25· ·main corridor of the mall itself.· If something
·1· ·heavy went across that roof, you knew about it right
·2· ·away.
·3· · · · · · · · · Q.· And what about when you would be
·4· ·up on the roof and something heavy would cross over
·5· ·the roof, what, if anything, would you feel?
·6· · · · · · · · · A.· You could feel a vibration.· You
·7· ·weren't being bounced up and down or anything
·8· ·extreme like that, but you felt the vibration.
·9· · · · · · · · · We were very serious in our policing
10· ·of vehicles on the roof.· We didn't allow any heavy
11· ·vehicles on the roof.
12· · · · · · · · · Q.· Was there a load limit that you
13· ·were aware of?
14· · · · · · · · · A.· I believe it was 10,000 pounds.
15· · · · · · · · · Q.· Okay.
16· · · · · · · · · A.· We did other things too.· For
17· ·example, snow clearing during the winter.· The
18· ·contract that I negotiated specifically said that
19· ·there had to be a rubber blade on the pick-up trucks
20· ·that plowed the snow.· Not the whole blade, but the
21· ·bottom that met with the concrete.· So they had to
22· ·use rubber that the -- if they were using pay
23· ·loaders, that the pay loaders were only allowed up
24· ·to the edge of roof, but not on it.
25· · · · · · · · · It was something that we were just
·1· ·very conscious of.· The roof moved.
·2· · · · · · · · · Q.· And did -- more specifically, did
·3· ·you ever discuss that with Mr. Nazarian or ask him
·4· ·what's going on?
·5· · · · · · · · · A.· Yes, all the people I asked,
·6· ·including Mr. Nazarian, told me that -- gave me the
·7· ·same answer, that's the way it was built.
·8· · · · · · · · · And I just came away thinking as
·9· ·another mystery of engineering that I never would
10· ·have thought off is to float the roof.
11· · · · · · · · · Q.· Thank you, Mr. Turner, those are
12· ·my questions and my colleagues will have some
13· ·questions for you.
14· · · · · · · · · A.· Thank you, sir.
15· · · · · · · · · THE COMMISSIONER:· Are you ready to
16· ·start cross-examination or would you wish a minute
17· ·or two?· Mr. Bisceglia?
18· · · · · · · · · CROSS-EXAMINATION BY MR. BISCEGLIA:
19· · · · · · · · · Q.· Good morning.
20· · · · · · · · · A.· Good morning, sir.
21· · · · · · · · · Q.· We met earlier.· My name is Joe
22· ·Bisceglia.· I'm counsel for Mr. Saunders who is an
23· ·engineer involved with M.R. Wright at the material
24· ·time of the mall being in existence.· I have a few
25· ·questions.
·1· · · · · · · · · My appreciation of your evidence was
·2· ·that at some point repairs were being conducted by
·3· ·the workers at the mall and that was shortly after
·4· ·you started working there, is that fair?
·5· · · · · · · · · A.· That's correct.
·6· · · · · · · · · Q.· And the areas that they were
·7· ·working on was the roof that you've described the
·8· ·activities that were being carried out there on the
·9· ·roof?
10· · · · · · · · · A.· Could I describe the activities?
11· · · · · · · · · Q.· I think you already have. I
12· ·think you indicated they were removing the caulking,
13· ·putting in the new sealer that was recommended by
14· ·Mr. England.· And it looked like you took a pretty
15· ·active role in supervising what was going on,
16· ·although you weren't familiar with the subject
17· ·matter at hand initially?
18· · · · · · · · · A.· That's correct.
19· · · · · · · · · Q.· And I gather as well, though,
20· ·that during the time that you were there, shortly
21· ·after you started there, there was some painting of
22· ·the rusted beams, if -- did I understand that
23· ·correctly?
24· · · · · · · · · A.· Yes.· These were beams under the
25· ·walkway at the front of the mall.
·1· · · · · · · · · Q.· This is on the exterior part of
·2· ·the mall?
·3· · · · · · · · · A.· Yes.
·4· · · · · · · · · Q.· And is that bit of an overhang
·5· ·over the walkway?· Have I got that right?
·6· · · · · · · · · A.· Um --
·7· · · · · · · · · Q.· Well, the building, there was a
·8· ·sidewalk and there was an overhang over the sidewalk
·9· ·or the walk area?
10· · · · · · · · · A.· This was on the ground level.
11· · · · · · · · · Q.· Right.
12· · · · · · · · · A.· There was a walkway above that.
13· · · · · · · · · Q.· Yes.
14· · · · · · · · · A.· Above the sidewalk.
15· · · · · · · · · Q.· Okay.
16· · · · · · · · · A.· And Mr. Nazarian said the beams
17· ·are all rusty and I need you to get them painted.
18· · · · · · · · · Q.· Right.
19· · · · · · · · · A.· So we set up the crew and at
20· ·night we sandblasted and painted.
21· · · · · · · · · Q.· And was there an engineer who
22· ·looked at or inspected the beams in the areas that
23· ·had been sandblasted and painted before they were
24· ·painted?
25· · · · · · · · · A.· I'm not aware of any engineer who
·1· ·did that, no.
·2· · · · · · · · · Q.· There's some evidence and some
·3· ·suggestion at some point that there may have been
·4· ·occurrences where painting occurred over rusty beams
·5· ·to make the mall look pretty or look presentable,
·6· ·and that not all of the rust or the condition of the
·7· ·beams may not have been looked at.· Who was
·8· ·supervising that work to see that the beams could be
·9· ·covered up or steel girders could be covered up?
10· · · · · · · · · A.· I would say that the supervision
11· ·was partly mine and partly the maintenance
12· ·supervisor's.· We were focused on the sandblasting,
13· ·the safety methods that the crew was using.· We --
14· · · · · · · · · Q.· But you would agree with me --
15· · · · · · · · · A.· We looked at the work that was
16· ·done, but didn't stand over someone's shoulder.· We
17· ·looked at the results of the night's work in the
18· ·morning and we were not aware of any faults in the
19· ·steel that caused us concern.
20· · · · · · · · · Q.· You were -- you weren't measuring
21· ·section loss and you weren't inspecting the beams
22· ·before they were covered up or painted, is that
23· ·fair?
24· · · · · · · · · A.· No.· We didn't have the capacity
25· ·or the knowledge to do that.
·1· · · · · · · · · Q.· And what areas of the mall, at
·2· ·least while you were there as the small manager,
·3· ·were sandblasted and painted by the mall employees?
·4· ·Was it just the area of the walkway or did that
·5· ·include also beams within some of the units
·6· ·themselves?
·7· · · · · · · · · A.· It was just on the exterior
·8· ·walkway at ground level.
·9· · · · · · · · · Q.· And was it the whole area that
10· ·was painted and sandblasted while you were there,
11· ·that whole walkway at the ground level?
12· · · · · · · · · A.· I believe so, yes.
13· · · · · · · · · Q.· Thank you.· That's all my
14· ·questions.
15· · · · · · · · · THE COMMISSIONER:· Mr. MacRae.
16· · · · · · · · · MR. MACRAE:· Thank you, Mr.
17· ·Commissioner.
18· · · · · · · · · CROSS-EXAMINATION BY MR. MACRAE.
19· · · · · · · · · Q.· Good morning.· I'm -- my name is
20· ·Rob MacRae and I'm counsel on behalf of Bob Wood,
21· ·and he's an engineer who has standing at this
22· ·Commission.
23
24· · · · · · · · · MR. MACRAE:· I wonder, Ms. Kuka, if
25· ·you might bring up Exhibit 3773.
·1· · · · · · · · · BY MR. MACRAE:
·2· · · · · · · · · Q.· While we're bringing up
·3· ·that exhibit, what was the last day that you worked,
·4· ·the date that you worked for Mr. Nazarian at
·5· ·Eastwood Mall, do you recall?
·6· · · · · · · · · A.· No, I don't recall.· It was at
·7· ·the end of January, beginning of February, I
·8· ·received an e-mail from him first thing in the
·9· ·morning.· I read it, packed up my briefcase, and
10· ·told the receptionist that I was going home sick.
11· · · · · · · · · About two weeks later, I got a notice
12· ·saying I was fired.· So it's either I was fired or I
13· ·quit depending on how you look at it.
14· · · · · · · · · Q.· How do you look at it?· What do
15· ·you see out of it?
16· · · · · · · · · A.· I quit.
17· · · · · · · · · Q.· Okay, thank you.· Prior to your
18· ·quitting then in February, with Exhibit No. 3773 I
19· ·just have some questions.
20· · · · · · · · · These documents, the dates on these
21· ·documents are after you left Eastwood Mall, but I
22· ·have some questions with them.· I wonder if we might
23· ·go to the first page, Ms. Kuka -- second page.
24· · · · · · · · · That's an invoice.· If we could blow
25· ·that up.· That's an invoice for a substantial amount
·1· ·of work.· The date of the invoice is August the
·2· ·18th, 2008.· It's for $310,000.· And I wonder, did
·3· ·you -- were you involved in any of that type of work
·4· ·that would have been done on the roof in 2007 or
·5· ·your time in 2008 that would have amounted to
·6· ·$310,000?
·7· · · · · · · · · A.· Not a chance, no.
·8· · · · · · · · · Q.· I wonder if we might go to the
·9· ·next page, please.· That's an exhibit as well too or
10· ·rather an invoice dated August 18th, 2008, for
11· ·231,000.· At item number six, it appears to have all
12· ·drains to be raised 2.5 inches.· Were you
13· ·involved -- during your tenure at the mall, were you
14· ·involved in any work with respect to raising the
15· ·drains that would have been -- would have cost
16· ·somewhere in the amount of 231,000?
17· · · · · · · · · A.· No.
18· · · · · · · · · Q.· Were you ever asked to approve
19· ·work of that nature?
20· · · · · · · · · A.· Never.· Sorry, we did work on the
21· ·drains during my time there, but that was just a
22· ·local plumber that we brought in to replace the
23· ·drain -- the initial funnel for the drain and to
24· ·ensure that the line was clear.
25· · · · · · · · · Q.· Was that a number of drains or
·1· ·was that just one?
·2· · · · · · · · · A.· He did a number of them, yes.
·3· · · · · · · · · Q.· And do you recall when that would
·4· ·have been done?
·5· · · · · · · · · A.· I believe it was in the late --
·6· ·no, I'm sorry, I don't recall.· It was during the
·7· ·summer.· Whether it was 2006 or 2007, I'm not sure.
·8· · · · · · · · · Q.· Did you authorize that work to be
·9· ·done?
10· · · · · · · · · A.· I did and the owner did.
11· · · · · · · · · Q.· Do you recall what the cost of
12· ·that particular work was?
13· · · · · · · · · A.· It was several thousand dollars.
14· ·I can't think of the specific number.
15· · · · · · · · · Q.· But aside from that work, are you
16· ·aware, during your tenure at the mall, whether there
17· ·was any additional work done on the roof drains?
18· · · · · · · · · A.· No, there was none.
19· · · · · · · · · Q.· If we might go to the next page,
20· ·please, Ms. Kuka.· The next is an account for
21· ·$488,000 and change.· It too is dated August the
22· ·18th, 2008.· And there's three items there.· Supply
23· ·and install new 4-inch drains, supply and install
24· ·new drain cage at each new location, and new drains
25· ·to be connected to the existing drainage system as
·1· ·required.
·2· · · · · · · · · Again same question.· During your
·3· ·tenure there, were you involved in any work that
·4· ·would have amounted to $488,655 as described in this
·5· ·invoice?
·6· · · · · · · · · A.· Absolutely not.
·7· · · · · · · · · Q.· Were you involved in preparing
·8· ·any documents with respect to tendering any work
·9· ·that would have dealt with the issue of installing
10· ·new drains?
11· · · · · · · · · A.· No.· That just wouldn't happen,
12· ·not that kind of number.
13· · · · · · · · · Q.· If I might go to the next page
14· ·then, please.· Now, this is item number 10, again
15· ·dated August the 18th.· It has a description of the
16· ·work completed as being remove and replace the
17· ·existing caulking around the roof exit structures,
18· ·$98,167.· Were you involved in any type of that work
19· ·during your tenure at the mall?
20· · · · · · · · · A.· We did that type of work, but it
21· ·had nothing to do with this invoice.· I'm not -- I'm
22· ·sorry, did I answer your question?
23· · · · · · · · · Q.· Well, I was asking if you had
24· ·been involved in any of that type of work during
25· ·your tenure and your evidence seems to be that you
·1· ·did with respect to -- could you describe to the
·2· ·Commission what your involvement would have been,
·3· ·not with respect to this work, but that type of work
·4· ·being done?
·5· · · · · · · · · A.· Yes.· The maintenance crew
·6· ·resurfaced the concrete steps at the entrances to
·7· ·the hotel and to the mall from the roof.· There was
·8· ·a step up from the parking level to enter into the
·9· ·doors and the concrete had chipped away over time.
10· ·So they resurfaced the cement there and recaulked
11· ·around the entranceway where the concrete met the
12· ·roof.
13· · · · · · · · · Q.· Thank you.· Now, you indicated
14· ·that you used the term they.· Am I correct in my
15· ·understanding that they were maintenance people
16· ·employed by Eastwood Mall who did all of that work?
17· · · · · · · · · A.· That's correct.
18· · · · · · · · · Q.· Did you ever hire a private
19· ·contractor to do any of the recaulking or removal of
20· ·caulking?
21· · · · · · · · · A.· No, I did not.
22· · · · · · · · · Q.· Thank you.· If I might have the
23· ·next page, please, Ms. Kuka.
24· · · · · · · · · This again is August 18th, 2008.· My
25· ·question is similar.· During your tenure at the
·1· ·mall, were you involved or did you supervise or
·2· ·manage work that's described as "expose problem
·3· ·areas by removing existing failed materials and
·4· ·replace with new concrete"?
·5· · · · · · · · · A.· We replaced concrete as I
·6· ·described, just a matter of resurfacing.
·7· · · · · · · · · Q.· Yes.
·8· · · · · · · · · A.· So we're talking a quarter inch,
·9· ·half inch in a two square foot area and that's the
10· ·kind of stuff we did.
11· · · · · · · · · Q.· And again when you use the term
12· ·we, am I correct in --
13· · · · · · · · · A.· My crew, my maintenance crew.
14· · · · · · · · · Q.· The employees from the mall?
15· · · · · · · · · A.· Employees of the mall, yes.
16· · · · · · · · · Q.· And did you -- were you involved
17· ·during your tenure there with any contractual
18· ·outsourcing of this work to a contractor?
19· · · · · · · · · A.· No.
20· · · · · · · · · Q.· Thank you.· Next page please,
21· ·Ms. Kuka.
22· · · · · · · · · Now, again, item number 12 and item
23· ·number 13, invoice date is August the 18th.· Number
24· ·12 is "remove the existing sealants at all expansion
25· ·joints approximately 450 linear feet."· Item number
·1· ·13 is "install EJ-500EDPM expansion joint system as
·2· ·per manufacturer's spec."
·3· · · · · · · · · Aside from the standard maintenance
·4· ·that was done as you've already testified to, are
·5· ·you aware, during your tenure, whether there was an
·6· ·outside contractor that did any of this work?
·7· · · · · · · · · A.· No outside contractor did any of
·8· ·this work while I was employed there.
·9· · · · · · · · · Q.· Thank you.· The next page please,
10· ·Ms. Kuka.
11· · · · · · · · · Again, an invoice dated August the
12· ·18th, 2008.· Two items.· "Rout and seal any and all
13· ·visible cracks to the concrete surface.· Minimum
14· ·depth one half inch by a maximum width one quarter
15· ·inch."· Item number 15, "remove and clean old
16· ·caulking from previously repaired/failed cracks to
17· ·restore the proper seal according to the
18· ·manufacturer's specs."· The amount charged for that
19· ·is 115,168, and my question is the same.· During
20· ·your tenure at the mall, did you employ any outside
21· ·contractors to do work of this nature?
22· · · · · · · · · A.· No, I did not.
23· · · · · · · · · Q.· I believe there's one more page,
24· ·Ms. Kuka, if I might.· That's it.
25· · · · · · · · · Those are my questions, thank you
·1· ·very much.
·2· · · · · · · · · A.· Thank you, sir.
·3· · · · · · · · · THE COMMISSIONER:· Mr. Richard.
·4· · · · · · · · · CROSS-EXAMINATION BY MR. RICHARD:
·5· · · · · · · · · Q.· Good morning, Mr. Turner.
·6· · · · · · · · · A.· Morning.
·7· · · · · · · · · Q.· My name's Shawn Richard.· I'm
·8· ·here as counsel on behalf of ELMAC.
·9· · · · · · · · · We've heard that you were supervising
10· ·the repairs to the roof, basically I think you
11· ·described it as filling holes and cracks.· And we
12· ·heard that Mr. Nazarian didn't ask if you had any
13· ·experience fixing roofs, but did you tell him that
14· ·you didn't have any experience fixing roofs?
15· · · · · · · · · A.· Yes, I told him I didn't have
16· ·experience fixing roofs.· I think that just
17· ·regarding your statement that I was supervising the
18· ·roof, I was acting as general manager on the repair
19· ·of the roof.· Although, I did get a pair of jeans
20· ·and work boots and learn how to do it myself with
21· ·the guidance of the maintenance crew, I did not
22· ·supervise the daily work up there.· I went up to see
23· ·how it was going and talk to the supervisor.
24· · · · · · · · · Q.· So you put on boots, you got a
25· ·bit of training, and you yourself actually put some
·1· ·of the silicone in the cracks and holes?
·2· · · · · · · · · A.· Yes, I did for a couple of days.
·3· · · · · · · · · Q.· And apart from -- how long was
·4· ·that training that you received to do that?
·5· · · · · · · · · A.· I think we'd refer to it as
·6· ·on-the-job training.· I watched how it was done. I
·7· ·was told how it was done.· Then I was given the tool
·8· ·and was told, okay, you try it.· So over the few
·9· ·days, I learned how to do it.· It's not the most
10· ·highly skilled requirement when it comes to labour.
11· · · · · · · · · Q.· How would you know if you were
12· ·doing it correctly?
13· · · · · · · · · A.· Well, I was told that I was doing
14· ·it correctly by Brian England, who was, at that
15· ·time, believed to be our expert and Dow Corning's
16· ·man in place.
17· · · · · · · · · Q.· Earlier you told my friend that
18· ·Mr. Nazarian had an idea of putting a tent over the
19· ·roof?
20· · · · · · · · · A.· Yes.
21· · · · · · · · · Q.· Do you know where he got that
22· ·idea?
23· · · · · · · · · A.· No, I don't.· I don't know where
24· ·he got the idea.
25· · · · · · · · · Q.· May I have Exhibit No. 4127,
·1· ·please.· May I have the second page?
·2· · · · · · · · · You can see in number 9, "MALL SALE -
·3· ·I have been in touch with lawyer Fabris' office."
·4· ·Sorry, let's go back to the first page.· My
·5· ·apologies.
·6· · · · · · · · · This is an e-mail from you to
·7· ·Mr. Nazarian, and it's dated July 27th, 2006.· Now
·8· ·can I go to second page, please?· And item number 9
·9· ·is the mall sale and it says:
10· · · · · · · · · "I have been in touch with lawyer
11· · · · · · · · · Fabris' office and requested an
12· · · · · · · · · appointment when Rene is in next.
13· · · · · · · · · I'll advise you the outcome once I
14· · · · · · · · · find out where he is on his review."
15· · · · · · · · · When did Mr. Nazarian first express
16· ·an intention to sell the mall?
17· · · · · · · · · A.· Well, this is dated 2006.
18· · · · · · · · · Q.· Yes.
19· · · · · · · · · A.· So this is within three weeks of
20· ·my starting employment there.· My recollection is
21· ·that the mall was always for sale, if you had enough
22· ·money to buy the mall.
23· · · · · · · · · So there were always what I thought
24· ·of as tire kickers looking at the mall.· Real estate
25· ·agents essentially trying to get the listing for it.
·1· · · · · · · · · Q.· Yes.
·2· · · · · · · · · A.· So they would call up and suggest
·3· ·they had a buyer.· And if we'd gone the next step,
·4· ·then they would be the listing agent.
·5· · · · · · · · · One agent had it on his website as
·6· ·for sale all the time I can remember being there.
·7· · · · · · · · · Q.· Apart from the tire kickers and
·8· ·agents who would contact the mall, were you involved
·9· ·in sort of any active pursuits of selling the mall
10· ·during your tenure at Eastwood?
11· · · · · · · · · A.· No, I wasn't.
12· · · · · · · · · Q.· Can I have Exhibit No. 11-85,
13· ·please?· And it's the last page.· If we can magnify
14· ·it a bit.· Thanks.
15· · · · · · · · · We can see that one of the things
16· ·that are required in the first box you can see under
17· ·remedy is that Eastwood prevent leakage of water
18· ·into the mall.
19· · · · · · · · · A.· Yes.
20· · · · · · · · · Q.· And in fact you had to --
21· ·Eastwood had to achieve a watertight roof.
22· · · · · · · · · A.· Yes, that's correct.
23· · · · · · · · · Q.· And we heard that you created a
24· ·plan to address the problem of the leaky roof?
25· · · · · · · · · A.· That's right.
·1· · · · · · · · · Q.· And part of that included a
·2· ·project timeline?
·3· · · · · · · · · A.· Yes.
·4· · · · · · · · · Q.· And your November 13, 2006,
·5· ·letter you advised the City that a reasonable time
·6· ·to expect completion of the work was August of 2007?
·7· · · · · · · · · A.· That's correct.
·8· · · · · · · · · Q.· You also advised that an
·9· ·engineer's report would be available in the near
10· ·future?
11· · · · · · · · · A.· Yes.
12· · · · · · · · · Q.· And that engineer turned out to
13· ·be Bruce Caughill?
14· · · · · · · · · A.· Caughill, yes.
15· · · · · · · · · Q.· And Mr. Caughill, as we saw in
16· ·the letter, advised that he expected his report to
17· ·be available within six months.· I believe the date
18· ·of that letter was the end of February of 2007?
19· · · · · · · · · A.· I believe you're right.
20· · · · · · · · · Q.· So we're looking about the end of
21· ·August of 2007?
22· · · · · · · · · A.· Correct.
23· · · · · · · · · Q.· To your knowledge, what follow up
24· ·did the City officials do to ensure that Eastwood
25· ·had prevented leakage of water into the mall?
·1· · · · · · · · · A.· In what timeframe, sorry?
·2· · · · · · · · · Q.· During your tenure.
·3· · · · · · · · · A.· Oh.· As I think about it, I think
·4· ·this was the only action I'm aware that they took.
·5· ·I did have pro-active -- or I did take a pro-active
·6· ·stance when it came to meeting with officials at the
·7· ·City to brief them or even just accidentally on
·8· ·purpose bump into them in the food court of the mall
·9· ·to just have a word and say this is how it's going.
10· ·So I tried to maintain the contact, but there was no
11· ·-- they didn't chase me.
12· · · · · · · · · Q.· Okay.· I'm not at all concerned
13· ·of the steps that you took, but the steps that they
14· ·took after this Notice of Violation was issued.· And
15· ·my understanding is that it was nothing.
16· · · · · · · · · A.· I don't believe there was
17· ·anything.· I got the impression they were satisfied
18· ·by the action that I had taken either in just
19· ·talking to them and telling them or in the actual
20· ·written letters that I sent to them.
21· · · · · · · · · Q.· Right.
22· · · · · · · · · A.· Satisfied that we were doing
23· ·something.
24· · · · · · · · · Q.· Right.
25· · · · · · · · · A.· Okay.
·1· · · · · · · · · Q.· But what action did they take to
·2· ·ensure that the mall didn't leak?
·3· · · · · · · · · A.· None that I'm aware of beyond
·4· ·that.
·5· · · · · · · · · Q.· And is that the same answer for
·6· ·ensuring that the mall was watertight?
·7· · · · · · · · · A.· Yes.· Yes, it would be.
·8· · · · · · · · · Q.· To your knowledge what follow-up
·9· ·did the City officials do to ensure that they
10· ·received a report certifying the acceptability of
11· ·the existing condition of the remediation steps
12· ·necessary to be taken to ensure the structural
13· ·capacity of the mall?
14· · · · · · · · · A.· The structural integrity of the
15· ·mall?· We're referring to --
16· · · · · · · · · Q.· Basically, what steps did they
17· ·take to ensure they got that report that Caughill
18· ·was to produce?
19· · · · · · · · · A.· I'm not aware of any steps that
20· ·they took to follow up on that.· There may have been
21· ·conversations direct to Bruce Caughill, but he did
22· ·not make me aware of any.
23· · · · · · · · · Q.· And we see at the bottom that the
24· ·deadline for that report appears to be
25· ·December 15th, 2006?
·1· · · · · · · · · A.· Yes, that's correct.· I believe I
·2· ·made it clear to the CAO at the time that teetered
·3· ·on absurd.· There were no engineers in the area.
·4· ·And we were at their schedule, not our own, you
·5· ·know, when we did hire one.
·6· · · · · · · · · Q.· And by February 4th, 2008, your
·7· ·tenure with Eastwood came to an end?
·8· · · · · · · · · A.· Yes.
·9· · · · · · · · · Q.· And by that time, the roof was
10· ·still leaking?
11· · · · · · · · · A.· Yes.
12· · · · · · · · · Q.· It wasn't watertight?
13· · · · · · · · · A.· That's correct.
14· · · · · · · · · Q.· You mentioned earlier that, you
15· ·know, as the mall manager, you'd see City officials
16· ·in the food court.· Yes?
17· · · · · · · · · A.· Yes.
18· · · · · · · · · Q.· And when you saw them, you know,
19· ·rather than Hi, how are you doing?· It was rather
20· ·Hi, how are the leaks, sort of thing, as a greeting?
21· · · · · · · · · A.· Yes.· It was often I was on the
22· ·receiving end of a joke.
23· · · · · · · · · Q.· And you mentioned talking to
24· ·Mr. Allard and Mr. Clouthier about the leaks.· Were
25· ·there any other City officials that you had
·1· ·conversations with at the mall about the leaks?
·2· · · · · · · · · A.· Well, I had casual conversations
·3· ·with, I believe, the majority of the members of a
·4· ·Council.
·5· · · · · · · · · Q.· How about the Mayor?
·6· · · · · · · · · A.· Was the Mayor at the time Farkouh
·7· ·or Hamilton?
·8· · · · · · · · · Q.· I believe it was Farkouh at the
·9· ·time.· Both.· I think they crossed over at that
10· ·time.
11· · · · · · · · · A.· Yeah, I don't recall any
12· ·conversations with George Farkouh.· I did have,
13· ·again, very casual conversations with Rick Hamilton
14· ·and Councillors who were on the Council at the time.
15· · · · · · · · · Q.· Do you recall seeing Mayor
16· ·Farkouh in the mall?
17· · · · · · · · · A.· Yes, I recall seeing him in the
18· ·mall, but I'm not sure whether it was during my
19· ·tenure or after.· My -- I believe that there was an
20· ·election during my tenure and that he rented space
21· ·in the mall, temporary office space in the mall, to
22· ·run a campaign at the time.· I could be wrong.
23· · · · · · · · · Q.· Okay.· May I have Exhibit No.
24· ·10-89?
25· · · · · · · · · Sorry, just to go back to what you
·1· ·said about a possibility of rented space.· Do you
·2· ·recall where in the mall he may have rented space?
·3· · · · · · · · · A.· I believe it was on the east/west
·4· ·corridor near the flower -- near the gift and card
·5· ·shop, but I'm not positive.
·6· · · · · · · · · Q.· But what level is the gift and
·7· ·card shop?
·8· · · · · · · · · A.· It's on the second floor.
·9· · · · · · · · · Q.· Sorry.· Looking at Exhibit No.
10· ·10-89, if you could scroll down, please?· Yeah,
11· ·that's good.
12· · · · · · · · · This looks -- sorry, let's go to the
13· ·top again, just so I'm fair to you.· It says "Tenant
14· ·Meeting Notes" and date, Wednesday, September 6th,
15· ·2006.· Do you remember a meeting with the tenants on
16· ·September 6th, 2006?
17· · · · · · · · · A.· I remember a meeting with the
18· ·tenants, I don't know if that was the date.· I don't
19· ·see my name included as attending.
20· · · · · · · · · Q.· Well, let's go down.
21· · · · · · · · · A.· I don't know whose notes these
22· ·are.
23· · · · · · · · · Q.· You can see it says Tom and there
24· ·are questions.
25· · · · · · · · · A.· Yes.
·1· · · · · · · · · Q.· And there's an estimate of the
·2· ·cost of the project to fix the roof.
·3· · · · · · · · · "This project will cost approximately
·4· · · · · · · · · 50,000 plus GST plus the equipment
·5· · · · · · · · · and labour.· Estimated cost will be
·6· · · · · · · · · $150,000.· This project is headed by
·7· · · · · · · · · Brian England, who is knowledgeable
·8· · · · · · · · · in this field [I think it should
·9· · · · · · · · · say].· Due to the guarantee for the
10· · · · · · · · · product, we had to hire someone so
11· · · · · · · · · the warrantee would be fulfilled."
12· · · · · · · · · A.· That's correct.
13· · · · · · · · · Q.· And that information looks
14· ·correct to you?
15· · · · · · · · · A.· That information is true at the
16· ·time.
17· · · · · · · · · Q.· Yes.
18· · · · · · · · · A.· As it turned out, I'm not sure
19· ·about the warranty.
20· · · · · · · · · Q.· Sorry.· Is there anyone else who
21· ·have would have held these tenant meetings with the
22· ·tenants during your tenure at the time that it was
23· ·proposed that Brian England would embark on this
24· ·project?
25· · · · · · · · · A.· No, no, it would be me.· No one
·1· ·else would do that.
·2· · · · · · · · · Q.· Okay.· So if we go further down,
·3· ·we see Rhona Guertin and she asks, "How will this
·4· ·affect our common area budget?"
·5· · · · · · · · · A.· Yes.· It was a clever question on
·6· ·her part.
·7· · · · · · · · · Q.· Why?
·8· · · · · · · · · A.· Well, because common area
·9· ·expenses are expenses that are shared or divided up
10· ·proportionately amongst the tenants and whereas
11· ·capital expense is something that sits solely on the
12· ·landlord.
13· · · · · · · · · Q.· On Eastwood?
14· · · · · · · · · A.· Right.· Rhona is very familiar
15· ·with the mall.· She's one of the people -- or
16· ·controlling minds behind NorDev at the time that
17· ·they owned it.
18· · · · · · · · · Q.· Right.
19· · · · · · · · · A.· And what she's looking for here
20· ·or I suspected was me to turn around and say
21· ·something stupid like this is coming out of capital
22· ·budget and that would have left her with a large
23· ·smile on her face.
24· · · · · · · · · At this point I was going to play
25· ·dumb and take the opportunity to talk with
·1· ·Mr. Nazarian.
·2· · · · · · · · · Q.· Right.· So you're taking the
·3· ·opportunity to play dumb, but did you know the
·4· ·answer to that question?
·5· · · · · · · · · A.· I was pretty sure at the time
·6· ·that it was going to be common area expense.· But
·7· ·how that was going to be calculated was something
·8· ·that was going to be done in Richmond Hill.
·9· · · · · · · · · Q.· Right, but just so I'm clear,
10· ·your understanding was the work that was done on the
11· ·roof with the silicone, pulling up the polyurethane,
12· ·smoothing out the cracks, those were going to be
13· ·common area expenses and those would be passed down
14· ·to the tenants?
15· · · · · · · · · A.· Yes, because this was
16· ·maintenance.· We weren't building something new.· We
17· ·were maintaining or fixing something existing and
18· ·old.
19· · · · · · · · · Q.· Okay.· So what was Mr. Nazarian
20· ·out of pocket with regards to the repairs to the
21· ·roof if the tenants were covering them?
22· · · · · · · · · A.· I didn't -- that's if it was
23· ·passed on to the tenants as common area charges.
24· · · · · · · · · Q.· Right.
25· · · · · · · · · A.· In my tenure there, I did not see
·1· ·it passed on to the tenants in the common area
·2· ·maintenance charges.
·3· · · · · · · · · Q.· Did you not see it either way or
·4· ·are you saying it was charged as a capital cost
·5· ·during your tenure or are you just not aware of how
·6· ·it was charged, whether it was a common area cost or
·7· ·a capital cost?
·8· · · · · · · · · A.· It appeared to me that it had
·9· ·been treated as a capital cost.· I never did get a
10· ·definitive answer on that, so in the end I did not
11· ·know how it was treated.
12· · · · · · · · · Q.· Did you ever ask for historical
13· ·financial information?
14· · · · · · · · · A.· Yes, I did.· I wanted to prepare
15· ·a business plan for Eastwood Mall, for the shopping
16· ·centre.· So in order to grow it, I had to have a
17· ·sense of the -- its financial position and what kind
18· ·of a cash flow it could generate.· Specifically the
19· ·cash flow to determine what kind of projects we
20· ·could undertake and for how long.
21· · · · · · · · · Q.· Did you ever get that historical
22· ·financial information?
23· · · · · · · · · A.· No.
24· · · · · · · · · Q.· Did you ask for monthly financial
25· ·statements?
·1· · · · · · · · · A.· Well, I did initially.
·2· · · · · · · · · Q.· Yes.
·3· · · · · · · · · A.· And, no, I didn't receive those.
·4· · · · · · · · · Q.· Did you work with a budget?
·5· · · · · · · · · A.· No, I didn't have a budget to
·6· ·work with.· You're talking about as part of a
·7· ·financial statement --
·8· · · · · · · · · Q.· Yes.
·9· · · · · · · · · A.· -- a proper budget.· No.
10· · · · · · · · · Q.· But you created your financials
11· ·locally?
12· · · · · · · · · A.· I attempted to, yes.
13· · · · · · · · · Q.· And on occasion you'd see income
14· ·statements?
15· · · · · · · · · A.· On occasion.
16· · · · · · · · · Q.· But you didn't see the large
17· ·expenses?
18· · · · · · · · · A.· I saw some large expenses when I
19· ·would -- might see a monthly income and expense
20· ·statement.· But, no, I wasn't privy to all of them.
21· ·I'm sure that I didn't see 95% of them.
22· · · · · · · · · Q.· Like the cost of the cameras that
23· ·Mr. Sennett installed?
24· · · · · · · · · A.· Like the cost of the cameras.
25· · · · · · · · · Q.· You were an investigator for the
·1· ·OSC?
·2· · · · · · · · · A.· Yes.
·3· · · · · · · · · Q.· And you'd also worked for the
·4· ·RCMP?
·5· · · · · · · · · A.· Yes.
·6· · · · · · · · · Q.· And I believe your specialty was
·7· ·fraud?
·8· · · · · · · · · A.· Yes.
·9· · · · · · · · · Q.· In the course of your
10· ·investigations to detect fraud, you would look at
11· ·things like monthly financial statements?
12· · · · · · · · · A.· Yes.
13· · · · · · · · · Q.· You would look at historical
14· ·financial statements?
15· · · · · · · · · A.· Yes.
16· · · · · · · · · Q.· And you offered Mr. Nazarian a
17· ·copy of your CV, your resume, when you were hired?
18· · · · · · · · · A.· I believe I submitted a CV that
19· ·was applicable to the job I was applying for.
20· · · · · · · · · Q.· And you told him about your
21· ·experience, though?
22· · · · · · · · · A.· Yes, over -- over time, yes.
23· · · · · · · · · Q.· And you're the mall manager and
24· ·part of that role, you entered contracts on behalf
25· ·of the mall?
·1· · · · · · · · · A.· Yes.
·2· · · · · · · · · Q.· You ensured that rents were
·3· ·collected?
·4· · · · · · · · · A.· Yes.
·5· · · · · · · · · Q.· That spaces were rented?
·6· · · · · · · · · A.· Yes.
·7· · · · · · · · · Q.· That you had -- you had some
·8· ·authority to spend money, I believe it was up to a
·9· ·thousand dollars for your own discretion?
10· · · · · · · · · A.· Yes.
11· · · · · · · · · Q.· You had access to petty cash?
12· · · · · · · · · A.· Yes.
13· · · · · · · · · Q.· But you worked without a budget?
14· · · · · · · · · A.· Yes.
15· · · · · · · · · Q.· You weren't allowed to have
16· ·historical financial information?
17· · · · · · · · · A.· That's correct.
18· · · · · · · · · Q.· You weren't allowed to have
19· ·monthly financial statements?
20· · · · · · · · · A.· That's correct.
21· · · · · · · · · Q.· But you asked for all of that
22· ·information?
23· · · · · · · · · A.· Yes.
24· · · · · · · · · Q.· What was --
25· · · · · · · · · A.· I didn't ask for this like on a
·1· ·regular basis.· I initially asked for them and I may
·2· ·have brought it up in six months.· I brought it up a
·3· ·few times because the concept of putting a business
·4· ·plan together was important to me.· That's what I
·5· ·wanted it for.
·6· · · · · · · · · Q.· And did you ever ask Mr. Nazarian
·7· ·directly?
·8· · · · · · · · · A.· Yes.
·9· · · · · · · · · Q.· And what was his response?
10· · · · · · · · · A.· At the time it was vague and he
11· ·was going to look into it.
12· · · · · · · · · Q.· And you made it clear to him why
13· ·you needed that information?
14· · · · · · · · · A.· I got the impression that the
15· ·business plan wasn't as important to him as it was
16· ·to me, which made me wonder that, well, you know,
17· ·maybe the -- maybe we're selling the place.· Maybe
18· ·there's a deal on the go that I don't know about.
19· · · · · · · · · His operations of the company were
20· ·his.· It was his company.· I was the general
21· ·manager.· I was trying to do a piece of his whole
22· ·operations.· And so I just accepted it as perhaps a
23· ·situation where I just didn't have the authority to
24· ·know what was going on or wasn't trusted with it,
25· ·whatever.
·1· · · · · · · · · Q.· Those are my questions.
·2· · · · · · · · · A.· Thank you.
·3· · · · · · · · · THE COMMISSIONER:· Mr. Cassan.
·4· · · · · · · · · CROSS-EXAMINATION BY MR. CASSAN:
·5· · · · · · · · · Q.· Mr. Turner, my name is Paul
·6· ·Cassan.· I'm counsel for the City of Elliot Lake.
·7· ·Good day, sir.
·8· · · · · · · · · I understand that before you came to
·9· ·the mall, you were living in St. Catharines?
10· · · · · · · · · A.· Yes.
11· · · · · · · · · Q.· Did you know Mr. Derreck while
12· ·you were living in St. Catharines?
13· · · · · · · · · A.· No.· I did actually encounter him
14· ·once, but we were never introduced and we never
15· ·spoke.· It was at a City Council meeting.
16· · · · · · · · · Q.· I see.· After you became the mall
17· ·manager, I understand that you became friends with
18· ·Mr. Derreck?
19· · · · · · · · · A.· Yes, social acquaintance.
20· · · · · · · · · Q.· And when was it that Mr. Derreck
21· ·was hired by Eastwood Mall?
22· · · · · · · · · A.· Mr. Derreck -- I asked him to do
23· ·a short project for me.· He had been let go by the
24· ·City.· He was still in town and it looked like an
25· ·opportunity to put someone right to work on a quick
·1· ·project.· I don't really remember whether we
·2· ·completed it or not.
·3· · · · · · · · · Q.· Ms. Kuka, could you pull up
·4· ·Exhibit No. 3400 and particularly page two of that
·5· ·document.· This may help you.
·6· · · · · · · · · A.· Good.
·7· · · · · · · · · Q.· So this looks to be the solar
·8· ·panel project that was being contemplated for the
·9· ·roof of the Eastwood Mall.· Is that the project that
10· ·you hired Mr. Derreck for?
11· · · · · · · · · A.· Yes.· There were -- it wasn't
12· ·just the solar.· We were also entertaining the idea
13· ·of wind power.
14· · · · · · · · · Q.· I see.· And so what was
15· ·Mr. Derreck's responsibility with respect to working
16· ·at the mall?
17· · · · · · · · · A.· My recollection here is that what
18· ·I'd asked him to do was to research the heritage
19· ·fund.· Determine whether there was an opportunity to
20· ·gain access to their grant system when it came to
21· ·alternative energy sources, and, if so, assist us in
22· ·making application for the grant to either go solar
23· ·or wind.
24· · · · · · · · · Q.· And it appears from the text of
25· ·this letter that the Northern Ontario Heritage Fund
·1· ·was interested in the project.· Do you know where it
·2· ·went from here?
·3· · · · · · · · · A.· No, I really don't.· I think that
·4· ·around this time we had to start looking at real
·5· ·numbers.· How much investment it would take from us
·6· ·versus just determining, you know, what the grant
·7· ·availability was.· So now we were into a longer term
·8· ·project.
·9· · · · · · · · · This would have come to my attention
10· ·at the beginning of November, this particular
11· ·letter.· We were entering into a very busy time at
12· ·the mall because we're into the Christmas area.
13· · · · · · · · · Also during that time, I was away for
14· ·four or five days while I went to the Best Western
15· ·conference in Montreal to look at their stuff and
16· ·determine how our -- how we could utilize the hotel
17· ·to our best interest.
18· · · · · · · · · So this was just a project in the
19· ·midst of numerous projects on the go.
20· · · · · · · · · Q.· When this project was going on,
21· ·was Mr. Derreck discussing with you the need to
22· ·repair the mall roof before the solar panels or the
23· ·energy generating equipment goes on it?
24· · · · · · · · · A.· I don't believe we had that
25· ·conversation.· It may have happened, but my
·1· ·recollection -- the idea was to put these panels on
·2· ·the roof of the hotel.
·3· · · · · · · · · Q.· Oh, I see.
·4· · · · · · · · · A.· Because if you put them on the
·5· ·roof of the -- like the parking deck is what you're
·6· ·referring to?
·7· · · · · · · · · Q.· We've seen plans put forward by a
·8· ·successor to you, Rod Adair, that suggested panels
·9· ·on the whole roof, so I didn't know if that was the
10· ·same project.
11· · · · · · · · · A.· No.· Panels on the parking deck
12· ·were not part of the thought process at this time or
13· ·at the time the exhibit was generated.
14· · · · · · · · · The concept was could we put panels
15· ·on the roof of the hotel?· And would it either
16· ·generate us money or could we use the power
17· ·generated internally in the hotel, shopping centre
18· ·complex, because it was -- it was all one
19· ·electro-mechanical structure.· You couldn't detach
20· ·one from the other.
21· · · · · · · · · MR. CASSAN:· Mr. Commissioner, I'm
22· ·going to move to a different area now.· I wonder if
23· ·you wish to take a break?
24· · · · · · · · · THE COMMISSIONER:· We'll break until
25· ·2:00 this afternoon.· Thank you.
·1· · · · · · · · · ---· Luncheon break taken at 12:50
·2· ·p.m.
·3· · · · · · · · · ---· Upon resuming at.
·4· · · · · · · · · Upon resuming at 2:00 p.m.
·5· · · · · · · · · THE COMMISSIONER:· Good afternoon.
·6· · · · · · · · · A.· Afternoon, sir.
·7· · · · · · · · · MR. CASSAN:· Thank you, Mr.
·8· ·Commissioner.
·9· · · · · · · · · BY MR. CASSAN:
10· · · · · · · · · Q.· Mr. Turner, when you discovered
11· ·the extent of the leaking after you became the mall
12· ·manager, did you have any correspondence with the
13· ·Chief Building Official in advance of the Notice of
14· ·Violation?
15· · · · · · · · · A.· No, I did not.· Sorry -- on that
16· ·topic?
17· · · · · · · · · Q.· Yes, I'm sorry.
18· · · · · · · · · A.· Not on that topic, no.· We were
19· ·rebuilding the washrooms in the mall
20· · · · · · · · · Q.· Sure.
21· · · · · · · · · A.· -- shortly after I started and
22· ·that required permits and the like.
23· · · · · · · · · Q.· I understand that the first
24· ·efforts that you undertook with respect to the roof
25· ·was replacing the caulking and then you changed the
·1· ·compound that you were using.· Where did you get the
·2· ·advice to do that?
·3· · · · · · · · · A.· Change -- is this the change when
·4· ·we changed from urethane to silicone that you're
·5· ·referring to?
·6· · · · · · · · · Q.· Is that the first change?· That
·7· ·was from Mr. England, right?
·8· · · · · · · · · A.· That's correct.
·9· · · · · · · · · Q.· And then I guess you changed back
10· ·from the Dymonic which was --
11· · · · · · · · · A.· Back to the Dymonic.
12· · · · · · · · · Q.· Back to the Dymonic.· So where
13· ·did that advice come from?
14· · · · · · · · · A.· That was a direction from the
15· ·owner, from Mr. Nazarian.
16· · · · · · · · · Q.· That was from Mr. Nazarian?
17· · · · · · · · · A.· Yes.
18· · · · · · · · · Q.· And what was the basis of that?
19· · · · · · · · · A.· I believe it was an issue of
20· ·cost.
21· · · · · · · · · Q.· I guess, would I be correct in
22· ·suggesting there was no professional advice about
23· ·the material effectiveness?
24· · · · · · · · · A.· Well, I didn't receive any
25· ·professional advice regarding the change, the -- in
·1· ·material.
·2· · · · · · · · · Q.· And did Mr. Nazarian let you know
·3· ·that he did or did not?
·4· · · · · · · · · A.· No, he did not.
·5· · · · · · · · · Q.· Do you have any information about
·6· ·whether Mr. Nazarian knew or was aware that the
·7· ·safety of the building was diminishing over your
·8· ·tenure?
·9· · · · · · · · · A.· I had no knowledge in receiving
10· ·that opinion from anyone.· I never heard anyone say
11· ·directly or indirectly to me or anyone in my
12· ·presence that the safety of the building was
13· ·diminishing.
14· · · · · · · · · Q.· And you didn't have a discussion
15· ·like that with Mr. Nazarian when you were talking
16· ·about the leaks or the Notice of Violation or
17· ·anything from Mr. Caughill?
18· · · · · · · · · A.· We didn't approach it in that
19· ·fashion.· It was -- it was a circumstance where we
20· ·had an issue.· The issue was water leakage.· And we
21· ·had a direction from the City, a Notice of Violation
22· ·saying get it fixed.
23· · · · · · · · · We also had another issue which was
24· ·the Fire Department calling us out on the
25· ·waterproofing or, I'm sorry, the fire proofing
·1· ·batting on the beams.
·2· · · · · · · · · And so it wasn't looked upon as a
·3· ·degradation in the building that was all going.· It
·4· ·was looked on as everybody knows it's leaking.· This
·5· ·is no big surprise.· Let's do what we can to
·6· ·continue trying to fix it.
·7· · · · · · · · · Q.· All right.· So it was not
·8· ·approached as a safety issue, is that fair to say?
·9· · · · · · · · · A.· I think the concept of safety was
10· ·encompassed in our mindset in repairing the place.
11· · · · · · · · · Q.· In what respect?· Was it safety
12· ·like slip and fall issues or was it safety like
13· ·structural issues?
14· · · · · · · · · A.· Both.· Chipped cement and widened
15· ·joints were likely culprits for slip and falls,
16· ·which would, aside from someone being injured, also
17· ·could affect us financially because there's
18· ·likelihood of claims against us.
19· · · · · · · · · The situation was that I don't think
20· ·any of us wanted to see anything happen where
21· ·someone would get hurt.· So safety was incorporated
22· ·in our thought process as we repaired.
23· · · · · · · · · Q.· All right.· Once the Notice of
24· ·Violation was issued in 2006, I presume that you at
25· ·that point then became aware that the Property
·1· ·Standards By-Law required the roof to be watertight?
·2· ·Is that correct?
·3· · · · · · · · · A.· Did you say the Property
·4· ·Standards By-Law?
·5· · · · · · · · · Q.· Right.
·6· · · · · · · · · A.· The municipal by-law?
·7· · · · · · · · · Q.· The City's Property Standards
·8· ·By-Law.
·9· · · · · · · · · A.· The only knowledge I had of that
10· ·was that it was quoted on the Notice of Violation.
11· · · · · · · · · Q.· And so I was going to ask you
12· ·when the first time is that you became aware of that
13· ·fact?· Was it with the Notice of Violation or prior
14· ·to that?
15· · · · · · · · · A.· The fact that there was a by-law
16· ·on this?
17· · · · · · · · · Q.· The fact that there was a by-law
18· ·that required the roof to be watertight.
19· · · · · · · · · A.· Right.· The first time I became
20· ·aware of it was when I read it in the notice.
21· · · · · · · · · Q.· And did you have any discussions
22· ·with Mr. Nazarian about that by-law requirement?
23· · · · · · · · · A.· Well, yes, in that I forwarded a
24· ·copy of the notice to Mr. Nazarian.· We discussed
25· ·the violation sections that were quoted and the
·1· ·remedies that were required.· We discussed it
·2· ·thoroughly.
·3· · · · · · · · · Q.· And what was Mr. Nazarian's
·4· ·attitude about the Notice of Violation?
·5· · · · · · · · · A.· Well, I got the impression he
·6· ·took it seriously, but he didn't get all excited
·7· ·about it or anything.· I told him when I spoke with
·8· ·him I said, here's our problem.· This is what I
·9· ·propose I can take care of the first remedy by
10· ·writing to them and telling them what the plan is
11· ·and the time frame that we're going to operate in.
12· ·We don't have any engineers here.· The only one I've
13· ·heard of is Caughill, who's also an architect.· Do
14· ·you want me to hire him?· The response was, I'll
15· ·take care of the engineer part, you take care of the
16· ·schedule for the roof remedy.
17· · · · · · · · · Q.· And so that plan went to the City
18· ·with respect to the recaulking program and --
19· · · · · · · · · A.· That's correct.
20· · · · · · · · · Q.· -- I presume that the City
21· ·indicated or did the City indicate that they were
22· ·amenable to that plan?
23· · · · · · · · · A.· Yes, they did.
24· · · · · · · · · Q.· And did that work take place in
25· ·accordance with the schedule?
·1· · · · · · · · · A.· For the most part, yes.
·2· · · · · · · · · Q.· And do you think that that's why
·3· ·the Building Inspector was not pushing you further
·4· ·on the Notice of Violation?
·5· · · · · · · · · A.· That was my belief at the time.
·6· · · · · · · · · Q.· Did you have any discussions with
·7· ·Mr. Derreck about the enforcement efforts being held
·8· ·off?
·9· · · · · · · · · A.· No.· I never gave the enforcement
10· ·part a second thought.· We were acting in good
11· ·faith.
12· · · · · · · · · I had had words with Derreck when I
13· ·first met him to tell him how I stood on the issue
14· ·and I thought it was us who was acting in good faith
15· ·and the City that wasn't.· And he corrected me on
16· ·it.· And after that, we just maintained
17· ·communication.· It was nothing -- no favours asked
18· ·for and none offered.
19· · · · · · · · · Q.· Okay.· There was some delay in
20· ·hiring Mr. Caughill to commence his work.· It was
21· ·supposed to be done by December and I think it
22· ·didn't happen until February.· Do you know why the
23· ·delay took place?
24· · · · · · · · · A.· No, I don't know why the delay.
25· · · · · · · · · Q.· Did Mr. Nazarian ever ask you to
·1· ·delay the City or obstruct the City's inspection
·2· ·efforts?
·3· · · · · · · · · A.· No, that never happened on my
·4· ·watch.
·5· · · · · · · · · Q.· Okay.· You spoke to Mr. Wallace
·6· ·about altered rent rolls and your discomfort with
·7· ·those.· Did you participate in applying for any
·8· ·municipal tax vacancy rebates?
·9· · · · · · · · · A.· Yes.· I supplied the information
10· ·on the vacancies.
11· · · · · · · · · Q.· And I'm not sure if you --
12· · · · · · · · · A.· I supplied the information to
13· ·Richmond Hill --
14· · · · · · · · · Q.· Oh, I see.
15· · · · · · · · · A.· -- to prepare the application.
16· · · · · · · · · Q.· So your hand did not go to
17· ·preparing the application itself?
18· · · · · · · · · A.· I don't believe so.· I believe
19· ·that my participation was in getting the application
20· ·format, determining how to go about it.· I believe
21· ·it was the corporate officers that had to make the
22· ·application.
23· · · · · · · · · Q.· Okay.· Those are my questions,
24· ·thank you very much.
25· · · · · · · · · A.· Thank you.
·1· · · · · · · · · THE COMMISSIONER:· Mr. Kearns.
·2· · · · · · · · · MR. KEARNS:· Thank you, Mr.
·3· ·Commissioner.
·4· · · · · · · · · CROSS-EXAMINATION BY MR. KEARNS:
·5· · · · · · · · · Q.· Afternoon, Mr. Turner.
·6· · · · · · · · · A.· Afternoon, sir.
·7· · · · · · · · · Q.· Mr. Turner, I understand that you
·8· ·commenced your employment at Algo Centre in 2006, is
·9· ·that right?
10· · · · · · · · · A.· That's correct, sir.
11· · · · · · · · · Q.· And you seem to have been a bit
12· ·confused as to the elections and because you had
13· ·some recollection of Mr. Farkouh being -- having a
14· ·space there while you were there.· But I think the
15· ·evidence that the Commissioner has heard is that
16· ·Mr. Farkouh last ran for Council in 2003 and did not
17· ·run again in 2006 and that's when Mayor Hamilton --
18· ·so you'll agree with me that your recollection of
19· ·Mr. Farkouh having an office during your tenure is
20· ·not correct?
21· · · · · · · · · A.· That's -- I agree with you.
22· · · · · · · · · Q.· Okay.· I would like to talk to
23· ·you for just a second about August of 2006 -- 7
24· ·rather, and those e-mails that we looked at from the
25· ·Zellers store.
·1· · · · · · · · · A.· Yes.
·2· · · · · · · · · Q.· Okay.· Now, I do understand that
·3· ·in the fall of 2006, you and Mr. England had found
·4· ·this new product.· You had high hopes for it.· You
·5· ·were taking an aggressive and pro-active stand and
·6· ·you were hoping that that was going to work.· And in
·7· ·the springtime, you were told by Mr. Nazarian --
·8· ·were you told by him both that you can't take a
·9· ·pro-active approach anymore and we're going to go to
10· ·a cheaper product or just one of those?
11· · · · · · · · · A.· Well, we were told or I was told
12· ·that we were going back to the urethane product.
13· ·The -- to the best of my recollection, there was
14· ·never a discussion on stopping the pro-active
15· ·stance.· It was stopped anyways in that I didn't
16· ·have the ability to hire casual labour to continue
17· ·at the rate that we had initially planned.
18· · · · · · · · · Q.· Okay.· So that wasn't -- that was
19· ·kind of decided by the budget?
20· · · · · · · · · A.· That's correct, yes.
21· · · · · · · · · Q.· Okay.· Because you described that
22· ·August of 2007 that the leaks at the Zellers were at
23· ·places that it hadn't leaked before.· And places you
24· ·hadn't expected.· Do you remember giving that
25· ·evidence this morning?
·1· · · · · · · · · A.· Yes.
·2· · · · · · · · · Q.· So it sounds like things are
·3· ·getting a little out of control in the summer of
·4· ·2007.· And we can see by your later e-mail, I think
·5· ·in December, that the whole summer seems to have
·6· ·been a very difficult time, particularly for Zellers
·7· ·in 2007, is that right?
·8· · · · · · · · · A.· It was a very difficult time for
·9· ·Zellers and for the library and for the food court
10· ·area, top of the escalator, food court stores.
11· · · · · · · · · Q.· Did you get a sense or form an
12· ·opinion as to why this problem was being so acute
13· ·during the summer?· Because normally although you're
14· ·going to have heavy rains in the summer, it is the
15· ·easiest time, the best time of the year to fix the
16· ·leaks.· They're relatively easy to find.· You can
17· ·fix them on a sunny day, a warm day.· You can put
18· ·the stuff down.· Summer is not normally the problem
19· ·time for the mall, was it?
20· · · · · · · · · A.· Summer time was the problem time
21· ·for the mall in that -- let's actually back up on
22· ·that.· Spring, summer and fall were problem times
23· ·for the mall.· The only respite took place during
24· ·the winter when everything froze.· That summer was
25· ·particularly difficult.· I believe we had a lot of
·1· ·rain and we suffered leaks just about everywhere. I
·2· ·seemed to stray from part of your question there and
·3· ·I've forgotten it.
·4· · · · · · · · · Q.· Well, I certainly understand that
·5· ·in the spring it's a very difficult time for a
·6· ·couple of reasons.· You've got the spring melt,
·7· ·you've got the spring rain and you've got cold
·8· ·temperatures that make dealing with the leaks very
·9· ·difficult.· It's tough to get the area dry, it's
10· ·tough to get the product to stick.· So I understand
11· ·spring.· But I thought the summer time, because it's
12· ·-- it is the time that you would do the pro-active
13· ·work because many, many days it's sunny and bright,
14· ·you're able to clean off -- out the joints, get them
15· ·properly resealed.· I would have thought that the
16· ·summer time would have been the least likely time to
17· ·have -- other than the frozen winter, to have
18· ·problems.
19· · · · · · · · · So I'm just wondering why, if you
20· ·have an opinion, as to why the summer of 2007 was
21· ·such a problem?
22· · · · · · · · · A.· No, I don't have an opinion.· The
23· ·answer to what was going on, why so many new leak
24· ·spots, just eluded me.· I didn't have the answer.
25· · · · · · · · · Q.· You had, I think, three gentlemen
·1· ·there, at least two, maybe three, who had
·2· ·significant experience on the roof?
·3· · · · · · · · · A.· Yes.
·4· · · · · · · · · Q.· Ken -- oh, I've forgotten Ken's
·5· ·last name.· Ken Snow, thank you.· Mr. Snow who had
·6· ·had the most experience left in 2005 when the change
·7· ·over to Mr. Nazarian happened.· He'd been the lead
·8· ·hand supervisor.· But the gentlemen left behind,
·9· ·they had good idea of how the roof had performed
10· ·over the years.· Were they surprised as well with
11· ·the problems you were having in the summer of 2007?
12· · · · · · · · · A.· They seemed to be.· They were
13· ·frustrated.· Generally their vote was to go back to
14· ·the Dymonic product and stop using the silicone.
15· ·They were like a very experienced crew.· They were
16· ·able to find the source of a leak in a matter of
17· ·minutes and it would have taken me hours to do the
18· ·same job.· That mall just couldn't have survived
19· ·without them.· It was incredible what they used to
20· ·do.
21· · · · · · · · · Q.· Okay.· One of the questions that
22· ·I have and it was pointed out to me when I look at
23· ·the paperwork you did today, I see your letter to
24· ·Mr. Nazarian very early on after a week or two
25· ·saying, we need to talk and to -- so I can get a
·1· ·sense of what your vision is because I want to be
·2· ·able to help you make the mall profitable.
·3· · · · · · · · · And then the letter that you sent to
·4· ·the City in November of 2006 after the receipt of
·5· ·the Notice of Violation.· It's a very reasoned,
·6· ·professional, competent letter sent to them.· And I
·7· ·think anybody reading that would have thought that
·8· ·the mall certainly had a manager who was going to
·9· ·take this under his wing and do a good job with it.
10· · · · · · · · · But we know that none of that really
11· ·happened.· And we've heard a lot of issues that you
12· ·had to deal with there.· I mean, it sounds like
13· ·within a couple of months you're asked to cook the
14· ·books.· You are denied the product that you think is
15· ·going to work.· You eventually have to step away
16· ·completely from your promise to the City about
17· ·getting an engineering report to them.· You talk
18· ·about 70% of your work being dealing with the leaks,
19· ·dealing with unhappy people.· Telling them things
20· ·that, for the most part, certainly by the end of
21· ·2007, you know aren't true.· That these schemes that
22· ·you're telling them, you're not even saying you're
23· ·doing them anymore, it's Mr. Nazarian.
24· · · · · · · · · So I'm just, I'm trying to figure
25· ·out, how do you continue to work there under those
·1· ·circumstances?
·2· · · · · · · · · A.· I think that the way you've
·3· ·addressed all those points, I may have not -- I
·4· ·might not describe them in the same fashion.· The --
·5· ·I can deal with them one at a time if you like.
·6· · · · · · · · · Q.· Okay.· Tell me what it was about
·7· ·the job that kept you there for like a part of two
·8· ·years anyway and, you know, you weren't a hundred
·9· ·percent certain whether -- whether you quit or
10· ·whether you were fired?
11· · · · · · · · · A.· I think I enjoyed the challenged.
12· ·I believe that somehow, some way we'd find a
13· ·solution to this thing and that I could get it done.
14· ·If I had the support of the owners, we'd make the
15· ·mall a better place.· We could redo the hotel.· We
16· ·needed a decent hotel in town badly at that time and
17· ·we needed decent shopping.
18· · · · · · · · · So I was trying to encourage the
19· ·owners to treat it like a shopping centre, which is
20· ·a whole different animal than a six-store strip
21· ·small or anything in that style.
22· · · · · · · · · I got the company into the Chamber of
23· ·Commerce and into the International Association of
24· ·Shopping Centres, developed a good relationship with
25· ·the City, or what I thought was a good relationship.
·1· ·Negotiated with the tenants to essentially be as
·2· ·patient as they could.
·3· · · · · · · · · I knew that some, like the library,
·4· ·were going to be difficult because the library and
·5· ·Northern Reflections were both a source of drama on
·6· ·a regular basis.
·7· · · · · · · · · Hudson's Bay, it was straight
·8· ·business with them.· I expected to get slapped
·9· ·financially somehow by Hudson's Bay eventually if we
10· ·didn't come up with a solution to the problem.
11· · · · · · · · · There was exciting stuff going on.
12· ·There was an opportunity where I drilled the south
13· ·parking lot to -- or we drilled the south parking
14· ·lot to determine where bedrock was and we were
15· ·looking at an opportunity to build a couple of 8,000
16· ·square foot stores for Mark's Work Wearhouse and
17· ·Staples.· It was one of those you build it we'll
18· ·come deals.
19· · · · · · · · · There was all sorts of good stuff
20· ·going on and that's why I stayed.
21· · · · · · · · · Q.· Thank you.
22· · · · · · · · · A.· Thank you.
23· · · · · · · · · THE COMMISSIONER:· Thank you.
24· ·Ms. Smith.
25· · · · · · · · · MS. SMITH:· I don't have any
·1· ·questions.
·2· · · · · · · · · THE COMMISSIONER:· Mr. Myles.
·3· · · · · · · · · MR. MYLES:· No questions.
·4· · · · · · · · · THE COMMISSIONER:· Have I gone around
·5· ·the room?· Re-examination.
·6· · · · · · · · · RE-EXAMINATION BY MR. WALLACE:
·7· · · · · · · · · Q.· Ms. Kuka, if you could bring up
·8· ·Exhibit No. 1261, and you'll find that at tab 141,
·9· ·Mr. Turner.
10· · · · · · · · · This is the letter that you referred
11· ·to I believe Mr. Bisceglia when -- you got it there?
12· · · · · · · · · A.· I do, sir.
13· · · · · · · · · Q.· Okay.· If you look at the second
14· ·page, you'll see that that is from Mr. Nazarian to
15· ·yourself and the date of the letter is the 4th of
16· ·February of 2008.· And we'll just go back to the
17· ·last page, please.· You'll see after he recites the
18· ·reasons therefore, which we'll go through in a few
19· ·minutes, it says:
20· · · · · · · · · "After careful consideration, we, the
21· · · · · · · · · directors of 'Eastwood Mall Inc.'
22· · · · · · · · · have decided to suspend your position
23· · · · · · · · · of the General Manager for a period
24· · · · · · · · · of six months, upon receipt of this
25· · · · · · · · · notice.· This means that effective
·1· · · · · · · · · immediately Mr. Brian England would
·2· · · · · · · · · be acting as the General Manager for
·3· · · · · · · · · the said period, therefore, you would
·4· · · · · · · · · not be authorized to, as follows:
·5· · · · · · · · · - Hire or fire personnel
·6· · · · · · · · · - Use the petty cash
·7· · · · · · · · · - Make any decisions on behalf of the
·8· · · · · · · · · company
·9· · · · · · · · · Furthermore, you will be assisting
10· · · · · · · · · Mr. Brian England under his
11· · · · · · · · · direction.· If you refuse to
12· · · · · · · · · cooperate, the company will have no
13· · · · · · · · · choice but to dismiss your position."
14· · · · · · · · · Now, I was a little confused about
15· ·your evidence this morning.· When you got this
16· ·letter, did I understand you correctly to say you
17· ·got this letter and you just -- you just left the
18· ·premises?· Is that what happened or --
19· · · · · · · · · A.· Yes, I received this letter by
20· ·e-mail.
21· · · · · · · · · Q.· Yes.
22· · · · · · · · · A.· And I read it.· Decided that
23· ·that's enough.· I don't want to play anymore.
24· · · · · · · · · Q.· Okay.
25· · · · · · · · · A.· I packed up what was important to
·1· ·me personally and told the receptionist I'm going
·2· ·home sick.
·3· · · · · · · · · Q.· I said I'm going home --
·4· · · · · · · · · A.· I told her I'm going home sick.
·5· · · · · · · · · Q.· Okay.· And was it -- was it your
·6· ·intention on the 4th of February, when you left that
·7· ·day sick, to come back or not to come back or what
·8· ·were you -- what was your mindset at that time?
·9· · · · · · · · · A.· That I was sick of Eastwood Mall.
10· ·I'd had it.· I was going home and I wasn't coming
11· ·back.
12· · · · · · · · · Q.· Okay.· And in fact, is that what
13· ·you did?
14· · · · · · · · · A.· That's what I did.
15· · · · · · · · · Q.· Okay.· So there never was a
16· ·period of time where you acted under the direction
17· ·of Mr. England?
18· · · · · · · · · A.· No, that wasn't going to happen.
19· · · · · · · · · Q.· Okay.· Now, I just want to review
20· ·the reasons that are cited for this action.
21· ·Mr. Nazarian starts off by saying that:
22· · · · · · · · · "The 'Eastwood Mall' are not
23· · · · · · · · · satisfied with the outcome of your
24· · · · · · · · · performance as the General Manager."
25· · · · · · · · · THE COMMISSIONER:· Come back, Ms.
·1· ·Kuka.
·2· · · · · · · · · MR. WALLACE:· Sorry?· Okay, yeah,
·3· ·sorry.
·4· · · · · · · · · BY MR. WALLACE:
·5· · · · · · · · · Q.· It says:
·6· · · · · · · · · "Upon opening of the two new stores
·7· · · · · · · · · namely, Pet Valu & Colour Your World,
·8· · · · · · · · · you have committed terrible mistakes
·9· · · · · · · · · by:
10· · · · · · · · · a/ Hiring Caughill Consulting
11· · · · · · · · · Services Inc. (Mr. Bruce Caughill) to
12· · · · · · · · · design an HVAC System which resulted
13· · · · · · · · · [in] a disaster."
14· · · · · · · · · Did you have the ability to hire a
15· ·professional?
16· · · · · · · · · A.· No, I didn't.
17· · · · · · · · · Q.· And, therefore, did you hire
18· ·Mr. Caughill?
19· · · · · · · · · A.· No.
20· · · · · · · · · Q.· "b/ You have dismissed our
21· ·company's" --
22· · · · · · · · · A.· Sorry, I may have verbally
23· ·brought him on, but with the consent of the owner
24· ·first, yes.
25· · · · · · · · · Q.· Okay.· What can you say about
·1· ·point B?· "You have dismissed our company's
·2· ·Engineer, Mr. Stew Muckle from P.O.P. Tek Systems
·3· ·without any authorization."
·4· · · · · · · · · A.· I don't know where that one came
·5· ·from.· I liked Stew Muckle and we conferred
·6· ·regularly by telephone and P.O.P. Tek was doing a
·7· ·review of heating and electrical charges going on in
·8· ·the complex.· And I certainly didn't dismiss him and
·9· ·I can't imagine any conversation that could be
10· ·interpreted anywhere near that.
11· · · · · · · · · Q.· Point number C:
12· · · · · · · · · "You have ordered a $49,590.00 HVAC
13· · · · · · · · · System which ended up to be a heat
14· · · · · · · · · exchanger, unable to function below
15· · · · · · · · · -10 degrees Celsius, we are in verge
16· · · · · · · · · of losing our tenants Pet Valu &
17· · · · · · · · · Colour Your World stores due to the
18· · · · · · · · · wrong heating system.· To remedy this
19· · · · · · · · · mistake we are obliged to supply an
20· · · · · · · · · additional approximate $40,000.00
21· · · · · · · · · heating system."
22· · · · · · · · · Were you in a position to place an
23· ·order for a high-ticket item like this for $49,590?
24· · · · · · · · · A.· No.· Actually when this order was
25· ·placed, I was in Pennsylvania touring a house called
·1· ·Falling Waters.· So I wasn't even in town when it
·2· ·happened.
·3· · · · · · · · · Q.· Okay.
·4· · · · · · · · · A.· This was a system that Caughill
·5· ·consulting had looked into for us.· And before I
·6· ·left on vacation, it was my understanding that this
·7· ·is the system that we were going to likely proceed
·8· ·with.· When I returned, I found out that it had --
·9· ·it was a done deal.· And my suspicion was that Brian
10· ·had ordered it while I was away, because he and Bob
11· ·Nazarian talked frequently about projects.· And at
12· ·this point in time, I was starting to be left out of
13· ·the loop a bit.
14· · · · · · · · · Q.· And just as a technical point,
15· ·would you have the technical wherewithal to make a
16· ·recommendation of competing HVAC systems?
17· · · · · · · · · A.· No, I wouldn't have a clue.
18· · · · · · · · · Q.· Okay.· And then you're being
19· ·blamed for the costs that are mentioned above, plus
20· ·the additional $15,000 for useless consulting fees.
21· ·Do you know whose consulting fees those are?
22· · · · · · · · · A.· No, I'm not sure who the useless
23· ·consultant was.
24· · · · · · · · · Q.· And then point E:
25· · · · · · · · · "Despite our numerous demands that
·1· · · · · · · · · you had to get our authorization for
·2· · · · · · · · · such a large amount, You have decided
·3· · · · · · · · · to pay $800.00 (advance towards
·4· · · · · · · · · vacation pay) to Mr. Brian England
·5· · · · · · · · · without our consultation."
·6· · · · · · · · · Did you give him an $800 advance?
·7· · · · · · · · · A.· I did.
·8· · · · · · · · · Q.· Okay.· And was that authorized or
·9· ·unauthorized?
10· · · · · · · · · A.· Didn't ask for authorization.· It
11· ·was within what I perceived as my scope.
12· · · · · · · · · Q.· Okay.· And then the next point is
13· ·the second point D:
14· · · · · · · · · "We have been notified that there is
15· · · · · · · · · a large outstanding rent balance from
16· · · · · · · · · tenants and you as the General
17· · · · · · · · · Manager, acted leniently towards this
18· · · · · · · · · situation."· Do you know what this is
19· · · · · · · · · referring to?
20· · · · · · · · · A.· This may have been referring to
21· ·Peaches Restaurant.
22· · · · · · · · · Q.· And what's the story there?
23· · · · · · · · · A.· There was rent owed.· And it was
24· ·a case of getting blood out of a stone.· I knew he
25· ·wasn't generating enough traffic and so I was trying
·1· ·to negotiate with him to recover this over time.
·2· ·Mr. Nazarian was more in favour of shutting him down
·3· ·and locking the doors.· My position was that the
·4· ·restaurant, now that we had moved to take over the
·5· ·hotel, that the restaurant was critical to our
·6· ·occupancy rate at the hotel.· And so -- and also
·7· ·part of the generation of -- it contributed to
·8· ·generating traffic in the mall.· It may have been
·9· ·small spend, but it was going to be money spent in
10· ·the mall.· So I was extremely reluctant to shut that
11· ·one down.
12· · · · · · · · · There was also another store located
13· ·on the upper level of the mall that was struggling.
14· ·Well, there were a number of stores struggling and
15· ·sometimes it was difficult to get rent on a
16· ·particular month and we'd have to try and delay it
17· ·to the next month or look to negotiating a smaller
18· ·space or whatever solution we could come up with.
19· · · · · · · · · Shopping centres are destination
20· ·points.· And if there's nothing for people to get in
21· ·that shopping centre, you can't have traffic.· Some
22· ·shopping centres focus on women's wear, and they
23· ·will want -- retailers will want to be next door to
24· ·each other, so you may not buy off me this week, but
25· ·you will next week because you keep coming back here
·1· ·because we are a destination point now.
·2· · · · · · · · · And that's what I was hoping we could
·3· ·become.· We were a destination point only in that we
·4· ·were the only place in town.
·5· · · · · · · · · Q.· Okay.· Shifting to another topic
·6· ·very briefly, Mr. Kearns corrected your belief on
·7· ·which of the mayoral candidates was -- had an office
·8· ·in the mall.· And by process of elimination, it
·9· ·would appear that it was Mr. Hamilton that had the
10· ·space.
11· · · · · · · · · Do you recall dealing with
12· ·Mr. Hamilton on that space?
13· · · · · · · · · A.· No.· It's what we referred to as
14· ·temporary space.
15· · · · · · · · · Q.· Right.
16· · · · · · · · · A.· And so it's a no-lease.· I guess
17· ·just describe it as just a quick and dirty rental.
18· ·Two months, three months, a month, whatever is
19· ·required.· Negotiate the rate and receive a cheque
20· ·for it.
21· · · · · · · · · Q.· Do you know whether in fact there
22· ·was rent paid for that space as opposed to the form
23· ·of a donation of the space?
24· · · · · · · · · A.· I don't know.· I know we made
25· ·political contributions, but I don't know about the
·1· ·space rental for the election period.· Normally it
·2· ·was -- the norm was to charge for it, though.
·3· · · · · · · · · Q.· Okay.· But -- well, you're clear.
·4· ·Okay, those are my questions.· Thank you very much.
·5· · · · · · · · · THE COMMISSIONER:· Thank you very
·6· ·much, sir.
·7· · · · · · · · · A.· Thank you, sir.
·8· · · · · · · · · MR. WALLACE:· We're ready to proceed
·9· ·with the next witness.· It might be a good idea to
10· ·just take five, please.
11· · · · · · · · · THE COMMISSIONER:· Five minutes.
12· · · · · · · · · MR. WALLACE:· Thank you.
13· · · · · · · · · THE COMMISSIONER:· We'll do that.
14· · · · · · · · · Break taken at 2:40 p.m.
15· · · · · · · · · Upon resuming at 2:45 p.m.
16· · · · · · · · · THE COMMISSIONER:· Thank you.· Good
17· ·afternoon, sir.
18· · · · · · · · · MS. NENADIC:· Good afternoon,
19· ·Mr. Commissioner.
20· · · · · · · · · THE COMMISSIONER:· You're prepared to
21· ·go.
22· · · · · · · · · MS. NENADIC:· Yes, I am.
23· · · · · · · · · THE COMMISSIONER:· Thank you, you've
24· ·been very patient.
25· · · · · · · · · MS. NENADIC:· I have.· I will be
·1· ·calling Mr. Don Denley today.· So, Mr. Denley, we'll
·2· ·proceed with the swearing in first.
·3· · · · · · · · · THE REGISTRAR:· Good afternoon, sir.
·4· · · · · · · · · THE WITNESS:· Thank you and good
·5· ·afternoon to you.
·6· · · · · · · · · THE REGISTRAR:· Could you please
·7· ·state you name in full and spell it for the record?
·8· · · · · · · · · THE WITNESS:· It's Donald, I don't
·9· ·need to spell that.· The last name's Denley, D for
10· ·Donald, E-N-L-E-Y.
11· · · · · · · · · THE REGISTRAR:· Thank you.· And do
12· ·you prefer to swear on a religious document or would
13· ·you rather affirm?
14· · · · · · · · · THE WITNESS:· The Bible's fine.
15· · · · · · · · · DONALD DENLEY, sworn.
16· · · · · · · · · EXAMINATION-IN-CHIEF BY MS. NENADIC:
17· · · · · · · · · Q.· Good afternoon, Mr. Denley.
18· · · · · · · · · A.· Good afternoon to you.
19· · · · · · · · · Q.· My name is Ivana Nenadic and I am
20· ·an articling student with the Commission Counsel
21· ·team.
22· · · · · · · · · So I'm going to start off by asking
23· ·you a few background questions.
24· · · · · · · · · A.· Sure.
25· · · · · · · · · Q.· You were a police officer with
·1· ·the Toronto Police Force for over 25 years, correct?
·2· · · · · · · · · A.· Yes.
·3· · · · · · · · · Q.· And you moved to Elliot Lake
·4· ·after you retired as Staff Sargeant?
·5· · · · · · · · · A.· No.· I moved to British Columbia
·6· ·for three years where I worked for -- I was actually
·7· ·a marriage commissioner, which still people laugh at
·8· ·me.· And I worked for the provincial government, and
·9· ·I did some work with the natives and then I moved
10· ·here in 2000.
11· · · · · · · · · Q.· In 2000?
12· · · · · · · · · A.· Yes.
13· · · · · · · · · Q.· Okay.· And you were elected as
14· ·Councillor from December 1st, 2003 to November 30th,
15· ·2006?
16· · · · · · · · · A.· That's correct.
17· · · · · · · · · Q.· Okay.· And so you said you
18· ·arrived in Elliot Lake in 2000.· Did you visit the
19· ·library at that time or shortly thereafter?
20· · · · · · · · · A.· No.· Initially -- I'll be very
21· ·brief.· But initially I came here and I decided I
22· ·was going to rest for the rest of my life.· But then
23· ·I saw a vehicle here where I could do -- well, I
24· ·started coaching baseball and football.· I did a bit
25· ·of tutoring and other various things.· But still it
·1· ·was my intention to return to Toronto and I was just
·2· ·going to stay, but a guy made me an offer I couldn't
·3· ·refuse so I bought the home I'm in now and I stayed
·4· ·and here I am.
·5· · · · · · · · · Q.· And that's in 2000?
·6· · · · · · · · · A.· Yes.
·7· · · · · · · · · Q.· Okay.· So did you visit the
·8· ·library in 2000 or shortly thereafter?
·9· · · · · · · · · A.· No.· It was probably closer to
10· ·the early part of 2002.
11· · · · · · · · · Q.· Okay.· And what state was the
12· ·library in when you visited it for the first time?
13· · · · · · · · · A.· The first time I was there, it
14· ·was, for lack of a better word, chaotic.· The books
15· ·were covered in tarps and there was the pails out on
16· ·the floor, half full of water.· There was a bit of
17· ·water on the floor.· And basically that's it.
18· · · · · · · · · Q.· Okay.· Now, from the time you
19· ·were elected as Councillor in December, on
20· ·December 1st, 2003, until the end of your term, did
21· ·you recall the library as being a constant issue in
22· ·terms of leaks?
23· · · · · · · · · A.· Yes.
24· · · · · · · · · Q.· Okay.· And who kept City Council
25· ·updated with the situation at the mall?
·1· · · · · · · · · A.· Um ...
·2· · · · · · · · · Q.· So is there anyone that would
·3· ·send e-mails or keep you updated, regardless of City
·4· ·Council meeting?
·5· · · · · · · · · A.· No.· Other than myself, Kathy
·6· ·McTaggart had created a number of e-mails over those
·7· ·three years.
·8· · · · · · · · · Q.· Okay.
·9· · · · · · · · · A.· What had happened of course was
10· ·the way it was set up, which of course I was very
11· ·much in a learning curve here, and I realized that
12· ·Mayor Farkouh and Hamilton were the representatives
13· ·on the retire -- Elliot Lake Retirement Living
14· ·Board.· In fact, when I first got here, a lot of
15· ·people told me the City owned the mall.
16· ·After determining and doing some research, I found
17· ·that that in fact was not true.
18· · · · · · · · · Q.· Okay.
19· · · · · · · · · A.· So I didn't know which way to go.
20· · · · · · · · · Q.· Okay.· Now, in her -- you said
21· ·that Ms. McTaggart would be the one sending e-mails
22· ·at least periodically.· What kind of information do
23· ·you remember being in these e-mails?· What would she
24· ·describe in general?
25· · · · · · · · · A.· We have to stop there and go back
·1· ·a couple of feet.· Just prior to the election, I
·2· ·spoke to Mrs. Kiviaho, who at that time I believe
·3· ·was managing the library.
·4· · · · · · · · · Q.· Okay.
·5· · · · · · · · · A.· And I started asking questions
·6· ·about the leaks and, you know, da, da, da.· That's
·7· ·not good either.· And she said to me, well, you get
·8· ·elected and we'll talk.· And that made good sense to
·9· ·me, you know.· What's the sense of telling me things
10· ·I can't do anything about.
11· · · · · · · · · So once the election was over of
12· ·course, I -- prior to Kathy sending her e-mails, we
13· ·would determine -- it was determined that we would
14· ·sit on different boards.· I was not on the Library
15· ·Board.
16· · · · · · · · · Q.· Right.
17· · · · · · · · · A.· But when I gave my -- one of the
18· ·issues that I had prior to getting elected, but
19· ·during my speech, was the fact that the City was
20· ·paying Retirement Living or NorDev $77,000 a year to
21· ·keep the library up.· And I thought that was -- that
22· ·was odd because it leaked so badly.
23· · · · · · · · · Q.· Okay.· We're going to get to --
24· ·we're going to discuss Retirement Living just a
25· ·little bit later on.
·1· · · · · · · · · A.· Sure.
·2· · · · · · · · · Q.· Now, I'd like to take you to
·3· ·volume five, and tab 40.· And that will be Exhibit
·4· ·No. 3292.
·5· · · · · · · · · So you said yourself, you confirmed
·6· ·that for us, that you were not a member of the
·7· ·Library Board, but that does not mean that you can't
·8· ·attend Library Board meetings, correct?
·9· · · · · · · · · A.· Or any other committee.
10· · · · · · · · · Q.· That's correct.
11· · · · · · · · · A.· I just can't vote, that's all.
12· · · · · · · · · Q.· That's right.· So we're looking
13· ·here at an e-mail sent on April 14th, 2004, and it's
14· ·sent pursuant to the Library Board meeting which
15· ·occurred on April 8th.· And so I'm just going to
16· ·read a few parts because you are discussed in this
17· ·e-mail and I'm going to ask you questions about it.
18· · · · · · · · · So in the first paragraph starting at
19· ·the end of the second line, Ms. McTaggart writes to
20· ·Mr. Speck.
21· · · · · · · · · "I am forwarding the Minutes of the
22· · · · · · · · · Library Board meeting that I was
23· · · · · · · · · referring to which I received today.
24· · · · · · · · · Please believe me, Barbara Fazekas is
25· · · · · · · · · being very kind with regard to the
·1· · · · · · · · · reference to Councillor Denley's
·2· · · · · · · · · remarks at the beginning of the
·3· · · · · · · · · meeting.· I still maintain that Don's
·4· · · · · · · · · words were presented in an entirely
·5· · · · · · · · · different way than is written here.
·6· · · · · · · · · Barbara was exercising her 'Editorial
·7· · · · · · · · · skills.'· He most definitely stated
·8· · · · · · · · · that the Library was very low on the
·9· · · · · · · · · list of priorities with the Council
10· · · · · · · · · (nothing to do with funding)."
11· · · · · · · · · Did you say this at the meeting?
12· · · · · · · · · A.· You know, I've seen this e-mail
13· ·and I don't recall saying that particularly.· I was
14· ·on Council now for approximately three months.
15· · · · · · · · · Q.· That's right.
16· · · · · · · · · A.· And I needed some time to figure
17· ·this out.· I may have said that.· I don't know. I
18· ·don't know where she -- she made another faux pas
19· ·here, as far as I'm concerned, in the second
20· ·paragraph, which I -- I don't understand.
21· · · · · · · · · Q.· Okay.
22· · · · · · · · · A.· Are you going to address that?
23· · · · · · · · · Q.· I will, I will.
24· · · · · · · · · A.· Okay.
25· · · · · · · · · Q.· So the stating that the library
·1· ·was low on the list of priorities, you don't
·2· ·necessary recall saying that or why you would have
·3· ·said that?
·4· · · · · · · · · A.· Well, certainly the fact that it
·5· ·leaked so badly it had to be low on the Council's
·6· ·priority, but you know what?· I wanted to be sure
·7· ·before I went ahead with saying that formally.
·8· · · · · · · · · Q.· Okay.· Now, in the second
·9· ·paragraph she writes:
10· · · · · · · · · "As I mentioned to you, Councillor
11· · · · · · · · · Denley's presentation was extremely
12· · · · · · · · · brief (he found out that Heather was
13· · · · · · · · · on the Board and worked for
14· · · · · · · · · Retirement Living) and he clammed up.
15· · · · · · · · · (I was absolutely amazed)."
16· · · · · · · · · So did you clam up, as she suggested
17· ·you did?
18· · · · · · · · · A.· No.· In fact, the lady we're
19· ·talking about here is a woman by the name of Heather
20· ·Grinich, or something like that.· I've forgotten her
21· ·last name.· The reason I knew this woman was that
22· ·she lived a couple of doors over from where we were
23· ·living at the time.· She had a baby, we bought her
24· ·flowers and candy at the time.· She had a lovely
25· ·family.· They were very nice people.
·1· · · · · · · · · And I sat down at that meeting and
·2· ·she started in on me like you would not believe.
·3· ·And I said, Whoa!· I said I bought you flowers.· You
·4· ·can't do this.
·5· · · · · · · · · And I was never -- I didn't -- I
·6· ·didn't -- in fact, at the time I didn't even know
·7· ·she worked for Retirement Living, but subsequently I
·8· ·did found that out.
·9· · · · · · · · · Q.· And Ms. McTaggart continues and
10· ·she writes:
11· · · · · · · · · "Prior to that he had been so
12· · · · · · · · · extremely verbal concerning the fact
13· · · · · · · · · that he wanted the Library to
14· · · · · · · · · re-locate and the landlord of the
15· · · · · · · · · mall should repair the roof & the
16· · · · · · · · · library should not have to put up
17· · · · · · · · · with the leaks, etc., etc."
18· · · · · · · · · Now, this presentation that she's
19· ·referring to, what do you remember from this
20· ·meeting?· What did you say?
21· · · · · · · · · A.· Well, I certainly wasn't that
22· ·demonstrative about the way I presented that.· What
23· ·I said was that they were breaking the lease. I
24· ·remember saying that quite clearly.· In fact I had
25· ·done research before I went to meeting and was told
·1· ·if it's not waterproof, then you can leave.· Just
·2· ·get up and leave.
·3· · · · · · · · · And, you know, I got comments from
·4· ·one man saying, I can't remember his name, he says,
·5· ·you know, I moved to Elliot Lake because they have a
·6· ·library.· I went okay.· But -- I said, but how do
·7· ·you feel about the library leaking two months out of
·8· ·the year.· I said there has to be an alternative.
·9· ·For every problem there's a solution or at least I
10· ·like to think so.
11· · · · · · · · · Q.· So was everyone upset about your
12· ·remarks?
13· · · · · · · · · A.· A little bit.· Some more than
14· ·others.
15· · · · · · · · · Q.· Okay.
16· · · · · · · · · A.· By the way, I didn't understand
17· ·it.· Because I kept saying to myself, you know, I'm
18· ·new here, I'd better be quiet because maybe there's
19· ·something to learn here.· The fact of the matter is,
20· ·and I said it over and over, the library leaks.· In
21· ·fact, when I left the room and the meeting was over
22· ·and I turned back and I said, You know the library
23· ·leaks two months out of the year, don't you?· And I
24· ·left.
25· · · · · · · · · Q.· Okay.
·1· · · · · · · · · A.· I wasn't sarcastic either.
·2· · · · · · · · · Q.· And when you say two months out
·3· ·of the year?
·4· · · · · · · · · A.· I mean more 60 days.· I didn't --
·5· ·there wasn't just a period.· It leaked over the
·6· ·course of the year.
·7· · · · · · · · · Q.· And if we were to add up all
·8· ·those days during which it leaked, you're saying
·9· ·that it would leak approximately two months?
10· · · · · · · · · A.· Because of what I was told only,
11· ·though.· I wasn't there counting the days so.
12· · · · · · · · · Q.· Right.
13· · · · · · · · · A.· But I think two months was a fair
14· ·assessment.
15· · · · · · · · · Q.· Okay.· Now, further down in the
16· ·third paragraph, the second sentence, she writes:
17· ·"I am absolutely willing to speak about this at
18· ·caucus."
19· · · · · · · · · Now, before I go on, do you remember
20· ·attending the caucus meeting which would have
21· ·followed this April 14th e-mail where she would have
22· ·brought up your presentation and her feelings
23· ·towards what you said?
24· · · · · · · · · A.· Yes.· As a matter of fact, I was
25· ·there.
·1· · · · · · · · · Q.· Okay.· And so she continues and
·2· ·writes:
·3· · · · · · · · · "This is not a personal issue.· It is
·4· · · · · · · · · a Council issue which I believe needs
·5· · · · · · · · · to be addressed.· I personally feel
·6· · · · · · · · · that it is extremely important for
·7· · · · · · · · · City Council to maintain as positive
·8· · · · · · · · · an image as possible in the public
·9· · · · · · · · · eye and Council needs to project this
10· · · · · · · · · image to all of the sub-committees.
11· · · · · · · · · That is why I do not like the idea or
12· · · · · · · · · the suggestion that City Council has
13· · · · · · · · · any negative vibes towards any of the
14· · · · · · · · · committees."
15· · · · · · · · · What do you say to that?
16· · · · · · · · · A.· Well, once again, I was still on
17· ·a learning curve.· I wanted more information.· As I
18· ·say, I thought there would be an alternative because
19· ·for every problem there is a solution or there
20· ·should be.
21· · · · · · · · · I don't really know why Ms. McTaggart
22· ·decided to take this position.· Perhaps, and I'm
23· ·just guessing, is that she didn't like me going to
24· ·the meetings because it was her board.· I don't
25· ·know.
·1· · · · · · · · · Q.· Okay.· And if we could have
·2· ·Exhibit No. 2351, and that would be the document
·3· ·that I'm calling is tab 14 in the book called
·4· ·Farkouh additional documents.
·5· · · · · · · · · And if we could go to the page that
·6· ·ends with .006.
·7· · · · · · · · · A.· Hang on.· What book --
·8· · · · · · · · · Q.· Tab 14.
·9· · · · · · · · · A.· It's Farkouh's testimony?
10· · · · · · · · · Q.· It's the documents that were
11· ·prepared for Mr. Farkouh's testimony.· So that's why
12· ·it's labeled on the side as being Farkouh additional
13· ·documents.
14· · · · · · · · · A.· It's not here.· Sorry.
15· · · · · · · · · Q.· The first page is FONOM
16· ·Conference 2004.· So if you turn to the page --
17· · · · · · · · · A.· Oh, yes.
18· · · · · · · · · Q.· There we go.· So this is the
19· ·agenda for the May 3rd, 2004, Council caucus
20· ·meeting.· And so it would be the meeting that
21· ·followed the e-mail which we just read.· And item
22· ·number nine, you can see that it's listed Library
23· ·Board referral from Councillor McTaggart.
24· · · · · · · · · So you can confirm that this issue,
25· ·which had arose in the e-mail, was discussed at the
·1· ·caucus meeting?
·2· · · · · · · · · A.· What was the date of this
·3· ·meeting?
·4· · · · · · · · · Q.· May 3rd.· So on the very top of
·5· ·the page.· You can also see it on your screen.
·6· · · · · · · · · A.· Okay, now, sorry, ask the
·7· ·question again.
·8· · · · · · · · · Q.· If you see item number nine?
·9· · · · · · · · · A.· Yes.
10· · · · · · · · · Q.· Referral from Councillor
11· ·McTaggart.
12· · · · · · · · · A.· Yes.
13· · · · · · · · · Q.· So this was in fact discussed at
14· ·the May 3rd meeting.· And you said that you remember
15· ·being there.· So do you remember anything in
16· ·particular that was said?
17· · · · · · · · · A.· Well, there were a number of
18· ·things directed at me.
19· · · · · · · · · Q.· Right.
20· · · · · · · · · A.· There was comments like -- it was
21· ·actually divided into two parts.· One was the actual
22· ·structure of the library itself and the other was
23· ·the Library Board.
24· · · · · · · · · And I was told in no uncertain terms
25· ·that these are sensitive issues, and I quote,
·1· ·sensitive issues.· And I remember saying that the
·2· ·library leaks two months out of the year.
·3· · · · · · · · · I just -- you know what?· I don't
·4· ·mean to keep repeating this, but I didn't understand
·5· ·what the problem was.· I didn't see why they didn't
·6· ·fix the leaks.· I didn't understand that.
·7· · · · · · · · · Q.· So --
·8· · · · · · · · · A.· But, yes --
·9· · · · · · · · · Q.· Would you describe the discussion
10· ·that took place as a controversial one?
11· · · · · · · · · A.· Oh, yes.· One of the Councilors,
12· ·and I quote, called me dangerous and said that he'd
13· ·be keeping his eye on me.· The volume went up and
14· ·when you do that to me, I shut down.· Because, you
15· ·know, I'm new.· I want to hear what these people
16· ·have to say.· I barely know them, you know.
17· · · · · · · · · Q.· Okay.
18· · · · · · · · · A.· So I waited -- as a matter of
19· ·fact, I went home this night and sat on the couch
20· ·without the TV on and thought about this over and
21· ·over again because I guess I learned a lesson in
22· ·life from years before that, you know, you don't go
23· ·into a China shop like a bull.· You take three
24· ·months, six months to try and figure out, am I right
25· ·or wrong?· Of course, after 15 minutes I realized I
·1· ·was right.
·2· · · · · · · · · Q.· Okay.· Now, did you attend any
·3· ·other Library Board meeting other than the one on
·4· ·April 8th?
·5· · · · · · · · · A.· Yes, I went to a second one and I
·6· ·offered some solutions.· I said, look it, the
·7· ·Pearson Centre has two individual spaces open, one
·8· ·was larger than the other.· So what I suggested was
·9· ·that they take the books from the adult section, put
10· ·them in the bigger office, and the children's
11· ·section can go downstairs.
12· · · · · · · · · It did not meet their requirements
13· ·for square footage, but it was close, you know.· And
14· ·they didn't want to split them up.· And I heard a
15· ·very -- I don't remember all of the reasons why they
16· ·didn't like the idea.
17· · · · · · · · · Q.· So no conclusion was reached with
18· ·regards to moving the library to a new location?
19· · · · · · · · · A.· No.· In addition, they didn't
20· ·want to break the lease.· In addition, they didn't
21· ·seem to mind the water draining down on them.· So I
22· ·don't know.
23· · · · · · · · · Q.· Okay.· I'm going to take you to
24· ·another e-mail just as one example instead of
25· ·going -- you were cc'ed in several e-mails, but I'm
·1· ·going to take you to one particular one, Exhibit No.
·2· ·11-82.· And that would be in your volume six, so
·3· ·you're now changing briefs, tab 76.
·4· · · · · · · · · A.· 76?
·5· · · · · · · · · Q.· Yes.
·6· · · · · · · · · A.· Yes.
·7· · · · · · · · · Q.· And basically as an example you
·8· ·describe the library as being in a certain state.
·9· ·But in this e-mail dated April 27th, 2005, so at
10· ·this point you had already been part of Council for
11· ·well over a year.· Ms. Morin writes to several
12· ·people including yourself and she describes -- she
13· ·describes that part of the library was closed off.
14· ·That many ceiling tiles were wet; some even
15· ·collapsed; and that she was sick because of
16· ·respiratory problems due to mold.· Do you remember
17· ·reading this e-mail?
18· · · · · · · · · A.· Yes.
19· · · · · · · · · Q.· And what was your reaction to it?
20· · · · · · · · · A.· Well, actually I spoke to
21· ·Ms. Morin about it and she was having quite an
22· ·adverse reaction to the mold.· I'm not a doctor, so
23· ·I have to take her word for that.· And she
24· ·eventually ended up quitting and I don't believe she
25· ·lives here anymore.· I stand to be corrected but.
·1· · · · · · · · · Q.· So what she describes, would this
·2· ·be something that you had seen yourself at the
·3· ·library?
·4· · · · · · · · · A.· Absolutely.· Right in behind the
·5· ·main desk where you return your books and check them
·6· ·out.· There was a room back in there that was
·7· ·covered in mold.· But I think you have to, you know,
·8· ·maybe step one step back and get the big picture
·9· ·here.
10· · · · · · · · · Because although I was focused mostly
11· ·on the library, you had to see the whole mall. I
12· ·mean, in front of Zellers there were, you know, what
13· ·do you call them?· Plastic pots gathering water.
14· ·There was water on the second floor at the -- what
15· ·do you call it?· Food court.· You know, stuff like
16· ·that.· The dollar store leaked.· I thought to
17· ·myself, you know, maybe there's a broader issue
18· ·here, you know.
19· · · · · · · · · Q.· Okay.
20· · · · · · · · · A.· Yup.
21· · · · · · · · · Q.· Now, did any member of Council or
22· ·just Council all together ever consider referring
23· ·the issue of the leaks to a Property Standards
24· ·Officer or to the Building Department?
25· · · · · · · · · A.· No.· And if I knew what I knew
·1· ·[sic] now, that would have happened, but I just
·2· ·simply didn't know.
·3· · · · · · · · · Q.· Right, okay.· Now, moving on to
·4· ·Retirement Living.· Retirement Living owned the mall
·5· ·during approximately the first year and a half of
·6· ·your term as Councillor.· Did you ever attend
·7· ·Retirement Living board meeting?
·8· · · · · · · · · A.· No.
·9· · · · · · · · · Q.· Okay.· And why would that be?
10· · · · · · · · · A.· Well, I received a document to --
11· ·a nondisclosure document that I was to keep
12· ·everything private if I went to the meetings.· And I
13· ·was just way too early into doing what I was doing
14· ·what I thought was right before I ever would sign
15· ·it.· And as it turns out, in the three years I never
16· ·signed it.
17· · · · · · · · · Q.· And just for the record, if we
18· ·could pull up Exhibit No. 4213.· That would be tab
19· ·15 in the Farkouh additional documents.
20· · · · · · · · · A.· What tab, dear?
21· · · · · · · · · Q.· Fifteen.
22· · · · · · · · · A.· Yes.
23· · · · · · · · · Q.· Would this be the nondisclosure
24· ·agreement you would have been asked to sign?· If we
25· ·could flip to the second page?
·1· · · · · · · · · A.· Yes, sorry, this is it.
·2· · · · · · · · · Q.· Your name is there in the bottom
·3· ·left hand corner?
·4· · · · · · · · · A.· Right.
·5· · · · · · · · · Q.· And it basically states that
·6· ·you're not to disclose any communication, whether
·7· ·verbal or written, that you would have learned at
·8· ·the meeting.
·9· · · · · · · · · A.· That's correct.
10· · · · · · · · · Q.· Okay.· And so you didn't sign it
11· ·because you didn't feel comfortable making -- taking
12· ·on such an undertaking at that stage?
13· · · · · · · · · A.· More so -- I think more my
14· ·thinking at the time was that Farkouh and Hamilton
15· ·were sitting on that board and I thought that there
16· ·would be some communication with them because they
17· ·were elected officials.
18· · · · · · · · · Q.· Hmm hmm.
19· · · · · · · · · A.· Of course that was not the case.
20· ·I don't think, in the time I was there, that they
21· ·ever brought issues forward involving Retirement
22· ·Living or NorDev because they signed the agreement
23· ·so they were in a catch 22.
24· · · · · · · · · Q.· Hmm hmm.
25· · · · · · · · · A.· You see.
·1· · · · · · · · · Q.· Right.· And did you ever seek to
·2· ·obtain a copy of the minutes of any of those
·3· ·meetings?
·4· · · · · · · · · A.· I did.· I asked -- I asked to see
·5· ·how the Mayor and Hamilton -- Farkouh and Hamilton
·6· ·were voting because there were some funds that I was
·7· ·concerned about.· And the next thing you know I'm in
·8· ·-- I got a phone call to go and see Mr. Kearns who
·9· ·presented me with a letter.· I think you have it
10· ·here.· And it's important because --
11· · · · · · · · · Q.· Yes, and that would be Exhibit
12· ·No. 4215.· Tab 17 of the brief you have in front of
13· ·you.
14· · · · · · · · · A.· Just a minute.· What tab is it?
15· · · · · · · · · Q.· Tab 17.
16· · · · · · · · · A.· Oh, yes, there it is.· Yes,
17· ·that's the letter.
18· · · · · · · · · Q.· So this would be the letter that
19· ·you received from Mr. Kearns after you asked him to
20· ·obtain a copy of the minutes.· Did you specify which
21· ·meeting you were interested in?
22· · · · · · · · · A.· No.· I wanted the whole year.
23· ·And I just want to say something here that this
24· ·letter, Mr. Kearns explained it to me, I didn't
25· ·know, I· thought a not-for-profit company was a
·1· ·company governed by the government, which it is to
·2· ·some degree over the audit, is what I want to say.
·3· ·But Mr. Kearns explained to me that, you know, it's
·4· ·not a public company and that I have no privileges
·5· ·or rights to look at the minutes or anything else.
·6· · · · · · · · · Q.· Okay.· So --
·7· · · · · · · · · A.· So I understood that.
·8· · · · · · · · · Q.· So if we're actually to read what
·9· ·Mr. Kearns specifically stated, in the last
10· ·paragraph he writes:
11· · · · · · · · · "As you know, the City appoints two
12· · · · · · · · · members to the board of Elliot Lake
13· · · · · · · · · Retirement Living.· If, as a
14· · · · · · · · · councillor of the City, you wish
15· · · · · · · · · information on a specific topic, you
16· · · · · · · · · could direct your request to one of
17· · · · · · · · · your representatives on the Board,
18· · · · · · · · · and they in turn could ask the Board
19· · · · · · · · · at its next meeting to authorize its
20· · · · · · · · · release to you.· I would not
21· · · · · · · · · anticipate that a blanket request for
22· · · · · · · · · production of all minutes for
23· · · · · · · · · 2004/2005 would be approved."
24· · · · · · · · · So that's what you -- that's what you
25· ·just said.· You can't -- he told you you could not
·1· ·obtain the minutes for the entire year, but he did
·2· ·say that you could make a specific request and that
·3· ·the board, the Retirement Living board would decide
·4· ·whether they would grant them to you?
·5· · · · · · · · · A.· Well, yes.· And I --
·6· · · · · · · · · Q.· Did you follow up after you
·7· ·received this letter?
·8· · · · · · · · · A.· No, and I'll tell you what
·9· ·happened.· There was a room full of -- not a room
10· ·full of, maybe six people standing around.· It was
11· ·11 in the morning and we were at -- in front of
12· ·Mayor Farkouh's office at the secretary's desk.· And
13· ·I said, good morning.· And he -- and then I said,
14· ·How's the medical clinic going?· Which was a --
15· ·prior to the medical clinic being here.· And he said
16· ·to me, You have too much time on your hands.· We
17· ·need to find you a job.· How much money are you
18· ·making with your police pension?· What?· 10 or
19· ·$15,000?· And with that he walked away.· I never
20· ·asked him another question.
21· · · · · · · · · Q.· And that's where that ended.
22· · · · · · · · · A.· Yup.
23· · · · · · · · · Q.· Okay.
24· · · · · · · · · THE COMMISSIONER:· Who said this to
25· ·you, sir, Mr. Farkouh?
·1· · · · · · · · · A.· Mr. Farkouh.
·2· · · · · · · · · THE COMMISSIONER:· Thank you.
·3· · · · · · · · · BY MS. NENADIC:
·4· · · · · · · · · Q.· Now, moving onto the caucus
·5· ·meetings which we learned were being held at the
·6· ·City.· During your term as Councillor, do you
·7· ·remember -- so you said you attended caucus
·8· ·meetings.· Do you remember how many you attended?
·9· · · · · · · · · A.· We were generally meeting about
10· ·once a month, but not every month.
11· · · · · · · · · Q.· And would you say you attended
12· ·regularly, irregularly, frequently, not always?
13· · · · · · · · · A.· Oh, no, frequently.· I might have
14· ·missed one or two because of other commitments, but
15· ·I pretty much was at every one.
16· · · · · · · · · Q.· Okay.· And were members of the
17· ·public allowed to attend?
18· · · · · · · · · A.· That's a tough question for me to
19· ·answer because there were invited guests that came
20· ·in here, but my general answer is, no, they weren't.
21· · · · · · · · · Q.· Okay.
22· · · · · · · · · A.· Certainly I never saw any
23· ·advertisement of the -- but you see I didn't
24· ·understand.· This term caucus came up as a result of
25· ·this inquiry.· I thought we were all just getting
·1· ·together to discuss the matters of the day or the
·2· ·future of Elliot Lake.
·3· · · · · · · · · Q.· Would you have obtained a copy of
·4· ·the agendas which we looked at earlier?
·5· · · · · · · · · A.· Yes.
·6· · · · · · · · · Q.· And on the very top it says
·7· ·Council caucus.· And you don't recall them ever
·8· ·being called caucus meetings?
·9· · · · · · · · · A.· No, I don't.
10· · · · · · · · · Q.· You don't, okay.· Where were
11· ·these meetings held?
12· · · · · · · · · A.· Where what?
13· · · · · · · · · Q.· Where were these meetings held?
14· · · · · · · · · A.· Generally speaking, across kitty
15· ·corner from the front door of City Hall in what
16· ·would best be described as a conference room.· We
17· ·certainly used it for various groups many, many
18· ·times.
19· · · · · · · · · Q.· Okay.· Was access to the room
20· ·blocked?
21· · · · · · · · · A.· Depends on the time of day.· But
22· ·after --
23· · · · · · · · · Q.· During caucus meetings, pardon
24· ·me, I didn't specify in my question.
25· · · · · · · · · A.· That's okay.· The doors were
·1· ·locked, I mean, generally speaking.
·2· · · · · · · · · Q.· The door of the conference room
·3· ·or the door of the City Hall?
·4· · · · · · · · · A.· The front door of the City Hall.
·5· ·And I've seen them on some occasions lock the door
·6· ·to the actual conference room.
·7· · · · · · · · · Q.· Okay.· So that was going to be my
·8· ·-- I was going to follow up with that question.· The
·9· ·conference room would sometimes be locked and
10· ·sometimes unlocked during the meeting?
11· · · · · · · · · A.· Yes.
12· · · · · · · · · Q.· Okay.
13· · · · · · · · · A.· Of course, once the front door's
14· ·locked, nobody gets in anyways, so.
15· · · · · · · · · Q.· Right.· And do you recall during
16· ·the times that you attended the meetings any member
17· ·of the public coming up to the door or whatnot and
18· ·wanting to attend and being denied access?
19· · · · · · · · · A.· I'm sorry, I don't, but how would
20· ·they know?
21· · · · · · · · · Q.· Right.· Who else was present
22· ·during these meetings on a regular basis?
23· · · · · · · · · A.· Well, all of Council, of course
24· ·the Mayor, on occasion Mrs. Sprague would be there.
25· ·Of course Troy never missed one -- Mr. Speck,
·1· ·rather.· And there would be guests, for example, the
·2· ·media on one occasion, Kevin McSheffrey was there.
·3· · · · · · · · · Another one was the cab owner, it was
·4· ·a terrible time.· His name was -- I can't think of
·5· ·his name.· At any rate, he was trying to get a cab
·6· ·licence resolved with some various issues and we had
·7· ·a hard time with him because, please accept my
·8· ·apology, but his English wasn't very good.· He spoke
·9· ·French fluently.
10· · · · · · · · · Q.· Okay.
11· · · · · · · · · A.· And we advised him to get a
12· ·French person that spoke English so we didn't have
13· ·all this bantering.· But he attended frequently, but
14· ·then right after his presentation, he left the room.
15· · · · · · · · · Q.· Now, somebody that would have
16· ·attended on an occasional basis or are you saying
17· ·that some people were invited to make a presentation
18· ·and then were asked to leave?
19· · · · · · · · · A.· Infrequently.
20· · · · · · · · · Q.· Right.· So these people knew that
21· ·such a thing as a caucus meeting existed.· Did any
22· ·of the people that were invited for a specific
23· ·occasion ever attempt to walk into a meeting when
24· ·they were not invited?
25· · · · · · · · · A.· I don't think so.
·1· · · · · · · · · Q.· You don't think so, okay.· Were
·2· ·minutes of these meetings kept?
·3· · · · · · · · · A.· I've been thinking of this for
·4· ·about three months now and I'm going to say that I
·5· ·just simply don't recall.· I don't remember anybody
·6· ·making notes.· Someone asked me if Mrs. Sprague made
·7· ·notes and I can't answer that.· My focus was on
·8· ·other things than what she was doing.
·9· · · · · · · · · Remember, this is still early in my
10· ·tenure too.· I'm still learning every day.· In fact
11· ·I haven't stopped.
12· · · · · · · · · Q.· Do you believe that Ms. Sprague
13· ·would have been the one writing out the agenda?· Who
14· ·would be responsible for --
15· · · · · · · · · A.· I'm sorry, I don't know.
16· · · · · · · · · Q.· You wouldn't know, okay.· And
17· ·then finally, were you surprised by the fact that
18· ·the issues such as the one that arose in the e-mail
19· ·with your presentation and the way it was
20· ·interpreted, are you surprised that that was
21· ·addressed at a caucus meeting versus at a City
22· ·Council regular meeting?
23· · · · · · · · · A.· The answer to that is complicated
24· ·and I'll be brief.· But, you know, with Ms.
25· ·McTaggart starting to write all these e-mails and,
·1· ·you know, I had a lot of other responsibilities and
·2· ·I did my thing.· In fact, I -- if you recall, I got
·3· ·a drawing of a beautiful library to be located just
·4· ·up the street here.· And I presented that to Troy
·5· ·and I also got a commitment from a builder, who --
·6· ·actually more than one, who said we could build a
·7· ·library for more than -- for under $2 million.· And
·8· ·I thought to myself, well, we're paying $77,000 a
·9· ·year now.· That's very simple to get another
10· ·debenture and build them a new library.
11· · · · · · · · · I want to say one other thing.
12· · · · · · · · · Q.· Sir --
13· · · · · · · · · A.· What was the question again?
14· · · · · · · · · Q.· All right, I'm going to repeat
15· ·it.· Were you surprised by the fact that the issue
16· ·that arose after your presentation during the
17· ·Library Board meeting, were you surprised that that
18· ·was discussed at a caucus meeting versus a regular
19· ·City Council meeting?
20· · · · · · · · · A.· No.· But -- no, I wasn't
21· ·surprised.· I just thought that -- like I really --
22· ·maybe it's my faith in human beings, you know. I
23· ·would have thought that with Farkouh and Hamilton
24· ·sitting on the board of Retirement Living, the
25· ·e-mails from Ms. McTaggart, my effort to try and
·1· ·maybe spark a little life into somebody that this
·2· ·would have been an issue that would have -- I'm just
·3· ·-- to this day, I still don't think this issue has
·4· ·been resolved.· I mean, it was all laid out for
·5· ·everybody and so I can't answer why people didn't do
·6· ·things.· That's not one thing I can do.· I have no
·7· ·idea.
·8· · · · · · · · · Q.· Thank you, Mr. Denley.
·9· · · · · · · · · MS. NENADIC:· Mr. Commissioner, those
10· ·are all my questions.
11· · · · · · · · · THE WITNESS:· You're welcome.
12· · · · · · · · · THE COMMISSIONER:· Thank you.
13· ·Cross-examination.· Mr. Bisceglia.
14· · · · · · · · · CROSS-EXAMINATION BY MR. BISCEGLIA:
15· · · · · · · · · Q.· Thank you very much.· My name is
16· ·Joe Bisceglia.· My client is Mr. Greg Saunders. I
17· ·have a couple of questions for you on a few issues.
18· · · · · · · · · How far did you get to school?
19· · · · · · · · · A.· Grade 13.
20· · · · · · · · · Q.· And do you have any special
21· ·diplomas or certificates?
22· · · · · · · · · A.· Well, I have a couple of courses
23· ·in psychology and sociology, but.
24· · · · · · · · · Q.· And you ran and you were elected
25· ·as a Councillor, is that correct?
·1· · · · · · · · · A.· Yes.
·2· · · · · · · · · Q.· And I gather that when you became
·3· ·a Councillor, you swore an oath, did you not?
·4· · · · · · · · · A.· Yes.
·5· · · · · · · · · Q.· Yes.· And you ran and got elected
·6· ·to represent the people of Elliot Lake, correct?
·7· · · · · · · · · A.· Yes.
·8· · · · · · · · · Q.· And I'm not familiar with the
·9· ·Council of Elliot Lake, did you run at large or have
10· ·a ward?
11· · · · · · · · · A.· At large.
12· · · · · · · · · Q.· And so I gather part of your
13· ·responsibilities as a Councillor is to do good for
14· ·the community, to advance the interests of the
15· ·citizenry, is that correct?
16· · · · · · · · · A.· Yes.
17· · · · · · · · · Q.· Okay.· And for that purpose, I
18· ·gather you were appointed to what?· Two or three
19· ·boards?· Five boards?· How many boards were you on,
20· ·roughly?
21· · · · · · · · · A.· Let's say three or four.· I don't
22· ·--
23· · · · · · · · · Q.· You don't remember?
24· · · · · · · · · A.· No, I didn't say that.· If you
25· ·want me to remember, you'll have to give me a
·1· ·minute.
·2· · · · · · · · · Q.· Yes, please, take a minute.
·3· ·Reflect for a moment.
·4· · · · · · · · · A.· Three.
·5· · · · · · · · · Q.· And what boards were those, sir?
·6· · · · · · · · · A.· The Youth Bureau one, the --
·7· ·dealing with the youths of Elliot Lake.· The Finance
·8· ·Committee.
·9· · · · · · · · · Q.· For the City of Elliot Lake?
10· · · · · · · · · A.· Yes.
11· · · · · · · · · Q.· Yes.· What else?
12· · · · · · · · · A.· The third Board was Parks and
13· ·Rec, Parks and Recreation.
14· · · · · · · · · Q.· Now, in addition to the meetings
15· ·that you had monthly that we referred to as the
16· ·caucus meeting, I gather that there were meetings of
17· ·the Council which were open to the public and
18· ·advertised, is that correct?
19· · · · · · · · · A.· For the Council meetings?
20· · · · · · · · · Q.· Yes.
21· · · · · · · · · A.· Yes, that's correct.
22· · · · · · · · · Q.· Right.· And I gather that when
23· ·you were elected and after your appointment, there
24· ·was a period of initiation where you were given a
25· ·perimetre, if you will, or a primer, rather, with
·1· ·respect to the rules and how things were conducted,
·2· ·business was conducted at the Council?
·3· · · · · · · · · A.· Yes.
·4· · · · · · · · · Q.· And am I correct in saying that
·5· ·one of the fundamental things that a Councillor
·6· ·could do in the City of Elliot Lake was to put
·7· ·matters on an agenda for open discussion?
·8· · · · · · · · · A.· Well, as I say, it was a learning
·9· ·curve.· The answer, if you want me to answer today,
10· ·yes, that's the correct answer, but just a minute.
11· ·But when I brought things to the caucus meetings,
12· ·for example, I didn't like the idea of so many in
13· ·camera meetings, it just became a screaming session
14· ·and I would -- even almost to the point of hysteria.
15· ·And I withdrew that because they said I was the
16· ·wrong.
17· · · · · · · · · Q.· I'll ask the question again,
18· ·Mr. Commissioner, of the witness.· Did you receive
19· ·some fundamental instructions as to how the business
20· ·of the Council was conducted and one of the things
21· ·that you could do as a Councillor was to put matters
22· ·on the agenda of the public meetings of Council,
23· ·sir?
24· · · · · · · · · A.· Yes.
25· · · · · · · · · Q.· Yes.· And when in relation to the
·1· ·day that you were sworn in as a Councillor did you
·2· ·find out that that's something that you could have
·3· ·done as a Councillor?
·4· · · · · · · · · A.· No, I'm not -- I have to answer
·5· ·it this way.· And that is that I wanted to -- I had
·6· ·it -- for example, I had on paper to go on the
·7· ·agenda about the in camera meetings and the hysteria
·8· ·got so bad that I thought maybe I had the wrong idea
·9· ·about things and so I withdrew it.· Now, this
10· ·happened more than once.· So -- so wait a minute.
11· ·So you're going to ask me your question is, when did
12· ·I find out that I could do that?· Well, how can I do
13· ·that when the opposition is so vocal about not doing
14· ·it?
15· · · · · · · · · Q.· Sir, when did you find out that
16· ·you could put matters on the public agenda of
17· ·Council of the City of Elliot Lake in relation to
18· ·the day that you were sworn in?
19· · · · · · · · · A.· Well, I'm not -- I don't see how
20· ·I can answer that question in light of what I've
21· ·just told you.· I did put things on paper and they
22· ·were never ever got to the Council meeting.
23· · · · · · · · · Q.· Is it your evidence under oath
24· ·today that the Clerk of the City of Elliot Lake
25· ·refused to put matters on the agenda that you wanted
·1· ·to put on the agenda for public discussion?
·2· · · · · · · · · A.· No, that's not my evidence.
·3· · · · · · · · · Q.· So my question to you is, did you
·4· ·ever at any time request that the matter of the
·5· ·library be put on the Council's agenda for
·6· ·discussion and debate?
·7· · · · · · · · · A.· No.
·8· · · · · · · · · Q.· And given your evidence under
·9· ·oath today and the comments that we've seen that
10· ·were attributed to you in the e-mails that were
11· ·referred to by counsel for the Commission, why in
12· ·the world would you not put that on a public meeting
13· ·of the Council of Elliot Lake for debate and
14· ·discussion?· If you're serious about the problem and
15· ·you want to resolve it --
16· · · · · · · · · A.· Do I get to answer the question?
17· · · · · · · · · Q.· Sure.
18· · · · · · · · · A.· You know, I repeat myself.· The
19· ·procedure to go to the Clerk would be the
20· ·appropriate one.· That is not the way it worked.· It
21· ·went to Mr. Speck and then a caucus meeting and the
22· ·argument was on.· What was I to do?· What was I to
23· ·do?· Bring the thing in an envelope and put it on
24· ·the agenda myself?· I couldn't do that.· And
25· ·remember, I just started here.
·1· · · · · · · · · Q.· Sir, you testified under oath
·2· ·that you at no time were you refused by the Clerk
·3· ·any request to put matters on the agenda and you've
·4· ·also testified under oath that you at no time asked
·5· ·that the matter of the library be put on the public
·6· ·agenda of Council.
·7· · · · · · · · · A.· Well, that -- I didn't need to
·8· ·because Ms. McTaggart sat on that board.· She was
·9· ·cognizant of all of the information.· Why would I do
10· ·it.· It's not my job or I didn't think it was.
11· · · · · · · · · Q.· How many Councillors were there
12· ·in the Council of Elliot Lake when you sat there?
13· · · · · · · · · A.· Six Councillors, one Mayor.
14· · · · · · · · · Q.· And is it your evidence that you
15· ·at no time were able to find a seconder to any
16· ·motion that you may have wanted to bring?
17· · · · · · · · · A.· Be more specific, please, what
18· ·motion?
19· · · · · · · · · Q.· Well, my understanding is that,
20· ·hypothetically speaking, if someone was refusing the
21· ·put an item on the agenda that you might have
22· ·wanted, if you had a seconder, you could bring a
23· ·motion to put something on the Council's agenda.
24· · · · · · · · · A.· At a Council meeting --
25· · · · · · · · · Q.· Yes.
·1· · · · · · · · · A.· -- sure.
·2· · · · · · · · · Q.· And did you ever do that?
·3· · · · · · · · · A.· No.
·4· · · · · · · · · Q.· Why not?
·5· · · · · · · · · A.· Well, because Ms. McTaggart was
·6· ·on that Board.· I was prepared to do anything she
·7· ·wanted to do, but I moved on to other things. I
·8· ·found opposition from the CEO, I found opposition
·9· ·from the Councillors, and the Library Board itself,
10· ·so what was I supposed to do?
11· · · · · · · · · Q.· Well, you said that you wanted
12· ·the library to move.
13· · · · · · · · · A.· Yes.
14· · · · · · · · · Q.· You said that you didn't want the
15· ·City to make payments on the rent, because of the
16· ·leaks, on the lease, is that correct?
17· · · · · · · · · A.· The first part is.· The second
18· ·part I never ever suggested that they withhold
19· ·payment.
20· · · · · · · · · Q.· Why wouldn't you make a motion at
21· ·an open Council meeting wishing Council to vote on
22· ·any issues that you thought relevant?
23· · · · · · · · · A.· It doesn't work that way, sir.
24· · · · · · · · · Q.· Did you at any time move or
25· ·attend Council to or establish for Council some sort
·1· ·of strategy to address the issue of the leaks at the
·2· ·library?
·3· · · · · · · · · A.· No.
·4· · · · · · · · · Q.· Did you ever follow up the
·5· ·request seeking the specific financial information
·6· ·on the matters that you thought Mayor Farkouh and
·7· ·Councillor Hamilton had voted on?
·8· · · · · · · · · A.· No.
·9· · · · · · · · · Q.· Why do you take the position that
10· ·you had such keen interest and then take no steps to
11· ·follow through on any of the items that you said
12· ·concerned you?
13· · · · · · · · · A.· Well, first of all, I knew I
14· ·wasn't going to get anything from Retirement Living.
15· ·That was number one.· And the library was -- I
16· ·stepped aside.· Kathy was -- or Ms. McTaggart was
17· ·writing e-mail after e-mail after e-mail, you know.
18· ·That's enough.
19· · · · · · · · · Q.· Did you run for election the last
20· ·time and lose?
21· · · · · · · · · A.· Which election?
22· · · · · · · · · Q.· The last election.· You were
23· ·defeated, weren't you not -- were you not?
24· · · · · · · · · A.· I ran for Mayor and was defeated.
25· · · · · · · · · Q.· And what election was that, sir?
·1· · · · · · · · · A.· Six -- 2006 to 2010.
·2· · · · · · · · · Q.· Thank you very much.
·3· · · · · · · · · THE COMMISSIONER:· Thank you.
·4· · · · · · · · · THE WITNESS:· What kind of a question
·5· ·is that?
·6· · · · · · · · · MR. MACRAE:· I have no questions, Mr.
·7· ·Commissioner.
·8· · · · · · · · · THE COMMISSIONER:· Moving across the
·9· ·room.· Mr. Cassan.
10· · · · · · · · · CROSS-EXAMINATION BY MR. CASSAN:
11· · · · · · · · · Q.· Mr. Denley, my name is Paul
12· ·Cassan.· I'm counsel for the City of Elliot Lake.
13· · · · · · · · · I understand that you had a friend
14· ·look at the mall, Mr. Sarter, is that true?
15· · · · · · · · · A.· Yes.· He happens to be here today
16· ·as a matter of fact.
17· · · · · · · · · Q.· And I understand that he told you
18· ·that the place was going to fall down?
19· · · · · · · · · A.· Not necessarily in those words,
20· ·but pretty much.· Mr. Sarter -- I don't know if I
21· ·can talk about his credentials.· He's been in
22· ·construction for 50 years.· In fact, he's worked
23· ·with steel support beams when he was living and
24· ·working in Collingwood.
25· · · · · · · · · So we were there one day and the
·1· ·water's pouring down, and de, de, de, and he sees
·2· ·the rust and I see the rust.· Maybe that was a bit
·3· ·of an off-handed remark.· I believe he said
·4· ·something like that though.
·5· · · · · · · · · Q.· And did you believe that to be
·6· ·true?
·7· · · · · · · · · A.· I didn't pay any -- I didn't put
·8· ·any stock in it because, you know, I knew that he
·9· ·was not an engineer and -- or a scientist, or
10· ·whatever, that he was in construction.· So, I mean,
11· ·you know you need to have the professionals come and
12· ·look at it.
13· · · · · · · · · Q.· And you didn't -- you did not
14· ·bring that concern to Council?
15· · · · · · · · · A.· No.· Why would I?· Everybody
16· ·there knew the roof leaked.
17· · · · · · · · · Q.· When did you become aware of the
18· ·Property Standards By-Law?
19· · · · · · · · · A.· I -- part of the package that we
20· ·got for training was in there.· I read it over
21· ·briefly, but I didn't understand any of it.· It's
22· ·not that I didn't understand the language.· So I
23· ·would say right away.· But I didn't know what you
24· ·could do with it.· I had no idea.
25· · · · · · · · · Q.· You didn't know that the Building
·1· ·Department enforced it?
·2· · · · · · · · · A.· No.
·3· · · · · · · · · Q.· So I take it from that that you
·4· ·didn't ask either the Building Department or the CAO
·5· ·or Council to refer it to the Building Department?
·6· ·And when I say "it", I'm sorry, I mean the issue of
·7· ·leaking in the mall.
·8· · · · · · · · · A.· You know, to answer that
·9· ·question, if you expect me to go to the Building
10· ·Department, no, I didn't.· But what's wrong with the
11· ·rest of these folks who knew that the mall leaked
12· ·and the mall leaked badly.
13· · · · · · · · · Q.· When we're talking about the rest
14· ·of these folks, I suppose you were in Elliot Lake in
15· ·advance of being a Councillor?
16· · · · · · · · · A.· Yes.· Yes, approximately two
17· ·years.
18· · · · · · · · · Q.· And you did not file any written
19· ·complaints during the time prior to being on
20· ·Council?
21· · · · · · · · · A.· Absolutely not.· I was coaching
22· ·baseball and soccer.
23· · · · · · · · · Q.· Those are my questions thank you.
24· · · · · · · · · A.· Thank you.
25· · · · · · · · · THE COMMISSIONER:· Thank you,
·1· ·Ms. Smith.
·2· · · · · · · · · MS. SMITH:· No questions.
·3· · · · · · · · · THE COMMISSIONER:· Let's take our
·4· ·afternoon break.
·5· · · · · · · · · ---· Afternoon break taken at 3:30
·6· ·p.m.
·7· · · · · · · · · ---· Upon resuming at 3:50 p.m.
·8· · · · · · · · · THE COMMISSIONER:· Mr. Richards.
·9· · · · · · · · · CROSS-EXAMINATION BY MR. RICHARDS:
10· · · · · · · · · Q.· Sir, good afternoon, again.
11· · · · · · · · · A.· Thank you.
12· · · · · · · · · Q.· I believe you said earlier that
13· ·you became aware of the issues with the leaks in the
14· ·library in 2002?
15· · · · · · · · · A.· That's correct.
16· · · · · · · · · Q.· And I think you described it as
17· ·chaotic?
18· · · · · · · · · A.· Yes.
19· · · · · · · · · Q.· There were tarps on the floor?
20· · · · · · · · · A.· No, no tarps on the floor.· They
21· ·were on the books and covering the book shelves and
22· ·buckets on the floor collecting water leaking from
23· ·the roof.
24· · · · · · · · · Q.· Did you notice leaking in any
25· ·other part of the mall at that time?
·1· · · · · · · · · A.· Yes.
·2· · · · · · · · · Q.· Where?
·3· · · · · · · · · A.· Well, in front of Zellers, inside
·4· ·Zellers, the food court.· Basically that's it.· Oh,
·5· ·the Bank of Nova Scotia, that was a mess that was.
·6· · · · · · · · · Q.· Can you describe what you mean by
·7· ·mess?
·8· · · · · · · · · A.· Well, it leaks, you know how --
·9· · · · · · · · · THE COMMISSIONER:· Sir, excuse me.
10· ·We're having a technical problem.· We'll start again
11· ·in a minute after it's corrected.
12· · · · · · · · · THE WITNESS:· Story of my life.
13· · · · · · · · · THE COMMISSIONER:· Working?· Okay.
14· ·Perhaps you can reput the question to the witness
15· ·again.
16· · · · · · · · · BY MR. RICHARDS:
17· · · · · · · · · Q.· I think at the time you'd just
18· ·given evidence that you also noticed leaks at the
19· ·Bank of Nova Scotia and I asked you to describe what
20· ·you saw.
21· · · · · · · · · A.· Thank you, that's correct.· And
22· ·what I saw standing out in the center court was I
23· ·looked in the bank and, you know, that how a bank
24· ·when they want to organize the people from coming
25· ·in, they put up a -- an alleyway, so to speak, so
·1· ·they can walk up and get to the front of the line
·2· ·and they be number one.
·3· · · · · · · · · Q.· Right.
·4· · · · · · · · · A.· Well, in addition to walking
·5· ·through that challenging area was buckets.· So you
·6· ·had to walk in between the buckets to get to the
·7· ·line to do your banking.
·8· · · · · · · · · I subsequently saw the Bank of Nova
·9· ·Scotia when they took the walls down.· Now, I'm
10· ·going to have trouble with the year here.· I would
11· ·say 2008 maybe.· And when they tore down the
12· ·drywall, I happened to be there and the entire
13· ·surface of the wall was completely black and covered
14· ·in mold.
15· · · · · · · · · Q.· That's quite a visual.
16· · · · · · · · · A.· Yeah.
17· · · · · · · · · Q.· Now, in 2003, you ran for office?
18· · · · · · · · · A.· 2002 actually.
19· · · · · · · · · Q.· 2002.
20· · · · · · · · · A.· Yeah, the late fall.
21· · · · · · · · · Q.· Okay.
22· · · · · · · · · A.· I started on January the 1st of
23· ·'03.
24· · · · · · · · · Q.· And I believe you mentioned that
25· ·one of the issues you ran on was the leaking in the
·1· ·library?
·2· · · · · · · · · A.· Absolutely.· And I remember in
·3· ·fact I went and looked back to see what my speech
·4· ·was, it was only three minutes, but I had mentioned
·5· ·that $77,000 a year was going to Retirement
·6· ·Living/NorDev and that the library leaked.· There
·7· ·was other issues, mind you, but that was one of
·8· ·them.
·9· · · · · · · · · Q.· Now, where did the speech take
10· ·place?
11· · · · · · · · · A.· At Collins Hall.· It was called
12· ·all candidates night.· Each of the Councilors got
13· ·three minutes for -- to run for office.· And the
14· ·Mayors -- did someone run against -- yes, there were
15· ·two candidates for Mayor and they had five minutes.
16· · · · · · · · · Q.· So --
17· · · · · · · · · A.· And then questions from the
18· ·audience, I'm sorry.
19· · · · · · · · · Q.· No problem.· So just to lay it
20· ·out I guess for efficiency's sake, all the
21· ·Councilors have a set amount of time to give their
22· ·speech, the Mayor -- mayoral candidates are there as
23· ·well, and people can ask questions?
24· · · · · · · · · A.· Yes.
25· · · · · · · · · Q.· At the end of it?
·1· · · · · · · · · A.· Yes.· They were scrutinized, mind
·2· ·you, to what degree I don't know.· But the questions
·3· ·were -- that I saw were relatively generic.· One guy
·4· ·got up and asked me, why I would quit a good job in
·5· ·Toronto as a cop and come to Elliot Lake.· And --
·6· ·well, hang on.· So the folks that ran it said you
·7· ·don't have to answer that.· And I said, I can't wait
·8· ·to answer that.· I said I couldn't wait to get out
·9· ·of that, and I apologize because you live there, but
10· ·that den of inequity.
11· · · · · · · · · Q.· So you expected that at that
12· ·speech the other Councillors and the mayoral
13· ·candidates would have heard your speech and the
14· ·issues you raised about the leaks in the library?
15· · · · · · · · · A.· I assume.
16· · · · · · · · · Q.· Now, you were elected?
17· · · · · · · · · A.· Yes.
18· · · · · · · · · Q.· And I'm paraphrasing, but from
19· ·what I understand, at the beginning you were sort of
20· ·feeling your way out and trying maybe not to step on
21· ·too many people's toes?
22· · · · · · · · · A.· That's correct.· In fact, I did
23· ·that for a year.· I kept thinking I was in the
24· ·wrong, you know?· I mean, these folks have had years
25· ·at this.· The Mayor was in his 16th year.· Some of
·1· ·the other folks had 10 years.· So I'm saying to
·2· ·myself, you know, you have to have a little bit of
·3· ·respect here for these individuals, you know.· Maybe
·4· ·I am wrong.· But I just kept hearing those words
·5· ·coming back in my head that the roof leaks two
·6· ·months out of the year.· How can I be wrong?
·7· · · · · · · · · Q.· On the topic of the Mayor, I
·8· ·believe you'd said earlier that at around April 27,
·9· ·2005, you had an encounter with the Mayor where he
10· ·said we need to find you a new job.· And after that
11· ·you didn't have a discussion with him?
12· · · · · · · · · A.· Actually, no, it was much -- it
13· ·was probably a year -- it was probably -- what did
14· ·you say?· '05?
15· · · · · · · · · Q.· Yes.
16· · · · · · · · · A.· That's fair.
17· · · · · · · · · Q.· Okay.· Between the time when you
18· ·noticed the leaks in the library and that time when
19· ·you decided you weren't going to have another
20· ·conversation with him, did you ever have a
21· ·conversation with Mayor Farkouh about the leaks in
22· ·the library?
23· · · · · · · · · A.· Yes.
24· · · · · · · · · Q.· More than once?
25· · · · · · · · · A.· Oh, yes.· Several times.
·1· · · · · · · · · Q.· Okay.· Can you tell me when that
·2· ·first discussion likely happened?
·3· · · · · · · · · A.· The first time that this came to
·4· ·the surface as a result of my actions was at a
·5· ·caucus meeting, you know.· Listen, I just want to
·6· ·say one thing about the Mayor.· I have perhaps put
·7· ·him in a bad light here with that story that I've
·8· ·told you.· Maybe he was having a bad day.· I don't
·9· ·know.· Maybe he didn't like me.· I don't know.
10· · · · · · · · · Q.· You seem like a likeable guy.· So
11· ·tell me about --
12· · · · · · · · · A.· Do you vote here?
13· · · · · · · · · Q.· No, I can't.· So tell me about
14· ·that discussion.· Is that the meeting that you were
15· ·referring to earlier with my friend?
16· · · · · · · · · A.· The first meeting at caucus
17· ·discussing the library, I must say that the Mayor
18· ·had his say and then told everybody to calm down
19· ·because it was really getting out of hand.· There
20· ·were, you know, it was -- look, I'm not a doctor,
21· ·but I've had some experience with psychotics and it
22· ·looked to me like it was some kind of a psychotic
23· ·episode.· I thought, what have I done here.· Because
24· ·like I say, I shut down, shut down completely. I
25· ·listened to the yelling, went home and decided that
·1· ·I was right, but I wanted to at least be sure, you
·2· ·know.· Give it some time, you know.· If that
·3· ·explains it.· I hope it does.
·4· · · · · · · · · Q.· So was May 3rd, 2004, the day of
·5· ·that meeting, the first time that you discussed the
·6· ·issue of the leaks in the library with Mayor
·7· ·Farkouh?
·8· · · · · · · · · A.· It seems a little late in 2004,
·9· ·but if that was the first caucus meeting then that
10· ·was the time.· I thought it was maybe somewhat
11· ·before that, but it could have been May the 4th,
12· ·yes.
13· · · · · · · · · Q.· Now, you say there was more than
14· ·one discussion with Mayor Farkouh about leaks in the
15· ·library.
16· · · · · · · · · A.· Hmm hmm.
17· · · · · · · · · Q.· Can you tell me about those other
18· ·discussions?
19· · · · · · · · · A.· We used to sit in his office and
20· ·talk.· And, you know, that was one of many -- there
21· ·were lots of other issues too.· I mean, it wasn't
22· ·the only one.· And I was uncomfortable with focusing
23· ·on one issue.· I never wanted to be a one issue guy,
24· ·if you know what I'm saying.
25· · · · · · · · · Q.· Right.
·1· · · · · · · · · A.· And there were a lot of other
·2· ·things to discuss, you know.· And remember, I'm the
·3· ·junior Councillor and at some point I realized that
·4· ·the four votes left me on the outside looking in
·5· ·because I was not one of the four.
·6· · · · · · · · · Q.· In those meetings in his office
·7· ·when you raised the issue of the leaks in the
·8· ·library, do you remember what his reaction was?
·9· · · · · · · · · A.· I would say that he didn't react.
10· · · · · · · · · Q.· And he just listened?
11· · · · · · · · · A.· Yes.
12· · · · · · · · · Q.· I know earlier you said you
13· ·didn't have a recollection of citizens being
14· ·excluded from caucus meetings.· Do you remember
15· ·perhaps Eddie Eckhardt being excluded from a caucus
16· ·meeting?
17· · · · · · · · · A.· I'm sorry, I don't.· I know the
18· ·story, but I'm sorry, I don't know.· My
19· ·understanding of that was that when -- and I'm not
20· ·going to talk about him so much, but he never got
21· ·inside the room, so I consequently would not have
22· ·seen him.
23· · · · · · · · · Q.· What about Kevin McSheffrey?
24· · · · · · · · · A.· Same applies.
25· · · · · · · · · Q.· Okay.· So you weren't at the
·1· ·meeting, but you just heard a story about --
·2· · · · · · · · · A.· Well, you'd have to tell me when
·3· ·the meetings were, but in all likelihood I was
·4· ·there, but I wouldn't have seen them.· I think
·5· ·McSheffrey, if I remember correctly, made some kind
·6· ·of a presentation or came in to take some pictures,
·7· ·I don't remember exactly, and then he left.· But he
·8· ·was -- I'm not going to testify to that.· That's not
·9· ·fair.· I don't know what happened to him.· These
10· ·individuals would have to tell their own story.
11· · · · · · · · · Q.· Okay.· Going back to the May 3rd,
12· ·2004, caucus meeting when the library -- the leaks
13· ·in the library were raised, you said earlier that
14· ·someone called you dangerous?
15· · · · · · · · · A.· Yeah, dangerous, and I'm going to
16· ·keep my eye on you.
17· · · · · · · · · Q.· Who said that?
18· · · · · · · · · A.· Councillor Soulier as a matter of
19· ·fact.· In fact, he stood halfway up, like went to
20· ·make a motion like halfway out of his chair.· He's a
21· ·big guy.· So I thought -- because I'm used to
22· ·people, by virtue of what I did for a living, the
23· ·odd time I'd get attacked, so I wanted to -- I
24· ·didn't overreact.· I reacted the way I would have if
25· ·I was still a cop.· And I was ready for him, but
·1· ·he's a big guy.· And I'm old.
·2· · · · · · · · · Q.· The last question about the
·3· ·caucus meetings.· Could you give me an estimate of
·4· ·the number of times that leaks, whether it be in the
·5· ·library or anywhere else in the mall, had been
·6· ·raised at caucus meetings that you attended?
·7· · · · · · · · · A.· Over the three years, myself was
·8· ·twice at the caucus meeting, and I believe Kathy
·9· ·McTaggart, if I'm not mistaken, two or three times,
10· ·but it's strictly a guess.· I'd have to look at the
11· ·e-mails and I don't remember.· I mean, I remember, I
12· ·just can't give you a specific answer.
13· · · · · · · · · Q.· Okay.· Do you recall speaking
14· ·about the leaks in the mall with Troy Speck?
15· · · · · · · · · A.· Oh, yes.
16· · · · · · · · · Q.· Okay.· Can you tell me, did you
17· ·have more than one discussion with him about the
18· ·leaks?
19· · · · · · · · · A.· Probably twice.· Apart from the
20· ·caucus meeting?
21· · · · · · · · · Q.· Yes.
22· · · · · · · · · A.· Yes, twice maybe.
23· · · · · · · · · Q.· What do you recall of those
24· ·discussions?
25· · · · · · · · · A.· Well, we have to go back to the
·1· ·caucus meeting where I presented a document to go
·2· ·before Council on in camera meetings and how I
·3· ·thought that some of them were unnecessary.· And
·4· ·Troy had -- Troy -- Mr. Speck just started screaming
·5· ·at me and he a stood over top of me and continued to
·6· ·scream like his face is right here.
·7· · · · · · · · · So once again I got safety concern
·8· ·and I pushed my chair back a bit and so talking to
·9· ·him was a challenge at the best of times.· And so
10· ·whenever I went in there, because I was still
11· ·learning and new, I tread softly, you know.· I'm not
12· ·going to go in there and bully him.· It wouldn't
13· ·have worked.
14· · · · · · · · · Q.· So based on what you're saying
15· ·that you're treading softly and I think you said
16· ·that that first year you were treading softly.· Can
17· ·then we assume that the discussions with Troy Speck
18· ·about the leaks in the mall happened in 2003 or
19· ·2004?
20· · · · · · · · · A.· That would be fair.
21· · · · · · · · · Q.· Okay.· Those are my questions.
22· · · · · · · · · THE COMMISSIONER:· Thank you.
23· · · · · · · · · A.· Thank you.
24· · · · · · · · · THE COMMISSIONER:· Mr. Kearns.
25· ·Mr. Myles.· No?· We've gone around the room.
·1· ·Re-examination?
·2· · · · · · · · · MS. NENADIC:· No, Mr. Commissioner.
·3· ·And I think that that's it for today.
·4· · · · · · · · · THE COMMISSIONER:· All right.· Thank
·5· ·you very much, sir.· Thank you for your help and
·6· ·your evidence.
·7· · · · · · · · · THE WITNESS:· Can I leave now?
·8· · · · · · · · · THE COMMISSIONER:· You're free to go
·9· ·sir, yes, thank you.· Who have we got tomorrow
10· ·morning?· Mr. Sarvinis.
11· · · · · · · · · MS. NENADIC:· Yes, and Mr. Regan as
12· ·well.
13· · · · · · · · · THE COMMISSIONER:· And Mr. Regan in
14· ·the afternoon in that order?
15· · · · · · · · · MS. NENADIC:· Yes.
16· · · · · · · · · THE COMMISSIONER:· All right.· Thank
17· ·you very much.· We'll start again at 9:00 tomorrow
18· ·morning.
19· · · · · · · · · ---· Whereupon the Inquiry
20· ·proceedings were adjourned for the day at 4:10 p.m.
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·1· · · · · · · · · REPORTER'S CERTIFICATE
·2
·3· · · · · · · · · I, HELEN MARTINEAU, CSR, Certified
·4· ·Shorthand Reporter, certify;
·5· · · · · · · · · That the foregoing proceedings were
·6· ·taken before me at the time and place therein set
·7· ·forth;
·8· · · · · · · · · That the testimony of the witness and
·9· ·all objections made at the time of the examination
10· ·were recorded stenographically by me and were
11· ·thereafter transcribed;
12· · · · · · · · · That the foregoing is a true and
13· ·accurate transcript of my shorthand notes so taken.
14· · · · · · · · · Dated this 11th day June of 2013.
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16· · · · · · · · · ___________________________
17· · · · · · · · · PER:· Helen Martineau
18· · · · · · · · · Certified Shorthand Reporter
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