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·2· · · · · · ·ELLIOT LAKE COMMISSION OF INQUIRY
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12· ·---· This is Day 44 in the Inquiry proceedings
13· ·held 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· ·15th day of May, 2013 commencing at 9:00 a.m.
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20· · · · · · ·REPORTED BY:· Helen Martineau
21· · · · · · · Certified Shorthand Reporter
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·1· ·A P P E A R A N C E S:
·2· ·Bruce Carr-Harris, Esq.,
·3· ·Natalia Rodriguez, Ms.,· · · Commission Counsel
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·5· ·John Curtis, Esq.,· · · · · for Tom Derreck
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·7· ·Shawn Richard, Esq.,
·8· ·Peter Roy, Esq.,· · · · · · ELMAC
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10· ·Darrell Kloeze, Esq.,· · Government of Ontario
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12· ·Joseph Bisceglia, Esq.,· Gregory Saunders
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14· ·Robert MacRae, Esq.,· · ·Robert Wood
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16· ·Paul Cassan, Esq.,· · · ·City of Elliot Lake
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18· ·Douglas Kearns, Esq.,· · Retirement Living and
19· · · · · · · · · · · · · · NorDev
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21· ·Chuck Myles, Mr.,· · · · SAGE
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·1· · · · · · · · · · · ·I N D E X
·2· ·WITNESS· · · · · · · · · · · · · · · · · · PAGE
·3· ·DIMITRI YAKIMOV, affirmed
·4· ·EXAMINATION-IN-CHIEF BY MR. CARR-HARRIS..9829-9920
·5· ·CROSS-EXAMINATION BY MR. CASSAN..........9920-9932
·6· ·CROSS-EXAMINATION BY MR. RICHARD.........9932-9950
·7· ·CROSS-EXAMINATION BY MR. MACRAE.........9950-10016
·8· ·CROSS-EXAMINATION BY MR. CURTIS........10016-10018
·9· ·CROSS-EXAMINATION BY MR. MYLES.........10018-10023
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11· ·GEORGE FARKOUH, previously sworn
12· ·CROSS-EXAMINATION BY MR. CURTIS........10023-10033
13· ·CROSS-EXAMINATION BY MR. MYLES.........10033-10047
14· ·CROSS-EXAMINATION BY MR. ROY...........10047-10087
15· ·CROSS-EXAMINATION BY MR. BISCEGLIA.....10087-10096
16· ·CROSS-EXAMINATION BY MR. MACRAE........10096-10110
17· ·CROSS-EXAMINATION BY MR. KLOEZE........10110-10118
18· ·CROSS-EXAMINATION BY MR. CASSAN........10118-10130
19· ·RE-EXAMINATION BY MR. DOODY............10130-10137
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·1· · · · · · ·---· Upon commencing at 9:00 a.m.
·2· · · · · · ·MR. CARR-HARRIS:· Morning,
·3· ·Mr. Commissioner.· Our first witness today is
·4· ·Mr. Dimitri Yakimov, just standing here, he is not
·5· ·represented by counsel.
·6· · · · · · ·THE COMMISSIONER:· Mr. Yakimov, good
·7· ·morning.
·8· · · · · · ·THE WITNESS:· Morning.
·9· · · · · · ·MR. CARR-HARRIS:· He will be sworn in.
10· · · · · · ·THE REGISTRAR:· Good morning, sir.· Do
11· ·you prefer to proceed in English or French.
12· · · · · · ·THE WITNESS:· English.
13· · · · · · ·THE REGISTRAR:· Can you please state
14· ·your name in full and spell it for the record?
15· · · · · · ·THE WITNESS:· Dimitri Yakimov.
16· ·D-I-M-I-T-R-I· Y-A-K-I-M-O-V.
17· · · · · · ·THE REGISTRAR:· And would you rather
18· ·swear on a religious document or affirm?
19· · · · · · ·THE WITNESS:· Affirm.
20· · · · · · ·DIMITRI YAKIMOV, affirmed.
21· · · · · · ·THE COMMISSIONER:· Have a seat, sir.
22· · · · · · ·EXAMINATION-IN-CHIEF BY MR. CARR-HARRIS:
23· · · · · · ·Q.· Good morning, Mr. Yakimov.· Can I
24· ·take you just through your background and
25· ·education a little bit and refer you to tab 42 in
·1· ·my book, which is Exhibit No. 4280.· And it should
·2· ·be a· CV, effectively, of your back background.
·3· · · · · · ·A.· Yes.
·4· · · · · · ·Q.· And could you go to the last page
·5· ·first, Ms. Kuka.· Sir, and beginning with your
·6· ·education is listed there and I take it to be
·7· ·accurate.· It says you were in high -- you have a
·8· ·high school diploma, a professional college
·9· ·diploma in electrical engineering?
10· · · · · · ·A.· That's correct.
11· · · · · · ·Q.· These -- you were at Moscow
12· ·University Economic Studies that you were in the
13· ·middle of before you immigrated -- emigrated to
14· ·Canada?
15· · · · · · ·A.· That's correct.
16· · · · · · ·Q.· And then your Canadian education is
17· ·you have an East York Education Center Diploma,
18· ·and then looks like a Minister of Theology Diploma
19· ·in the USA at some point?
20· · · · · · ·A.· That's correct.
21· · · · · · ·Q.· George Brown College ABI Training
22· ·Certificate?· What's ABI Training?
23· · · · · · ·A.· Acquired Brain Injury Certificate.
24· · · · · · ·Q.· And then you have Occupational
25· ·Health and Safety Act, Building Code, Construction
·1· ·Safety Act, and various regulations.· Is that --
·2· ·did you take some course with respect to all of
·3· ·those?
·4· · · · · · ·A.· Yes, while being in this profession
·5· ·in the construction industry, I had to up my
·6· ·education and get specific knowledge.
·7· · · · · · ·Q.· All right.· And that includes the
·8· ·Ontario Building Code, Canadian Construction
·9· ·Safety Act, and the Ontario Building Code Act.
10· · · · · · ·A.· That's correct.
11· · · · · · ·Q.· Among others.· And then you've taken
12· ·computer courses with EYAEC, what's what?
13· · · · · · ·A.· East York Adult Education Centre.
14· · · · · · ·Q.· Okay.· And become competent, I take
15· ·it, on the use of computers as a result of that?
16· · · · · · ·A.· Correct.
17· · · · · · ·Q.· And then your employment history is
18· ·that from, if you go up to the just above the line
19· ·working· from the oldest to the newest, from '98
20· ·to 2000, you were a supervisor of STF
21· ·Construction.· And what did that job involve?
22· · · · · · ·A.· I was a site supervisor.· Basically
23· ·most of my job was consisted of retrofitting and
24· ·remodeling high schools in Hamilton, Hamilton
25· ·Wentworth District.
·1· · · · · · ·Q.· And then from 2000 to 2003 in
·2· ·Niagara Falls, construction co-ordinator with
·3· ·Niacon Limited.· And what is Niacon Limited?
·4· · · · · · ·A.· Niacon Limited is a privately held
·5· ·construction company that focuses on hospitality
·6· ·industry constructing hotels, entertainment
·7· ·venues, and conference centres.
·8· · · · · · ·Q.· And you were a construction
·9· ·co-ordinator with them?
10· · · · · · ·A.· Slash supervisor.
11· · · · · · ·Q.· Site supervisor.· And in terms of
12· ·supervising the construction.
13· · · · · · ·A.· The actual construction, yes, of
14· ·whatever we were constructing.
15· · · · · · ·Q.· And in 2003 and 4, you were the
16· ·senior estimator and project manager of commercial
17· ·department Basic Drywall Inc.· That's a one-year
18· ·contract to change the company's direction, design
19· ·and implement its strategy, estimating and
20· ·negotiating commercial contracts on a senior
21· ·level?
22· · · · · · ·A.· That is correct.
23· · · · · · ·Q.· Then from 2004 to 2005 in Niagara
24· ·Falls, you were project manager, supervisor for
25· ·Walker Industries, the Maitland Group, and it
·1· ·looks like you were overseeing commercial and
·2· ·residential construction?· Subdivisions?
·3· · · · · · ·A.· Yes.
·4· · · · · · ·Q.· And the overseeing the bidding,
·5· ·organization and implementation of contract safety
·6· ·and quality control?
·7· · · · · · ·A.· That is correct.
·8· · · · · · ·Q.· Then for the five years from 2005 to
·9· ·2010, you were a project manager, with the Veera
10· ·Group Inc. negotiation, estimation and
11· ·administration of contracts for Chamberlain
12· ·Architectural, Losani Homes and Maitland Group.
13· ·And you're described as supervising and direct
14· ·involvement in all aspects of performance
15· ·evaluations, jobs, deficiencies, resolutions and
16· ·quality control.
17· · · · · · ·A.· Yeah, I partially owned that company
18· ·and that was my role in it.
19· · · · · · ·Q.· Okay.· And then in 2010 and 11, TGA
20· ·Contracting and Restoration, project manager,
21· ·responsible for restoration of losses to insured
22· ·on behalf of the insurer.· And what kind of
23· ·restorations were you doing in these jobs?
24· · · · · · ·A.· Fire, water, any kind of damage that
25· ·was insured by in this case Zurich Insurance.· I
·1· ·was retained as a project manager to mitigate the
·2· ·losses and restore the property.
·3· · · · · · ·Q.· Okay.· And then from 2011 to the
·4· ·present, you are a -- you've been a project
·5· ·manager for Niacon again, Niagara Falls, and
·6· ·administration of commercial projects, head of
·7· ·estimating department, supervising and
·8· ·participating in tendering projects.· And what
·9· ·kind of buildings and constructions would you be
10· ·involved in that role?
11· · · · · · ·A.· Various specialty contracts because
12· ·of my position, my experience.· I am more into
13· ·negotiating.· Well, for example, right now with
14· ·Niagara Parks Commission a $50 million contract up
15· ·to $230 million over 15 years.· I have a project
16· ·subdivision -- in Sudbury subdivision of 35
17· ·townhouses in Levac that I'm developing currently.
18· ·And at the time of this resume, I was head of the
19· ·estimating department as well.· So I was basically
20· ·trying to bring work in to the company.
21· · · · · · ·Q.· Okay.
22· · · · · · ·THE COMMISSIONER:· What that's Exhibit
23· ·number, madam clerk?· Mr. Yakimov's CV?
24· · · · · · ·MR. CARR-HARRIS:· Exhibit No. 4280.
25· · · · · · ·THE COMMISSIONER:· Thank you.
·1· · · · · · ·BY MR. CARR-HARRIS:
·2· · · · · · ·Q.· And in the summary at the top, it
·3· ·said that your qualifications over 10 years are
·4· ·site supervision experience, trades co-ordination,
·5· ·materials management, design reviews, and work
·6· ·sequencing, and superior estimating and
·7· ·organizational skills, quality/safety supervisory
·8· ·experience.· And that's how you -- that's your
·9· ·career summed up?
10· · · · · · ·A.· Yes, well, I have to obviously put
11· ·best foot forward when I'm applying for a job so.
12· · · · · · ·Q.· All right, thank you.
13· · · · · · ·Now, when did you first come to Elliot
14· ·Lake?
15· · · · · · ·A.· I came to Elliot Lake, if I'm not
16· ·mistaken, in February of 2000 -- first moved to
17· ·live or first visited?
18· · · · · · ·Q.· When you moved here?
19· · · · · · ·A.· When I moved here to live and become
20· ·a resident of Elliot Lake I came here in February
21· ·of 2008.
22· · · · · · ·Q.· Okay.· And what brought you here?
23· · · · · · ·A.· I owned several properties here and
24· ·I had negotiated with the City and ELNOS a piece
25· ·of land at the north end of the City to develop
·1· ·and basically to build a structure on it that
·2· ·would become a commercial plaza.· And the idea was
·3· ·to lease it and that would be my main goal of why
·4· ·I came here.
·5· · · · · · ·Q.· Okay.· And you eventually, at some
·6· ·point, took a job with Mr. Nazarian at the Algo
·7· ·Mall.
·8· · · · · · ·A.· Yes.
·9· · · · · · ·Q.· And --
10· · · · · · ·A.· In 2009, due to circumstances that
11· ·had transpired since 2008, I was in need of
12· ·employment and Mr. Nazarian at the time agreed to
13· ·use my services.
14· · · · · · ·Q.· And what -- at the beginning, what
15· ·were you doing for him?
16· · · · · · ·A.· At the beginning --
17· · · · · · ·Q.· What kind of work were you doing for
18· ·him?
19· · · · · · ·A.· At the beginning of my employment or
20· ·beginning when I met him?
21· · · · · · ·Q.· At the beginning of your employment
22· ·with Mr. Nazarian.
23· · · · · · ·A.· It started out that he needed to
24· ·retrofit Algo Room and do some minor renovations
25· ·and also move his existing office from the hotel
·1· ·portion of it into the mall because he had so many
·2· ·vacancies.· He wanted to spruce it up a bit and
·3· ·have his people be in the mall.
·4· · · · · · ·Q.· Okay.· And so you were --· what was
·5· ·your role in doing that?
·6· · · · · · ·A.· Because of my construction
·7· ·experience, I can -- I've also built homes here on
·8· ·lakes and he knew about that.· He knew that I
·9· ·could easily do that myself.· He hired me that I
10· ·would teach his staff to do some of the work and
11· ·also work myself to do it.
12· · · · · · ·Q.· Okay.· And at the hiring -- at the
13· ·time of your hiring by Mr. Nazarian, that was in
14· ·2009, do you recall what month of the year?
15· ·Winter, spring, summer or fall?
16· · · · · · ·A.· Summer, I just can't remember the
17· ·exact dates.
18· · · · · · ·Q.· Okay.· The summer of 2009?
19· · · · · · ·A.· Yes.
20· · · · · · ·Q.· And at the time of your hiring by
21· ·Mr. Nazarian then, at that point, what did you
22· ·know, if anything, about the condition of the Algo
23· ·Mall?
24· · · · · · ·A.· I knew a lot about it.
25· · · · · · ·Q.· And what did you know?
·1· · · · · · ·A.· I knew that the mall had serious
·2· ·problems.· I knew that it was leaking.· I knew
·3· ·that -- well, I should -- in order to answer
·4· ·properly this question, I have to go back to 2008
·5· ·when I met Mr. Nazarian.
·6· · · · · · ·Q.· By all means.
·7· · · · · · ·A.· In 2008, my wife at the time,
·8· ·received a position in the hotel, eventually
·9· ·became a hotel manager working for Mr. Nazarian.
10· ·I met him personally through my wife and he became
11· ·very interested in my experience and started
12· ·asking me questions how to improve this mall and
13· ·disclosed a lot of problems that were with the
14· ·mall at the time, which included leaking.
15· ·Included in need of a lot of repairs, sprucing up,
16· ·make the mall not just look good, but also --
17· · · · · · ·Q.· Can I get you just to slow down a
18· ·little bit?· Not for us, but for our reporter
19· ·needs to be able to record this and there's a
20· ·translator in the back -- in the box at the back
21· ·as well.
22· · · · · · ·A.· Very sorry.
23· · · · · · ·Q.· No trouble at all, just if you could
24· ·slow down a little bit in your responses.· We
25· ·don't want to miss anything.
·1· · · · · · ·A.· I'll try.
·2· · · · · · ·Q.· Thank you.· Sorry, continue.
·3· · · · · · ·A.· Yes.· So at the time I remember
·4· ·taking walks with him around the mall and him
·5· ·showing me various areas and he was at the time
·6· ·having difficulties with Brian England.· He just
·7· ·let him go.· And he was confounding [sic] in me,
·8· ·telling me all the problems, how it happened, the
·9· ·construction company that was doing the work here,
10· ·he didn't trust them.· He asked me at the time to
11· ·pop in once in a while and take some pictures
12· ·while they're working because he was in Toronto.
13· ·He wasn't able to attend to the progress.· And to
14· ·report to him on it, which I respectfully
15· ·declined, but I told him I would do it as a
16· ·courtesy, an opinion on what I see is happening.
17· · · · · · ·Q.· Why did he want you to take pictures
18· ·of them while they're working?
19· · · · · · ·A.· Just to make sure he's not being
20· ·billed for something that is not done.
21· · · · · · ·Q.· So you declined --
22· · · · · · ·A.· Yes.
23· · · · · · ·Q.· -- and then you said you'd give him
24· ·a report?
25· · · · · · ·A.· Yes.· I just told him I will take a
·1· ·look at what is done and how it's done and I'll
·2· ·give him my opinion.
·3· · · · · · ·Q.· Okay.· And did you do that?
·4· · · · · · ·A.· Yes, I did.
·5· · · · · · ·Q.· And could you tell us what was in
·6· ·that report in terms of your opinion of the
·7· ·mall?
·8· · · · · · ·A.· Well, it was verbal at that time,
·9· ·but I basically told him that the exercise is
10· ·useless.· It will not stop leaking and he needs to
11· ·come up with a different solution in order to
12· ·address the problem that exists.
13· · · · · · ·Q.· And you -- he -- what you're talking
14· ·about is the people who were -- who were repairing
15· ·the roof at the time, is that right?
16· · · · · · ·A.· He was talking about the contractor
17· ·who was here at the time, yes.
18· · · · · · ·Q.· And what year was that?
19· · · · · · ·A.· 2008.
20· · · · · · ·Q.· And was that -- would that be
21· ·Mr. Day, Glen Day --
22· · · · · · ·A.· Yes, that was.
23· · · · · · ·Q.· -- from Peak Restoration?
24· · · · · · ·A.· Peak Restoration, correct.
25· · · · · · ·Q.· And he asked you to have a look at
·1· ·what they were doing up there and to give your
·2· ·view of whether that was effective or not?
·3· · · · · · ·A.· Yes.· They were putting Blueskin to
·4· ·patch the roof leaks, which in construction
·5· ·industry is unheard of.
·6· · · · · · ·Q.· And why is it -- what's wrong with
·7· ·Blueskin?
·8· · · · · · ·A.· Well, it's not designed to stop roof
·9· ·leaks unless maybe it's a continuous membrane of
10· ·such and specified by an engineer in some fashion
11· ·to apply it.· But I've never seen it, I've never
12· ·heard of it that a flat roof would be fixed with
13· ·Blueskin.
14· · · · · · ·Q.· And if you, as with your experience,
15· ·when you saw that, was that a sign of incompetence
16· ·from your perspective?
17· · · · · · ·A.· Gross incompetence.
18· · · · · · ·Q.· And what else would you have -- what
19· ·else did you see about Mr. Day's people's work up
20· ·there that concerned, you apart from the Blueskin?
21· · · · · · ·A.· Well, I've heard complaints from
22· ·Mr. Nazarian that he didn't -- he wasn't satisfied
23· ·with their work, but it wasn't my job to monitor
24· ·them.· And like I said, I refused to do that.
25· · · · · · ·Q.· And why did you refuse to monitor
·1· ·them?
·2· · · · · · ·A.· To be honest with you, I was busy at
·3· ·the time pursuing my goals in the town.· And I
·4· ·felt that it was so much history behind it, I
·5· ·didn't want to get in the middle of it.· I
·6· ·basically told him, this is useless, come up with
·7· ·something better, but I'm not going to get
·8· ·involved.
·9· · · · · · ·Q.· And I guess the proof was in pudding
10· ·because the roof was still leaking all through --
11· · · · · · ·A.· Absolutely.
12· · · · · · ·Q.· And so, moving forward, you did
13· ·this, you were hired by him to do some work with
14· ·the hotel, moving the offices and so on.
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· Given your construction background.
17· ·And at some point, did you -- did he ask you to
18· ·help him with his problems with the City dealing
19· ·with the water leak problem?
20· · · · · · ·A.· It was from the onset is also was
21· ·one of the reasons why he hired me.· Initially
22· ·started with me asking him for a job.· I think I
23· ·believe in the beginning, I approached him.· And
24· ·he kind of caught onto the idea that I could do a
25· ·bit more from him than just doing the construction
·1· ·in the mall.· And he approached me with helping
·2· ·him with the City and other stuff.
·3· · · · · · ·Q.· And as I understand it, ultimately
·4· ·there were three inspections and I'll go back and
·5· ·do these each.· But there was two inspectors from
·6· ·the City, the Fire Chief on the fire audit.· And
·7· ·also a Mr. Ewald on the building standards side.
·8· ·And then there was, generated by those
·9· ·inspections, a requirement for a further report,
10· ·this time from Mr. Wood of MRW to comply with the
11· ·order that was -- is that -- am I roughly right on
12· ·that history?
13· · · · · · ·A.· That is -- that is correct.
14· · · · · · ·Q.· Okay.· And in advance of those
15· ·inspections, did Mr. Nazarian ask you to do
16· ·anything in preparation of the mall for the
17· ·arrival of these inspectors?
18· · · · · · ·A.· Yes.· Sometime in September, I
19· ·believe, or late August, he mentioned to me that
20· ·there is a looming inspection that I believe
21· ·Ministry of Labour was about to visit and/or the
22· ·City.· I can't remember which one first.· He asked
23· ·me to do an inspection, this time officially.· He
24· ·vetted me with powers to have access to any area
25· ·in the mall.· I was to be given access to anything
·1· ·I needed to see if I can find any problems that
·2· ·the inspection later would identify.· Perhaps he
·3· ·could do something about it ahead of time the date
·4· ·of them coming.
·5· · · · · · ·Q.· And this was just you alone was to
·6· ·go --
·7· · · · · · ·A.· This was just me alone.· He knew my
·8· ·credentials, he knew my experience.· He knew it
·9· ·from my wife, he knew it from me.· He trusted it.
10· · · · · · ·Q.· And so this -- if I can call it your
11· ·preinspection of the inspections areas --
12· · · · · · ·A.· That's right.
13· · · · · · ·Q.· -- that he wanted you to do, can you
14· ·tell us where you went and what you saw at the
15· ·time?· Now, before you do that, I'm going to ask
16· ·Ms. Kuka to put up the drawing of the S4, Exhibit
17· ·No. 1876.· And I think you've seen this before
18· ·probably, Mr. Yakimov.· Do you recognize that
19· ·drawing?
20· · · · · · ·A.· Yes.
21· · · · · · ·Q.· If you go down to the bottom, this
22· ·is a Keywan drawing of the original architect,
23· ·Mr. Keywan.
24· · · · · · ·A.· Can you enlarge it please, between
25· ·the sections G over to my left, I guess.
·1· · · · · · ·Q.· How's that?
·2· · · · · · ·A.· That looks better, thank you.
·3· · · · · · ·Q.· So and did anybody go with you on
·4· ·that preinspection, apart from yourself?
·5· · · · · · ·A.· There were a couple of staff, mall
·6· ·staff that accompanied me in order to give me
·7· ·assistance to get up maybe to look closer to the
·8· ·beam or unlock the doors because I don't think I
·9· ·had all the keys, I just had some of them.· Ray
10· ·Young, I believe his name was.· I forget now.
11· ·Actually scratch that name.· I just can't remember
12· ·the name.· Roger maybe.· I can't remember.
13· · · · · · ·Q.· Okay.· And did Mr. Nazarian say
14· ·anything about the issue of the rust that was on
15· ·those -- that may be on those beams that he wanted
16· ·that --
17· · · · · · ·A.· He said -- he did mention rust.· But
18· ·the rust he was referring to was on the balcony in
19· ·front of the Zellers that led to the second floor
20· ·storey above the grocery store eventually.· It was
21· ·visible on the support beams there and that's what
22· ·he was mostly worried about that that was giving a
23· ·bad look to the mall and the inspector could pick
24· ·up on it.
25· · · · · · ·Q.· So he was what?· He wanted you to
·1· ·paint it before hand if necessary?
·2· · · · · · ·A.· I wasn't involved in any remedial
·3· ·action whatsoever.· I was basically giving him my
·4· ·opinion of what I see is wrong with the mall and
·5· ·he was supposed to arrange the rest of it.
·6· · · · · · ·Q.· The rest -- okay.· Well, take us --
·7· ·can you, just using that drawing, which is Exhibit
·8· ·No. 1876, drawing S4, can you show us roughly the
·9· ·areas that you went around looking for these
10· ·trouble spots?
11· · · · · · ·A.· For that you would have to zoom out
12· ·because I need to see the entire mall.
13· · · · · · ·Q.· Okay.
14· · · · · · ·A.· So basically from the very left side
15· ·of the mall all the way to the backside, which was
16· ·up against the hill.
17· · · · · · ·Q.· So we've been using -- we've been
18· ·using the right to the right of the drawing as
19· ·north --
20· · · · · · ·A.· I believe it's F2 all the way to --
21· ·if you could just scroll it down a bit.· To I
22· ·believe it's L.
23· · · · · · ·Q.· L, you just bring it -- yeah.
24· · · · · · ·A.· The very last one at the top which I
25· ·can't see it here on this thing.· Yeah, right
·1· ·there.· What's that?· Yeah, that one.· That's L.
·2· ·Okay, so from the very first one I think is F2 to
·3· ·L.
·4· · · · · · ·Q.· Yes.
·5· · · · · · ·A.· And then all the way back again to
·6· ·that L and -- yeah, at the top, that one, what is
·7· ·that?
·8· · · · · · ·MS. KUKA:· 19.
·9· · · · · · ·THE WITNESS:· The grid line 19 all the
10· ·way down the F -- actually, no, further, all the
11· ·way down, the very bottom one, yeah.· A19 to 14
12· ·and whatever that's in front of it, 18X back to
13· ·F2.· And the whole front of it.· F2 the whole line
14· ·F2 with the balcony.
15· · · · · · ·BY MR. CARR-HARRIS:
16· · · · · · ·Q.· So basically you were to look -- you
17· ·looked at the whole mall?
18· · · · · · ·A.· Yeah, the whole perimetre.· That's
19· ·what I just described.
20· · · · · · ·Q.· And the soffit underneath?
21· · · · · · ·A.· Hmm hmm.
22· · · · · · ·Q.· And so tell us -- can you just
23· ·describe where you went when?· What you saw when
24· ·-- and you'll have to describe -- if you can -- if
25· ·you're able, I'd like you to give a co-ordinate
·1· ·based on what's in the drawing so we have some
·2· ·idea where you are in the building.
·3· · · · · · ·A.· Well, it didn't take one day.· It
·4· ·took a long time.· It took about a week or a
·5· ·couple of weeks for me to go through all the areas
·6· ·and look at them.· It wasn't just a walk about.
·7· ·Though it was a walk about as well.· As Bob
·8· ·Nazarian was concerned about the front of it, the
·9· ·look of it, he -- I walked with him through that
10· ·and identified.· But there is on grid line --
11· ·yeah, if you can enlarge where you are right now,
12· ·please.· Go back to that, yeah, please.· So
13· ·somewhere in the area of from grid line B.
14· · · · · · ·Q.· D?
15· · · · · · ·A.· B as in Bob.
16· · · · · · ·Q.· Yes.
17· · · · · · ·A.· Over to about E on the outside,
18· ·there was a staircase going from the second floor
19· ·down to the ground level.
20· · · · · · ·Q.· Sorry, give me that co-ordinate.
21· ·One of the co-ordinates is grid line B.· And
22· ·what's the other one?
23· · · · · · ·A.· To about E.· If my memory serves me
24· ·correctly, to about E.· On the outside in front of
25· ·the mall, there was a staircase.· It was an exit
·1· ·from the balcony all the way down to the ground
·2· ·level in front of the -- that was Foodland, I
·3· ·believe, at the time, right?
·4· · · · · · ·Q.· Okay.
·5· · · · · · ·A.· The staircase was severely rusted,
·6· ·that the steps were -- they had holes in them and
·7· ·that was an obvious hazard.· So I brought that to
·8· ·his attention that that needed to be repaired.
·9· · · · · · ·As far as the rust that I've seen, I
10· ·couldn't make a determination how bad it was.· I
11· ·could only see what I see with my eyes and say it
12· ·needs further inspection.· Basically my
13· ·recommendation to him was to hire somebody to
14· ·inspect it further.· Instead, he chose to -- I
15· ·think he was grinding it or something, removing
16· ·the rust manually with brushes, manual brushes.· I
17· ·believe they rented equipment from a local rental
18· ·place to sandblast it and to repaint it.· And his
19· ·mall workers that were supervised by Henri Laroue
20· ·at the time were doing the job.
21· · · · · · ·Q.· And is that not going to mislead the
22· ·City inspectors as to the condition of the
23· ·structure if they're grinding away rust?
24· · · · · · ·A.· If there were any structural damage
25· ·of course it would.
·1· · · · · · ·Q.· Then -- okay, so we know about the
·2· ·walkway.· You told us about the -- about the rust
·3· ·on the beams.· What -- what other problems did you
·4· ·find and where, Mr. Yakimov?
·5· · · · · · ·A.· Well, those were my least areas of
·6· ·concern initially because there is not much of a
·7· ·load on them, weight load and they were exposed.
·8· ·You can see them if there is --
·9· · · · · · ·Q.· You're talking about the walkways?
10· · · · · · ·A.· Yeah, the walkways you can see.· But
11· ·my concerns were in the back of the mall when I
12· ·was walking through --
13· · · · · · ·Q.· Can you show us where the area
14· ·you're talking about?
15· · · · · · ·A.· Yes, if you zoom down?· Yeah, right
16· ·there.· So grid line 17 all the way to the other
17· ·side of the mall -- well, no, maybe this is not
18· ·it.· Where's the Zellers?· I just want to -- can
19· ·you zoom out, please.· Yeah, okay, so L, grid line
20· ·L19 to L2.· That whole back area of the mall and
21· ·also from L19 to the dollar store I think it
22· ·stopped somewhere in around D19, there was a
23· ·hallway we used for the merchants to bring their
24· ·merchandise and other servicing that they wouldn't
25· ·disrupt the front of the mall, the actual inside.
·1· ·So they would go by that back corridor.
·2· · · · · · ·Q.· So that area is --
·3· · · · · · ·A.· I can show it by hand if I stand up.
·4· · · · · · ·Q.· Yeah, why don't you show it by hand
·5· ·and just make sure you describe the co-ordinates
·6· ·because --
·7· · · · · · ·A.· Well, from what I can see, it
·8· ·stopped somewhere around here and it went all the
·9· ·way around --
10· · · · · · ·Q.· What's that co-ordinate at the
11· ·bottom?
12· · · · · · ·A.· What would be D or an A, something
13· ·like that.
14· · · · · · ·Q.· Co-ordinate -- grid line D moving
15· ·west all the way.
16· · · · · · ·A.· Up to L and then all the way back
17· ·here.· That's L2 I think.
18· · · · · · ·Q.· Okay.· And that's the back corridor?
19· · · · · · ·A.· That's the back corridor.
20· · · · · · ·Q.· And the limits of the back corridor
21· ·inside are what?· There's a letter here for the
22· ·back one.· It goes down L and K --
23· · · · · · ·A.· Well, I'm not sure if that's exactly
24· ·the space of the corridor.· The corridor -- I
25· ·don't see the architectural -- this is a
·1· ·structural drawing, I believe.· I don't see the
·2· ·architectural which might have a demising wall or
·3· ·something.· The corridor was narrower.
·4· · · · · · ·Q.· Narrower.
·5· · · · · · ·A.· Yeah, it was about this much.· I'm
·6· ·just guessing right now.
·7· · · · · · ·Q.· So there was a walk -- there was an
·8· ·open walkway all the way along the west side of
·9· ·the mall along grid line L?
10· · · · · · ·A.· Correct.
11· · · · · · ·Q.· And what -- what could you see when
12· ·you were in there, Mr. Yakimov?
13· · · · · · ·A.· What I saw was severe rust.
14· · · · · · ·Q.· Of what?
15· · · · · · ·A.· And water.
16· · · · · · ·Q.· Of what though?· What was rusted?
17· · · · · · ·A.· Of the structural beams that you're
18· ·looking at.· Rusted, these beams.· Every one that
19· ·you're looking at, I can't identify them because
20· ·it's blurry, but these beams right here at the
21· ·very back where they are fixed to this wall right
22· ·here.
23· · · · · · ·Q.· You're indicating the beams between
24· ·L and K on the --
25· · · · · · ·A.· Yes, yes.
·1· · · · · · ·Q.· -- in the walkway?
·2· · · · · · ·A.· Yes, these ones.· All the way back
·3· ·here.· Not so much here, but all the way back
·4· ·there because the hotel was --
·5· · · · · · ·Q.· When you say "just here" the record
·6· ·doesn't get it.· So this is -- this is the walkway
·7· ·--
·8· · · · · · ·A.· The walkway between L and K, G I
·9· ·think.· Grid line 19 to grid line 2, LK were the
10· ·most rusted.
11· · · · · · ·Q.· Okay.· And what did you see -- you
12· ·saw the beams were rusted?
13· · · · · · ·A.· Yes.
14· · · · · · ·Q.· Did you -- are there ceiling tiles
15· ·back there?
16· · · · · · ·A.· No, it was exposed.· There was
17· ·supposed to be a fire spray -- a fire spray
18· ·applied to them, but because of the water leaks,
19· ·years of water leaks and rust, the fire protection
20· ·has fallen away and the beams were exposed.
21· · · · · · ·Q.· And could you -- how far -- how high
22· ·are they off the ground, these beams, in that
23· ·area?
24· · · · · · ·A.· I can't remember now.· But whatever
25· ·the height of the floors were.· Again, I have to
·1· ·refer to architectural --
·2· · · · · · ·Q.· Could you see, for example, the
·3· ·connections when you looked at them?
·4· · · · · · ·A.· Badly.· I couldn't see well.· You'd
·5· ·have to climb the ladder and shine, you know, with
·6· ·the flashlight, because it was dark in those
·7· ·areas.
·8· · · · · · ·Q.· And did you do that back there or
·9· ·the people that were in you --
10· · · · · · ·A.· No, I wasn't allowed to do that.
11· ·That was -- it wasn't my scope of work.· Remember
12· ·I'm working for Mr. Nazarian.· He tells me exactly
13· ·what he wants to do.· To a point he trusts my
14· ·opinion.· But as far as going there and touching
15· ·the beams and stuff, no, I wasn't doing that.
16· · · · · · ·Q.· And based on your experience, how
17· ·would you characterize the rust that you saw on
18· ·the beams at least in that area?
19· · · · · · ·A.· Severe.· I was concerned.
20· · · · · · ·Q.· And severe meaning there was
21· ·scaling?
22· · · · · · ·A.· Yeah.· I was afraid it was deep into
23· ·the metal, yeah.
24· · · · · · ·Q.· Okay.· All right, other than those
25· ·walkways, where else did you go on your
·1· ·preinspection?
·2· · · · · · ·A.· Yes, so part of it was to inspect
·3· ·the roof again, but this time methodically.
·4· · · · · · ·Q.· From the top?
·5· · · · · · ·A.· Yes.· I was to inspect the entire
·6· ·roof section to identify leaks everywhere where I
·7· ·can find them and suggest a plan perhaps if it's
·8· ·possible how to fix it.· To that, I demanded that
·9· ·I be given access to all the drawings that were
10· ·available and I was.· I was given access to all
11· ·the architectural and structural that you're
12· ·looking at.· I was able to look at the drawings
13· ·and also walk the roof and assess the condition it
14· ·was in.
15· · · · · · ·As everybody knows, there was a lot of
16· ·leaks, a lot of areas.· The patch work that they
17· ·were doing was again useless.· I don't know how
18· ·else to describe it.· It wasn't -- it wasn't
19· ·making any sense.· They were putting caulking and
20· ·they doing control joints, cutting them, putting
21· ·caulking in there.· They were trying to caulk the
22· ·expansion joints.
23· · · · · · ·Yeah, so, it wasn't effective.
24· · · · · · ·Q.· And the leaks, I appreciate they
25· ·were pretty well spread out everywhere, but were
·1· ·there areas where they were -- there were more
·2· ·leaks than others?
·3· · · · · · ·A.· Yes, there were areas where there
·4· ·were more leaks than others.
·5· · · · · · ·Q.· And where were they?
·6· · · · · · ·A.· I can't remember right now where
·7· ·they were, but there were so many of them.· I know
·8· ·-- I remember there was above the library there
·9· ·were the leaks.· Zellers suffering the most.· It
10· ·had the biggest impact as far as the leaks because
11· ·they're so big also, so they are exposed to so
12· ·many of them.
13· · · · · · ·Q.· Did they tend to be in the area of
14· ·the expansion joints, the most leaks?
15· · · · · · ·A.· Yes, as well.· Expansion joints,
16· ·roof drains.· Anywhere where there was a
17· ·penetration into -- up to core slabs, yes, that's
18· ·where most of them were.· It was hard to determine
19· ·exactly where because it is a flat roof.· It leaks
20· ·in one place, but it shows up entirely in a
21· ·different place.
22· · · · · · ·Q.· Right.
23· · · · · · ·A.· But to the best of my ability to
24· ·look when I was looking, it was the easiest to
25· ·find those leaks in Zellers because you could just
·1· ·take a large section of tiles out and inspect the
·2· ·deck and see perhaps where the actual leak is
·3· ·happening.
·4· · · · · · ·Everywhere else, it was a nightmare to
·5· ·have access to because there were tenants, there
·6· ·were people.· I wasn't allowed to disturb their
·7· ·operations.
·8· · · · · · ·Q.· Okay.· So far you've told us about
·9· ·the trouble with the outside the walkways rusting,
10· ·and then there are the inside walkways that you
11· ·have described, and various leaks.· Are there --
12· ·were there any other trouble spots other than
13· ·those?
14· · · · · · ·A.· There was one major trouble spot,
15· ·yes.
16· · · · · · ·Q.· And where was that?
17· · · · · · ·A.· If you could zoom in at the east
18· ·side the hotel please.· Right there, thank you.
19· ·Grid line G and grid line FX and F.· Also, if you
20· ·could just bring it up a little bit, yeah, so I
21· ·can see the markings on the lines above there to
22· ·identify them, right there.· Between partially
23· ·between 17, 16, 15, line 15.· So that area right
24· ·there caused me a great deal of concern as I was
25· ·inspecting the roof looking for water leaks.· When
·1· ·I got to that spot, I noticed something that I've
·2· ·never noticed before in structures like that.
·3· · · · · · ·Q.· Okay.· So we're talking essentially
·4· ·about the slabs between the doors of the hotel and
·5· ·the doors to the escalator?
·6· · · · · · ·A.· That's correct.
·7· · · · · · ·Q.· That narrow space between parking
·8· ·areas?
·9· · · · · · ·A.· Yeah.
10· · · · · · ·Q.· And so tell us what you found there?
11· · · · · · ·A.· They were working at the time in
12· ·that area, cutting a strip of asphalt on each side
13· ·of the expansion joint and --
14· · · · · · ·Q.· Which expansion joint?
15· · · · · · ·A.· I think they were working at the
16· ·time on the expansion joint F and FX.
17· · · · · · ·Q.· Could you bring that down, Ms. Kuka?
18· · · · · · ·A.· Yeah, that big one there.· They were
19· ·working on that one --
20· · · · · · ·Q.· Sorry, which one?
21· · · · · · ·A.· F and FX.
22· · · · · · ·Q.· Yes.
23· · · · · · ·A.· All the way to the end, from
24· ·beginning to the end.· Whatever was exposed.
25· ·Because there's a hotel wall.· There was a hotel
·1· ·wall somewhere there and so whatever was exposed
·2· ·from the hotel all the way to the entrance into
·3· ·the --
·4· · · · · · ·Q.· And who was working on that
·5· ·expansion joint?
·6· · · · · · ·A.· I remember some names.· Addison Bull
·7· ·was one of them.· He's a local fellow that worked
·8· ·for Mr. Nazarian at the time.· Addison Bull.
·9· ·Bull, B-U-L-L, I believe his last name is.
10· · · · · · ·Q.· And was he maintenance staff or was
11· ·he a contractor --
12· · · · · · ·A.· I think he was maintenance staff,
13· ·correct.
14· · · · · · ·Q.· Okay.
15· · · · · · ·A.· Henri Laroue had her husband working
16· ·on it as well at the time, Derreck, and obviously
17· ·last name is Laroue.· And there was another fellow
18· ·who I believe his name was Ray.· I'm having hard
19· ·time remembering his name for some reason.· But he
20· ·was there.· He was the head of the maintenance
21· ·department.· He basically kind of co-ordinated
22· ·things and he was involved.· And some other
23· ·people.· They hired extra help.· A couple of young
24· ·guys.
25· · · · · · ·Q.· And so they were working on the
·1· ·expansion joint?
·2· · · · · · ·A.· Yes.
·3· · · · · · ·Q.· And what were your concerns?
·4· · · · · · ·A.· Well, my concern was as I just
·5· ·walked by and saw the water damage and stuff,
·6· ·because I couldn't see much from underneath, it
·7· ·was all covered and there was no access because
·8· ·the escalators were there, and nobody was about to
·9· ·rent a zoom for me to go and inspect it.· The best
10· ·I could do was stand on the outside and look at
11· ·it.· And as I was chatting with them and standing
12· ·there, a car went by, just a light vehicle.· And
13· ·as it went by those control -- sorry, expansion
14· ·joints, it was a little thump as it goes through
15· ·because one was a bit higher than the other.· I
16· ·felt something weird.· I actually felt movement
17· ·that I've never felt anywhere else before at the
18· ·hotel.· So I --
19· · · · · · ·Q.· Which side of the expansion joint
20· ·were you standing on?
21· · · · · · ·A.· I was standing to -- if you're
22· ·looking facing the hotel, I was to the left of the
23· ·expansion joint at the entrance or exit of the
24· ·hotel where the elevators were, looking at
25· ·Zellers.· I was at the little pedestrian curb.· I
·1· ·was at the curb -- on the curb, standing there.
·2· · · · · · ·Q.· So to isolate that in terms of the
·3· ·drawing, which of the -- how will we characterize
·4· ·these?· The square -- the co-ordinate square --
·5· · · · · · ·A.· Well, the co-ordinate square will be
·6· ·between grid line G and F.· And if you go up
·7· ·please to the top of the hotel, up, up, up, and
·8· ·between the lines 16X and 16.
·9· · · · · · ·Q.· And can we go back down, Ms. Kuka,
10· ·to where we were.· Thank you.· So you were
11· ·standing there and you felt movement?
12· · · · · · ·A.· Yes.
13· · · · · · ·Q.· And what did you -- what did you
14· ·understand the movement to be?
15· · · · · · ·A.· Well, I waited until more cars went
16· ·by and I wanted to see how serious it is.· Perhaps
17· ·the car was too heavy or maybe I was just
18· ·imagining it.· As more cars were going, I noticed
19· ·that the heavier the vehicle was, the stronger was
20· ·the movement.· The lighter the vehicle, the
21· ·lighter was the movement.· I became concerned.· I
22· ·went downstairs into the office and looked at the
23· ·architectural drawings.· I don't think I had these
24· ·structural at the time, maybe I did.· But anyways,
25· ·I noticed that it was a large area without --
·1· ·exposed area in the hotel.· It's the only one that
·2· ·didn't have any supporting columns, supporting
·3· ·crossbeams or any beams there, so it was pretty
·4· ·much the largest area of span of open area.
·5· · · · · · ·Q.· Okay.· So just so we're clear on
·6· ·what area you're talking about.
·7· · · · · · ·A.· Grid line G and F.
·8· · · · · · ·Q.· Grid line G and F, yes.
·9· · · · · · ·A.· All the way to Zellers, which would
10· ·be, if you can come up again please.· Would be 13.
11· ·So it would be 16X to 13.
12· · · · · · ·Q.· Okay.· So that's the area you looked
13· ·at.· And was the movement in the entire area or
14· ·just in the area in front of the hotel?
15· · · · · · ·A.· Well, that was the funny thing about
16· ·it is that I wouldn't probably think twice of a it
17· ·-- well, I would, but it wouldn't be concerning so
18· ·much if I were standing in the middle of the slab,
19· ·right?· Because core slab has a tendency obviously
20· ·to, that's why it's expansion joint, it has some
21· ·movement there.· But I was standing at the hotel
22· ·where it's supposed to be resting right on
23· ·whatever it was supposed to be resting on at the
24· ·hotel, that wall there and it was moving there.
25· ·So that's what concerned me the most.
·1· · · · · · ·Q.· So by this time, you'd looked at the
·2· ·drawings and you'd seen this core slab that was on
·3· ·the roof.· It was the precast slabs that were
·4· ·being used?
·5· · · · · · ·A.· Yeah, I've seen it was precast that
·6· ·had topping on it.
·7· · · · · · ·Q.· Yeah.· And had you seen -- were you
·8· ·-- had you worked with prestressed concrete --
·9· · · · · · ·A.· Yes.
10· · · · · · ·Q.· -- core slabs before?
11· · · · · · ·A.· Of course, yes.
12· · · · · · ·Q.· And so your -- and these were
13· ·moving.· So what was unnatural about that?
14· · · · · · ·A.· Well, it's a precast slab that's
15· ·sitting on red steel, which is your structural
16· ·steel that's supposed to be rigid in construction.
17· ·And somewhere along the joint there, there is
18· ·obvious movement and that was very concerning
19· ·because something has weakened there.· I was very
20· ·concerned.· That was so troubling that I went back
21· ·to the drawings and started to investigate further
22· ·and I noticed -- and this is a bit off topic, but
23· ·it's part of what I found.· As I was looking at
24· ·it, I noticed that the drawings, architectural
25· ·drawings or otherwise in the notes, it specified a
·1· ·rubberized membrane.· Well, when I saw these folks
·2· ·cutting the rooftop and exposing the precast
·3· ·concrete, I looked right through it and I didn't
·4· ·see no membrane.· I brought that to Mr. Nazarian's
·5· ·attention and he replied to me that -- well, that
·6· ·he made a bad purchase.· That he was duped into
·7· ·purchasing that mall in very bad condition.
·8· · · · · · ·Q.· And I'll ask you more about that
·9· ·later, but -- or what you know about it anyway.
10· · · · · · ·A.· Yeah.
11· · · · · · ·Q.· But getting back to the movement, so
12· ·you saw that the movement -- could you see the
13· ·movement on the surface?
14· · · · · · ·A.· Well, after I felt it, I start
15· ·looking for it.· Obviously I'm paying attention.
16· ·And if a very large vehicle like a truck, a
17· ·pick-up truck loaded with something on it would go
18· ·through and, you know, people had their quads on
19· ·them, something would go over like that, I could
20· ·actually see it, yes.
21· · · · · · ·Q.· And so did you go down underneath
22· ·into the lobby, the upper lobby, to see if you
23· ·could see anything from there as to what --
24· · · · · · ·A.· Yes, I did.
25· · · · · · ·Q.· And what did you see, if anything?
·1· · · · · · ·A.· I didn't see much because, like I
·2· ·said, I wasn't allowed to go up there.· And when I
·3· ·brought my concerns, they told me not to worry
·4· ·about it.
·5· · · · · · ·Q.· Could you hear the thumping in
·6· ·there?
·7· · · · · · ·A.· There was so much noise in the mall.
·8· ·I mean, if the car would go -- like if it was a
·9· ·snowplow going over it, I'm sure people would hear
10· ·it.· Probably vibrations in other parts of the
11· ·mall that would feel that.· But that was
12· ·different.· It wasn't a vibration.
13· · · · · · ·Q.· Okay.· So that was another trouble
14· ·spot and it was, from your perspective, the most
15· ·serious one?
16· · · · · · ·A.· Yes.
17· · · · · · ·Q.· And did you regard it as an unsafe
18· ·condition from what you had seen and heard at that
19· ·point?
20· · · · · · ·A.· Extremely unsafe.
21· · · · · · ·Q.· And you reported that, did you
22· ·immediately, to somebody?
23· · · · · · ·A.· I reported it to several people at
24· ·the same time.· I reported it to Mr. Nazarian.· I
25· ·reported it to Henri Laroue.· And as I was doing
·1· ·that in the office, I believe Sue Haddow was a
·2· ·secretary there, she heard that.· I reported it to
·3· ·head of maintenance.· I was so concerned --
·4· · · · · · ·THE COMMISSIONER:· Sorry, the second one
·5· ·after Laroue?
·6· · · · · · ·THE WITNESS:· Sue Haddow.
·7· · · · · · ·THE COMMISSIONER:· Yes, go ahead.
·8· · · · · · ·THE WITNESS:· I reported it to head of
·9· ·maintenance.· Again, I can't remember his name.
10· ·And I told somebody at the City.· I can't remember
11· ·who that was.
12· · · · · · ·BY MR. CARR-HARRIS:
13· · · · · · ·Q.· Okay.· Well, you'll be talking to
14· ·the City people on your tour pretty soon, I think,
15· ·but.
16· · · · · · ·A.· Yes.
17· · · · · · ·Q.· In terms of each of those people,
18· ·Mr. Nazarian, what was his reaction?
19· · · · · · ·A.· He initially just disregarding it.
20· ·He wasn't -- I'm not concerned about that, he
21· ·goes.· I'm not worried about it.· It's something
22· ·you cannot see basically.· I even asked him to
23· ·stand there with me.· I brought him up there and
24· ·said you guys stand.· And, you know, they were
25· ·supposed to stand and feel it.· And I was
·1· ·explaining to him how unnatural that was at that
·2· ·point right where you're standing at the very
·3· ·entrance to the hotel to feel that.
·4· · · · · · ·Q.· Was it your sense that was the first
·5· ·time he'd heard of this problem when you told him?
·6· · · · · · ·A.· Yes, that's my -- at least what I
·7· ·felt.
·8· · · · · · ·Q.· And what about Ms. Laroue?· Did --
·9· ·was she aware of the movement at that point?
10· · · · · · ·A.· Yes, she was.· She wasn't there with
11· ·us -- she was because I told her.· But her
12· ·response, as anybody who worked for Mr. Nazarian,
13· ·was that he's in charge, he makes the decisions.
14· · · · · · ·Q.· And Mr. Haddow, did he --
15· · · · · · ·A.· Ms. Haddow, she was just a witness
16· ·to me talking to them.· She had no power to do
17· ·anything.
18· · · · · · ·THE COMMISSIONER:· Were you speaking to
19· ·them as group or individually?
20· · · · · · ·THE WITNESS:· Well, the office was such
21· ·that when you speak to one person, everyone else
22· ·can hear.· And Sue was there with Henri Laroue.
23· ·And being that this is Elliot Lake, and, you know,
24· ·you're kind of friendly with everybody.· When you
25· ·have a concern like that, you kind of address one
·1· ·person, but you want to make sure that somebody
·2· ·else knows about it.
·3· · · · · · ·THE COMMISSIONER:· Were these individual
·4· ·conversation, separate conversations?
·5· · · · · · ·THE WITNESS:· No, this was -- there were
·6· ·several of them, but this was one when they all
·7· ·heard about it.· We had weekly meetings, I
·8· ·believe, or morning meetings before they were
·9· ·dispersed for the day with assignments for the day
10· ·at Henri's office.· And in one of those meetings I
11· ·brought that up.
12· · · · · · ·MR. CARR-HARRIS:
13· · · · · · ·Q.· And so as a result of what you did,
14· ·the preinspection, you've got walkway issue inside
15· ·and out and now the issue of the slabs in front of
16· ·the hotel.· Were there any other trouble spots
17· ·that you identified?
18· · · · · · ·A.· There were many leaking spots.
19· · · · · · ·Q.· Many leaking --
20· · · · · · ·A.· Many leaking spots.· It's too
21· ·numerous for me to remember.· Nothing that stands
22· ·out.· They were all bad.· They all needed to be
23· ·fixed.· The problem was the roof.
24· · · · · · ·Q.· All right.· Did you ever -- did you
25· ·have an opinion yourself as to what needed to be
·1· ·done to fix that roof as a result of your own
·2· ·inspection --
·3· · · · · · ·A.· You mean that portion of the roof or
·4· ·the entire roof?
·5· · · · · · ·Q.· The entire roof.
·6· · · · · · ·A.· Yes, I did.
·7· · · · · · ·Q.· And what was it?
·8· · · · · · ·A.· You needed to strip the entire roof,
·9· ·put a rubberized membrane on it, and retop it,
10· ·recoat it.
11· · · · · · ·Q.· And had you had experience doing
12· ·that before?
13· · · · · · ·A.· Yes, I have.· I waterproofed a
14· ·swimming pool at Hilton Hotel in Niagara Falls
15· ·when it was leaking all the way into the lobby.
16· ·We had to do exactly the same thing.
17· · · · · · ·Q.· And what did -- did you tell
18· ·Mr. Nazarian of the fix that you said was
19· ·required?
20· · · · · · ·A.· Yes.· I was upset with him at the
21· ·time that he was wasting money on useless work,
22· ·patch work that wasn't working anyway.· It was a
23· ·temporary fix maybe for several months and then
24· ·the fix would let go because it wasn't designed to
25· ·be permanent for this type of application with the
·1· ·-- with forces applied to it, with cars driving
·2· ·over things, it's just not going to work.· And in
·3· ·the whole nature of it, it just doesn't make
·4· ·sense.
·5· · · · · · ·Q.· Okay.· And what was his response to
·6· ·that?
·7· · · · · · ·A.· What I was proposing to him was too
·8· ·costly.· He didn't have money to do it and he kept
·9· ·complaining that he was duped into this purchase
10· ·and he needed to get out of it somehow.
11· · · · · · ·Q.· What does he mean by duped?· What --
12· ·what was he duped about?
13· · · · · · ·A.· He was pretty upset --
14· · · · · · ·Q.· First of all, did he tell you what
15· ·he meant by it?
16· · · · · · ·A.· I asked him of course.· I didn't
17· ·know how he got the mall or where he got it from.
18· ·I asked him why would you buy this dump?· I mean,
19· ·it was that bad.· He said he was wined and dined
20· ·and given a really good opinion of this mall and
21· ·apparently he felt like not everything was
22· ·disclosed to him when he purchased it.· And the
23· ·previous owner of the mall naturally had these
24· ·problems all along and did not tell him how bad
25· ·they were.
·1· · · · · · ·Q.· And he didn't tell you that he was
·2· ·doing anything about that from a legal
·3· ·perspective?
·4· · · · · · ·A.· He was considering suing, but again
·5· ·he was complaining always about the money that he
·6· ·didn't even have money to do that.
·7· · · · · · ·Q.· Now, at some point you -- and I
·8· ·think you mentioned it, you did a full blown
·9· ·report of your concerns?
10· · · · · · ·A.· Yes, I did.
11· · · · · · ·Q.· Do you remember when that was?· Was
12· ·it before the City inspections or after the City
13· ·inspections?· That may be helpful for timeline.
14· · · · · · ·A.· A full blown report would be after,
15· ·but there was one before because we had a system
16· ·where persons like me with a bit of responsibility
17· ·of certain areas were to report, I think it was
18· ·once a week or so, on the progress and what we
19· ·found in order to obviously for him to see that
20· ·the work is being done.· Because he wasn't --
21· ·Mr. Nazarian wasn't here every day.· He would come
22· ·over so often, every two weeks or so, and he
23· ·needed to see those reports.· And Henri Laroue's
24· ·job was to gather those and give forward it to him
25· ·for review and progress review.· And so in those
·1· ·reports, I did indicate this area, yes.· And then
·2· ·there was one major one, a big report when I was
·3· ·upset and I wrote that.
·4· · · · · · ·Q.· And then you said there might have
·5· ·been -- so that's sort of a daily log --
·6· · · · · · ·A.· Daily log of sorts, yes.
·7· · · · · · ·Q.· And everybody makes whatever
·8· ·comments about the work --
·9· · · · · · ·A.· Well, everybody submitted their own
10· ·log.· But not everybody in the mall.· It was like
11· ·pretty much myself, Henri, the head of
12· ·maintenance.· There were about four or five people
13· ·doing that, not everybody.
14· · · · · · ·Q.· Okay.· And then at some point, did
15· ·you do a report for yourself for Mr. -- to give to
16· ·Mr. Nazarian?
17· · · · · · ·A.· Yes.
18· · · · · · ·Q.· Of the --
19· · · · · · ·A.· Yes, of my inspection of what I
20· ·found, correct.
21· · · · · · ·Q.· And was that after your
22· ·preinspection or --
23· · · · · · ·A.· It was after my preinspection.
24· · · · · · ·Q.· And was it before the City's
25· ·inspections?
·1· · · · · · ·A.· I can't answer with 100 percent
·2· ·certainty.· I can't remember.· I just know it was
·3· ·around that time.· I can't remember if it was
·4· ·after or before.
·5· · · · · · ·Q.· And why did you prepare this report?
·6· · · · · · ·A.· Because I felt that the situation
·7· ·was serious and nobody was taking it as such.
·8· ·Everybody kind of, for various reasons, was not
·9· ·interested in dealing with it.
10· · · · · · ·Q.· And so apart from that, was there
11· ·anything in it other than the issue of the safety
12· ·of the slab in front of the hotel?
13· · · · · · ·A.· To be honest with you, that was the
14· ·most pressing one that I talked about.· I'm sure
15· ·there were other things that I mentioned about
16· ·other things.· But that's the one that stands out
17· ·in my mind because that was the crucial one, why I
18· ·wrote that is because of that area.
19· · · · · · ·Q.· And did you deliver a copy of it to
20· ·Mr. Nazarian?
21· · · · · · ·A.· Not personally.· I would give it to
22· ·mall manager, Henri Laroue, to pass on to him.
23· · · · · · ·Q.· And did you review it with him at
24· ·some point?
25· · · · · · ·A.· No.· He hasn't -- he spoke to me
·1· ·about it, but I did not sit down and look at it
·2· ·and review it with him.· I don't remember that.
·3· · · · · · ·Q.· And what did he say when he spoke to
·4· ·you about it?
·5· · · · · · ·A.· He said that the City has already
·6· ·requested an inspection, structural inspection to
·7· ·be done on the mall and he would address it at
·8· ·that time and for me to relax and wait when that
·9· ·happens.
10· · · · · · ·Q.· So the City inspections were after
11· ·your report, based on that answer, I take it?
12· · · · · · ·A.· Well, still could have been before,
13· ·it's possible, but, yes, it sounds more probable
14· ·that it was after.
15· · · · · · ·Q.· Okay.· And did anybody else get it,
16· ·apart from Mr. Nazarian?
17· · · · · · ·A.· That very same report?
18· · · · · · ·Q.· Yes.
19· · · · · · ·A.· No, it was addressed to him only.
20· ·There was nobody else that I would report to.
21· · · · · · ·Q.· Was there a report like it given to
22· ·anyone else?· Same contents just different
23· ·addressee.· Did you do a report to anyone else,
24· ·the City or any other--
25· · · · · · ·A.· I would have liked to, but who would
·1· ·take me seriously?
·2· · · · · · ·Q.· And what -- and did it contain a
·3· ·warning from you that this -- that this slab could
·4· ·collapse?
·5· · · · · · ·A.· It was my prediction.· I said the
·6· ·slab's coming down sooner than later, is what I
·7· ·thought.· I'm surprised it lasted that long.
·8· · · · · · ·Q.· And did you keep a copy of this
·9· ·report for yourself?
10· · · · · · ·A.· If I did, I don't have it.· I don't
11· ·remember now, but I don't have it in my
12· ·possession.
13· · · · · · ·Q.· And do you -- and why?· What
14· ·happened to it?· Do you know?
15· · · · · · ·A.· My job was to tell him how serious
16· ·it is, to impress upon him to do something about
17· ·it.· And that's pretty much it.· It was in his
18· ·hands.· I only had limited ability to go as far as
19· ·I could and I was not vested with powers to do
20· ·anything more.
21· · · · · · ·Q.· Did Mr. Nazarian ever tell you he
22· ·was concerned about the safety of the roof?
23· · · · · · ·A.· I don't remember that.· He was
24· ·concerned about the fact that it was leaking and
25· ·it was costing him money, that the tenants were
·1· ·leaving.· Those were mostly the complaints that I
·2· ·heard that we need to fix it, we need to fix it,
·3· ·we need to fix it.· But as far the safety portion
·4· ·of it, I think he was under the impression that it
·5· ·was fine.· It stood there for a long time.· It was
·6· ·going to stand there for a long time.
·7· · · · · · ·Q.· Okay.· And did he ever ask you about
·8· ·finding some property to move the parking or some
·9· ·of it off the roof.
10· · · · · · ·A.· At the time when I brought that to
11· ·his attention and I said him, Bob, this is
12· ·serious.· Somebody's going to die and it's going
13· ·to be probably a lot of people.· He said to me,
14· ·well, I have all this parking that I need for my
15· ·tenants.
16· · · · · · ·At the time he was -- he just negotiated
17· ·and had a new contract with some government
18· ·agency.· I can't remember which one, services --
19· ·Canada Services, or something like that, was there
20· ·on the main floor and some other offices were
21· ·negotiated to go in there again and he desperately
22· ·needed parking spaces.· He says he can't afford to
23· ·lose them.· To which I replied, I said, Bob, it's
24· ·so serious that I wouldn't even walk on it when
25· ·the cars drive on it.
·1· · · · · · ·I stopped parking my vehicle there.· I
·2· ·would only go as far as grid line -- where is
·3· ·that, if you can bring down the drawing.· I would
·4· ·go as far as -- keep going down please, to 13X.· I
·5· ·wouldn't park past coming closer to the hotel
·6· ·because I was concerned about that area so much.
·7· · · · · · ·And I said to him, you have to do
·8· ·something about it.· And like I said, he said
·9· ·about the parking.· And he said, well, you had
10· ·successful dealings with the City.· Perhaps you
11· ·can help us with negotiating because the City
12· ·doesn't like him whatnot to purchase a piece of
13· ·land so he can defer the parking from this area
14· ·into that one.
15· · · · · · ·Q.· And why did you say 13X is the
16· ·closest you would go?
17· · · · · · ·A.· Because that's where the appendix of
18· ·the mall was, where the entrance to the Zellers, I
19· ·would never go past it.· I felt it was unsafe.
20· · · · · · ·Q.· You mean in your car?
21· · · · · · ·A.· In my truck, I had a pick-up truck
22· ·and I wouldn't do it, yeah.· I was never concerned
23· ·about it in 2008 until in 2009 I did this
24· ·inspection.· After that I was very concerned.
25· · · · · · ·Q.· Now, as I said earlier, you've
·1· ·agreed that you accompanied a couple of City
·2· ·inspectors and an engineer on some inspections and
·3· ·I'd just like to talk to you about those for a
·4· ·minute.
·5· · · · · · ·It appears that the City inspections,
·6· ·there were two conducted, one under the Property
·7· ·Standards By-Law 03-29, conducted by Bruce Ewald.
·8· ·That had to do with the structural issues and the
·9· ·watertightness issues.
10· · · · · · ·A.· Okay.
11· · · · · · ·Q.· And then a second one by
12· ·Mr. Officer, Fire Chief Officer, under the Ontario
13· ·Fire Code.· Those were the two municipal ones.· Is
14· ·that your memory?
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· And then as I've said earlier, a
17· ·product of those was the further inspection with
18· ·Mr. Wood on behalf of Mr. Nazarian.
19· · · · · · ·A.· Correct.
20· · · · · · ·Q.· So let me just take you then to what
21· ·is tab 25, Exhibit 170.
22· · · · · · ·MR. MACRAE:· Mr. Commissioner, I wonder
23· ·if I might raise and I have an objection.· And
24· ·that is that my fried -- I understand that
25· ·Commission Counsel is permitted to lead to a
·1· ·certain extent with respect to the witnesses.
·2· ·However, the Commission Counsel has just put to
·3· ·this witness that he did an inspection with
·4· ·Mr. Wood.· And in fairness to Mr. Wood, the
·5· ·initial statement and the second statement that
·6· ·this witness provided to both the OPPs, who were
·7· ·questioning him, made very clear that he did not
·8· ·indicate at that point in time that he conducted
·9· ·an inspection with Mr. Wood.
10· · · · · · ·And so I would ask that my friend be
11· ·very cautious with respect to leading questions in
12· ·that regard, and that that evidence isn't before
13· ·the Commission at this point in time.· And in
14· ·fact, within the Commission's brief, there's
15· ·evidence that the witness did not recall either
16· ·the name of the engineer or the particular time.
17· · · · · · ·THE COMMISSIONER:· Mr. Carr-Harris?
18· · · · · · ·MR. CARR-HARRIS:· Yes, Your Honour, I
19· ·don't agree with my friend's objection.· I'm
20· ·asking this witness' evidence and he's giving it
21· ·in the box.
22· · · · · · ·If my friend has a concern about the
23· ·truth of it, he can cross-examine the witness.
24· · · · · · ·THE COMMISSIONER:· Well,
25· ·cross-examination is obviously available to
·1· ·Mr. MacRae.· But if it's a sensitive issue, I
·2· ·would ask to the extent possible that the
·3· ·Commission Counsel not lead the witness.
·4· · · · · · ·Perhaps a more general question as to
·5· ·who he accompanied to do inspections as a
·6· ·precursor question might be -- might be more
·7· ·appropriate.
·8· · · · · · ·MR. CARR-HARRIS:· Well, I think -- thank
·9· ·you, Mr. Commissioner.· The witness didn't know --
10· ·couldn't remember the name of the engineer, but
11· ·when he was refreshed by the documents, then he
12· ·identified Mr. Wood as the engineer, as many
13· ·witnesses have in this process.
14· · · · · · ·So with great respect, I will conform
15· ·with your order, but I do -- it's my view that
16· ·it's appropriate or your comment --
17· · · · · · ·THE COMMISSIONER:· I haven't looked at
18· ·the transcript question by question.· My mind
19· ·wasn't directed to the eventual objection made by
20· ·Mr. MacRae.· So I'd be happy to replay the --
21· ·have another look at the transcript.· But,
22· ·Mr. MacRae, do you have something further?· You
23· ·are on your feet.
24· · · · · · ·MR. MACRAE:· Just with respect to my
25· ·friend.· I appreciate that Mr. Carr-Harris is not
·1· ·attempting to give evidence, but with the greatest
·2· ·of a respect, the statement that we have in
·3· ·Relativity makes very clear that this witness
·4· ·identified an individual by the name -- he thought
·5· ·he recalled an individual by the name of Doug.
·6· ·Nothing may turn on this ultimately once the
·7· ·balance of the evidence is in, but in my
·8· ·respectful submission, it should be very clear at
·9· ·this point in time there was contradictory
10· ·evidence given by this witness during the course
11· ·of statements being taken with respect to who he
12· ·accompanied at what particular time.
13· · · · · · ·THE COMMISSIONER:· All right.· Well,
14· ·that obviously can be the subject of
15· ·cross-examination.· I haven't seen the -- those
16· ·will says.· I'm not in a position to make
17· ·decisions or judgments based on what I haven't
18· ·seen so.
19· · · · · · ·THE WITNESS:· Perhaps I can explain?
20· · · · · · ·MR. CARR-HARRIS:· Your Honour, I might
21· ·add, if my friend Mr. MacRae is telling me that
22· ·Mr. Wood is going to take the box and deny that he
23· ·-- that Mr. Yakimov accompanied him on his thing,
24· ·then I will adjust my questioning accordingly,
25· ·otherwise it's kind of pointless really the
·1· ·objection.
·2· · · · · · ·THE COMMISSIONER:· You were going to add
·3· ·something, sir?
·4· · · · · · ·THE WITNESS:· Yes, I could explain
·5· ·concerns that the other gentleman raised.
·6· · · · · · ·THE COMMISSIONER:· Mr. MacRae is the
·7· ·lawyer for Mr. Wood.· Go ahead, sir.
·8· · · · · · ·THE WITNESS:· Well, can I explain?
·9· · · · · · ·THE COMMISSIONER:· Yeah.
10· · · · · · ·THE WITNESS:· So initially when this all
11· ·happened, I wasn't expecting anybody to approach
12· ·me.· And when the OPP approached me and started
13· ·asking me questions, naturally there was a lot of
14· ·things that I couldn't remember right off the bat.
15· ·It was basically what do you remember right now?
16· ·And I identified in that initial interview that I
17· ·don't remember the name of the guy.· I thought his
18· ·name was Doug, but I said I cannot tell you who he
19· ·was by name until I see something that would
20· ·refresh my memory, I told them that.· That's the
21· ·discrepancy.
22· · · · · · ·So when later on they told me it was
23· ·Mr. Wood who did the inspection and I described
24· ·him though, actually.· I can identify him if I see
25· ·him.· I remember him very well.
·1· · · · · · ·THE COMMISSIONER:· Go ahead, Mr.
·2· ·Carr-Harris.
·3· · · · · · ·MR. CARR-HARRIS:· Thank you.
·4· · · · · · ·BY MR. CARR-HARRIS:
·5· · · · · · ·Q.· Then at tab 25, which is Exhibit No.
·6· ·170, have you got two books there?
·7· · · · · · ·A.· I'm using yours.
·8· · · · · · ·Q.· You're using mine?· Okay, good.· So
·9· ·you should be looking at a document that's -- that
10· ·starts on the first page with an order to remedy
11· ·violation.
12· · · · · · ·Now, I understand you have not seen --
13· ·you had not seen this document before we gave it
14· ·to you in the documents, is that right?· Did you
15· ·see it at the time?
16· · · · · · ·A.· No --
17· · · · · · ·Q.· I wanted --
18· · · · · · ·A.· -- with the book, when I received
19· ·the book.· That's when --
20· · · · · · ·Q.· That's when you saw it?
21· · · · · · ·A.· Yeah.
22· · · · · · ·Q.· Okay.· I just want to take you to
23· ·the inspection report which is at the -- is at the
24· ·end, page 72, bottom right corner.· Do you see
25· ·that?
·1· · · · · · ·A.· Bottom right, okay.
·2· · · · · · ·Q.· You got it?· Page -- should be
·3· ·looking at a handwritten inspection report.
·4· · · · · · ·A.· Yes, I am.
·5· · · · · · ·Q.· And you'll see at the top that it
·6· ·says, Bruce Ewald is the inspector.· This is -- I
·7· ·don't think there's any issue is, as he's checked
·8· ·off, is an inspection under the Property Standards
·9· ·By-Law.· And he is the -- he says the following
10· ·was conducted on September 24th, '09 at 10:30 a.m.
11· ·And he says the following observations were made.
12· ·Attending Paul Officer, looks like Darren Connors,
13· ·and Dimitri Yakimov, that's you, correct?
14· · · · · · ·A.· Correct.
15· · · · · · ·Q.· So you were there and you recall
16· ·going -- do you recall going on an inspection with
17· ·Mr. Ewald?
18· · · · · · ·A.· Yes, I do.
19· · · · · · ·Q.· And if you look at the -- what he
20· ·said there, I'm going to just skip through it
21· ·hopefully and ask you whether his observations
22· ·comply -- conform with your own -- from your
23· ·memory.· But first it says:
24· · · · · · ·"Evidence of water leakage on upper level
25· · · · · · ·of mall above the lottery ticket booth
·1· · · · · · ·adjacent to the food court."
·2· · · · · · ·And that's the area where there was a
·3· ·partial collapse of the roof at the time it
·4· ·occurred, is that correct?
·5· · · · · · ·A.· That is correct.
·6· · · · · · ·Q.· And it says it's
·7· · · · · · ·"missing fire proofing on structural steel
·8· · · · · · ·members; rust on the structural steel (· 2
·9· · · · · · ·pictures taken)."
10· · · · · · ·And then number 2:
11· · · · · · ·"Evidence of water leakage from above the
12· · · · · · ·Dollarama missing fireproofing on
13· · · · · · ·structural steel beams and rust is also
14· · · · · · ·evident (2 pictures taken).
15· · · · · · ·3 Evidence of the water leaking above The
16· · · · · · ·Bargain Shop with missing fireproofing &
17· · · · · · ·minor rust on structural steel beams noted
18· · · · · · ·in several location of the store (2
19· · · · · · ·pictures) missing fire proofing noted in
20· · · · · · ·the rear storage room on the structural
21· · · · · · ·steel.
22· · · · · · ·4 Evidence of water leaking in service
23· · · · · · ·hall behind the Dollarama.· Missing
24· · · · · · ·fireproofing and rust evident on
25· · · · · · ·structural steel."
·1· · · · · · ·Then if you go over, there are some
·2· ·further ones.· But just stopping right there, are
·3· ·those -- do you agree those areas are the ones
·4· ·that you were looking at so far as the first page
·5· ·is concerned?
·6· · · · · · ·A.· My -- part of my job at this
·7· ·inspection was to lead the inspector to the
·8· ·problem areas.· So, yes, those were the areas that
·9· ·I identified and I've shown it to the inspector.
10· · · · · · ·Q.· Okay.· And these are the areas that
11· ·will show them where the rust was in the steel and
12· ·the overhead?
13· · · · · · ·A.· Yes.
14· · · · · · ·Q.· In the walkways?
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· And so on.· And then if you go over
17· ·the second page there's a missing door closure on
18· ·the fire door, number 5.
19· · · · · · ·"6 Evidence of water leakage; missing
20· · · · · · ·fireproofing and rust at structural steel
21· · · · · · ·in the service corridor behind the
22· · · · · · ·library."
23· · · · · · ·Which is a place you took them.· Number
24· ·seven, the exit doors are notes.· They don't
25· ·operate properly.· Number eight, the lighting
·1· ·levels in the west service corridor are well below
·2· ·required levels.· Number nine missing fire
·3· ·proofing on structural steel.· 10 evidence of
·4· ·multiple leaks, more than 20 on the ceiling tiles
·5· ·in the Zellers store, 3 pictures.
·6· · · · · · ·Is that accurate from your recollection?
·7· · · · · · ·A.· Yes, that is.
·8· · · · · · ·Q.· And then finally over there on page
·9· ·three, "11 Evidence of rusted steel stairway
10· ·outside in front of Foodland."· And then there
11· ·again is the stairways.· Number 12, rusted
12· ·structural steel all along the covered walkways
13· ·adjacent main -- sorry, main mall entrance.· Then:
14· · · · · · ·"Note: all pictures were taken by Darren
15· · · · · · ·Connors and witnessed by Paul Officer and
16· · · · · · ·myself."
17· · · · · · ·That's Mr. Ewald.· And then lastly, "It
18· ·is also noted that the up escalator was not
19· ·functioning at the time of the inspection."
20· · · · · · ·So do you agree with all those?
21· · · · · · ·A.· Yes, I do.
22· · · · · · ·Q.· Okay.· Now, as a result of that,
23· ·there was an order of remedy, and I don't need to
24· ·go through in terms of the deficiencies, but were
25· ·you aware at the time that as a result of the
·1· ·inspection that the City had taken some action
·2· ·regarding what it saw as deficiencies in
·3· ·structural capacity and fire separation?
·4· · · · · · ·A.· Yes.
·5· · · · · · ·Q.· And then if you go to tab 18.
·6· · · · · · ·MR. BISCEGLIA:· Mr. Commissioner, could
·7· ·I have the Exhibit No. and tab number of that last
·8· ·exhibit?· I failed to take it down.
·9· · · · · · ·THE COMMISSIONER:· Exhibit No. 170.
10· · · · · · ·MR. CARR-HARRIS:· And it's tab 25.
11· · · · · · ·MR. BISCEGLIA:· Thank you.
12· · · · · · ·BY MR. CARR-HARRIS:
13· · · · · · ·Q.· Then if you go to tab 18, Exhibit
14· ·No. 4267, you'll see a much briefer report, which
15· ·is the fire safety inspection report.· It's -- you
16· ·will see that at the top it's dated September 24,
17· ·2009.· In other words, the same day as the
18· ·inspection by Mr. Ewald.· You did it all together
19· ·did you?
20· · · · · · ·A.· Yes.
21· · · · · · ·Q.· You all went to the same place?
22· · · · · · ·A.· We all walked at the same time all
23· ·together, yes.
24· · · · · · ·Q.· All right.· And it says that the --
25· ·in attendance in the box in the top left Bruce
·1· ·Ewald of the City, Chief Building Official, Darren
·2· ·Connors of the Fire Department and you,
·3· ·Mr. Yakimov, correct?
·4· · · · · · ·A.· Correct.
·5· · · · · · ·Q.· And then it says in the middle:
·6· · · · · · ·"The inspection took place to witness
·7· · · · · · ·damage to fire proofing material on
·8· · · · · · ·structural steel members and rust on the
·9· · · · · · ·steel that could possibly affect the
10· · · · · · ·strength of the beams."
11· · · · · · ·Then they list the areas that they
12· ·looked at and those are all the same areas?
13· · · · · · ·A.· Yes.
14· · · · · · ·Q.· Only from their own perspectives.
15· · · · · · ·A.· Hmm hmm.
16· · · · · · ·Q.· And if you flip over to the last
17· ·page and about two thirds of the way down, it
18· ·begins:
19· · · · · · ·"The Zellers store was viewed and
20· · · · · · ·Mr. Yakimov indicated that they had about
21· · · · · · ·thirty leaks in this area and he called
22· · · · · · ·them mild leaks."
23· · · · · · ·Did you say that about them?
24· · · · · · ·A.· Probably, yes.
25· · · · · · ·Q.· And what is a mild leak?
·1· · · · · · ·A.· It's not pouring down.· It's
·2· ·dripping.
·3· · · · · · ·Q.· So does that mean --
·4· · · · · · ·A.· For the state that the mall is and
·5· ·everybody was used to it, those were considered to
·6· ·be mild leaks, meaning the tiles were not falling
·7· ·off the ceiling.· There was just yellow spotting
·8· ·and perhaps some dripping, but not much.· It was
·9· ·only during the rain.· Where other spots were some
10· ·major leaks --
11· · · · · · ·Q.· And can we give the credit for the
12· ·mild leaks to the roof restoration project that
13· ·was going on or was this just --
14· · · · · · ·A.· Perhaps, I wasn't -- I wasn't there
15· ·to gauge how much improvement the patch work did.
16· ·Perhaps there was some, but --
17· · · · · · ·Q.· Okay.
18· · · · · · ·A.· -- if it's leaking, it's already not
19· ·efficient.
20· · · · · · ·Q.· And then there's a reinspection.
21· · · · · · ·"The owner is requested to provide
22· · · · · · ·appropriate documentation satisfactory to
23· · · · · · ·the Chief Fire Official by October 24,
24· · · · · · ·2009, showing that a building permit has
25· · · · · · ·been applied for which will result in work
·1· · · · · · ·being undertaken to correct the
·2· · · · · · ·violations."
·3· · · · · · ·That he's listed there, which refer to
·4· ·the same areas.
·5· · · · · · ·"Further, be advised that failure to
·6· · · · · · ·correct these violations within 3 days of
·7· · · · · · ·the date as determined by the Chief
·8· · · · · · ·Building Official may result in
·9· · · · · · ·prosecution."
10· · · · · · ·So there is a deadline on this fire
11· ·inspection for October 24.· In other words, a
12· ·month later.· And did you agree -- you agreed with
13· ·the observations made by Fire Chief Officer of
14· ·what he saw there?
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· And at -- so there's a month for the
17· ·mall to respond to the Fire Marshal or the fire
18· ·audit.· And in the case of the order, to remedy
19· ·it's -- there's a requirement that:
20· · · · · · ·"The owner shall have the entire mall area
21· · · · · · ·inspected by a structural licenced -- an
22· · · · · · ·engineer structural licenced in the
23· · · · · · ·Province of Ontario and correct all
24· · · · · · ·deficiencies noted.· And any further
25· · · · · · ·deficiencies which may be discovered by
·1· · · · · · ·the engineer in the manner prescribed by
·2· · · · · · ·the aforementioned engineer obtain a
·3· · · · · · ·permit for the required work to be
·4· · · · · · ·undertaken pursuant to section 81 of the
·5· · · · · · ·Ontario Act."
·6· · · · · · ·So they need a report from a structural
·7· ·engineer.· That's at page 70 --
·8· · · · · · ·A.· Which tab is it?
·9· · · · · · ·Q.· Exhibit No. 170, tab 25.· This is
10· ·the order to remedy?
11· · · · · · ·A.· Hmm hmm.
12· · · · · · ·Q.· You go to page 70, it's Exhibit No.
13· ·170.
14· · · · · · ·A.· Yes.
15· · · · · · ·Q.· And there --
16· · · · · · ·A.· Yes, I see.
17· · · · · · ·Q.· And that is the remedy that was
18· ·ordered.· Although you didn't see that note at the
19· ·time, were you aware that an engineer was required
20· ·to now do a report?
21· · · · · · ·A.· Not only aware, I was suggesting
22· ·that.
23· · · · · · ·Q.· And then at the -- if you go to the
24· ·first page of Exhibit 170, the timeline on this
25· ·remedy is that, as it says:
·1· · · · · · ·"You are hereby ordered to remedy the
·2· · · · · · ·deficiencies as set out in the attached
·3· · · · · · ·Schedule and the property shall be brought
·4· · · · · · ·into compliance with the prescribed
·5· · · · · · ·standards as set out in the Property
·6· · · · · · ·Standards By-law. . .on or before
·7· · · · · · ·October 30th."
·8· · · · · · ·So it's a very short timeline there.
·9· ·And were you aware of that timeline at the time?
10· · · · · · ·A.· To be truthful, I can't say that
11· ·I've seen this with my own eyes.· But I knew there
12· ·was a timeframe.· I knew that the engineer has to
13· ·come within a certain period of time.· From what I
14· ·remember and when I heard of it, it was about a
15· ·couple of weeks that the time was, if my memory
16· ·serves me correct.
17· · · · · · ·Q.· Okay.· Now, on your tours with the
18· ·inspectors, those two inspectors, did anyone
19· ·express any interest in looking at the connections
20· ·in the structural steel?
21· · · · · · ·A.· You mean the Fire Department and the
22· ·Building Department?
23· · · · · · ·Q.· Yes, either one.· You were all
24· ·together.
25· · · · · · ·A.· They were relying on the future
·1· ·report of the structural engineer.· None of them
·2· ·looked at the -- at the connecting members.
·3· · · · · · ·Q.· So they saw rust and, as a result of
·4· ·that, wanted a structural assessment?
·5· · · · · · ·A.· They saw rust, they heard me
·6· ·describing concerns that I had about the mall
·7· ·because I was there.· I was leading them in --
·8· ·somewhat in this inspection, showing them things.
·9· ·And the consensus was we need to have a licenced
10· ·opinion because without it, they said -- they had
11· ·to have that done first in order for them to go to
12· ·the next step.
13· · · · · · ·Q.· Okay.· And when you were down in the
14· ·upper mall or in the upper mall, and you were
15· ·looking at overhead there, I take it you took them
16· ·there and showed them the beam?
17· · · · · · ·A.· Yes.
18· · · · · · ·Q.· And that was the beam that
19· ·ultimately failed or part of it failed?
20· · · · · · ·A.· Part of it.· I'm not sure --
21· · · · · · ·Q.· And when you were looking at it, was
22· ·the -- could you see the connection from there?
23· · · · · · ·A.· No, I could not see the connection.
24· ·All I see was a portion of the beam.· It had --
25· ·rust was evident on it and the fire protection was
·1· ·washed away.· Perhaps more to a greater extent
·2· ·somewhere else.· But I've seen worse areas.· My
·3· ·concern was not that it was what I saw, my concern
·4· ·was what I couldn't see.· I couldn't see why it
·5· ·had a movement there when the cars would go over.
·6· ·That was my concern.
·7· · · · · · ·Q.· And did -- when you were down there
·8· ·with those two inspectors, did you tell them about
·9· ·your concern of the movement --
10· · · · · · ·A.· I told them, yes.
11· · · · · · ·Q.· -- and the potential for failure?
12· · · · · · ·A.· Yeah, and they said we'll wait until
13· ·the report.· It'll all be addressed by the
14· ·structural engineer.
15· · · · · · ·Q.· And while you were down there, was
16· ·there any movement of the --
17· · · · · · ·A.· I don't remember them standing and
18· ·waiting for the cars to go by, no.· I don't -- I
19· ·don't remember doing that with them at all.
20· · · · · · ·Q.· And did you take them up top to see
21· ·if they would notice it from there --
22· · · · · · ·A.· We were at the top, yes.· But again,
23· ·I don't remember them actually doing what I did,
24· ·standing there waiting for the cars to go over it
25· ·and for the movement to occur.· I don't remember
·1· ·that.
·2· · · · · · ·Q.· Okay.· What was the reaction of the
·3· ·-- of the inspectors as they were reviewing the
·4· ·mall in the areas that you took them to?
·5· · · · · · ·A.· General sense was it's time to do
·6· ·something about it.· They wanted something to be
·7· ·done.· It was -- everybody in Elliot Lake knew it
·8· ·was a long-standing issue and finally something --
·9· ·they were ordering -- something was happening,
10· ·something was moving along.
11· · · · · · ·Q.· Now, did they say that in course or
12· ·was that something that --
13· · · · · · ·A.· It was just a general feeling as we
14· ·were walking around.· They wanted to make sure
15· ·that the mall was safe.· They wanted to make sure
16· ·that, you know, it was compliant to the Code,
17· ·existing Code of the day.· They just wanted to
18· ·make it right.
19· · · · · · ·Q.· And did they -- and they both
20· ·expressed that, both Mr. Ewald and Mr. Officer?
21· · · · · · ·A.· Yes.
22· · · · · · ·Q.· And did they appear alarmed at all
23· ·by what they saw?
24· · · · · · ·A.· By alarmed what -- there's different
25· ·--
·1· · · · · · ·Q.· If there was some urgency to it.
·2· ·Sorry, we can't talk over each other.
·3· · · · · · ·The question I wanted to ask you was did
·4· ·they appear alarmed as a result of what they saw?
·5· · · · · · ·A.· Again, there's different stages of
·6· ·alarm.· I didn't see them overly alarmed or
·7· ·anything.· They were concerned and they wanted
·8· ·something done.· That I remember.
·9· · · · · · ·Q.· Now, before you left the -- I gather
10· ·-- I understand you left the employment of the
11· ·mall at the end of October 2009?
12· · · · · · ·A.· I was fired.
13· · · · · · ·Q.· And we'll get to that at the end.
14· ·But before you left, would you -- did you -- were
15· ·you aware if any of these deficiencies were
16· ·remedied?
17· · · · · · ·A.· I was aware that none of them were
18· ·remedied except for like the maybe doorknobs, but
19· ·anything serious wasn't done.
20· · · · · · ·Q.· And then in terms of the inspection
21· ·by Mr. Wood, and as we discussed they required an
22· ·order to remedy and it required an engineer.
23· ·Mr. Wood was that engineer.
24· · · · · · ·And can I take you the Exhibit 103, and
25· ·that's at our tabs 28.· And you should be looking
·1· ·at Mr. Wood's report.
·2· · · · · · ·You never saw the report until we gave
·3· ·it to you, I understand?
·4· · · · · · ·A.· No, I never saw it until I received
·5· ·the package.
·6· · · · · · ·Q.· He says, if you look at first page
·7· ·that -- it's to Henri McLeery, manager of the
·8· ·mall.
·9· · · · · · ·"As per your request we visited the above
10· · · · · · ·noted Mall Complex on Monday, October 5,
11· · · · · · ·2009 to specifically review and report on
12· · · · · · ·concerns that water leakage through the
13· · · · · · ·parking deck may have created a weakening
14· · · · · · ·of the structure and damaged the required
15· · · · · · ·sprayed-on fire proofing on the steel
16· · · · · · ·structure."
17· · · · · · ·So he did the inspection on October 5
18· ·and do you recall being there and with him when he
19· ·did his inspection?
20· · · · · · ·A.· I was not with him at the time of
21· ·the inspection, but I met him before and after it.
22· · · · · · ·Q.· And when you met him before, what
23· ·did you tell him, if anything?
24· · · · · · ·A.· Well, we did -- because I was party
25· ·to the inspection with the City and the fire
·1· ·inspection, I brought to his attention the very
·2· ·same areas.· I walked him through the mall and
·3· ·showed him the areas that we've done with the
·4· ·City.· So I basically pointed to each one of them
·5· ·and said this is what we have.· And I did bring
·6· ·him up to the deck of the entrance of the hotel
·7· ·and told him about my concern.
·8· · · · · · ·Q.· And this was the concern regarding
·9· ·the movement and so on --
10· · · · · · ·A.· Mr. Nazarian --
11· · · · · · ·Q.· -- that you described?
12· · · · · · ·A.· Mr. Nazarian was present with us at
13· ·the time.
14· · · · · · ·Q.· And he overheard your conversation
15· ·with --
16· · · · · · ·A.· He was part of the conversation.
17· · · · · · ·Q.· And again when you talked about your
18· ·concern, you're referring to the slabs in front of
19· ·the hotel?
20· · · · · · ·A.· Yes, I am.
21· · · · · · ·Q.· And did you describe it as safety
22· ·issue from your perspective --
23· · · · · · ·A.· Yes, I did.
24· · · · · · ·Q.· -- to Mr. Wood?
25· · · · · · ·A.· Yes, I did.
·1· · · · · · ·Q.· And what did Mr. -- did Mr. Wood
·2· ·have any response for you in light of what you
·3· ·told him?
·4· · · · · · ·A.· Not until after the inspection.
·5· · · · · · ·Q.· Okay.
·6· · · · · · ·A.· It was the next day.· He stayed
·7· ·overnight I think.
·8· · · · · · ·Q.· All right.· And then so just -- do
·9· ·you know how long he was on the inspection?
10· · · · · · ·A.· I wasn't with him, so I don't know.
11· · · · · · ·Q.· And your conversation before his
12· ·inspection was on the subject of where you thought
13· ·were the problem spots highlighting the spot in
14· ·front of the -- of the hotel.
15· · · · · · ·A.· Yes, he did describe them in the
16· ·report, the spots that we were looking at.
17· · · · · · ·MR. MACRAE:· Mr. Commissioner, I have an
18· ·objection once again.· I'm not trying to interrupt
19· ·my friend, but as I recall the evidence,
20· ·Mr. Yakimov just stated that he spoke with
21· ·Mr. Wood and took Mr. Wood or told Mr. Wood about
22· ·the areas of concern that had been raised by the
23· ·City.· Not the areas of concern that had been
24· ·raised specifically by this witness.
25· · · · · · ·And I -- that's very important for this
·1· ·Commission to clearly understand, in my respectful
·2· ·submission, exactly the conversation that occurred
·3· ·between what Mr. Yakimov is indicating the
·4· ·conversation occurred between himself and Mr. Wood
·5· ·prior to the inspection, and equally following the
·6· ·inspection.
·7· · · · · · ·THE COMMISSIONER:· I understand that,
·8· ·and that of course is something that you will
·9· ·delve into I'm sure in great detail.· But perhaps
10· ·you can, Mr. Yakimov, at this point tell us
11· ·exactly what the conversation was between you and
12· ·Mr. Wood prior to Mr. Wood's inspection --
13· · · · · · ·THE WITNESS:· Okay.· So prior --
14· · · · · · ·THE COMMISSIONER:· -- about this
15· ·critical area we've been talking about.
16· · · · · · ·MR. CARR-HARRIS:· That was my -- I
17· ·didn't finish my questioning, Mr. Commissioner.
18· ·But, yes, that's the plan.
19· · · · · · ·THE WITNESS:· Who speaks?· Me or him?
20· · · · · · ·THE COMMISSIONER:· Answer my question.
21· · · · · · ·BY MR. CARR-HARRIS:
22· · · · · · ·Q.· So answer the Commissioner's
23· ·question.· He outranks.
24· · · · · · ·A.· Okay.· So when Mr. Wood arrives at
25· ·some point, I met him and Mr. Nazarian.· And I was
·1· ·asked by Mr. Nazarian to assist Mr. Woods, just
·2· ·like I was asked to assist the Fire Department and
·3· ·the Building Department prior to this in
·4· ·identifying the concern areas.· And Mr. Wood
·5· ·already had -- already had his documents
·6· ·obviously, so it was easier.· And I did, at some
·7· ·point, if we're talking about the area that I
·8· ·raised the concern, yes, we went up to that very
·9· ·spot where I was standing.· And all three of us
10· ·stood there and waited for the cars to go by and
11· ·make sure that, you know, some movement was there.
12· ·And Mr. Woods observed or felt whatever I was
13· ·feeling and that was it for that day.
14· · · · · · ·I don't -- I can't recall what happened
15· ·afterwards.· Basically he went on about his
16· ·business doing his inspection with Mr. Nazarian or
17· ·conversations, and I went about my business and
18· ·kept working.
19· · · · · · ·Q.· So you -- so you -- so his
20· ·inspection happened.· You had no conversation with
21· ·him after?
22· · · · · · ·A.· I had conversations after the
23· ·inspection as --
24· · · · · · ·Q.· And what was that?
25· · · · · · ·A.· I was invited the next day, after
·1· ·the inspection, for breakfast with two of them.
·2· ·We sat down at the restaurant that was next to
·3· ·Algo Room.· It was the restaurant Peaches or
·4· ·something.· They bought me breakfast and they
·5· ·talked at length about Mr. Wood's credentials.· He
·6· ·was talking about some architectural association
·7· ·that he was part of and whatnot.· And they
·8· ·basically told me when I said so, you know, what
·9· ·of what I talked about.· And he said to me it's
10· ·not a concern.· It's designed to be that way.
11· · · · · · ·Q.· What did you tell him that he
12· ·responded in that way?
13· · · · · · ·A.· Pardon me?
14· · · · · · ·Q.· What did you tell him when he
15· ·responded --
16· · · · · · ·A.· Well, we were eating -- sorry, I
17· ·interrupted you.· We were eating breakfast and we
18· ·were discussing and things and I asked what of my
19· ·concern?· What of this area?· It was a big thing
20· ·on my mind and he basically told me there's
21· ·nothing to worry about and it was designed to be
22· ·that way.· The movement is perfectly normal.
23· · · · · · ·Q.· And what did you respond?
24· · · · · · ·A.· I disagreed.
25· · · · · · ·Q.· And were there any --
·1· · · · · · ·THE COMMISSIONER:· How did you disagree,
·2· ·sir?
·3· · · · · · ·THE WITNESS:· I told him that I've never
·4· ·seen structural steel move.· It wasn't designed to
·5· ·do that.· And I just said to him I disagree.
·6· · · · · · ·THE COMMISSIONER:· Using the words
·7· ·you've just used?
·8· · · · · · ·THE WITNESS:· Yeah.· I can't recall.
·9· · · · · · ·THE COMMISSIONER:· I'm not asking you to
10· ·give it to me textually, sir, word-for-word, but
11· ·that is essentially what you said in general
12· ·terms?
13· · · · · · ·THE WITNESS:· Exactly, that's what I
14· ·told him.
15· · · · · · ·THE COMMISSIONER:· All right, thank you.
16· · · · · · ·BY MR. CARR-HARRIS:
17· · · · · · ·Q.· And was there any doubt in your mind
18· ·that Mr. Wood was clear on the area of the mall
19· ·you were talking about as unsafe?
20· · · · · · ·A.· None whatsoever because we were
21· ·visiting that area.
22· · · · · · ·Q.· And I take it, notwithstanding any
23· ·remarks Mr. Wood or Mr. Nazarian made, you were
24· ·still of the view that it was unsafe?
25· · · · · · ·A.· Absolutely.
·1· · · · · · ·Q.· And what did you do about it after
·2· ·that?
·3· · · · · · ·A.· I felt disheartened and upset.· I
·4· ·believe I went upstairs to the office and told
·5· ·Henri Laroue what just happened.· She went for a
·6· ·smoke because I was stressed out and telling her.
·7· ·I said Henri this is serious.· Somebody's going to
·8· ·get in trouble for this.· Somebody's going to die.
·9· ·We were in the back room behind the computer room,
10· ·there was a smoke room for them there or
11· ·something, and I said I don't want to be a party
12· ·to this.· This is crazy.· I disagree with it.
13· · · · · · ·Q.· Now, can I take you to -- let me
14· ·just ask you one more question about the -- you
15· ·had the conversation with Mr. Wood, Mr. Nazarian
16· ·after the inspection is -- is the Wood inspection.
17· ·Subsequently all of this has developed, you've
18· ·since read his report and a copy of his report,
19· ·which is an Exhibit in front of you.
20· · · · · · ·A.· Hmm hmm.
21· · · · · · ·Q.· Did you have any opinion as to the
22· ·contents of that report?
23· · · · · · ·A.· My general sense that his report
24· ·concentrates mostly on the fire proofing which was
25· ·a concern of the Fire Department, but it is
·1· ·absolutely void of any substance on the structural
·2· ·integrity of the steel.
·3· · · · · · ·Q.· And does he say anything about your
·4· ·-- about the issue of the movement of the slab, do
·5· ·you recall?
·6· · · · · · ·A.· Well, you mean from what I'm reading
·7· ·here?
·8· · · · · · ·Q.· From --
·9· · · · · · ·A.· I'll just refresh my memory right
10· ·now.· There's nothing there that indicates
11· ·anything about the structural integrity of it.
12· ·It's paragraph number three, I believe, where he's
13· ·addressing it, pictures five and six on the page,
14· ·doesn't say the number, page two.
15· · · · · · ·Q.· Okay.· All right.
16· · · · · · ·A.· If I may add --
17· · · · · · ·THE COMMISSIONER:· Where on page two?· I
18· ·just want to follow you.
19· · · · · · ·THE WITNESS:· Because there's another
20· ·issue that I brought to them, to their attention.
21· · · · · · ·THE COMMISSIONER:· All right.· Before
22· ·that, I'll let you do that, but where on page two
23· ·--
24· · · · · · ·THE WITNESS:· Paragraph three, if you
25· ·can see main mall at ticket kiosks, see picture
·1· ·five and seven, grid line 16 right on the drawing.
·2· · · · · · ·THE COMMISSIONER:· Go on to the next
·3· ·page.· Okay, there's nothing more.· It looked like
·4· ·there was something further.· Yes, go ahead.· You
·5· ·were going to add something, sir?
·6· · · · · · ·THE WITNESS:· Yes.· There was another
·7· ·issue that I brought to them why I thought the
·8· ·movement was occurring.· Because by the kiosk,
·9· ·from the kiosk area towards the hotel elevators,
10· ·and there was a corridor into the back, there was
11· ·a severe crack in the floor, and it was so
12· ·significant that people with motorized wheelchairs
13· ·were not able to travel over it, and people that
14· ·had assisted walking would obviously have
15· ·difficulty getting over.· So the mall maintenance
16· ·would put a tape over it and put a lot of rugs on
17· ·top of it to cover it so it provided sort of like
18· ·a ramp.
19· · · · · · ·And I brought it to Mr. Wood's
20· ·attention, and Mr. Nazarian, and the mall people.
21· ·I said look there's some type of settling that is
22· ·not right in here and naturally it's even impeding
23· ·pedestrian traffic.· I said maybe that is somehow
24· ·tied in to what is happening on the roof, because
25· ·I had no idea what was causing that, I wasn't
·1· ·sure.
·2· · · · · · ·And that's another thing that we were
·3· ·talking about.
·4· · · · · · ·BY MR. CARR-HARRIS:
·5· · · · · · ·Q.· And where was that located again?
·6· · · · · · ·A.· Right where the kiosk was.· We had
·7· ·architectural drawings, I would show you more
·8· ·exactly, but right behind the kiosk, there was an
·9· ·entrance into the hotel elevators and there was a
10· ·store or office there, something like that.· It
11· ·was one side was elevators to the right, if you're
12· ·looking at the hotel and to the left is something
13· ·else and there was a corridor there.· Oh,
14· ·washrooms, there were washrooms there, that's what
15· ·it was.· Public washrooms on the other side.· On
16· ·that side were the elevators.· And there was a
17· ·crack from that hallway all the way to the kiosk,
18· ·and perhaps even past, on the floor it was uneven.
19· · · · · · ·Q.· Okay.· Can I ask you, now that we're
20· ·back in this report, and, Ms. Kuka, could you go
21· ·flip into the photographs' section.· It's at page
22· ·seven, that's 136.7 of that Exhibit No. 103.
23· · · · · · ·I know you didn't see this picture at
24· ·the time, but do you recall at the time in your --
25· ·in your inspections, seeing this condition of the
·1· ·beam in what is described as the "underside of
·2· ·the. . .parking area.· Precast slabs right of
·3· ·[the] beam leakage. . .at ticket kiosk in mall"?
·4· · · · · · ·A.· Well, I saw the area from where I
·5· ·was standing I could see this beam.· Maybe not so
·6· ·zoomed in obviously because I didn't have the
·7· ·camera.· But we were all looking at it.· In all of
·8· ·the inspections we'd done, that was the beam we
·9· ·were looking at.
10· · · · · · ·Q.· And what was -- was there concern
11· ·about that beam at that time?
12· · · · · · ·A.· Yes, of course.
13· · · · · · ·Q.· And what was the concern?
14· · · · · · ·A.· Well, the concern was that it was
15· ·immediately in the area where I observed the
16· ·movement and flexing of sorts.· And what state it
17· ·was in?· To be honest with you, this beam looking
18· ·at it right now, and when we were looking at it
19· ·then didn't look as bad as some other beams were.
20· ·Some other beams looked much more rusted and in
21· ·much more horrible shape, but that's exactly what
22· ·I was worried about.· If we're looking at the
23· ·beam, it looks like it's just some fireproofing
24· ·missing, water damage, rust.· But what -- to the
25· ·joints, to the connected members, I couldn't see
·1· ·that.· I couldn't -- I didn't have access to it.
·2· · · · · · ·My understanding, whoever inspected them
·3· ·had to go look at them.· And there was -- oh, we
·4· ·did rent -- Bob rented a zoom -- a lift, a scissor
·5· ·lift that was allowed to travel in the mall so
·6· ·they could get to those areas, yes.· There was a
·7· ·rental at that time made of equipment to do that.
·8· · · · · · ·Q.· For?
·9· · · · · · ·A.· For the purpose of inspections and
10· ·remedial fire spraying, whatnot, yes.
11· · · · · · ·Q.· And when you -- when you did your
12· ·inspection, did you use that equipment to get up
13· ·--
14· · · · · · ·A.· It wasn't available when I did my
15· ·inspection.· It was rented afterwards.
16· · · · · · ·Q.· But you accompanied the Fire Chief
17· ·and the --
18· · · · · · ·A.· No, we did not use the zoom lift,
19· ·no.
20· · · · · · ·Q.· And did Mr. Wood have it to your
21· ·knowledge?
22· · · · · · ·A.· Again, I could be wrong, but what I
23· ·remember, this lift was rented for the -- for
24· ·Mr. Woods and whatever the remedial action that we
25· ·would have to do afterwards.· But it wasn't
·1· ·present there at the time -- present at the time
·2· ·of us doing the City inspection and the fire
·3· ·inspection.· No, I do not remember that being
·4· ·there.· Nobody used it.
·5· · · · · · ·Q.· We'll ask Mr. Wood then, thank you.
·6· · · · · · ·Now, can I take you to tab 29 in the
·7· ·book, which is Exhibit No. 1446.· And could you
·8· ·bring it down to the October 28th.
·9· · · · · · ·This is October 28th, and in terms of
10· ·the chronology, and this is from Paul Officer to
11· ·Bruce Ewald, that is from the Fire Chief to the
12· ·Chief Building Official.· And it says:
13· · · · · · ·"Dimitri came in at 11:00 a.m. this
14· · · · · · ·morning.· He informed me that he has
15· · · · · · ·concerns with the mall, that work will not
16· · · · · · ·be addressed correctly as Mr. Nazarian
17· · · · · · ·asked him to stall the Fire Department and
18· · · · · · ·to use the water leak issue.· Dimitri said
19· · · · · · ·he would not and he was let go. . .as of
20· · · · · · ·today.· (This could be a sour grape
21· · · · · · ·issue?)"
22· · · · · · ·And I presume you didn't see this e-mail
23· ·until we gave it to you?
24· · · · · · ·A.· When this entire collapse happened,
25· ·I had no idea that any evidence existed to me
·1· ·addressing these issues.
·2· · · · · · ·Q.· Okay.
·3· · · · · · ·THE COMMISSIONER:· Mr. Carr-Harris,
·4· ·we'll take our morning break at this time.· Take
·5· ·20 minutes, till 11:00.
·6· · · · · · ·MR. MACRAE:· Mr. Commissioner, I wonder
·7· ·if I might just address the Commission.· On
·8· ·today's date, I'm required to go down to the
·9· ·Provincial Offences Court at this point in time.
10· ·I've had a matter stood down.· I don't anticipate
11· ·I'll be longer than 20 minutes, but I wonder if I
12· ·might convey to the Commission when I return and
13· ·ask for your indulgence possibly another five
14· ·minutes in the event I am delayed.
15· · · · · · ·THE COMMISSIONER:· Off you go and we'll
16· ·wait until you get back.· I'll take it --
17· · · · · · ·MR. MACRAE:· I'll be prompt.
18· · · · · · ·---· Break taken at 10:40 a.m.
19· · · · · · ·---· Upon resuming at 11:10
20· · · · · · ·THE COMMISSIONER:· Okay on the POA side,
21· ·Mr. MacRae?
22· · · · · · ·MR. MACRAE:· Thank you very much.
23· · · · · · ·THE COMMISSIONER:· Thank you.· Go ahead,
24· ·Mr. Carr-Harris.
25· · · · · · ·MR. CARR-HARRIS:· Yes, thank you,
·1· ·Mr. Commissioner.
·2· · · · · · ·BY MR. CARR-HARRIS:
·3· · · · · · ·Q.· I was addressing what is tab 29 in
·4· ·our books and Exhibit No. 1446.· And that is an
·5· ·e-mail from Mr. Paul Officer, the Fire Chief in
·6· ·Elliot Lake, to Mr. Ewald, the Chief Building
·7· ·Officer, dated October 28th, 2009.· Do you have
·8· ·that in front of you, Mr. Yakimov?
·9· · · · · · ·A.· Yes, I do.
10· · · · · · ·Q.· Thank you.· Now, in this e-mail in
11· ·the first three paragraphs, and I don't want to go
12· ·through it, but there is a record by Mr. Officer
13· ·that you had indicated that Mr. Nazarian had
14· ·changed his findings on the audit.· That's the
15· ·fire audit.
16· · · · · · ·What -- can you just sum that up for us?
17· ·What was that issue about?
18· · · · · · ·A.· There was an order to do a fire
19· ·audit on the hotel from the Fire Department, and
20· ·Mr. Nazarian asked me to assist him in doing it,
21· ·do the calculations, make sure it complies to the
22· ·existing Fire Code, interpret it, and fill out the
23· ·form provided by the Fire Department, which I did.
24· · · · · · ·Upon my submission to him -- I did it by
25· ·hand and I turned it over to Sue Haddow to type it
·1· ·up and make it look nice.· So I had like a working
·2· ·copy that I turned over.· When I saw it at the
·3· ·end, the working copy did not reflect -- sorry,
·4· ·the submitted copy did not reflect -- reflect my
·5· ·working copy.· And I was told, I can't remember by
·6· ·Sue or by who, but it was Bob Nazarian that did
·7· ·the changes and it was not true.· It wasn't what I
·8· ·put in there, so there were some changes.
·9· · · · · · ·Q.· Okay.· So do you mean in the
10· ·description of what was --
11· · · · · · ·A.· If I remember, again this was so
12· ·long ago and -- it had to do with him having to
13· ·either up the escalator or do a second fire escape
14· ·in case of a fire.· And the fire trucks in Elliot
15· ·Lake were not capable of reaching the top floor
16· ·from certain vantage points.· So you had to kind
17· ·of -- he had to manipulate the findings so it
18· ·would be okay the way it is without having to do
19· ·any retrofits.· Because he had offices on the
20· ·first and second floor, or on the first floor
21· ·only, I can't remember now, and the rest was the
22· ·hotel.· That the fire trucks basically had to come
23· ·up really close, dangerously close to the hotel in
24· ·order to be able to assist people should they be
25· ·in need or else park at the loading docks at the
·1· ·really low elevation.· And the trucks that were at
·2· ·the time available to the City of Elliot Lake were
·3· ·not capable of reaching every point that they
·4· ·needed to reach.
·5· · · · · · ·So the findings -- the findings, my
·6· ·findings were changed in such a way that there was
·7· ·no problem.· But I said that there were some
·8· ·problems --
·9· · · · · · ·Q.· Okay.
10· · · · · · ·A.· -- that needed to be addressed.
11· · · · · · ·Q.· Okay.· And did he discuss that with
12· ·you at all --
13· · · · · · ·A.· No.
14· · · · · · ·Q.· -- before he submitted --
15· · · · · · ·A.· I just saw it already submitted and
16· ·I said, you know, this is not true.
17· · · · · · ·Q.· And then moving on down to the back
18· ·at Exhibit No. 1446, at the bottom of the first
19· ·page of the e-mail, there's a date October 28th.
20· ·2009, and it says:
21· · · · · · ·"Dimitri came in at 11:00 a.m. this
22· · · · · · ·morning."
23· · · · · · ·This is Mr. Officer talking.
24· · · · · · ·"He informed me that he has concerns with
25· · · · · · ·the mall, that work will not be addressed
·1· · · · · · ·correctly as Nazarian asked him to stall
·2· · · · · · ·the Fire Department and to use the water
·3· · · · · · ·leak issue. Dimitri said he would not and
·4· · · · · · ·he was let go...as of today."
·5· · · · · · ·Was that true?
·6· · · · · · ·A.· Yes.
·7· · · · · · ·Q.· And so -- and then in brackets,
·8· ·Mr. Officer says, "(This could be a sour grapes
·9· ·issue?)".· Do you know what he's talking -- the
10· ·reference is there?
11· · · · · · ·A.· Well, he's probably implying the
12· ·fact that I would be saying this because I was let
13· ·go, but it was completely the opposite.· I was let
14· ·go because of it.
15· · · · · · ·Q.· And was it true that Mr. Nazarian
16· ·asked you to stall the Fire Department?
17· · · · · · ·A.· Yes, it is.
18· · · · · · ·Q.· And then it goes on:
19· · · · · · ·"He also advised he spoke to Bruce Ewald
20· · · · · · ·and gave him copies of the drawings as he
21· · · · · · ·has a concern of 2 panels on the car park
22· · · · · · ·level just outside of the lobby doors and
23· · · · · · ·also to the left of the doors."
24· · · · · · ·You'd already discussed this at the
25· ·inspections I understood?
·1· · · · · · ·A.· Yes.
·2· · · · · · ·Q.· Had you?
·3· · · · · · ·A.· Yes.
·4· · · · · · ·Q.· And:
·5· · · · · · ·"He indicated that his hotel audit and
·6· · · · · · ·dealing with H.R. Wright inspection with
·7· · · · · · ·Bob Wood showed that the drawings of the
·8· · · · · · ·area in question has the core slab and
·9· · · · · · ·3 inches of concrete topping."
10· · · · · · ·What's that about?
11· · · · · · ·A.· On the original drawings, the
12· ·topping that went above -- over the core slab was
13· ·supposed to be three inches thick.· In the area in
14· ·question, I found out, looking at the work is
15· ·that's being done, that it was actually six inches
16· ·thick.· So it was three inches too much.
17· · · · · · ·Q.· So he says that you go on to say
18· ·"Upon inspection, the area shows the core slab and
19· ·6 inches of concrete topping."· And what was your
20· ·concern there?· Added weight?
21· · · · · · ·A.· Well, yeah, I was looking for
22· ·anything in my mind that I can find the cause of
23· ·the movement of what was causing it.· So I could
24· ·-- I was thinking perhaps maybe the extra weight
25· ·was contributing to it and it was a concern, yes.
·1· · · · · · ·Q.· And then he goes on:
·2· · · · · · ·"He is concerned about the added weight of
·3· · · · · · ·the extra three inches of concrete.· He
·4· · · · · · ·also indicated that there is a substantial
·5· · · · · · ·amount of movement on this location."
·6· · · · · · ·Which is what you described previously?
·7· · · · · · ·A.· Correct.
·8· · · · · · ·Q.· "I asked if this new concern about
·9· · · · · · ·the integrity of the core slab in the
10· · · · · · ·scope of the work for H.R. Wright and he,
11· · · · · · ·Dimitri, indicated that it was not."
12· · · · · · ·And why did you say that about
13· ·Mr. Wright's scope?
14· · · · · · ·A.· Because when I spoke to them at the
15· ·breakfast and they told me it's not a concern, I
16· ·also knew what he was addressing.· He was
17· ·basically addressing the fireproofing issue and
18· ·the rust that was there.
19· · · · · · ·Q.· Hmm hmm.
20· · · · · · ·A.· So if there was too much rust, you
21· ·know, it was too -- rust to be removed, he said it
22· ·was insignificant, it wasn't going to be damaging
23· ·anything, any structural integrity of it.· So his
24· ·suggestion was to recoat it.· I remember we
25· ·discussed sealants that could go on it that would
·1· ·be rust inhibitive, once the rust is removed, and
·2· ·then to reapply the fire coating on top of that.
·3· ·That was his plan of action, if I recall it from
·4· ·my recollection.
·5· · · · · · ·Q.· Okay.· Now, you left your job at
·6· ·this point.· Did you leave the City sometime
·7· ·shortly thereafter?
·8· · · · · · ·A.· Shortly thereafter I was very
·9· ·disillusioned and I decided that I've had enough
10· ·in Elliot Lake.
11· · · · · · ·Q.· And did you believe when you left
12· ·your job here, you talked to the -- you talked to
13· ·the Fire Marshal, to the Chief Building Officer,
14· ·to the owner Mr. Nazarian, and others that you've
15· ·described, about your concerns, were you -- were
16· ·you satisfied that you had provided them an
17· ·adequate enough warning of the risk before you
18· ·left?
19· · · · · · ·A.· No, I wasn't satisfied.· I thought I
20· ·did what I could, but I wasn't satisfied with
21· ·nothing being done.
22· · · · · · ·Q.· Those are my questions, Mr. Yakimov.
23· ·Thank you.
24· · · · · · ·THE COMMISSIONER:· Thank you,
25· ·Mr. MacRae, would you like to go first?
·1· · · · · · ·MR. MACRAE:· I wasn't planning on it
·2· ·today.· I haven't had a chance -- an opportunity
·3· ·to discuss with my friends who would be
·4· ·proceeding.· But at this point in time, it's not
·5· ·my wish to proceed at this time.· I will if I'm
·6· ·directed to do so by the Commission.
·7· · · · · · ·THE COMMISSIONER:· Well, who wants to go
·8· ·ahead?
·9· · · · · · ·MR. KEARNS:· I have no questions.
10· · · · · · ·THE COMMISSIONER:· Thank you, Mr.
11· ·Kearns.· Mr. Cassan?
12· · · · · · ·MR. CASSAN:· I'll volunteer,
13· ·Mr. Commissioner.
14· · · · · · ·CROSS-EXAMINATION BY MR. CASSAN:
15· · · · · · ·Q.· Mr. Yakimov, my name is Paul Cassan.
16· ·I'm counsel for the City of Elliot Lake.· I don't
17· ·have very many questions for you.
18· · · · · · ·You told Mr. Carr-Harris that
19· ·Mr. Nazarian instructed his forces, if you will,
20· ·to take some steps in advance of the inspections
21· ·to remove rust and they were using wire brushes to
22· ·do so?
23· · · · · · ·A.· Yes.
24· · · · · · ·Q.· Did you perceive that as an attempt
25· ·to mislead the inspectors, and if you did, tell me
·1· ·about that.
·2· · · · · · ·A.· Yes and no and I'll explain.· Some
·3· ·rust was definitely surface rust and it had to do
·4· ·with just paint that was -- it looked unseemly,
·5· ·not nice on the outside.· You could see the rust
·6· ·running down the painted columns, and overall
·7· ·obviously it made them all look bad.· That's --
·8· ·that wasn't obviously the rust that you would be
·9· ·concerned about as far as the structural.
10· · · · · · ·But the -- the rust that was in the back
11· ·of the mall nobody sees, that had really severe
12· ·rust on the beams.· If he were to do that, to fix
13· ·it before the inspection, yes, that would be
14· ·construed as misleading.
15· · · · · · ·Q.· Okay.· And if I was to suggest to
16· ·you that that might be characterized by
17· ·Mr. Nazarian as appropriate maintenance, in other
18· ·words, that he was taking that rust off and that
19· ·he was going to put some rust paint on it, is that
20· ·appropriate or what are your thoughts on that?
21· · · · · · ·A.· Again, if it's just surface rust and
22· ·it's not and it doesn't cause any structural
23· ·integrity degradation, then, yes, that would be
24· ·appropriate.· It's maintenance.· You kind of do
25· ·paint things that are rusty with rust inhibitive
·1· ·material and then apply nice coat of paint over
·2· ·top of it to make it nice and spruce us.· As a
·3· ·matter of fact, that's how you prevent the beams
·4· ·from further decaying and rusting, which is
·5· ·appropriate.
·6· · · · · · ·Q.· But are you saying that's not what
·7· ·was happening in this case?
·8· · · · · · ·A.· Well, I'm saying what I've seen them
·9· ·do is only the front portion of it.· The balcony
10· ·and that was -- the area of structural concern was
11· ·not there.· It wasn't where they were working.
12· ·And so what they were doing, from what my
13· ·recollection was, to make sure that the mall
14· ·looked good for the inspection, perhaps for
15· ·refinancing, they were trying to refinance the
16· ·mall or come up with money to fix the roof.· So it
17· ·was all tied in together.· Kind of spruce it up,
18· ·make it look nice, at the same time satisfy
19· ·whatever inspection that might happen.
20· · · · · · ·Q.· So would you say that the work being
21· ·done really was more cosmetic than functional?
22· · · · · · ·A.· Absolutely.
23· · · · · · ·Q.· Mr. Carr-Harris was asking you if
24· ·you made a report of your inspection and this is
25· ·the inspection I suppose before the joint
·1· ·inspection with people from the City.· You made a
·2· ·report of that inspection to the City and your
·3· ·answer I thought was interesting.· You said you
·4· ·would like to, but who would take me seriously.
·5· ·What did you mean about that?
·6· · · · · · ·A.· Well, at that point I was working
·7· ·for Mr. Nazarian.· I was his employee.· I had no
·8· ·authority to contact the City on my own unless as
·9· ·a concerned citizen.· And how long has that mall
10· ·stood there leaking?· Did anybody take it
11· ·seriously?· Who was going to take my word for it
12· ·seriously when I come over and just another person
13· ·saying look there is a problem.
14· · · · · · ·I needed to talk to people who could do
15· ·something about it and I tried that with --
16· ·perhaps even triggering this investigation with
17· ·inspections and stuff by talking about it.· I did
18· ·talk to Bruce Ewald.· I talked to Paul Officer
19· ·prior to the inspections that you guys -- you
20· ·know, that these inspections are very needed, we
21· ·have to do this.
22· · · · · · ·I was a volunteer fire fighter at the
23· ·Fire Department at the time, so I had access to
24· ·these people to talk to them privately and say
25· ·look things are not good.· I don't remember all of
·1· ·the conversations, but I do remember the gist of
·2· ·it, the general sentiment.
·3· · · · · · ·Q.· So in that respect you would have
·4· ·had a good or at least a relationship with Chief
·5· ·Officer?
·6· · · · · · ·A.· Yes, I had -- that's why I came to
·7· ·him on a day off because he was the last person
·8· ·that I thought he would trust me, my opinion.· He
·9· ·was the only one that would take me credibly
10· ·because he knows me, he knows my intent.
11· · · · · · ·He's seen me work towards -- I was going
12· ·through a divorce at the time so it was a really
13· ·hard time in my life, and I was trying to rebuild
14· ·it somehow and he saw me attempting to do that all
15· ·that.· And I thought if I come to him and tell him
16· ·that perhaps he would listen.
17· · · · · · ·Q.· Okay.· Now, you said that you were
18· ·concerned about the extra concrete topping and the
19· ·moving of the core slab plank.· And you also said
20· ·that you told Bruce Ewald and Chief Officer during
21· ·the course of your inspection.· But if we look at
22· ·Exhibit No. 1446, and that's the e-mail that
23· ·Mr. Carr-Harris was talking to you about.· I
24· ·wonder if Ms. Kuka could pull that up?· And if we
25· ·go to the bottom of that page, these last two
·1· ·paragraphs are where Mr. -- or Chief Officer is
·2· ·reporting to Mr. Ewald that you had concerns of
·3· ·two panels on the car park.· And I presume those
·4· ·are the panels that you're talking about?
·5· · · · · · ·A.· Yes.
·6· · · · · · ·Q.· And then later on in that paragraph
·7· ·upon inspection the area shows the core slab and
·8· ·six inches of concrete topping.
·9· · · · · · ·So it's clear that you talked to Chief
10· ·Officer at this point about these issues.· And
11· ·these -- this date is October the 28th of 2009.· I
12· ·understand that to be after your joint inspection
13· ·with Mr. Ewald and with Chief Officer, right?
14· · · · · · ·A.· This conversation, yes.
15· · · · · · ·Q.· And so I understand from Chief
16· ·Officer and from Mr. Ewald that this is the --
17· ·this is the instant where you told them about
18· ·those issues.· They don't think that you told them
19· ·about those issues in the inspection.
20· · · · · · ·A.· I remember differently.· I remember
21· ·I was talking about broad spectrum of issues and I
22· ·brought this up as one of them.· And the reason I
23· ·made mention of it before, the reason nobody made
24· ·much of it then is because there was no structural
25· ·engineer report.· They were kind of looking
·1· ·forward to it if it were to come out in it.
·2· · · · · · ·So I mentioned it and because we were
·3· ·walking in the same area where the floor was
·4· ·uneven, I pointed the crack and said what's
·5· ·causing this?· This is definitely structural.· We
·6· ·need to figure this out.· And this was not their
·7· ·-- they're not the Building Department.· The Fire
·8· ·Marshal was looking for his areas of
·9· ·responsibility.
10· · · · · · ·Q.· Yes.
11· · · · · · ·A.· So he was -- inconsequential to him
12· ·in that point of time.· As a matter of fact when I
13· ·came to him, I came to him knowing that this was
14· ·not his area responsibility.· Perhaps maybe he can
15· ·do something about it by talking to somebody else.
16· · · · · · ·Q.· And so is it fair to say that in the
17· ·course of the inspection, it was clear that they
18· ·were going to require a further inspection by a
19· ·structural engineer and so certainly not that they
20· ·were discounting or not taking your information
21· ·seriously?
22· · · · · · ·A.· I never said they would discount it.
23· ·I just thought they were waiting for the further
24· ·investigation.· They were looking forward to
25· ·further findings.· They wanted to get this all the
·1· ·issues in there resolved.· They were concerned
·2· ·about the mall, yes.
·3· · · · · · ·Q.· And did you perceive that course of
·4· ·action as appropriate in the circumstances?
·5· · · · · · ·A.· At the time, yes.
·6· · · · · · ·Q.· I understand that you then
·7· ·participated in the inspection done by Mr. Wood of
·8· ·M.R. Wright Engineering, right?
·9· · · · · · ·A.· Not exactly.· I wasn't there with
10· ·him at the inspection.· I spoke to him before.
11· · · · · · ·Q.· Okay.
12· · · · · · ·A.· I spoke to him after.· I was never
13· ·there during the inspection.· Bob Nazarian was
14· ·dealing with that directly with Mr. Woods.· He was
15· ·here present at the time.
16· · · · · · ·Q.· I'm sorry, I misunderstood that.· So
17· ·in the course of your discussions in advance of
18· ·Mr. Wood's attendance at the mall, did you speak
19· ·to him about the excess topping and about the
20· ·moving core slab?
21· · · · · · ·A.· To Mr. Woods?
22· · · · · · ·Q.· Yes.
23· · · · · · ·A.· Yes.· We discussed the drawings and
24· ·I told him I think perhaps it's the extra weight
25· ·that's causing it.· I was vested by Bob at the
·1· ·time when I was -- when I told him about it.· He
·2· ·was so concerned that he -- like I said, he gave
·3· ·me access to all the drawings.· That's how I got
·4· ·access to all the drawings.· Before I didn't have
·5· ·all the access and then I found out about the
·6· ·toppings.
·7· · · · · · ·Q.· I want to interrupt you briefly
·8· ·because you keep referring to Bob and we have two
·9· ·Bobs here.
10· · · · · · ·A.· Nazarian.
11· · · · · · ·Q.· One is Bob Wood and one is Bob
12· ·Nazarian?
13· · · · · · ·A.· Nazarian, my apologies.
14· · · · · · ·Q.· And so Mr. Nazarian was concerned
15· ·about it?
16· · · · · · ·A.· Yes.· I was only on first names with
17· ·Mr. Nazarian as Bob, nobody else.
18· · · · · · ·Q.· Fair enough.· Tell me, what did
19· ·Mr. Wood say about that issue?
20· · · · · · ·A.· As I said earlier, when we were at
21· ·the breakfast, he indicated to me that this was
22· ·not an issue.· It was designed to withstand those
23· ·loads and the movements and there was no area --
24· ·there was no reason for concern.
25· · · · · · ·Q.· Okay.· You told Mr. Carr-Harris
·1· ·about what he's called the fire audit and that is
·2· ·what Chief Officer referred to as the hotel
·3· ·retrofit audit, right?
·4· · · · · · ·A.· Yes, I think that's what it was.
·5· · · · · · ·Q.· And I understood you to say today
·6· ·that Mr. Nazarian made some changes that were not
·7· ·in your report.· Did you perceive these changes as
·8· ·dishonest or an attempt to mislead the Fire
·9· ·Department?
10· · · · · · ·A.· Exactly, exactly.
11· · · · · · ·Q.· Tell me why you came to that
12· ·conclusion?
13· · · · · · ·A.· Because they were dishonest.· That
14· ·wasn't what I measured out and found to be --
15· ·needed to be done in case a fire would happen.
16· · · · · · ·Okay.· So I did speak about it more with
17· ·the Fire Department because in my course of doing
18· ·this report, the fire audit, I extensively
19· ·contacted the Fire Department for clarification of
20· ·Codes, of paragraphs, of requirements.· I'm not a
21· ·licenced fire inspector by any means.· I just know
22· ·construction language and I was helping
23· ·Mr. Nazarian to do this.· Ultimately it was his
24· ·signature at the bottom that was supposed to go,
25· ·but I did prepare it.
·1· · · · · · ·So I needed to understand.· And we sent
·2· ·several requests further on because Paul Officer
·3· ·didn't have the knowledge that I required, that we
·4· ·required, all of us, so we sent it to some other
·5· ·departments in Toronto, I believe it was, and we
·6· ·got the clarification and I prepared it.
·7· · · · · · ·So I took -- it was an effort to do
·8· ·this.· So when I saw that being changed, naturally
·9· ·I was upset.
10· · · · · · ·Q.· In fact, the hotel retrofit audit
11· ·was a significant project and took quite a bit of
12· ·time for you I understand.
13· · · · · · ·A.· Yes, it was almost a month I think.
14· ·It was a while, yeah.
15· · · · · · ·Q.· Now, in the course of discussing
16· ·these changes, or even in the course of discussing
17· ·the fire protection equipment and planning
18· ·necessary with respect to the mall and the
19· ·hotel -- and I guess I should be clear.· The hotel
20· ·retrofit audit that you're speaking of dealt only
21· ·with the hotel component of the building and not
22· ·the mall in its entirety, correct?
23· · · · · · ·A.· Correct.· Except for the common
24· ·areas, lobby -- two lobbies, I think.· So but the
25· ·common areas were, they were somehow related and I
·1· ·needed to do some different calculations for them.
·2· ·But other than that, yes, it was only the hotel
·3· ·portion that was involved in it.
·4· · · · · · ·Q.· And I suppose to be clear as well,
·5· ·the shared systems, such as the fire alarm system
·6· ·and the sprinkler system as well?
·7· · · · · · ·A.· Yes, they were involved in it as
·8· ·well, yes.
·9· · · · · · ·Q.· So what I am interested in hearing
10· ·from you is whether you have any knowledge or
11· ·observations about Mr. Nazarian's attitude with
12· ·respect to fire safety and how he treated that
13· ·issue?
14· · · · · · ·A.· He was generally okay from -- until
15· ·I saw the changes.· He wanted to make sure that we
16· ·were compliant.· But with Mr. Nazarian always the
17· ·underlying issue were the money.· So if it cost
18· ·any prohibitive amount of money to him, and only
19· ·he would know what prohibitive is, then naturally
20· ·he would seek to, and always has, seek to find a
21· ·less expensive path.
22· · · · · · ·Q.· Thank you very much, Mr. Yakimov,
23· ·those are my questions.· Thank you,
24· ·Mr. Commissioner.
25· · · · · · ·THE COMMISSIONER:· Thank you.
·1· ·Mr. Richard?
·2· · · · · · ·CROSS-EXAMINATION BY MR. RICHARD:
·3· · · · · · ·Q.· Good morning, Mr. Yakimov.
·4· · · · · · ·A.· Good morning.
·5· · · · · · ·Q.· My name's Shawn Richard.· I'm one of
·6· ·the counsel for ELMAC.
·7· · · · · · ·We heard that you were present at the
·8· ·building inspection on September 24th, 2009, with
·9· ·Mr. Ewald and Mr. Officer.· Did either of the
10· ·inspectors touch the steel beams during the
11· ·inspection?
12· · · · · · ·A.· Not that I recall.
13· · · · · · ·Q.· Did they check the depth of
14· ·corrosion of the steel beams?
15· · · · · · ·A.· No.
16· · · · · · ·Q.· Did either Mr. Ewald or Mr. Officer
17· ·ask for any relevant previous engineering reports?
18· · · · · · ·A.· Yeah, I think something like that
19· ·was discussed.· I'm remembering Bob looking for
20· ·some records, yes.· I can't remember what they
21· ·were though, but I do remember some digging going
22· ·on at the office, yes.
23· · · · · · ·Q.· Do you recall what if any reports
24· ·they received?
25· · · · · · ·A.· That would be Henri Laroue that
·1· ·handled that portion of the work for the job.
·2· · · · · · ·Q.· May I have Exhibit No. 1446, please?
·3· ·So your meeting with Mr. Officer has already been
·4· ·raised.· My question is when you brought your
·5· ·concerns to him on October 28th, 2009, what was
·6· ·his reaction?
·7· · · · · · ·A.· He seemed compassionate to my being
·8· ·worried.· Approachable, hence why I told him
·9· ·everything.· He said that he would bring the
10· ·issues out in the open somehow to make sure it's
11· ·dealt with.· And my sense was that okay, I have
12· ·somebody finally that said something to me that
13· ·something's going to be done.
14· · · · · · ·Q.· When you were working for
15· ·Mr. Nazarian, did you meet Alexander Sennett?
16· · · · · · ·A.· Yes, I have.
17· · · · · · ·Q.· Do you know the nature of the
18· ·relationship between Mr. Sennett and Mr. Nazarian?
19· ·At that time.
20· · · · · · ·A.· Yes, it was a progressive role from
21· ·the first time I met Mr. Sennett to the last time
22· ·I dealt with him.· So the kind of relationship
23· ·progressed from there on, at least that's what I
24· ·understood it to be.
25· · · · · · ·Q.· What do you mean it was a
·1· ·progressive role?· What did it progress from and
·2· ·to?
·3· · · · · · ·A.· Well, in 2008 when I met him, he was
·4· ·introduced to me as a partner of Mr. Nazarian, a
·5· ·silent partner.· A silent partner.
·6· · · · · · ·Q.· Who --
·7· · · · · · ·A.· Bob Nazarian introduced Alex to me.
·8· · · · · · ·Q.· As a silent partner?
·9· · · · · · ·A.· We were on a first name a basis.
10· ·Yes, I spent a lot of time with him in his
11· ·computer room helping him set up and things and
12· ·stuff.· And I understood him to be a partner.
13· ·Later in 2009, when I was working through the
14· ·issues, Alex took more of an active role, rather
15· ·than passive as in 2008 he was not much on the
16· ·scene.
17· · · · · · ·But in 2009 when I was there, he was
18· ·pretty much making some of the decisions.· When he
19· ·would come down from Toronto, he was part of the
20· ·decision-making process.· Him, Rene Fabris and
21· ·Mr. Nazarian would invite me out to lunches,
22· ·dinners, whatnot, and we would discuss some issues
23· ·pertaining to finances, ELNOS and generally Alex
24· ·was involved in decision-making process.
25· · · · · · ·Q.· You said a lot there.· You said by
·1· ·the end he was active in the decision-making
·2· ·process.· Was he ever involved in the decision-
·3· ·making process regarding the maintenance and
·4· ·repair of the roof?
·5· · · · · · ·A.· I did not see or hear him giving
·6· ·orders to the workers on the level that I was
·7· ·involved.· I mostly dealt with Bob Nazarian.· But
·8· ·in discussion that we had, when Bob was discussing
·9· ·options or what type of roof above membrane, he
10· ·approached me with all kinds of ideas to come up
11· ·with as well.· Alex was part of those
12· ·conversations and was a counsel to Mr. Nazarian, I
13· ·guess, to make those decisions, I mean, they were
14· ·together.
15· · · · · · ·Q.· Why do you say that he was a counsel
16· ·to Mr. Nazarian?
17· · · · · · ·A.· Because they ask each other's
18· ·opinions and, you know, make decisions.· I mean,
19· ·they traveled together in the same vehicle.· They,
20· ·you know, it was like -- I perceived him to be a
21· ·partner.· I didn't know otherwise.· I had no
22· ·reason to believe otherwise.
23· · · · · · ·Q.· And initially he had presented
24· ·Mr. Sennett to you as a silent partner?
25· · · · · · ·A.· Yeah.
·1· · · · · · ·Q.· You also mentioned these meetings
·2· ·with Mr. Fabris, Mr. Sennett and Mr. Nazarian.
·3· ·How often did these meetings happen?
·4· · · · · · ·A.· Well, how ever often they were in
·5· ·town.· And especially when they needed some help
·6· ·with the City and they were having serious
·7· ·problems with the City, and then ELNOS, they
·8· ·wanted to get some money from them to fix the
·9· ·roof, we went out maybe four, five times, had
10· ·discussions.· I can't remember exactly.
11· · · · · · ·Q.· First dealing with the problems with
12· ·the City.· Can you tell me more about what you
13· ·mean by problems with the City?
14· · · · · · ·A.· Mr. Nazarian complained often about
15· ·the fact that the City is not helping him with the
16· ·issues in the mall.· Even when this inspection was
17· ·happening, I think I mentioned it earlier about
18· ·the parking.· He wanted to purchase a piece land.
19· ·They flatly refused, wouldn't consider it, said
20· ·no.· But that was a serious issue.· And he knew it
21· ·was an issue.· He didn't want the cars there, from
22· ·what I understood, that's why he asked me to go
23· ·and ask somebody at the city if this was possible
24· ·to purchase that piece of land.
25· · · · · · ·Q.· And, sorry, and by "there" you mean
·1· ·on the roof?
·2· · · · · · ·A.· Yeah, on the roof.· That appendix
·3· ·from the entrance into the escalators all the way
·4· ·over to the east side, I guess.· East side.
·5· ·Trying to orient myself.· Yes, because they would
·6· ·have to travel over those slabs that I had
·7· ·concerns over.· There is no other way to get there
·8· ·but through them.· And he couldn't afford to lose
·9· ·those parking spots.· He wanted to gain them
10· ·somewhere else.· He wanted that portion closed.
11· · · · · · ·Q.· Do you know if Mr. Nazarian
12· ·explained to -- I guess, first of all, do you know
13· ·who he contacted at the City?
14· · · · · · ·A.· No.
15· · · · · · ·Q.· Okay.· Do you know if Mr. Nazarian
16· ·expressed why he wanted this additional space for
17· ·parking?
18· · · · · · ·A.· That I also don't know.· But I know
19· ·what I said, I said it was because of that.
20· · · · · · ·Q.· Okay.· You also mentioned that there
21· ·were meetings about ELNOS.· Can you tell me about
22· ·those meetings?
23· · · · · · ·A.· Well, Mr. Nazarian asked me to --
24· ·because I knew William Elliot personally because
25· ·I've negotiated with him purchase -- conditional
·1· ·purchase of the land which I was supposed to do
·2· ·something under construction.· I guess he
·3· ·perceived that as, you know, some sort of success
·4· ·and he wanted to replicate it in approaching
·5· ·ELNOS.· So he asked me to represent him at ELNOS.
·6· ·He felt people didn't like him here.· So he
·7· ·thought maybe if he sent somebody else he would
·8· ·have better chance.· Which I said yes, I was
·9· ·working for him at the time, I said I'll do it.
10· ·But it didn't go anywhere.
11· · · · · · ·Q.· May I have Exhibit No. 725?· Thank
12· ·you.
13· · · · · · ·If you look at the fourth paragraph
14· ·down, it says, and this is a letter -- sorry,
15· ·could we go -- scroll down a bit.· This is a
16· ·letter from ELNOS to Mr. Fabris, dated
17· ·September 10th, 2008.· And if you scroll to the
18· ·bottom, I think it's sent by Mr. Elliott.· And the
19· ·fourth paragraph it says:
20· · · · · · ·"A subsequent meeting with was held on
21· · · · · · ·July 14th with Dmitri Yakimov as
22· · · · · · ·Eastwood's 'agent' in this matter and the
23· · · · · · ·new mall manager, at which time they asked
24· · · · · · ·for an update on the application."
25· · · · · · ·Do you remember this meet something?
·1· · · · · · ·A.· I remember the meeting.· I remember
·2· ·the letter.
·3· · · · · · ·Q.· Okay.· What was discussed during
·4· ·this meeting?
·5· · · · · · ·A.· Their application.· Eastwood Mall
·6· ·application for a grant.
·7· · · · · · ·Q.· Why did you -- were you alone at
·8· ·this meeting with Mr. Elliott?
·9· · · · · · ·A.· Yes, I was alone.
10· · · · · · ·Q.· Why did you attend the meeting as
11· ·opposed to you and Mr. Nazarian?
12· · · · · · ·A.· Because Mr. Nazarian wanted me
13· ·there, perhaps I could achieve some better results
14· ·than some people before me -- he sent somebody
15· ·before me type of thing.
16· · · · · · ·Q.· What, if any, instructions did
17· ·Mr. Nazarian provide you with before you attended
18· ·the meeting?
19· · · · · · ·A.· No specific instructions except that
20· ·he gave me the documentation to present.· I forget
21· ·what it was.· I don't have it right now.· But it
22· ·was something -- some type of receipts, proofs,
23· ·whatnot, I have to -- I had to give to ELNOS and
24· ·convince them that this was a good idea, of which
25· ·I did not.· I actually did the opposite.· I told
·1· ·Mr. Elliott that this was all hogwash and he
·2· ·shouldn't get involved in it.
·3· · · · · · ·Q.· Okay.· If I could have Exhibit No.
·4· ·226, please?
·5· · · · · · ·A.· Because it was dishonest.
·6· · · · · · ·Q.· Let's go to Exhibit No. 226.· Okay,
·7· ·can we go to the next page?· The next page.· Do
·8· ·you recognize this?
·9· · · · · · ·A.· Yeah.
10· · · · · · ·Q.· Is this what you were talking about
11· ·the documents you provided?
12· · · · · · ·A.· Yes, this, and I think there were
13· ·other documents there as well.
14· · · · · · ·Q.· Could we go to the next page?
15· · · · · · ·A.· I think they were receipts with
16· ·amounts for work that was supposedly done and
17· ·that's what I took objection to.
18· · · · · · ·Q.· We're going there.
19· · · · · · ·A.· Okay.
20· · · · · · ·Q.· All right.· So we have here an
21· ·invoice.· Do you recognize this invoice?
22· · · · · · ·A.· I've seen them, yes.
23· · · · · · ·Q.· And it's a subtotal of $310,388.
24· ·And you can see the various items that were
25· ·listed.
·1· · · · · · ·A.· Hmm hmm.
·2· · · · · · ·Q.· When you mentioned hogwash before,
·3· ·is this one of the invoices that you're referring
·4· ·to?
·5· · · · · · ·A.· Yes, I am.
·6· · · · · · ·Q.· And why do you call it hogwash?
·7· · · · · · ·A.· To begin with, the description of
·8· ·the work is somewhat correct that the work was
·9· ·being done on the roof that's described.
10· · · · · · ·"Chain drag concrete, proof deck, mark out
11· · · · · · ·delaminated areas.· Saw cut marked areas
12· · · · · · ·and remove failed concrete.· Failed
13· · · · · · ·concrete will be removed using 15lb air
14· · · · · · ·chipping hammers.· Clean chipped areas
15· · · · · · ·using forced-air to remove dust and
16· · · · · · ·debris.· Installation of new poly-modified
17· · · · · · ·concrete. . .New concrete patched area."
18· · · · · · ·Because I saw this work being done in
19· ·2008, and I told them it was useless, and there's
20· ·no way it cost that much money.· I'm in
21· ·construction.· This is inflated greatly.
22· · · · · · ·Q.· So just so I understand you there, I
23· ·guess two reasons, one, doing all this isn't going
24· ·to fix the problem?
25· · · · · · ·A.· No.
·1· · · · · · ·Q.· And, two, this price is completely
·2· ·out of whack?
·3· · · · · · ·A.· Absolutely.
·4· · · · · · ·Q.· On order of magnitude, how much
·5· ·would you say this was padded?
·6· · · · · · ·A.· The amount of work that they did, I
·7· ·would say about 60 percent.
·8· · · · · · ·Q.· It was excessive by 60 percent?
·9· · · · · · ·A.· Correct.
10· · · · · · ·Q.· Could we have the next page, please?
11· · · · · · ·A.· And I'm being generous.
12· · · · · · ·Q.· All right.· This invoice, do you see
13· ·it?
14· · · · · · ·A.· Yes.
15· · · · · · ·Q.· Is this also hogwash?
16· · · · · · ·A.· The red drains were to be raised,
17· ·but again the amount.· There were five guys making
18· ·$10 or $9 an hour, working for maybe a month or
19· ·two doing this.· I'd be a very rich man if I
20· ·charged that money for work.
21· · · · · · ·Q.· How much would you have charged for
22· ·this work?
23· · · · · · ·A.· For this one, again I would have to
24· ·see the exact -- how many drains.· It just talks
25· ·about all drains.· I need to see the amount of
·1· ·drains and the amount of -- estimate the amount of
·2· ·time.· But it wouldn't be -- with the mobilization
·3· ·taken into consideration, bad weather, and other
·4· ·factors, raising -- just raising them and nothing
·5· ·else?· Again, I'm guessing right now, but it would
·6· ·be in around 50 to $80,000, worst-case scenario.
·7· · · · · · ·Q.· Next page, please.· Same hogwash
·8· ·question.
·9· · · · · · ·A.· That's a big one.· Can we go back to
10· ·the previous for a second?· Back again.· Can I go
11· ·back to my answer -- my previous answer?
12· · · · · · ·Q.· Sure.
13· · · · · · ·A.· Okay.· What they were doing there
14· ·was supposed to be tied in to this invoice because
15· ·-- no, no, sorry, go back to the number three
16· ·invoice.· The next one.· This one.· See that item
17· ·number seven, "Supply and install new 4 inch
18· ·drains as per management recommendation."?
19· · · · · · ·Q.· Yes.
20· · · · · · ·A.· Well, these were supposed to be
21· ·installed at the time of raising, right?· Why
22· ·would you raise the used drains without replacing
23· ·them and then here they're replacing them.· So
24· ·they're doing the same work twice.
25· · · · · · ·Q.· They're double billing.
·1· · · · · · ·A.· Either that or they're really
·2· ·stupid, you know, I don't know what else to say.
·3· · · · · · ·Q.· Could we go back to the last invoice
·4· ·we were looking at, please?· I think it's the next
·5· ·one over.· Do you have -- apart from what you've
·6· ·already identified, do you take any issue with any
·7· ·of the items described?
·8· · · · · · ·A.· They could do anything they want.
·9· ·They can paint a football field on it, but it
10· ·doesn't address the issue.· It doesn't address the
11· ·leaks.· I mean, it's a patch work that's not going
12· ·to work.· They knew about it.
13· · · · · · ·Q.· And the cost, was it proportional to
14· ·the work that's being described here?
15· · · · · · ·A.· No, this is inflated.· I already
16· ·said it.· It's too much.
17· · · · · · ·Q.· Okay.· And would it be again about
18· ·60 percent --
19· · · · · · ·A.· Well, look, you can work as a snail
20· ·and charge an enormous amount of money and pretend
21· ·you're doing something and charge it and if the
22· ·owner agrees, he agrees.· I mean, it's very
23· ·subjective kind of.· There is no prescribed price
24· ·list.· But I'm an estimator as well.· This is far
25· ·out there.
·1· · · · · · ·Q.· Can we go to the next invoice,
·2· ·please?· Okay.· What are your comments?
·3· · · · · · ·A.· My comments on this one, I remember
·4· ·this and buying this caulking, this mastic they
·5· ·called it or something.· Again, it was useless for
·6· ·what it was used for, but it was expensive.· I
·7· ·believe it was in the neighborhood of almost $100
·8· ·a pail, if I remember it correctly.· I think
·9· ·that's what they were saying.· And they were
10· ·ordering 20, 30 pails at the time.· So at a
11· ·hundred dollars a piece, it was a lot.· And the
12· ·amount of money and time they were spending doing
13· ·it.· Now, this invoice I would say would be more
14· ·correct, but that would encompass them also
15· ·cutting and patching.· Because that's what they
16· ·were doing at the same time.
17· · · · · · ·What they did on these invoices, they
18· ·took cutting, patching, caulking, raising the
19· ·drains, and they broke each one of those and made
20· ·it a big, big job.· Where in fact it was all done
21· ·at the same time and it's probably the right
22· ·amount of money that it cost them to do that.
23· ·That one is correct.
24· · · · · · ·Q.· May I have the next one, please?
25· ·The same question with relation to this invoice.
·1· · · · · · ·A.· Exposed areas by replacing existing
·2· ·material and replace with concrete.· Double
·3· ·billing again.· They just mentioned it on the
·4· ·invoice previous that they were doing that.· And
·5· ·sorry to interrupt, and another thing is this work
·6· ·was done by mall employees.· This wasn't somebody
·7· ·outside.· When Mr. Day was here, and that was in
·8· ·2008 when he was let go, the mall took over all of
·9· ·the repairs.· So from 2008, sometime in 2008 to
10· ·when I got back there in 2009, the mall employees
11· ·were doing the work.· So I don't know why they're
12· ·showing it like that.
13· · · · · · ·Q.· The next invoice, please?
14· · · · · · ·A.· How can you apply new caulking
15· ·without removing the old one?· I mean -- well,
16· ·it's the same.· They are just describing the same
17· ·work over and over and putting money for it --
18· ·charging money for it.· It's part of the same
19· ·work.
20· · · · · · ·Q.· The next invoice, please?
21· · · · · · ·A.· It doesn't take that much money to
22· ·remove caulking.· This is believable.· They did do
23· ·that.· I seen them.· Rout and seal any visible
24· ·cracks.· Those would be the type of control joints
25· ·that just happen by necessity, not that they were
·1· ·intending to be so.· Remove caulking from
·2· ·previous -- again, they just removed caulking.
·3· ·They are charging for it again here.· It's
·4· ·removing caulking.· They already removed it three
·5· ·times, same caulking.· So, yeah, could be.· The
·6· ·amount could be right as well, but it all depends
·7· ·how you do it, right?
·8· · · · · · ·Q.· So I think that we got the idea that
·9· ·there are issues of overcharging for work and we
10· ·have double billing for work as well.
11· · · · · · ·A.· In my opinion, that is correct and
12· ·that's what I expressed to Mr. Elliott.
13· · · · · · ·Q.· Did you express that opinion to
14· ·Mr. Nazarian, Mr. Fabris or Mr. Sennett before
15· ·your meeting with Mr. Elliott on the 14th?
16· · · · · · ·A.· I did not talk about these invoices
17· ·because I seen them probably on the day or a
18· ·couple of days before.· But I did tell them about
19· ·the futile work that they were doing, that in my
20· ·opinion it's useless.· And Bob asked me about it,
21· ·What would you do?· And how would you -- and we
22· ·discussed the covering of a roof over top of it
23· ·and make it into another mall level and stuff, so
24· ·there would be no cars on it, because I told him
25· ·you can't have cars here and such.
·1· · · · · · ·Did I say specifically that this is
·2· ·crazy?· No, I probably would have been fired even
·3· ·then and I needed a job.· So, no, I just told him
·4· ·what he's doing is crazy.· But this is -- if he
·5· ·wants to do this, I told it to the people who
·6· ·needed to know.· I told this to William Elliot
·7· ·that he wouldn't be misled.· I told him this is
·8· ·not right.
·9· · · · · · ·Q.· May I have Exhibit No. 3817, please?
10· ·So this is an e-mail that looks to be from you.
11· ·Do you recall this e-mail?
12· · · · · · ·A.· Let me read this, one second.· What
13· ·is it in the book, do you know?· Anybody knows?
14· ·I'll read it here, it's okay, it's just hard to
15· ·read.
16· · · · · · ·Yes, this is the walkway.· That's
17· ·correct, that's my e-mail, yeah.
18· · · · · · ·Q.· But it's sent to Mr. Sennett and
19· ·Mr. Nazarian?
20· · · · · · ·A.· Hmm hmm.
21· · · · · · ·Q.· Why did you send it to Mr. Sennett?
22· · · · · · ·A.· Because he was a partner.· As far as
23· ·I knew, he was the person to send it to.
24· · · · · · ·Q.· Were you aware of Empire Roofing
25· ·Restoration?
·1· · · · · · ·A.· Never heard of it except on the
·2· ·invoices.
·3· · · · · · ·Q.· I just have a couple more questions
·4· ·for you.· It's about the -- perhaps it's the topic
·5· ·of your firing.· Who fired you?
·6· · · · · · ·A.· Bob.
·7· · · · · · ·Q.· What did he say when he fired you?
·8· · · · · · ·A.· He did it through Henri Laroue.· He
·9· ·told her that I'm no longer needed and they gave
10· ·me like a same-day notice.
11· · · · · · ·Q.· Those are my questions.
12· · · · · · ·THE COMMISSIONER:· Thank you.
13· ·Mr. Kloeze?
14· · · · · · ·MR. KLOEZE:· No questions.
15· · · · · · ·MR. MACRAE:· Mr. Commissioner, I wonder
16· ·if I might have your indulgence for just five
17· ·moments -- five minutes so I can print out some
18· ·additional notes that I have and then I'll
19· ·proceed.
20· · · · · · ·THE COMMISSIONER:· Unless Mr. Bisceglia
21· ·wants to go ahead first.
22· · · · · · ·MR. BISCEGLIA:· I have no questions at
23· ·this time.
24· · · · · · ·THE COMMISSIONER:· So we're just left
25· ·with you, Mr. MacRae.· Let's take five.
·1· · · · · · ·---· Break taken at· 12:00 p.m.
·2· · · · · · ·---· Upon resuming at 12:05 p.m.
·3· · · · · · ·MR. MACRAE:· Thank you very much,
·4· ·Mr. Commissioner.
·5· · · · · · ·CROSS-EXAMINATION BY MR. MACRAE:
·6· · · · · · ·Q.· Good afternoon, you've heard from me
·7· ·already.· But my name is Rob MacRae and I'm
·8· ·solicitor, as you've heard, on behalf of Mr. Wood
·9· ·who has standing and you apparently met Mr. Wood.
10· · · · · · ·With respect to your evidence, you
11· ·indicated that you started to work for
12· ·Mr. Nazarian on a full-time basis.· And when you
13· ·commenced work for Mr. Nazarian on a full-time
14· ·basis, did you enter into any type of employment
15· ·contract?
16· · · · · · ·A.· No.· It was just a full-time job, I
17· ·think.· Initially when he -- when we talked about
18· ·it, he wanted me just to do the Algo Room and then
19· ·it somehow progressed to the more responsibilities
20· ·and more work.
21· · · · · · ·Q.· And you indicated that you'd had
22· ·some previous business dealing in the community.
23· ·And is that when you had dealings with ELNOS prior
24· ·to being involved with --
25· · · · · · ·A.· Much prior, yes.
·1· · · · · · ·Q.· Much prior?
·2· · · · · · ·A.· Yes.
·3· · · · · · ·Q.· How long had you known -- when you
·4· ·started to work for Mr. Nazarian, how long had you
·5· ·known Mr. William Elliott?
·6· · · · · · ·A.· Well, I moved here in 2008.· My
·7· ·dealings with ELNOS probably began sometime either
·8· ·2007 or late 2006 when I was visiting this town on
·9· ·vacations and I found out about opportunities and
10· ·was presented with options and I considered them
11· ·and I thought I should get involved.
12· · · · · · ·Q.· So your relationship with
13· ·Mr. Elliott may go back as far as 2005?
14· · · · · · ·A.· By relationship, I mean, I contacted
15· ·ELNOS and filled out an application and was
16· ·following the order of things in order to get --
17· ·it wasn't a grant.· It was more of a piece of land
18· ·that could be used for development.· If I were to
19· ·develop it within a specific period of time, the
20· ·price for the land would be very minimal, not as
21· ·market value.· In order to -- they were doing this
22· ·to encourage the business development in the City.
23· ·The City had a lot of land, but not enough
24· ·businesses coming into here, so.
25· · · · · · ·Q.· So it may have been as early as
·1· ·2005, but in any event, it would have been 2006?
·2· · · · · · ·A.· 2005, I don't know.· But it would be
·3· ·probably 2006.· I would have to ask him or
·4· ·something.· I don't remember.
·5· · · · · · ·Q.· Thank you.· Then getting back to
·6· ·your involvement, I can tell you at the beginning
·7· ·of my questioning, I'm going to deal with three,
·8· ·what I think, are very distinct areas.· I'm going
·9· ·to deal with your involvement with Mr. Nazarian up
10· ·until the time that the City completes their
11· ·inspection or commences their inspection.
12· · · · · · ·I'd like to deal with the period of time
13· ·where the City is completing the inspection.
14· · · · · · ·And then thirdly would be the period of
15· ·time of your involvement with Mr. Wood.· So just
16· ·giving you that heads up.
17· · · · · · ·I'm dealing now with respect -- my
18· ·questions are dealing with your relationship with
19· ·Mr. Nazarian.
20· · · · · · ·So were you -- you indicated that you
21· ·didn't have a contract.· But you were employed --
22· ·were you employed -- were you paid on a weekly
23· ·basis or were you paid --
24· · · · · · ·A.· Again, it started with me doing work
25· ·in the Algo Room and maybe that portion of a job
·1· ·was piecework type of -- this is what you're going
·2· ·to do and this is how much we're going to give
·3· ·you.· So it's like a lump sum.
·4· · · · · · ·But sometime during that portion, he
·5· ·realized he needed -- he saw me work, he realized
·6· ·what I can do.· I think I had to close the wall or
·7· ·something and drywall it and do some cutting and
·8· ·patching and all that in the walls.· And he
·9· ·decided that he wanted to proceed further and give
10· ·me work -- more work to do.
11· · · · · · ·Q.· And so are you able to answer the
12· ·question with respect to how you were employed?
13· ·Were you paid on a -- once you moved from a
14· ·contract basis, did you move to a weekly payment
15· ·or a bi-weekly payment?
16· · · · · · ·A.· I'm not sure if it was weekly or
17· ·bi-weekly, but it was full-time employment.· I had
18· ·to log in my hours like everybody else, we had a
19· ·punch card or something.
20· · · · · · ·Q.· Yes.
21· · · · · · ·A.· And, you know, you come in, you
22· ·work, you punch out, you get paid per hour.
23· · · · · · ·Q.· And did you ever have problem with
24· ·payment from Mr. Nazarian?
25· · · · · · ·A.· I don't remember me having a
·1· ·problem.· But I remember concerns sometimes that
·2· ·he would be late with payments.· Yeah, I do
·3· ·remember that.
·4· · · · · · ·Q.· You indicated that as part of your
·5· ·evidence when you were initially at the mall that
·6· ·you became or rather following your initial
·7· ·involvement with the mall, you became concerned
·8· ·with some of the aspects of the mall.· Some of the
·9· ·structural aspects and some of the conditions that
10· ·you found there.· Do you recall when you first
11· ·became concerned with those issues?
12· · · · · · ·A.· Are you talking about my very first
13· ·involvement with the mall?
14· · · · · · ·Q.· The very first time you became
15· ·involved or the very first time you became
16· ·concerned.
17· · · · · · ·A.· I don't think it had anything to do
18· ·with structural, because I was oblivious to -- I
19· ·had no access to anything.· It was the roof, the
20· ·water leaks.· I just looked at what was that done
21· ·and I basically issued my opinion saying that it
22· ·was not adequate at all.
23· · · · · · ·Q.· How would you go about providing
24· ·your opinion to Mr. Nazarian?· Were you forceful
25· ·in providing that opinion?
·1· · · · · · ·A.· We were walking at about 11:00 at
·2· ·night, my wife had a night-shift managing the
·3· ·hotel.· He was in the hotel.· We would be walking
·4· ·and talking and that's how I provided my opinion.
·5· · · · · · ·Q.· And what was your specific opinion,
·6· ·do you recall?
·7· · · · · · ·A.· Yes, I do.· My specific opinion
·8· ·about the job that was done previously or being
·9· ·done that it's not adequate.· It's not going to
10· ·stop the water leak and you have to have a
11· ·continuous, rubberized membrane over the entire
12· ·roof.
13· · · · · · ·Q.· And what was Mr. Nazarian's response
14· ·to your concern or your suggestion?
15· · · · · · ·A.· That it was too expensive, cost too
16· ·much money and that he is looking to consultants,
17· ·yeah, he had some consultants at the time looking
18· ·into it to see if there were other ways of dealing
19· ·with the roof.· I cannot remember who they were,
20· ·but they were from either Sioux or Sudbury.· One
21· ·of the two.· They were local guys.· That he was
22· ·looking to see if he could get a better system
23· ·that is cheaper to do the job.
24· · · · · · ·Q.· Were you involved with these
25· ·consultants at all?
·1· · · · · · ·A.· No.
·2· · · · · · ·Q.· Did you ever meet with the
·3· ·consultants?
·4· · · · · · ·A.· No.
·5· · · · · · ·Q.· Were you ever asked to provide an
·6· ·opinion to Mr. Nazarian with respect to the
·7· ·consultants' advice?
·8· · · · · · ·A.· No.
·9· · · · · · ·Q.· Did you ever see a written report
10· ·from the consultants?
11· · · · · · ·A.· Not that I remember, no.
12· · · · · · ·Q.· How did you know about the
13· ·consultants then?
14· · · · · · ·A.· He told me.
15· · · · · · ·Q.· And do you recall when he told you
16· ·that?
17· · · · · · ·A.· Sometime in the summer of 2008.
18· · · · · · ·Q.· 2008.
19· · · · · · ·A.· Yes.
20· · · · · · ·Q.· And if I recall your evidence
21· ·correctly, you weren't working for Mr. Nazarian
22· ·when Mr. Day was -- when Peak Restoration was
23· ·working at the mall?
24· · · · · · ·A.· No.· I was just -- I knew him
25· ·personally as a person.· I did not have any
·1· ·business involvement with Bob Nazarian in 2008 at
·2· ·all.
·3· · · · · · ·Q.· All right.· Then moving back to when
·4· ·you were working for Mr. Nazarian on an hourly
·5· ·basis, at some point in time you indicated that
·6· ·you wanted to do an inspection of the mall and you
·7· ·requested information or requested permission of
·8· ·Mr. Nazarian to do that?
·9· · · · · · ·A.· I didn't say I wanted to do it.· He
10· ·asked me to do it.· I mean, I should qualify.· I
11· ·always expressed my concerns to him, but I
12· ·couldn't just come up to him and say, hey, can I
13· ·do an inspection of the mall?· No.· He asked me
14· ·eventually to do the inspection of the mall.
15· · · · · · ·Q.· Would you -- would I be correct in
16· ·suggesting that you were pushing Mr. Nazarian in
17· ·that direction?
18· · · · · · ·A.· Yeah, you can say that, by pointing
19· ·things out and saying, something should be done.
20· ·Something should be done.· Yeah, you could say
21· ·that.
22· · · · · · ·Q.· And you -- in your evidence, you
23· ·indicated that the inspection took you either a
24· ·week or a couple of weeks?
25· · · · · · ·A.· Well, there were several of the
·1· ·inspections.· I mean, there was initial one that's
·2· ·just the surface one.· And then he then proceeded
·3· ·to ask me to do a full one, visual, and to see if
·4· ·I can do anything other than visual.· I mean, I'm
·5· ·not a licenced metallurgical engineer to test
·6· ·steel.· But I know what to look for when I see
·7· ·steel that is visibly -- visibly stressed.· And he
·8· ·asked me to see if I can find any problems so he
·9· ·can be aware of it to take care of it, yeah.
10· · · · · · ·Q.· And as a result of your review, you
11· ·did find some problems?
12· · · · · · ·A.· That's correct.
13· · · · · · ·Q.· And how did you first report those
14· ·problems to Mr. Nazarian?
15· · · · · · ·A.· At the time, that was the time of
16· ·daily, weekly reports.· You've seen one of the
17· ·e-mails that I've sent him.· That was one of the
18· ·ways that I was reporting to them.· That was me
19· ·reporting to him on the solution and the findings
20· ·for the front perimetre of the mall that's
21· ·visible.· That's what he was at the time concerned
22· ·because there was siding that the rust was over
23· ·and the siding was rusted, that's it.· The siding
24· ·was really rusted, it needed to be replaced, it
25· ·just had a bad look to the mall.· And he needed
·1· ·refinancing, plus he had inspections that were
·2· ·looming that he was aware of that he wanted to
·3· ·have that spruced up and looking good.
·4· · · · · · ·Q.· And Mr. Nazarian told you that he
·5· ·had inspections looming --
·6· · · · · · ·A.· Yes.
·7· · · · · · ·Q.· -- and wanted it spruced up and
·8· ·looking good?
·9· · · · · · ·A.· Yes.
10· · · · · · ·Q.· And that -- I'll be dealing with
11· ·that e-mail, but the one that you're referencing
12· ·is the one that we saw during your previous
13· ·testimony with respect to the lift and the
14· ·purchase of materials?
15· · · · · · ·A.· Correct.
16· · · · · · ·Q.· And that would be typical of a
17· ·report that you would provide to Mr. Nazarian?
18· · · · · · ·A.· Yeah, yeah.
19· · · · · · ·Q.· Did you provide any specific report,
20· ·in your recollection, to Mr. Nazarian following
21· ·your lengthy investigation, your one to two week
22· ·inspection?
23· · · · · · ·A.· Yes, I have.
24· · · · · · ·Q.· And can you provide evidence today
25· ·with respect to what your report would have
·1· ·consisted of?
·2· · · · · · ·A.· I have no evidence of it.· I just
·3· ·can tell you what I would put in it.· What I would
·4· ·write inside -- in that report.· And that was
·5· ·consisted of me being concerned about the slabs,
·6· ·the core slabs, the movement.· Naturally, there
·7· ·was a structural movement if the slabs were
·8· ·moving.· It was a high risk.· It was urgent.· It
·9· ·was bad.
10· · · · · · ·The rest of the areas were not as much
11· ·of a concern to me as far as the structurally
12· ·because all I could see was rust, but I couldn't
13· ·feel or identify any movement, even though the
14· ·water was leaking in too many places.· And
15· ·obviously water is salty and it causes corrosion.
16· ·That I brought to his attention, that corrosive,
17· ·you know, water will eat away at the steel and it
18· ·will become structurally unsound and one day it
19· ·will happen very quick.· I told him that and I
20· ·would write that in the report.
21· · · · · · ·Q.· When you say you would, are you
22· ·providing evidence of what you did write in the
23· ·report?
24· · · · · · ·A.· I'm just trying to remember if I did
25· ·mention the back perimetre in my report.· I know
·1· ·for a fact I talked to him in the report about the
·2· ·two front panels because that was the main reason
·3· ·for my report.· And I'm -- I just can't remember
·4· ·if the back of the mall was included in that
·5· ·report.· If I dealt with that separately in a
·6· ·separate report.
·7· · · · · · ·But that day when I wrote him that big
·8· ·report had to do mainly with a step-down in
·9· ·elevation on the second level or main level of the
10· ·mall, if you can call it, at the food court in the
11· ·kiosk area.· And the two slabs or the slabs at --
12· ·from the entrance of the hotel to the entrance to
13· ·the escalator.· That was the report that I'm
14· ·talking about.· But like I said, there were some
15· ·daily reports and others as well.
16· · · · · · ·Q.· Are you able to provide a time frame
17· ·of approximately when that report would have been
18· ·completed?
19· · · · · · ·A.· I'm sorry, I tried to remember it
20· ·many times, I can't.· I can't recall that right
21· ·now.
22· · · · · · ·Q.· Was it completed before you attended
23· ·at ELNOS and spoke with Mr. William Elliott?
24· · · · · · ·A.· No.· That would be afterwards I
25· ·think.· I think that report would be.· Yeah, if I
·1· ·remember, ELNOS was earlier on and then we did the
·2· ·inspections afterwards.· I'd have to look at the
·3· ·dates to --
·4· · · · · · ·Q.· All right.· Well, let me bring up
·5· ·the ELNOS letter, if I might.· It's Exhibit No.
·6· ·226, page 21.· The date of that letter is
·7· ·September the 10th of 2008, and it references, in
·8· ·the fourth paragraph, a meeting that you had with
·9· ·Mr. Elliott on the 14th of July in 2008.· Does
10· ·that help you?
11· · · · · · ·A.· Yeah, it helps me.· That tells me
12· ·plainly that my inspection and my report would be
13· ·way after this meeting.
14· · · · · · ·Q.· How much longer after are you --
15· · · · · · ·A.· Well, my report was done sometime in
16· ·October, I believe, September, October to --
17· ·before -- prior to the inspection.· It was done
18· ·prior to the engineer called in.· So whenever
19· ·Mr. Woods visited to do this inspection, my report
20· ·was done two or three weeks prior to that.
21· · · · · · ·Q.· And it's your evidence that you
22· ·indicated to Mr. Nazarian that in fact there was
23· ·urgency in dealing with this matter?
24· · · · · · ·A.· That's why I was invited to the
25· ·breakfast to tell otherwise -- to be told
·1· ·otherwise.
·2· · · · · · ·Q.· Who invited you to the breakfast?
·3· · · · · · ·A.· Mr. Nazarian.
·4· · · · · · ·Q.· Well, before we move there, let's
·5· ·deal with your report.· You completed your report
·6· ·and you said that you spoke with Mr. Nazarian,
·7· ·indicating that it was urgent?
·8· · · · · · ·A.· Yes.
·9· · · · · · ·Q.· And you also gave evidence that at
10· ·some point in time, you stopped parking in that
11· ·area, stopped traveling across that area?
12· · · · · · ·A.· Immediately after I got concerned
13· ·about it, yes.
14· · · · · · ·Q.· So you bring him that concern.
15· ·Immediately after the concern, so I have this in
16· ·sequence, you stop parking there?
17· · · · · · ·A.· Hmm hmm.
18· · · · · · ·Q.· Do you put up any barricades to
19· ·prevent anyone from driving across the area?
20· · · · · · ·A.· I tried.
21· · · · · · ·Q.· What did you try to do?
22· · · · · · ·A.· But there were -- you know when the
23· ·workers were working there?· They had these
24· ·stands, wooden, with markings on it and they
25· ·had -- they strung out caution lines that people
·1· ·would drive around.· I put one or two there and I
·2· ·said please don't have any vehicles over here.
·3· ·But it had to be approved by Mr. Nazarian.· And as
·4· ·soon as I did them, they removed them back because
·5· ·he could not allow people not to park there.· He
·6· ·had to have the parking there.
·7· · · · · · ·Q.· Did Mr. Nazarian speak with you
·8· ·about it?
·9· · · · · · ·A.· Henri Laroue did and did he
10· ·personally speak about it?· I don't know if it was
11· ·done through her.· I think it was done through her
12· ·at the time because I don't think he was in town
13· ·as that happened because I had to send him the
14· ·report.· I know I was e-mailing or -- or giving
15· ·the letter to Henri to submit it.· That was the
16· ·other one.· The second one, I think, was the
17· ·letter to Henri to submit it and because I was
18· ·writing it in the office, that's right.
19· · · · · · ·And then the barricades or not
20· ·barricades, but the wooden structures that they
21· ·used to stop cars from coming around them, they
22· ·were removed right away.
23· · · · · · ·Q.· Who removed them?
24· · · · · · ·A.· I don't know.· I just put one or
25· ·two, I can't remember, just to show where they
·1· ·would go.· And I said from here on, you shouldn't
·2· ·have any cars over.· And then he came down later.
·3· ·He came over from Toronto and we walked it.
·4· · · · · · ·Q.· Yes.
·5· · · · · · ·A.· And we talked about it.· That's when
·6· ·we asked me about the land.· That's the sequence.
·7· · · · · · ·Q.· Asked you about the what?
·8· · · · · · ·A.· Land.· To purchase land from the
·9· ·City --
10· · · · · · ·Q.· I see.
11· · · · · · ·A.· -- as a solution to this problem.
12· · · · · · ·Q.· But the immediate concern that you
13· ·had -- the reason I'm asking the question is
14· ·because it would make sense to me and I suggest to
15· ·you that at that point in time if Mr. Nazarian
16· ·wasn't listening, that you should have gone to the
17· ·City immediately.
18· · · · · · ·A.· I did speak to the City.· I did go
19· ·to somebody at the City and provided them drawings
20· ·and talked to them about the fact that this is
21· ·happening.· And remember, I only had so much -- I
22· ·was an employee.· I was not in my previous
23· ·capacity when I came to this town and could
24· ·negotiate and do things.· I was working for
25· ·Mr. Nazarian doing what he said and walking the
·1· ·fine line doing what is right.· So I chose to do
·2· ·what is right.· Eventually I got fired for it.
·3· ·But in the meantime, as I was doing my work, I was
·4· ·providing the correct information to the Building
·5· ·Department, to the Fire Department, to William
·6· ·Elliott and to Mr. Nazarian about the seriousness
·7· ·of this situation.· But I had no power to stop
·8· ·anything.
·9· · · · · · ·Q.· Well, let's start with the City
10· ·then.· My question was why wouldn't you notify the
11· ·City if it was as urgent as you suggested it was?
12· ·Your evidence is that you did in fact speak with
13· ·someone at the City and you also mentioned just
14· ·now providing drawings.· So who would you have
15· ·spoken to at the City?
16· · · · · · ·A.· I would speak to Bruce Ewald.· I
17· ·spoke to Dan Gagnon, I remember that.· I was
18· ·visiting his office.· And those are the two people
19· ·I spoke to.
20· · · · · · ·Q.· And how soon after you had the
21· ·discussion with Mr. Nazarian about the urgency of
22· ·this did you speak with someone at the City?
23· · · · · · ·A.· After the inspection -- after I
24· ·heard that the structural engineer who visited
25· ·provided a positive report.· I decided that that
·1· ·was unacceptable and went to speak to the City
·2· ·about it.· But prior to that, I mentioned to the
·3· ·City obviously that there's a problem here, I just
·4· ·don't know what it is.
·5· · · · · · ·Everybody at the time -- you have to
·6· ·understand, when I started raising this, nobody
·7· ·wanted to hear it.· Nobody liked to hear about it.
·8· ·I had a great opposition from everybody.· You name
·9· ·a person, they did not want to deal with it
10· ·because it meant shutting down portion of the
11· ·mall.
12· · · · · · ·This was the only mall in the entire
13· ·City of Elliot Lake.· The hub of every pretty much
14· ·social life and otherwise, shopping and stuff
15· ·experience in here.· It was in nobody's interest
16· ·to cause any major problems.
17· · · · · · ·So when I would approach somebody, I met
18· ·resistance to a point.· Some greater, some less,
19· ·or just pretty much, oh, well, we'll see what
20· ·happens later.· And that is in the end when I
21· ·realized that nothing's being done and I did what
22· ·I did.
23· · · · · · ·Q.· But your evidence is, if I can take
24· ·you back to the date of your inspection when you
25· ·placed a barricade and you stopped parking in that
·1· ·area, but you didn't restrict any other residents
·2· ·of Elliot Lake from parking in that area.
·3· · · · · · ·A.· I had no authority to do it.· What
·4· ·would you do if this was -- and shopping -- go to
·5· ·any shopping mall right now, try stopping people
·6· ·from coming over there and tell them it's
·7· ·dangerous.
·8· · · · · · ·Q.· I appreciate you asking me a
·9· ·question.· I'm trying to go back to the time and
10· ·obtain your evidence as to what you did.· What was
11· ·in your mind and who you spoke to because you have
12· ·indicated that you've used terms that people are
13· ·going to die as a result of this problem.
14· · · · · · ·A.· Correct.
15· · · · · · ·Q.· Not just an economical issue with
16· ·respect to the mall closing down.· Your evidence
17· ·is that you told people, people are going to die
18· ·as a result of this problem.
19· · · · · · ·A.· Correct.
20· · · · · · ·Q.· So I would like to take you back to
21· ·the time when you first discovered the problem and
22· ·you indicated that you tried to put a barrier to
23· ·stop the cars.
24· · · · · · ·A.· It was -- sorry, it was a fleeting
25· ·attempt, I tried, and I was told this is not going
·1· ·to happen.· The cars are going to go over.· We
·2· ·were waiting for the structural engineer.· I mean,
·3· ·I didn't even know when it was going to happen.· I
·4· ·just knew it was a problem.· I said sometime in
·5· ·the future this is going to happen.· It could
·6· ·happen any time.· I was expecting it to happen any
·7· ·time because again, I didn't know any better.
·8· ·Nobody gave me any physical evidence of how bad or
·9· ·good the structure was.· I just knew it was bad,
10· ·according to my experience.
11· · · · · · ·So I stopped parking and I told
12· ·everybody I knew not to go there.· I can't
13· ·remember how many people I knew, but whoever I
14· ·knew I told them not to park there.
15· · · · · · ·Q.· Did you tell Mr. Nazarian not to
16· ·park there?
17· · · · · · ·A.· Yeah.· I told him not to let anybody
18· ·park there or to drive over those slabs.
19· · · · · · ·Q.· Did you tell Henri not to park
20· ·there?
21· · · · · · ·A.· Yes.
22· · · · · · ·Q.· At that point in time that you
23· ·placed the barrier, as I understand your evidence,
24· ·you knew that there was going to be an inspection,
25· ·but you would agree with me you didn't know when
·1· ·the inspection was going to take place?
·2· · · · · · ·A.· I was told it was going to happen in
·3· ·about two weeks time or so.
·4· · · · · · ·Q.· Who told you that?
·5· · · · · · ·A.· Mr. Nazarian.
·6· · · · · · ·Q.· And did he tell you who was going to
·7· ·complete the inspection?
·8· · · · · · ·A.· No.· Somebody was going to come and
·9· ·do it.· Somebody competent to do it.· It was going
10· ·to be an engineer.
11· · · · · · ·Q.· But you would agree with me then
12· ·that during that period of time, you did nothing
13· ·more than warn some people, anyone who would
14· ·listen, and you put some barricades up?
15· · · · · · ·A.· Isn't that enough?
16· · · · · · ·Q.· You can ask me questions and we can
17· ·go through it, but that's not the purpose of this.
18· ·The purpose of this is to find out what you
19· ·thought at the time and how you acted as a result
20· ·of what you thought.
21· · · · · · ·And you indicated in your evidence that
22· ·you had been so concerned because you thought
23· ·people were going to die.· That you were sure
24· ·there was a problem in this area, but my point is,
25· ·once the barricades were removed by someone at the
·1· ·mall, you'll agree with me that you did not go to
·2· ·the City and specifically say to someone at the
·3· ·City, I would like -- I'm the canary in the mine.
·4· ·I would like to sound the alarm about what's going
·5· ·on over at the mall.
·6· · · · · · ·A.· No, I did not do that.· Looking back
·7· ·at it, yes, that was part of the guilt trip that I
·8· ·had.· I wish I had done more.· But at the time in
·9· ·those circumstances that I was -- and I'm going to
10· ·remind you about something else.· I was going
11· ·through a very rough personal time.· I came here,
12· ·so to speak, on a white horse, I had properties, I
13· ·had two condos, one house, money in the bank,
14· ·everybody respected me.· I left here broken,
15· ·because of my divorce completely bankrupt, and
16· ·nobody would listen to me.· So I did the best I
17· ·could with what I had.· I wish I would have done
18· ·more.· But at the time and the condition that I
19· ·was mental and physical, and everything I did, I
20· ·did the best I could with what I had as far as
21· ·that is concerned.· Looking back at it, I wish I
22· ·di more.
23· · · · · · ·Q.· Thank you for that information, but
24· ·respect to your frame of mind, I think that's very
25· ·important and reflecting back on what happened.· I
·1· ·think that's very important.· But I'm just trying
·2· ·to get the facts with respect to what was done.
·3· ·And you'll agree with me that you didn't go to the
·4· ·City and bring that immediate concern to the
·5· ·attention of the City?
·6· · · · · · ·A.· I mentioned those concerns to the
·7· ·City as we were doing the inspections.· Don't
·8· ·forget, there were inspections.· The fire
·9· ·inspection and the building inspection that was
10· ·being done, that I mentioned this concern.· Yes,
11· ·granted, it wasn't -- I wasn't as alarmed about it
12· ·at the time to say that this is going to happen
13· ·right now because I was told, okay, hold on a
14· ·second, you know, everything's work its way.· I
15· ·mean, if it was like that, it's been like that for
16· ·a while.· Somebody's going to come and look at it.
17· ·An engineer's going to be here.· We're going to
18· ·follow this report.· This is going to be dealt
19· ·with.
20· · · · · · ·Q.· Who told you that?
21· · · · · · ·A.· Well, everybody I spoke to, I
22· ·consulted with.· I can't remember exactly, because
23· ·it was a compilation of people.· It was Bob
24· ·Nazarian, it was Henri Laroue, it was Bruce Ewald,
25· ·it was whoever else.· Darren the firefighter who
·1· ·was helping with the inspection.· I mentioned
·2· ·certain things and I said, look, this is a
·3· ·problem.· It was like inside all the other
·4· ·problems.· It was one of the issues, but it was a
·5· ·big issue for me.· And I mentioned that.
·6· · · · · · ·Again, in my position, with my authority
·7· ·I had at the time, I was already exceeding it by
·8· ·going and telling them information about the, you
·9· ·know, problems -- structural problems with the
10· ·mall because Bob didn't want me to say that in the
11· ·first place.· And I was bringing that to their
12· ·attention and saying look this has to be done.· I
13· ·was doing a bit of a disservice to him, but I was
14· ·doing what was the right thing to do since they
15· ·were there anyways.· And I was bringing it to
16· ·their attention and saying look this has to be
17· ·looked at.· I did my best.
18· · · · · · ·Q.· With respect to the -- if I can move
19· ·on to deal with the issue with respect to the
20· ·inspections.· Your evidence is, as I understand
21· ·it, that you were the individual who was tasked
22· ·with the responsibility, by Mr. Nazarian, of
23· ·bringing the City inspectors to the areas of
24· ·concern in the mall, is that correct?
25· · · · · · ·A.· It is correct to the best of
·1· ·anybody's ability to see visually what is wrong
·2· ·with it.
·3· · · · · · ·Q.· My question is, did you take the
·4· ·inspectors onto the roof and talk to them about
·5· ·your concerns?
·6· · · · · · ·A.· I remember that we walked the roof
·7· ·and, yes, I talked to them about it, yes.
·8· · · · · · ·Q.· And do you recall what you said to
·9· ·them?
10· · · · · · ·A.· Again, it would be in general, as
11· ·anything else, here is another area of concern
12· ·where we'd be walking -- I remember walking the
13· ·roof and I would say here is another area of
14· ·concern, I feel a movement here.· Something that
15· ·shouldn't be happening.· I think it's structural.
16· ·It's a danger area, something should be done about
17· ·it.· And it would be, you know, written off as --
18· ·or I don't know what it would be classified as a
19· ·problem area.· You know, but that warrants further
20· ·investigation.
21· · · · · · ·They're not structural engineers either
22· ·the inspectors.· They're just inspectors looking
23· ·for a Building Code compliance.· They cannot issue
24· ·an opinion as of whether the structure is sound or
25· ·not, at least at that time they did not.
·1· · · · · · ·Q.· How would you know that?
·2· · · · · · ·A.· Because I'm a general contractor, I
·3· ·work with inspectors on a daily basis.
·4· · · · · · ·Q.· Did you have a discussion with any
·5· ·of the City inspectors to find out what the scope
·6· ·of their authority?
·7· · · · · · ·A.· There were discussions about what
·8· ·they were looking for, yes.· They were concerned
·9· ·about the rust and the fireproofing and the
10· ·structural integrity of the mall in general, yes.
11· · · · · · ·Q.· Well, in your evidence you indicated
12· ·that in some of the areas they looked, they saw
13· ·rust.· But you indicated in your evidence this
14· ·morning that there were a lot of worse areas that
15· ·you were aware of?
16· · · · · · ·A.· Yeah, a lot worse look areas that I
17· ·was aware of and we looked at them with the
18· ·inspectors as well.· Those were the back
19· ·corridors.· They were leaking much more profusely,
20· ·I would guess, and nobody was there to look at
21· ·them, so nobody cared to paint them over once in a
22· ·while to prevent the rust.· I mean, to me it
23· ·looked really bad.
24· · · · · · ·Q.· Are these the areas that you
25· ·indicated to the inspectors from the City that
·1· ·there were mild leaks in?
·2· · · · · · ·A.· Perhaps, yeah -- no, mild leaks were
·3· ·around -- mild leaks were in Zellers in around the
·4· ·hallways, the main hallways.· There was nothing
·5· ·major that would be leaking down.· Zellers had
·6· ·some major and minor problems.· Major where the
·7· ·water would be coming down and they would have
·8· ·buckets and tarps literally catching the rain
·9· ·water and directing them into the buckets.· Those
10· ·were major leaks.
11· · · · · · ·Q.· Did you take the officers who were
12· ·doing the inspections to the areas of major leaks
13· ·and tell them there were major leaks in those
14· ·areas?
15· · · · · · ·A.· I took them to every area that I was
16· ·aware of.· And, yes, they were included those
17· ·major -- of course they were included.· The
18· ·pictures should show.
19· · · · · · ·Q.· My question was, did you take -- did
20· ·you take the officers and make them aware that
21· ·there were mayor leaks in those areas?
22· · · · · · ·A.· If there were major leaks at the
23· ·time of the inspection, I would definitely take
24· ·them, yes, I did.· I remember Zellers, we walked
25· ·through the entire mall.· There was nothing left
·1· ·unturned when we walked through the mall.
·2· · · · · · ·Q.· But you qualify that with the at the
·3· ·time of the inspection.· You'd been at the mall
·4· ·for well over a year and a half prior to this
·5· ·inspection.
·6· · · · · · ·A.· I've been to the mall.· I've been
·7· ·visiting the mall.· I haven't been working at the
·8· ·mall.· When I was there, they look -- probably
·9· ·somebody already told you.· They would patch these
10· ·areas and some areas would be leaking less after
11· ·the patching.· Still leak, but they would not be
12· ·pouring down water like they were before.
13· · · · · · ·So as all this is happening, it was
14· ·changing basically on a weekly basis.· So today
15· ·this was a major area, they would attack it.
16· · · · · · ·It was very reactive.· It wasn't a
17· ·proactive response.· It's leaking, so we run
18· ·there, we cut, we patch, we do what we can to stop
19· ·the leak.· Then leak somewhere else, they would
20· ·run there and do that.
21· · · · · · ·They would address different areas as a
22· ·reactive measure.· But then they also had a plan
23· ·where they would systematically go on the roof
24· ·from expansion joint to expansion, from one to
25· ·another, and cut them out and do that.
·1· · · · · · ·But there is also the emergency leaks.
·2· ·So when I'm talking about major leaks, I'm talking
·3· ·about the ones that were at the time there.· I
·4· ·can't remember where they were, but there were
·5· ·few of them in Zellers.· There were at the Dollar
·6· ·Store -- no, not the Dollar Store.· There was a
·7· ·restaurant or two in the food court that had them
·8· ·leaking over top of them to the point that it was
·9· ·impeding their operations and they were
10· ·complaining and we had to address those and those
11· ·were a priority.
12· · · · · · ·Now, I wasn't involved in patching
13· ·myself and doing anything, but I was there witness
14· ·to it and I saw them, and I would identify them to
15· ·the inspectors when were there.· I would walk them
16· ·through and say look, I found, this, this and all
17· ·that.· This what you should look at.
18· · · · · · ·Besides the fact they were also doing
19· ·their own inspection meaning they also have the
20· ·knowledge and the layout of the mall.· They know
21· ·what to look for.· But I was assisting them,
22· ·helping them to point out so they don't miss
23· ·anything from what I found.
24· · · · · · ·Q.· Is it not correct actually, sir,
25· ·that at that point in time you were still actively
·1· ·employed with Mr. Nazarian and that you took steps
·2· ·during the inspection in order the assist the mall
·3· ·and make it look as good as possible when you were
·4· ·dealing with the inspectors?
·5· · · · · · ·A.· Not -- that wasn't my job to make it
·6· ·look as good as possible.· It was to fix the
·7· ·actual problems.· Mr. Nazarian wouldn't -- he
·8· ·would know better than to ask me just to do a
·9· ·cosmetic fix.· Whatever I suggested, that was all
10· ·correct for the type of the problem that was
11· ·there.
12· · · · · · ·Q.· And type of the problem that was
13· ·there as you already identified, according to your
14· ·evidence, at some weeks prior -- at least some
15· ·weeks prior, you wanted to close down a section of
16· ·the mall.· Did you tell the Fire Inspector and the
17· ·Chief Building Official that specific thing that I
18· ·wanted to close down a section of the rooftop
19· ·parking and Mr. Nazarian would not permit me?
20· · · · · · ·A.· I'm having a hard time answering
21· ·that question because I think I did based on
22· ·everything else I remember, but I don't remember a
23· ·specific conversation where I would say that one
24· ·thing.
25· · · · · · ·If I would say -- if I would talk to
·1· ·them about the roof, I know I did include the fact
·2· ·that nobody should be traveling over it.· That
·3· ·that area should be closed.· It had to be part of
·4· ·my solution, temporary solution to avoid any
·5· ·problems that it might cause.
·6· · · · · · ·That's why I was worried about the load,
·7· ·the extra load.· Obviously when I found out there
·8· ·was extra load, that was one of my logical
·9· ·conclusions that we should stop putting extra load
10· ·with the cars on top of it.· And I found that at
11· ·the time when I -- so that would be prior to
12· ·Mr. Woods coming, that would be just prior to the
13· ·inspections.
14· · · · · · ·Q.· Exactly.
15· · · · · · ·A.· Just prior to the inspections.· So,
16· ·yes, I would say to them that that was an area of
17· ·concern and nothing should be traveling there.
18· ·Would I -- did I have the right or did I have any
19· ·kind of credibility to say, stop, you know, let
20· ·nobody drive around here?· No, there were -- there
21· ·were a lot of people saying in those days that
22· ·nobody should be in the mall period because it was
23· ·in such a bad condition.
24· · · · · · ·So it was like a common knowledge that
25· ·the mall was in bad shape and so one more voice
·1· ·saying, oh, well, there's a bad area, we all know
·2· ·there's bad areas.· That was it.
·3· · · · · · ·Q.· But I put it to you, sir, though,
·4· ·this is your day, this is your day, this is your
·5· ·time, this is your opportunity to raise those
·6· ·concerns specifically with officials from the City
·7· ·of Elliot Lake who have come to do an inspection.
·8· ·You are with them, your evidence is that Mr.
·9· ·Nazarian did not accompany you.
10· · · · · · ·A.· No, he did not.
11· · · · · · ·Q.· And you had the opportunity to raise
12· ·those specific concerns with the officials who
13· ·were there.
14· · · · · · ·Now, your evidence is further that you
15· ·believe that you would have.· But my question is,
16· ·do you specifically recall, as you give evidence
17· ·under oath today, that you did in fact raise those
18· ·urgent concerns that you had raised with
19· ·Mr. Nazarian?· Did you raise those concerns with
20· ·the officials from the City of Elliot Lake?
21· · · · · · ·A.· I raised the concerns for sure.· I
22· ·just don't know how -- to which extent they were
23· ·raised.· Again, as I initially determined for
24· ·myself that that was a problem.· I was told the
25· ·inspections are going to happen and these
·1· ·inspections are going to take care by
·2· ·Mr. Nazarian.
·3· · · · · · ·I was told that these inspections, don't
·4· ·worry, you know, we're going to have the
·5· ·inspection after the inspection -- well, not
·6· ·inspection after inspection.· But there will be
·7· ·inspections and remedial obviously action after.
·8· ·If it's a problem, it will be resolved.
·9· · · · · · ·To myself, I determined not to park
10· ·there.· I told everybody else who I knew, Henri
11· ·and everybody else, not to park there.
12· · · · · · ·When I got really alarmed, really upset
13· ·that nothing's being done is when the inspection
14· ·did takes place.· And contrary to what my evidence
15· ·that I have seen, and in my experience, they said
16· ·everything is honky dory.· You can continue as it
17· ·were.· And that's when I got upset.· That's when I
18· ·really got worried that this is going to go on,
19· ·you know, and it's going to end up badly.
20· · · · · · ·Q.· And that's when you went to the
21· ·City?
22· · · · · · ·A.· That's when I went to the City and
23· ·that's when I went to the Fire Department.· So it
24· ·took me progressive.· I mean, it was even
25· ·progressive for me to thinking about this.
·1· ·Sleeping on it.· Looking at the drawings.· It
·2· ·wasn't like one day all of a sudden I knew
·3· ·everything.· I had to study the drawings.· I had
·4· ·to walk on there many times, look at it.· Figure
·5· ·out am I going crazy here.· Am I -- because
·6· ·everybody was kind of just initially was
·7· ·disregarding it.· So I had to make sure I was
·8· ·right as well.
·9· · · · · · ·It is a serious thing, as you said, to
10· ·say.· It is a very serious thing to go and raise
11· ·this.· So I had to be absolutely 100 percent sure
12· ·that what I'm saying is correct.
13· · · · · · ·And it took me time to get to that point
14· ·where I finally realized, okay, this is -- this is
15· ·what I'm thinking it is and it is as serious and
16· ·it's being avoided.· It's not being dealt with and
17· ·something has to be done.· It was serious enough
18· ·that I did what I did.· I was that concerned.
19· · · · · · ·Q.· And that followed your -- you
20· ·attended at the City following being fired by
21· ·Mr. Nazarian?
22· · · · · · ·A.· He fired me that morning when I came
23· ·to the office and I learned -- no, I learned the
24· ·day before or the same morning, I forget now, I
25· ·learned that the report is positive.· And as soon
·1· ·as I heard that, my heart dropped because I knew
·2· ·-- I knew things turned.
·3· · · · · · ·If before I was, you know, sort of
·4· ·working with him.· Now I definitely am going
·5· ·against the grain.· I'm done.
·6· · · · · · ·So I learned the fact that I was let go
·7· ·the same day, and I -- I said what am I going to
·8· ·do?· So I went to the only person that I confide
·9· ·in that would listen to me, that would understand
10· ·that I'm not just a person off the street
11· ·speaking.· And I went to him and told him what I
12· ·think is the problem.
13· · · · · · ·I went to the Building Department prior
14· ·to going to -- to Mr. Officer.· I went to the
15· ·Building Department a week before when this was
16· ·all going on, when the -- when the -- after the
17· ·inspection sometime.· So the inspection --
18· ·Mr. Woods did his inspection and I was concerned.
19· ·So I provided the drawings.
20· · · · · · ·I went -- I can't remember how it
21· ·happened.· But I went into the City Hall, you have
22· ·to be buzzed in upstairs.· And whoever was in the
23· ·office there, I gave the drawings to and I said it
24· ·was a problem.· I spoke to Dan Gagnon, I remember
25· ·that clearly there.· I sat down and spoke to him
·1· ·and that was it.· And then so -- but it wasn't
·2· ·that -- it wasn't as urgent on that day.
·3· · · · · · ·Remember again, it's progressive for me
·4· ·too, right, because I'm -- the urgency is coming,
·5· ·like growing, right.· And so on the day off when I
·6· ·learned that the report is positive and things are
·7· ·negative, that's when I jumped all over it and
·8· ·went to Paul Officer.
·9· · · · · · ·I'm trying to remember everything, just
10· ·as anybody else, how it happened.· But it did
11· ·happen.
12· · · · · · ·Q.· When you spoke with Mr. Officer
13· ·following -- you had met Mr. Wood prior to
14· ·speaking with Mr. Officer?
15· · · · · · ·A.· Well, I knew Mr. Officer leading to
16· ·this part to this letter --
17· · · · · · ·Q.· When you spoke with Mr. Officer --
18· ·I'll be clear.· When you spoke with Mr. Officer
19· ·following your termination --
20· · · · · · ·A.· Yes.
21· · · · · · ·Q.· -- you had already met Mr. Wood?
22· · · · · · ·A.· Oh, yes.
23· · · · · · ·Q.· And you had, you suggest, breakfast.
24· ·Mr. Wood's evidence, I believe, will be that he
25· ·had lunch with you.
·1· · · · · · ·A.· Tomatoes, tomatoes.
·2· · · · · · ·Q.· All right.· But your recollection
·3· ·you had met Mr. Wood?
·4· · · · · · ·A.· Yes.
·5· · · · · · ·Q.· You said that you received a report
·6· ·or heard about a report.· Did you actually see the
·7· ·report?
·8· · · · · · ·A.· No.
·9· · · · · · ·Q.· Did you call Mr. Wood?
10· · · · · · ·A.· No.
11· · · · · · ·Q.· You didn't?· You spoke with
12· ·Mr. Officer?
13· · · · · · ·A.· Yes, I spoke with Mr. Officer.
14· · · · · · ·Q.· But you didn't call Mr. Wood?
15· · · · · · ·A.· No.
16· · · · · · ·Q.· -- and express any concern?
17· · · · · · ·A.· Well, first of all, I didn't know --
18· ·he never gave me his calling card.· And again,
19· ·when I was invited to the lunch or breakfast, I
20· ·was invited to dine with them, I think it was
21· ·breakfast, and when we sat down and they told me
22· ·everything they told me, you know how -- what
23· ·happens when you bring a concern and you feel
24· ·right away there's some -- you know, there's
25· ·resistance, there is animosity, there is some
·1· ·type -- something's not good there.
·2· · · · · · ·So obviously naturally I was taken aback
·3· ·and I was upset and disagreed with it.· But what
·4· ·am I supposed to do?· Argue with an engineer?
·5· ·With a licenced engineer Who am I to do that?· A
·6· ·carpenter working for Mr. Nazarian?
·7· · · · · · ·Q.· You had a meeting with -- you had a
·8· ·luncheon meeting with these individuals.· There
·9· ·was more than Mr. Wood there.· Do you recall
10· ·Mr. Caughill, an architect, being at that meeting
11· ·as well too?
12· · · · · · ·A.· Yeah, something.· I'm sorry, I do
13· ·remember talking about something about
14· ·architectural because even when the police were
15· ·interviewing me the first time, that's where the
16· ·mixups are concerned because I do remember
17· ·somebody talking about being a licenced architect,
18· ·and all that.· And, you know, basically my
19· ·credentials are so high and you can't go against
20· ·it type of thing.
21· · · · · · ·THE COMMISSIONER:· You're going to be
22· ·sometime still, Mr. MacRae?
23· · · · · · ·MR. MACRAE:· Yes, Mr. Commissioner.
24· · · · · · ·THE COMMISSIONER:· It's quarter to one.
25· ·We'll take our luncheon break at this time and
·1· ·start again at 2:00 this afternoon.
·2· · · · · · ·---· Luncheon break taken at 12:45 p.m.
·3· · · · · · ·---· Upon resuming at 2:00 p.m.
·4· · · · · · ·THE COMMISSIONER:· Good afternoon,
·5· ·everybody.· How long do you think we're going to
·6· ·be, Mr. MacRae?
·7· · · · · · ·MR. MACRAE:· I'm very reluctant to
·8· ·having seen how far -- I think I might be 45
·9· ·minutes at the most.
10· · · · · · ·THE COMMISSIONER:· Do your best.
11· · · · · · ·MR. MACRAE:· Winston Churchill said, "Do
12· ·your best or do your worst, but just get it done."
13· · · · · · ·THE COMMISSIONER:· I'll remember that.
14· · · · · · ·BY MR. MACRAE:
15· · · · · · ·Q.· Just before we broke, sir, we had
16· ·started to talk about the meeting that you said
17· ·was either lunch or breakfast.· My suggestion is
18· ·that the evidence of Mr. Wood is that it will be
19· ·lunch.· You indicated that was breakfast.
20· · · · · · ·But, in any event, you'll agree with me
21· ·that there was another person at that meeting and
22· ·we had talked about that an architect or someone
23· ·who was speaking about architectural terms,
24· ·correct?
25· · · · · · ·A.· I have to reiterate, I do remember
·1· ·talking about some -- hearing and in my memory
·2· ·there's something about somebody saying they had
·3· ·architectural credentials.· So when I was
·4· ·presented with the evidence and I saw that
·5· ·Mr. Woods is only a structural engineer, I
·6· ·wondered where I got that memory of architectural
·7· ·association and somebody being an architect.· So
·8· ·it is possible, but I don't recall the person's
·9· ·face, their face.· I can't remember that.
10· · · · · · ·Q.· Did you ever have the opportunity to
11· ·meet with the architect, Mr. Bruce Caughill, who
12· ·had done work around the mall that employed in
13· ·different areas?
14· · · · · · ·A.· Again, perhaps I -- the name sounds
15· ·familiar and I think there was an interaction, but
16· ·I can't remember the specific date or time.· There
17· ·was so much going on, I can't remember.· That
18· ·doesn't stand out in my mind as something
19· ·significant.
20· · · · · · ·Q.· My understanding of the evidence
21· ·that Mr. Wood will provide is that in fact you
22· ·didn't show him any information with respect to a
23· ·crack in the escalator area.· That you only went
24· ·to the roof.· And so is it possible that maybe you
25· ·showed Mr. Caughill that information with respect
·1· ·to the crack and the tape?
·2· · · · · · ·A.· Show me the picture of the gentleman
·3· ·and I'll pick one that I've talked to.· I can't --
·4· ·I don't know.
·5· · · · · · ·Q.· So your evidence today is you don't
·6· ·know which individual?
·7· · · · · · ·A.· When -- when you're referring to it
·8· ·like that it was another individual, now of course
·9· ·I'm thinking, okay, I know it was somebody, and I
10· ·know it was an engineer that I talked to.· And
11· ·that's why, you know, my subsequent actions will
12· ·show that I was concerned about his report.· So I
13· ·remember there was an engineer that I talked to.
14· ·Was there an architect who I also I talked to?· I
15· ·can't remember.
16· · · · · · ·Q.· Well, the evidence suggests, sir,
17· ·that during the 2009, there were other inspections
18· ·that took place.· One by the company on behalf of
19· ·the Royal Bank of Canada.· Do you recall being
20· ·part of that inspection at all, going around with
21· ·an inspector.
22· · · · · · ·A.· No, I was not.
23· · · · · · ·Q.· Do you recall being told that there
24· ·was an inspector in the building that year?
25· · · · · · ·A.· No.
·1· · · · · · ·Q.· There was another report that was
·2· ·completed and provided -- an inspection that was
·3· ·provided with respect to the condition of the
·4· ·mall.· Were you asked to be involved in that
·5· ·process at any point in time during 2009?
·6· · · · · · ·A.· I don't remember doing that and I
·7· ·don't remember being involved in it, no.
·8· · · · · · ·Q.· You do remember being involved?
·9· · · · · · ·A.· I said I don't remember doing it or
10· ·being involved in it.
11· · · · · · ·Q.· So following this meeting, this
12· ·breakfast meeting or lunch meeting, you had no
13· ·involvement with Mr. Wood with respect to his
14· ·inspection?
15· · · · · · ·A.· No.· I did not have the contact
16· ·information or anything.· Everything went through
17· ·Bob Nazarian at that point.· And again, having had
18· ·some time to think about the earlier question
19· ·about the chain of how it happened, I did trust
20· ·the chain of command, so to speak, that was in
21· ·front of me.· I had an immediate employer who I
22· ·reported to first and then I was told that
23· ·somebody else who would take a look at it, which
24· ·would be the City.· I trusted them.· That would be
25· ·the next chain of command.· Then after that I was
·1· ·told there would be an engineer's inspection.
·2· ·Fine.· I had to wait for that.· And so when that
·3· ·failed, that's when I went to the Fire Department.
·4· ·But until then, I had to trust the chain of
·5· ·command.
·6· · · · · · ·Q.· With respect to your immediate chain
·7· ·of command, is it your evidence that you trusted
·8· ·Mr. Nazarian?
·9· · · · · · ·A.· He did not give me any other
10· ·indication but to believe that somehow he will
11· ·take care of this thing.· I did not agree with the
12· ·methods he was using, but I had no reason up until
13· ·then to distrust and to say that he was somehow
14· ·circumventing the system and trying not to do
15· ·anything at all, otherwise why would he be asking
16· ·me to do this work and help him.
17· · · · · · ·Q.· Well, if I might take you back.
18· · · · · · ·MR. MACRAE:· Ms. Kuka, if I could please
19· ·have Exhibit No. 226, page 021.
20· · · · · · ·BY MR. MACRAE:
21· · · · · · ·Q.· This is -- you've been referred to
22· ·this previously.· This is a letter dated
23· ·September the 10th, 2008.· It's from Mr. Elliott
24· ·and this follows your meeting with Mr. Elliott
25· ·with respect to the application for funding, is
·1· ·that not correct?
·2· · · · · · ·A.· Correct.
·3· · · · · · ·Q.· And you knew at the time that you
·4· ·were presenting documents to Mr. Elliott that they
·5· ·were false documents?
·6· · · · · · ·A.· Correct.
·7· · · · · · ·Q.· And you knew that they had been
·8· ·provided to you by Mr. Nazarian?
·9· · · · · · ·A.· Correct.
10· · · · · · ·Q.· And as an employee of Mr. Nazarian,
11· ·you agreed to meet with Mr. Elliott?
12· · · · · · ·A.· Correct.
13· · · · · · ·Q.· And you agreed to provide the
14· ·documentation, which was in fact entitled a report
15· ·from Empire Roofing?
16· · · · · · ·A.· Hmm hmm.
17· · · · · · ·Q.· To Mr. Elliott?
18· · · · · · ·A.· Hmm hmm.
19· · · · · · ·Q.· What Mr. Nazarian didn't know is
20· ·that you weren't going to simply present it.· You
21· ·were going to give Mr. Elliott additional
22· ·information, is that not correct?
23· · · · · · ·A.· I gave him my opinion, yes.
24· · · · · · ·Q.· And your opinion at that time, if
25· ·I'm correct, was that you couldn't trust
·1· ·Mr. Nazarian because these were false documents
·2· ·that you were providing to ELNOS?
·3· · · · · · ·A.· Yes.· And in -- in regards to this
·4· ·particular matter, yes, I did not trust those
·5· ·documents.· I had evidence that they were not
·6· ·correct.· Just simply walking the roof would show
·7· ·you that that's not true.· And, yes, I stated so.
·8· · · · · · ·Q.· This is -- and you agree with me
·9· ·that this is simply a funding application for
10· ·$200,000?
11· · · · · · ·A.· I can't remember how much it was.
12· ·But, yes, it was for an amount of money towards
13· ·the fixing of the roof.
14· · · · · · ·Q.· And you clearly understood at the
15· ·time that you presented these documents to Elliott
16· ·that they were false documents?
17· · · · · · ·A.· That's correct.
18· · · · · · ·Q.· You understood that the work had not
19· ·been completed?
20· · · · · · ·A.· That's correct.
21· · · · · · ·Q.· And you understood as well that they
22· ·were inflated values?
23· · · · · · ·A.· Yes.
24· · · · · · ·Q.· You understood that in 2008.· And
25· ·you would agree with me that at that point in time
·1· ·Mr. Nazarian was asking you to participate in a
·2· ·process that, on the face of it, appears to have
·3· ·been fraudulent.· You'll have to answer yes or no?
·4· · · · · · ·A.· Yes, yes.
·5· · · · · · ·Q.· And you participated in that process
·6· ·knowingly in attending at the ELNOS and speaking
·7· ·with William Elliott?
·8· · · · · · ·A.· Well, I didn't have a chance to
·9· ·review the documents until I met with William.
10· ·That's when we opened the package and started
11· ·reviewing them.· I was basically presenting them
12· ·because the premise of it was that Mr. Nazarian
13· ·wasn't even in town at the time and I'm supposed
14· ·to sort of represent him, go in on his behalf, and
15· ·just give it to the --
16· · · · · · ·Q.· I'll stop you there.· That premise
17· ·was something that was developed between you and
18· ·Mr. Nazarian as a useful approach to ELNOS in
19· ·order to make it clear that you were the person
20· ·that was dealing with Mr. Elliott and not
21· ·Mr. Nazarian?
22· · · · · · ·A.· Perhaps.· I can't remember exactly
23· ·how, but you're right.· The idea was that, like I
24· ·said earlier, was that I would be a better person
25· ·to go in front of William Elliott and present this
·1· ·and perhaps get better luck than he had previously
·2· ·had with him.
·3· · · · · · ·Q.· And so you clearly understood that
·4· ·that was going to be your role when you approached
·5· ·Mr. Elliott, do you agree with me?
·6· · · · · · ·A.· To represent Mr. Nazarian?
·7· · · · · · ·Q.· Right.
·8· · · · · · ·A.· Yes, but when I saw the documents, I
·9· ·said that's not true.
10· · · · · · ·Q.· You had no opportunity to review the
11· ·documents before you --
12· · · · · · ·A.· I believe I received them the same
13· ·day I was supposed to give them because I didn't
14· ·prepare them.
15· · · · · · ·Q.· No, but I put it to you, sir, that
16· ·there's no way you would have gone to a meeting
17· ·with ELNOS to meet with someone that you respected
18· ·as much as you did Mr. Elliott without at least
19· ·reviewing the documents before you went into the
20· ·meeting.
21· · · · · · ·A.· It's a fair question, but I'm
22· ·telling you how it was.· I wasn't working in 2008
23· ·for Mr. Nazarian full time.· I was there as a
24· ·consultant.
25· · · · · · ·Q.· I understand that.
·1· · · · · · ·A.· So --
·2· · · · · · ·Q.· It's a fair question.· I'd like you
·3· ·to answer the question.
·4· · · · · · ·THE COMMISSIONER:· Hold on, hold on.· At
·5· ·least let him finish.
·6· · · · · · ·BY MR. MACRAE:
·7· · · · · · ·Q.· Thank you, go ahead.
·8· · · · · · ·A.· As I said, I was a consultant.· I
·9· ·was told that this would be better if I go
10· ·negotiate.· I was on the same terms as far as the
11· ·knowledge of what is going on at the mall, and
12· ·what the status of application is as -- as
13· ·anybody.· I talked to Mr. Nazarian a few times
14· ·before.· He indicated this would, you know, as I
15· ·explained earlier in my testimony, that this is a
16· ·problem with the mall, it's leaking.· I told him
17· ·that the skin roof -- sorry, Blueskin on the roof
18· ·is useless, da, da, da, da.· He mentioned
19· ·something about the ELNOS going in and trying to
20· ·get some money.· He said would you be willing to
21· ·do that?· Obviously for compensation.· I don't
22· ·even remember what the compensation was, but
23· ·obviously I wouldn't do it for free.· It would be
24· ·some type of consulting fee that I would be
25· ·eventually -- that I would charge him and he would
·1· ·pay me.
·2· · · · · · ·So I do remember seeing these documents,
·3· ·reading them, and these invoices, in William's
·4· ·office.· Whether I saw them just before I went in
·5· ·as I was sitting and looking through them, or I
·6· ·went in and we started reviewing this application,
·7· ·but I do remember not knowing -- like if I knew a
·8· ·week ahead of time, I would have told him I
·9· ·wouldn't go in.· I didn't see these invoices until
10· ·about the same day that I presented them.· When I
11· ·saw them, I said this is not true.
12· · · · · · ·Q.· But I put it to you that you did see
13· ·them before you went into the office to meet with
14· ·Mr. Elliott.
15· · · · · · ·A.· It's possible that I seen them just
16· ·before I went in.
17· · · · · · ·Q.· It's not possible -- I put it to
18· ·you, you have enough business experience, you
19· ·dealt with ELNOS previously, am I not correct?
20· · · · · · ·A.· Sir, I cannot answer that one
21· ·hundred percent.· I've been truthful and I'm
22· ·telling you right now, I don't remember if I seen
23· ·them exactly right before or when I'm in the
24· ·office.
25· · · · · · ·Q.· All right, then, moving to the
·1· ·meeting that you had with Mr. Elliott, you just
·2· ·indicated that you would only be in the position
·3· ·as anyone else would be with respect to the
·4· ·knowledge about the roof at the mall?
·5· · · · · · ·A.· As far as the knowledge of the roof
·6· ·condition, yes.
·7· · · · · · ·Q.· Then how were you able to tell Mr.
·8· ·Elliott that this was bogus?
·9· · · · · · ·A.· Because I have experience in
10· ·construction.· I can tell what's done on the roof.
11· ·Previously telling Mr. Nazarian that it was not
12· ·adequate and now seeing these documents and
13· ·commenting on them, this is not true.· This was
14· ·not done.· This much money wasn't spent.· I would
15· ·say that.
16· · · · · · ·Q.· So you're telling someone that you
17· ·respect that Mr. Nazarian has produced documents
18· ·that are not factual?
19· · · · · · ·A.· That's correct.
20· · · · · · ·Q.· That may even appear to be
21· ·fraudulent?
22· · · · · · ·A.· That's correct.
23· · · · · · ·Q.· So fast forward one year to
24· ·September of 2009 where you say that you trusted
25· ·Mr. Nazarian as your employer to do the right
·1· ·thing with respect to your concerns about the
·2· ·mall.· Where did that trust come from?
·3· · · · · · ·A.· We're talking about two different
·4· ·things.· We're talking about a person applying for
·5· ·a grant, grasping at straws, trying to fix the
·6· ·roof.· Definitely he cheated on this application.
·7· ·It didn't go anywhere.
·8· · · · · · ·Now 2009 when I would tell him that
·9· ·there's a structural problem in the mall and he
10· ·wouldn't do nothing about it, it would be shocking
11· ·to me that any normal person would do nothing
12· ·about it.
13· · · · · · ·Q.· As a result of your review of the
14· ·documents with respect to the meeting that you
15· ·attended in July of -- July 14th of 2008, you were
16· ·comfortable enough with Mr. Elliott to let
17· ·Mr. Elliott know that you thought the documents
18· ·were fraudulent, am I correct?
19· · · · · · ·A.· That's correct.
20· · · · · · ·Q.· Now we move forward to 2009.· You've
21· ·indicated in your evidence that you have a
22· ·personal relationship with Paul Officer?
23· · · · · · ·A.· Yes.· Well, working personal
24· ·relationship.· I know him from the fire hall.
25· · · · · · ·Q.· And you know that he's the Fire
·1· ·Chief?
·2· · · · · · ·A.· That's right.
·3· · · · · · ·Q.· And you've taken training as a
·4· ·volunteer fire fighter?
·5· · · · · · ·A.· Yes.
·6· · · · · · ·Q.· And you completed a report on the
·7· ·status of the mall.· You indicated that you
·8· ·completed a report?
·9· · · · · · ·A.· Yes.
10· · · · · · ·Q.· And that you provided that report to
11· ·Mr. Nazarian?
12· · · · · · ·A.· Yes.
13· · · · · · ·Q.· And you're saying that in light or
14· ·rather despite the evidence of the conduct of
15· ·Mr. Nazarian one year ago that you were satisfied
16· ·that that report would be provided to the
17· ·appropriate authorities?
18· · · · · · ·A.· Yeah, I was hoping he would do it
19· ·because it was a much serious matter.
20· · · · · · ·Q.· It was so serious, you've indicated
21· ·earlier, that you thought people were going to
22· ·die.
23· · · · · · ·A.· Well, I said that to Henri Laroue.
24· ·I told this to the office people.· I've told it to
25· ·my family and I've spoken it to whoever.· I can't
·1· ·remember who I spoke to, but pretty much who would
·2· ·listen, I would talk to, yes.
·3· · · · · · ·Q.· So when we went through this already
·4· ·with respect to the inspection when the officers,
·5· ·when Mr. Officer and the Chief Building Official
·6· ·attended at the building, did you provide them
·7· ·with a copy of your report to Mr. Nazarian?
·8· · · · · · ·A.· No, I didn't have it.· I only had
·9· ·one copy that I handed over into the office that I
10· ·remember.
11· · · · · · ·Q.· You were in the mall when the
12· ·inspection was going on.
13· · · · · · ·A.· Hmm hmm.
14· · · · · · ·Q.· Am I correct?
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· And who had you handed the report
17· ·to?
18· · · · · · ·A.· Well, the report was done -- not
19· ·done on the day of the inspection.· This would be
20· ·done prior to the inspection that happened, my
21· ·report --
22· · · · · · ·Q.· Absolutely.
23· · · · · · ·A.· So that would be given to Henri
24· ·Laroue who was the mall manager at the time.· That
25· ·was the chain of communication, command, whatnot,
·1· ·unless there was something specific directly that
·2· ·I was asked to provide directly to Bob Nazarian.
·3· ·I would give it to her and she would forward it to
·4· ·him.
·5· · · · · · ·Q.· When the -- did you have advance
·6· ·notice that the inspectors were coming?
·7· · · · · · ·A.· I must have because I would have to
·8· ·be there that day for sure, so I would probably
·9· ·have like a 48 hours or 72 hours notice, yes.
10· · · · · · ·Q.· During that period of time, did you
11· ·go and speak with Henri and ask her for a copy of
12· ·the report that you provided?
13· · · · · · ·A.· No, I did not.
14· · · · · · ·Q.· Once you were in the middle of the
15· ·inspection, did you think to mention to the
16· ·officers that you had completed a report?
17· · · · · · ·A.· Probably I did.· I can't remember
18· ·now, but I know we talked about these issues, the
19· ·issues at the mall.· So as I said, it was probably
20· ·as a -- the overall picture I mentioned.· I
21· ·mentioned the slabs.· Did I mention the report
22· ·specifically?· I don't remember.· But I know that
23· ·they would know that I would tell them that I
24· ·spoke to Bob Nazarian and I told them there is a
25· ·problem.· That I would say.· I wouldn't perhaps
·1· ·say I give Bob a piece of paper.· It would be
·2· ·enough for me to say to them I told Bob about this
·3· ·problem.· He knows about it.
·4· · · · · · ·Q.· Well, your evidence is today that
·5· ·you completed -- you put a lot of effort into that
·6· ·report, am I correct?
·7· · · · · · ·A.· That was the fire report.· That is
·8· ·-- the other report maybe took me about a month --
·9· ·I'm sorry, a week or so to walk around the mall
10· ·and ascertain whatever problems that I could think
11· ·of.
12· · · · · · ·Q.· That sounds to me like a substantial
13· ·amount of effort.· You completed a report, am I
14· ·correct?
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· So regardless of what you think you
17· ·did, would you agree with me that you did not give
18· ·a report to the Fire Department or the police --
19· ·or the Chief Building Official's Department during
20· ·your inspection?
21· · · · · · ·A.· Absolutely, yes, I did not give them
22· ·any report.· I wasn't supposed to give them a
23· ·report.· That wasn't my responsibility.· My
24· ·responsibility was to report to Bob Nazarian and
25· ·assist them in the inspection of the mall, walk
·1· ·them through the problem areas and show it to
·2· ·them.· That was my mandate.· That's what I was
·3· ·asked to do.
·4· · · · · · ·Q.· But, sir, it doesn't make sense that
·5· ·in light of your concerns about the severity of
·6· ·the problem, the urgency of the problem, the
·7· ·possible outcome of the problem that your answer
·8· ·is no, I didn't provide this to them because that
·9· ·wasn't the proper route to go.
10· · · · · · ·A.· Well, it wasn't.· I would be
11· ·jeopardizing my job at the mall that I badly
12· ·needed.· It would be going over top of everybody's
13· ·head and saying, hey, look, there's a problem.· I
14· ·did it in the end when I realized everything else
15· ·failed.· But until then, I had no reason to
16· ·mistrust that something's not going to be done.
17· · · · · · ·Looking back at it, yeah, probably I
18· ·should have.· I should have done more with it.
19· ·But right at that moment -- point, I thought I was
20· ·doing what was right to do at that point.
21· · · · · · ·Q.· You answered in a similar fashion
22· ·this morning, and so I would take you, sir, to
23· ·Exhibit No. 1446, if I might, Ms. Kuka.
24· · · · · · ·This is the e-mail that Mr. Officer
25· ·created and sent to Bruce Ewald following your
·1· ·visit at Mr. Officer's office.· So I'd like to
·2· ·take you back through the timing.· What day were
·3· ·you fired on?
·4· · · · · · ·A.· According to this e-mail that very
·5· ·same day, but I can't confirm it until I see my
·6· ·employment slip or something, but I think it was
·7· ·that day.
·8· · · · · · ·Q.· All right.· And previous to that,
·9· ·when had you objected to the content of the
10· ·engineering report?
11· · · · · · ·A.· As soon as I learned of it, which
12· ·would be that morning or maybe a day before.· I
13· ·can't remember, but it would be within that
14· ·period -- immediate period of time.· It would be
15· ·very close to that.· I think the report that I
16· ·learned of that it's going to be positive was the
17· ·same day, but I can't say for sure.· I have to
18· ·look at it.
19· · · · · · ·Q.· And who did you learn that from?
20· · · · · · ·A.· Henri Laroue.
21· · · · · · ·Q.· Did you talk with Mr. Nazarian about
22· ·it?
23· · · · · · ·A.· No, I didn't have to.· He made it
24· ·very clear when the inspection was going on at
25· ·that lunch or breakfast, whatever we ate that day,
·1· ·he made me -- made it very clear to me that he
·2· ·doesn't want me to go into that anymore.· It's
·3· ·settled and done with and finished.· I'm to
·4· ·complete my fire report and fire audit and we'll
·5· ·see after that what's going to happen after that.
·6· · · · · · ·Q.· Well, I put it to you that actually
·7· ·the concern that Mr. Nazarian had was with respect
·8· ·to the fire audit, not with respect to the report
·9· ·from Mr. Wood.
10· · · · · · ·A.· What concern are you referring to
11· ·right now?
12· · · · · · ·Q.· The concern that Mr. Nazarian had
13· ·with your conduct with respect to the concerns you
14· ·had dealt with the fire inspection audit, not with
15· ·the report from Mr. Wood.
16· · · · · · ·A.· Why would he?· Why would he?· I
17· ·completed the fire inspection report.
18· · · · · · ·Q.· I went through this with you this
19· ·morning.· But I'm here to ask questions and I'd
20· ·like you to simply answer my questions.· I'll take
21· ·them back and I'll go piece by piece, sir.
22· · · · · · ·A.· Okay.
23· · · · · · ·Q.· When did you first believe that
24· ·there were problems between you and your employer
25· ·as a result of this inspection?
·1· · · · · · ·A.· The problems started probably at the
·2· ·inspection time when we had that lunch.· That's
·3· ·when I first felt resentment -- the resentment,
·4· ·opposition sort of -- opposing to what I was
·5· ·saying and I was clearly told to -- or given an
·6· ·indication that this is something I shouldn't be
·7· ·worried about.· And we're talking right now about
·8· ·the slabs on the roof because that was the only
·9· ·area that I was concerned about and I brought to
10· ·Nazarian's attention to which the engineer then
11· ·obviously attended and did his inspection.
12· · · · · · ·Q.· And so would you agree with me that
13· ·when you had the meal, whether it was breakfast or
14· ·lunch, with the engineer and another individual,
15· ·who I suggest to you is an architect, that you had
16· ·a free and frank discussion with these
17· ·individuals?
18· · · · · · ·A.· Oh, it was a free and frank
19· ·discussion, yes.
20· · · · · · ·Q.· You were able to say what you felt?
21· · · · · · ·A.· Yes.
22· · · · · · ·Q.· And they -- did Mr. Wood not talk to
23· ·you about deflection about certain issues such as
24· ·that?
25· · · · · · ·A.· Yes, I remember them explaining to
·1· ·me, oh, this is very normal.
·2· · · · · · ·Q.· But no one -- no one at that
·3· ·meeting -- I suggest to you that no one at that
·4· ·meeting said that you're wrong, you shouldn't be
·5· ·involved in this, you shouldn't have any
·6· ·involvement in this.
·7· · · · · · ·A.· Except for Bob Nazarian at that
·8· ·meeting or right after that meeting, I was
·9· ·basically told this matter is settled, basically
10· ·move on to whatever I was doing at that time.· And
11· ·let me -- further when he was talking about
12· ·deflection and all that, that sounds very good
13· ·except for where we were standing at the very base
14· ·of the slab.· I don't know what type of
15· ·deflection could happen right there where there's
16· ·a building coming out of -- four storey or five
17· ·storey building coming out of it.· You're standing
18· ·on the core slab and it's moving right there.
19· · · · · · ·Q.· Did you say that to Mr. Wood?
20· · · · · · ·A.· We were standing there --
21· · · · · · ·Q.· I understand --
22· · · · · · ·A.· -- at some point of time and I did
23· ·say that.
24· · · · · · ·Q.· That's not the question I asked you.
25· ·I asked you did you say to Mr. Wood when he spoke
·1· ·about deflection at the lunch or at the meal that
·2· ·you had additional concerns?
·3· · · · · · ·A.· I must have because I wasn't
·4· ·satisfied.· I went away upset from the meeting.
·5· · · · · · ·Q.· So you're drawing a conclusion, but
·6· ·you're not able to provide evidence --
·7· · · · · · ·A.· Sir, do you remember what you did
·8· ·four years ago, word-for-word, on a specific date?
·9· ·I don't.
10· · · · · · ·I can tell you from the -- from my best
11· ·course -- or from the evidence that I have right
12· ·now in front of me.· From what I know, I talked to
13· ·him things I specifically remember that
14· ·conversation, the gist of it, how it was done,
15· ·that I went upset away from it.· I did object to
16· ·them and I did say to them that I disagree with
17· ·that.· After which I was told, let go.
18· · · · · · ·Q.· My question to you was did you raise
19· ·any objection with respect to discussions
20· ·regarding deflection at the time that you
21· ·discussed it with Mr. Wood?
22· · · · · · ·A.· Again, I don't remember
23· ·word-for-word, but I must have, yes.
24· · · · · · ·Q.· Why do you say you must have?
25· · · · · · ·A.· Because I objected to his finding,
·1· ·whatever they were, I disagreed with them.
·2· ·Whether it was flex or whether it was other stuff
·3· ·they were talking to me, but you're telling me a
·4· ·specific thing that he remembers he said four
·5· ·years ago.· I don't remember what he said four
·6· ·years ago.· You're crafting the questions to make
·7· ·me look like I missed something.· I didn't.· I
·8· ·objected.· I didn't agree with it.
·9· · · · · · ·Q.· If we take a look at the inspection
10· ·report, which is Exhibit No. -- the fire safety
11· ·inspection report -- Exhibit No. 4267.
12· · · · · · ·This is the, as I understand it, the
13· ·fire safety inspection report that was completed
14· ·as a result of the inspection that was -- that you
15· ·provided -- you were in -- present, rather, while
16· ·the inspection was going on.
17· · · · · · ·A.· Am I supposed to answer?
18· · · · · · ·Q.· I'm asking you --
19· · · · · · ·A.· Yes, I was there.
20· · · · · · ·Q.· All right.· And when I review the
21· ·report, I don't see any of -- any concerns with
22· ·respect to the topping on the concrete.· Would you
23· ·agree with me?
24· · · · · · ·A.· Is this fire report?
25· · · · · · ·Q.· Yes, the fire inspection report.
·1· · · · · · ·A.· Of course you wouldn't see it
·2· ·because that's not their mandate.
·3· · · · · · ·Q.· I'm asking you whether this
·4· ·report -- I'm not asking you if you think it
·5· ·should be in there or not, sir.
·6· · · · · · ·A.· I'm telling you if I think it's not
·7· ·supposed, it wouldn't be there even if I brought
·8· ·it up.
·9· · · · · · ·THE COMMISSIONER:· Is it there?· Yes or
10· ·no?
11· · · · · · ·THE WITNESS:· It's not.· I don't see it.
12· · · · · · ·THE COMMISSIONER:· It's a lot simpler if
13· ·you answer the questions.
14· · · · · · ·THE WITNESS:· Sorry, maybe I
15· ·misunderstand the question.· But, no, it's not
16· ·there, yes, obviously.
17· · · · · · ·BY MR. MACRAE:
18· · · · · · ·Q.· And I'll take you to the second page
19· ·under paragraph eight, just underneath paragraph
20· ·eight, if I might, Ms. Kuka.
21· · · · · · ·Right underneath paragraph eight,
22· ·there's another paragraph that begins: "The
23· ·Zellers store was viewed," and you indicated they
24· ·had about 30 leaks in the area and he called them
25· ·mild leaks.· That's what you told them, isn't it?
·1· · · · · · ·A.· They were there looking at them with
·2· ·me.
·3· · · · · · ·Q.· You're not answering my question.
·4· ·Did you or did you not tell them that --
·5· · · · · · ·A.· If it says there that I told then,
·6· ·then I must have told them, yes.
·7· · · · · · ·Q.· Thank you.· Then if I might, Ms.
·8· ·Kuka, have Exhibit No. 1446.
·9· · · · · · ·Now, my understanding of the day you
10· ·were fired, how were you fired?
11· · · · · · ·A.· I remember being in the office and
12· ·was told by Henri Laroue that my services are no
13· ·longer needed.
14· · · · · · ·Q.· You were fired by the mall manager?
15· · · · · · ·A.· Yes, with the instruction of Bob
16· ·Nazarian.· He wouldn't do work like that himself,
17· ·no.
18· · · · · · ·Q.· But in any event, you were fired by
19· ·-- Henri provided you with the information that
20· ·you were terminated, is that correct?
21· · · · · · ·A.· Yes, but she did not herself fire
22· ·me.· She didn't have the authority to hire me or
23· ·fire me.· I worked directly for Bob, yes.
24· · · · · · ·Q.· Did Henri tell you you were fired?
25· · · · · · ·A.· Yes.
·1· · · · · · ·Q.· All right.· What time of day was
·2· ·that?
·3· · · · · · ·A.· Sometime in the morning.
·4· · · · · · ·Q.· And is it on that date that you went
·5· ·to see Mr. Officer?
·6· · · · · · ·A.· Yes.
·7· · · · · · ·Q.· I would like to take you to the
·8· ·second page of this report -- of this e-mail.· I'd
·9· ·like you to read the second paragraph.· I'll read
10· ·it to you because I'm going to suggest to you that
11· ·Mr. Wood had not completed his report.· Mr. Paul
12· ·Officer writes:
13· · · · · · ·"I called Bob Wood (of H.R. Wright) at
14· · · · · · ·11:30 October 28, 2009 and discussed his
15· · · · · · ·report.· He is hoping to have it out by
16· · · · · · ·the end of the week.· His main concern is
17· · · · · · ·that the underside -- "
18· · · · · · ·And then he goes on to say that.
19· ·Mr. Wood's evidence will be that he did not
20· ·provide a report until Mr. Officer had called him
21· ·and prompted him to have the report.· There was no
22· ·report.
23· · · · · · ·A.· Again, in order for me to answer,
24· ·you have a question for me to answer?
25· · · · · · ·Q.· Yes.
·1· · · · · · ·A.· Okay.
·2· · · · · · ·Q.· You've said that you heard about a
·3· ·report.
·4· · · · · · ·A.· Yes.
·5· · · · · · ·Q.· How could that be possible when
·6· ·Mr. Wright had not completed his report?
·7· · · · · · ·A.· When I write my reports before I
·8· ·file them or give them to anybody and put my
·9· ·signature on it, they're pretty much written.· He
10· ·didn't do it morning of.· This report took him to
11· ·write -- and I'm pretty sure he spoke about it to
12· ·Mr. Nazarian because I've heard of it before it
13· ·was available, whatever time it was available.
14· ·I've heard that the report was going to be
15· ·positive, everything is fine.· We passed the
16· ·inspection.· The whole mall knew we passed the
17· ·inspection, nothing to worry about.
18· · · · · · ·Q.· You said that his report had been
19· ·completed, that the -- that the mall had received
20· ·the report from Mr. Wright saying that everything
21· ·was okay.· And clearly the evidence is that
22· ·Mr. Wood had not completed his report and had not
23· ·filed his report prior to your being fired and
24· ·prior to your going to see Mr. Officer.
25· · · · · · ·THE COMMISSIONER:· That's not what the
·1· ·evidence is.
·2· · · · · · ·THE WITNESS:· You're picking at the
·3· ·straws now.
·4· · · · · · ·THE COMMISSIONER:· This is what you
·5· ·anticipate the evidence will be and of course we
·6· ·have that paragraph.
·7· · · · · · ·MR. MACRAE:· Thank you.
·8· · · · · · ·THE COMMISSIONER:· But perhaps a little
·9· ·too strong.
10· · · · · · ·THE WITNESS:· I was told that the report
11· ·was going to be positive and, yes, I knew it was
12· ·in existence.· I didn't know if it was filed,
13· ·faxed, and whenever it would be at the end of the
14· ·day or the beginning of the day.· But the report
15· ·was going to be positive.· Everybody knew that we
16· ·passed the inspection and that's why I got upset.
17· · · · · · ·MR. MACRAE:· I have no further
18· ·questions, thank you.
19· · · · · · ·THE COMMISSIONER:· Thank you.
20· ·Mr. Myles, I skipped over you this morning.· Did
21· ·you have questions, sir?
22· · · · · · ·MR. MYLES:· I do, sir.
23· · · · · · ·MR. CURTIS:· Something came up over the
24· ·lunch.· I realized I had one more question.
25· · · · · · ·CROSS-EXAMINATION BY MR. CURTIS:
·1· · · · · · ·Q.· Hello, Mr. Dimitri.· My name is John
·2· ·Curtis and I'm representing Tom Derreck who was
·3· ·the CAO of Elliot Lake in 2006, 2007.
·4· · · · · · ·I have a very simple question for you.
·5· ·It's -- it may be just a semantic one, but I think
·6· ·it's really important.· I heard you say that you
·7· ·had stood on the parking deck with Mr. Wood and I
·8· ·believe Mr. Nazarian was there.· And this would
·9· ·have been the day of Mr. Wood's inspection.· Is
10· ·that correct?
11· · · · · · ·A.· Again, when the inspector came, he
12· ·came I think a day before.· And then his
13· ·inspection was supposed to happen either that
14· ·evening or the following day.· I don't remember.
15· ·But it was the day he arrived in the evening of
16· ·that day sometime.
17· · · · · · ·Q.· Okay.· When you say inspector, you
18· ·mean Mr. Wood?
19· · · · · · ·A.· Mr. Wood, yeah.
20· · · · · · ·Q.· Okay.· So you didn't -- that did not
21· ·in your mind include part of his inspection that
22· ·time when you were on the -- on the roof with him?
23· · · · · · ·A.· I thought this was like a
24· ·preliminary here.· Here's the thing.· Here's my
25· ·concern area.
·1· · · · · · ·Q.· I see.
·2· · · · · · ·A.· Check it out.
·3· · · · · · ·Q.· So in your mind when he did his
·4· ·actual inspection, you were not in attendance?
·5· · · · · · ·A.· I was not there, no.
·6· · · · · · ·Q.· Okay, those are all my questions.
·7· ·Thank you.
·8· · · · · · ·THE COMMISSIONER:· Mr. Myles?
·9· · · · · · ·CROSS-EXAMINATION BY MR. MYLES:
10· · · · · · ·Q.· Good afternoon, sir.· My name is
11· ·Chuck Myles.· I'm not a lawyer.· I'm a member and
12· ·I represent the Seniors' Action Group of Elliot
13· ·Lake.
14· · · · · · ·A.· Nice to meet you, sir.
15· · · · · · ·Q.· One of the mandates of the
16· ·Commission is to make recommendations.· And I keep
17· ·hearing a term scope of work and it's not clearly
18· ·defined a lot of times.· Well, I inspected a beam.
19· ·But what did they do when they inspect that beam?
20· · · · · · ·I would like your input into making a
21· ·recommendation that these references to scope of
22· ·work are actually listed so people can see, in our
23· ·case, when we're reviewing a situation we are
24· ·here, that we can see what that work was actually
25· ·listed as being done.
·1· · · · · · ·A.· Okay.
·2· · · · · · ·Q.· Do you have input on that?
·3· · · · · · ·A.· Yes, I have input on that and this
·4· ·goes back to when I met, lunch or breakfast, with
·5· ·the inspector and Mr. Nazarian and Mr. Woods and
·6· ·Mr. Nazarian, that I realized, and again I wasn't
·7· ·there holding the flashlight, but I didn't see
·8· ·anybody suited up for metallurgical tests.
·9· · · · · · ·They usually done on the zoom that we've
10· ·rented by that time, so they would have to go up,
11· ·they would have to open the tiles and expose the
12· ·beam, and scrape it, do whatever the -- bang on
13· ·it, do whatever the metallurgical engineer does in
14· ·order to determine the structural integrity of the
15· ·beam, if it was compromised or not.
16· · · · · · ·The tiles were in exactly the same
17· ·position as the day before, the ceiling tile.
18· ·Nobody went there -- I'm assuming that nobody went
19· ·there.
20· · · · · · ·Q.· Excuse me, if I may.· What I'm
21· ·trying to get from you is your opinion that should
22· ·the scope of work be listed of what they do on
23· ·contracts and things, not what happened that day.
24· · · · · · ·A.· Absolutely.· They should have
25· ·specified that and somebody has to test the steel
·1· ·to make sure it's structurally sound instead of
·2· ·just doing a visual inspection.
·3· · · · · · ·Q.· Thank you.· I do have a question for
·4· ·you about your qualifications, sir.· You said you
·5· ·took a health and safety course?
·6· · · · · · ·A.· Yeah, many -- I've taken several of
·7· ·them.
·8· · · · · · ·Q.· What does that entail?
·9· · · · · · ·A.· Well, it's a construction health and
10· ·safety course.· Usually when you take it, it's
11· ·pertaining to a particular job.· When we work, for
12· ·example, a district school board of some sort,
13· ·they have their own policy, health and safety
14· ·policy and we have to adhere to that.
15· · · · · · ·There's WHMIS, which is the -- again the
16· ·handling of hazardous materials, conduct on the
17· ·construction site, which things are hazardous,
18· ·which ones are not.· How do you dispose of them?
19· ·How do you deal with them?· So general basic
20· ·safety rules that --
21· · · · · · ·Q.· And you would have had training on
22· ·what the complaint process was?
23· · · · · · ·A.· Complaint process?
24· · · · · · ·Q.· Yes, if you had a problem.
25· · · · · · ·A.· Yes, you would have to go to the
·1· ·immediate supervisor and report to them, yes.
·2· · · · · · ·Q.· You go to the supervisor of the
·3· ·Health and Safety Committee?
·4· · · · · · ·A.· Yeah, if things don't get done, you
·5· ·keep going and going, yes.
·6· · · · · · ·Q.· And what's the ultimate going to?
·7· · · · · · ·A.· Ministry of Labour.
·8· · · · · · ·Q.· And you were very concerned about
·9· ·the health of people, sir?
10· · · · · · ·A.· Yes, I was.
11· · · · · · ·Q.· And you didn't go to the Ministry of
12· ·Labour, did you?
13· · · · · · ·A.· Well, I didn't have a chance, no.
14· · · · · · ·Q.· Excuse me?
15· · · · · · ·A.· I didn't have a chance.· I left
16· ·Elliot Lake shortly after this transpired.· I had
17· ·some personal problems in my life and I -- I --
18· · · · · · ·Q.· I realize that, sir, but when was
19· ·your first concern with this moving slab?
20· · · · · · ·A.· As we discussed, sometime in late
21· ·September or early October that I realized that it
22· ·could be a problem, yes.
23· · · · · · ·Q.· And what year was that?
24· · · · · · ·A.· Pardon me?· 2009.
25· · · · · · ·Q.· 2009.
·1· · · · · · ·A.· Yeah.
·2· · · · · · ·Q.· And when did you leave?
·3· · · · · · ·A.· I don't know the exact date, but it
·4· ·was about a week or two after I was let go.
·5· · · · · · ·Q.· But if you were so agitated and so
·6· ·concerned, sir, and knowing the steps that you
·7· ·could have taken, there was no reason you couldn't
·8· ·have gone the Ministry of Labour.
·9· · · · · · ·A.· You're right.· I could have gone to
10· ·the Ministry of Labour.· I just thought if I speak
11· ·to Paul Officer and he told me at that meeting, he
12· ·promised me that he would notify the City
13· ·officials and emphasize that this should be taken
14· ·care of.· I thought that was a good enough final
15· ·point I could make before I leave.· But you're
16· ·right, I could have gone to the Ministry of
17· ·Labour, yes.
18· · · · · · ·Q.· Thank you very much, sir.· Thank
19· ·you, Mr. Commissioner.
20· · · · · · ·THE COMMISSIONER:· Re-examination, Mr.
21· ·Carr-Harris?
22· · · · · · ·MR. CARR-HARRIS:· I have no
23· ·re-examination, thank you, Mr. Commissioner.
24· · · · · · ·THE COMMISSIONER:· Mr. Yakimov, thank
25· ·you very much.
·1· · · · · · ·THE WITNESS:· Thank you for letting me
·2· ·go.
·3· · · · · · ·THE COMMISSIONER:· Mr. Doody, you're up
·4· ·next.
·5· · · · · · ·MR. DOODY:· Mr. Commissioner, if we
·6· ·could recall Mr. Farkouh.· And if we could have
·7· ·just a few moments to make sure that the paper's
·8· ·in the right place.
·9· · · · · · ·THE COMMISSIONER:· Do you want five?
10· · · · · · ·MR. DOODY:· Five would be perfect.
11· ·Thank you, Mr. Commissioner.
12· · · · · · ·---· Break taken at 2:40 p.m.
13· · · · · · ·---· Upon resuming at 2:45 p.m.
14· · · · · · ·THE COMMISSIONER:· Hello again,
15· ·Mr. Farkouh.
16· · · · · · ·THE WITNESS:· Good afternoon.
17· · · · · · ·MR. DOODY:· Mr. Commissioner,
18· ·Mr. Farkouh was in the midst of being
19· ·cross-examined and I think Mr. Curtis is next.
20· · · · · · ·MR. CURTIS:· Thank you.
21· · · · · · ·GEORGE FARKOUH, previously sworn.
22· · · · · · ·CROSS-EXAMINATION BY MR. CURTIS:
23· · · · · · ·Q.· Thank you, good afternoon,
24· ·Mr. Farkouh.· My name is John Curtis.· I'm counsel
25· ·for Tom Derreck.
·1· · · · · · ·I want to start out by asking a few
·2· ·questions just to make sure I got your testimony
·3· ·correct because it was a few days ago.
·4· · · · · · ·So in your previous testimony, you
·5· ·confirmed that you were first elected to the City
·6· ·Council in 1986 and served one term as Councillor,
·7· ·is that correct?
·8· · · · · · ·A.· It would have been December 1985
·9· ·when I would have been sworn in.
10· · · · · · ·Q.· Okay.· And is that a two-year term?
11· · · · · · ·A.· Three-year term.
12· · · · · · ·Q.· Sorry, excuse me?
13· · · · · · ·A.· Three-year term.
14· · · · · · ·Q.· Three-year term?
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· Okay.· And then you were first
17· ·elected as Mayor in 1989?
18· · · · · · ·A.· '88.
19· · · · · · ·Q.· '88.
20· · · · · · ·A.· That would have been December '88
21· ·when you get sworn in.
22· · · · · · ·Q.· Thank you.· And you continued in
23· ·that office leading six consecutive Councils until
24· ·December 2006?
25· · · · · · ·A.· Would have been at the end of
·1· ·November.· December 1st, yes, of 2006.
·2· · · · · · ·Q.· Okay.· So that's two -- that's three
·3· ·years as a Councillor, and is that 17 years as
·4· ·Mayor?
·5· · · · · · ·A.· Eighteen years.
·6· · · · · · ·Q.· Eighteen years as Mayor.· So a total
·7· ·of 21 years as a member of consecutive City
·8· ·Councils?
·9· · · · · · ·A.· Yes.
10· · · · · · ·Q.· And okay, great.· So over the course
11· ·of those seven campaigns, one as Councillor and
12· ·the remaining six as Mayor, did you -- you
13· ·campaigned at the Algo Centre Mall, didn't you?
14· · · · · · ·A.· Yes, I did.
15· · · · · · ·Q.· And you had a campaign office in the
16· ·Algo Centre Mall?
17· · · · · · ·A.· Yes, I did.
18· · · · · · ·Q.· We heard from Mr. Derreck that City
19· ·Hall [sic] was spitting distance from the City
20· ·Hall, just yards away, that's correct?
21· · · · · · ·A.· That's correct.
22· · · · · · ·Q.· Or it was correct.· Excuse me.
23· · · · · · ·THE COMMISSIONER:· Where exactly,
24· ·Mr. Farkouh, was that office located?
25· · · · · · ·THE WITNESS:· Which office?
·1· · · · · · ·THE COMMISSIONER:· Your campaign office.
·2· · · · · · ·THE WITNESS:· It was on the second floor
·3· ·of the mall.
·4· · · · · · ·THE COMMISSIONER:· And adjacent to what
·5· ·other premise so that --
·6· · · · · · ·THE WITNESS:· It was adjacent to -- it
·7· ·was called at the time Jane's Garden.· And to the
·8· ·right of it would have been the card shop, which I
·9· ·think closed at the end.
10· · · · · · ·THE COMMISSIONER:· Thank you.
11· · · · · · ·BY MR. CURTIS:
12· · · · · · ·Q.· Okay.· I also understood that in
13· ·your previous testimony, you acknowledge having
14· ·been a member of the Elliot Lake Retirement
15· ·Living's Board of Directors during the entire time
16· ·that you were Mayor, is that correct?
17· · · · · · ·A.· With the exception of three
18· ·different years that I had to step off because of
19· ·the term limitations.
20· · · · · · ·Q.· And did you give evidence as to what
21· ·years those were?
22· · · · · · ·A.· I believe they were --
23· · · · · · ·Q.· I think you did, yeah, okay, thank
24· ·you.· So it's true that the Elliot Lake Retirement
25· ·Living offices were located at the Algo Centre
·1· ·Mall, correct?
·2· · · · · · ·A.· Yes.
·3· · · · · · ·Q.· And those offices, were they
·4· ·equipped with a boardroom?
·5· · · · · · ·A.· Yes.
·6· · · · · · ·Q.· And did the Board of Directors for
·7· ·the Elliot Lake Retirement Living meet in that
·8· ·boardroom?
·9· · · · · · ·A.· Yes.
10· · · · · · ·Q.· And you attended meetings --
11· · · · · · ·A.· Yes.
12· · · · · · ·Q.· -- in that boardroom?· So over that
13· ·20 years -- I guess it was more like 17 years of
14· ·board service, give or take?
15· · · · · · ·A.· Well, the offices were opened in
16· ·'91, and they were there, I believe, until their
17· ·new offices opened up, and I don't know, it would
18· ·have been 2008 maybe, 2009.
19· · · · · · ·Q.· Okay.· So during that time that you
20· ·were on the Board, did you ever visit or meet with
21· ·Elliot Lake Retirement Living's general manager or
22· ·employees at -- at that office?
23· · · · · · ·A.· Yes.
24· · · · · · ·Q.· So in fact you passed through the
25· ·mall many times during the course of your time as
·1· ·Mayor?
·2· · · · · · ·A.· Yes.
·3· · · · · · ·Q.· I think, and I may be misquoting
·4· ·you, you'll have to correct me if I'm wrong, I
·5· ·think during your testimony you said knowledge is
·6· ·power.· Do you recall that?
·7· · · · · · ·A.· Yes, I did.
·8· · · · · · ·Q.· Would you say that it's correct that
·9· ·over the 21 years, I guess, that you were either a
10· ·Councillor or a Mayor or on the Elliot Lake
11· ·Retirement Living Board that you came to know a
12· ·very great deal about your community?
13· · · · · · ·A.· Yes.
14· · · · · · ·Q.· And would it be important to a man
15· ·in that position to be in know about matters
16· ·arising and issues affecting the community,
17· ·especially with respect to its commercial
18· ·wellbeing, health and safety?
19· · · · · · ·A.· Yes.
20· · · · · · ·Q.· So you'd be alert to any potential
21· ·threat or concern that would impact the community?
22· · · · · · ·A.· Yes.
23· · · · · · ·Q.· If you heard on the street or in the
24· ·course of conversation with a citizen or employee
25· ·or one of your many contacts in the City about a
·1· ·problem that might negatively affect one of your
·2· ·City's commercial interests, the health and safety
·3· ·of people in your City, that would interest you,
·4· ·wouldn't it?
·5· · · · · · ·A.· Yes.
·6· · · · · · ·Q.· And you'd want to know more about
·7· ·it?
·8· · · · · · ·A.· Yes.
·9· · · · · · ·Q.· And you'd want to check it out and
10· ·learn what you could about it?
11· · · · · · ·A.· Yes.
12· · · · · · ·Q.· So that as a Mayor that would be an
13· ·important part of your job?
14· · · · · · ·A.· Sure, yes.
15· · · · · · ·Q.· So knowledge about a potential
16· ·threat to any City interest would -- you know,
17· ·that you had the power to look into, you would --
18· ·you would make an effort to look into something?
19· · · · · · ·A.· Yes.
20· · · · · · ·Q.· So do I recall I think in your first
21· ·-- your appearance, your evidence, you talked
22· ·about hearing talk on the street about leaks at
23· ·the mall.· Do you remember saying that?
24· · · · · · ·A.· Yes.
25· · · · · · ·Q.· And you confirmed in your previous
·1· ·appearance that the mall was a key component of
·2· ·the City's economic health and future prosperity.
·3· ·Your evidence is that you were concerned when you
·4· ·heard on the street that it was experiencing
·5· ·leaks.· I think that's --
·6· · · · · · ·A.· I'm not sure I said those words.
·7· ·Was that in my evidence?
·8· · · · · · ·Q.· I'm paraphrasing from my notes.· I
·9· ·haven't actually looked at the transcript.· Do you
10· ·recall being concerned when you heard about the
11· ·leaks, on the street?
12· · · · · · ·A.· I don't know I said that.
13· · · · · · ·THE COMMISSIONER:· Well, the question
14· ·now is do you recall being concerned when you
15· ·heard about the leak?· That's what -- the leaks on
16· ·the street.
17· · · · · · ·THE WITNESS:· If -- yes, of course.
18· ·Yeah.
19· · · · · · ·BY MR. CURTIS:
20· · · · · · ·Q.· So as the head of Council in 1989,
21· ·that was your first year as Mayor, correct?
22· · · · · · ·A.· Yes.
23· · · · · · ·Q.· That was the Council that placed the
24· ·library in the -- in the mall, is that correct?
25· · · · · · ·A.· Yes.
·1· · · · · · ·Q.· And you don't recall the Board's
·2· ·objections about the leaks?
·3· · · · · · ·A.· No, I don't.
·4· · · · · · ·Q.· Okay.· So you don't recall them
·5· ·being concerned about the leaks or talking about
·6· ·the fact that they'd already existed for a decade?
·7· · · · · · ·A.· No, I don't recall that.
·8· · · · · · ·Q.· Okay.· So when was it exactly that
·9· ·you learned about -- you talked about learning --
10· ·hearing it on the street.· When exactly was that?
11· · · · · · ·A.· Specifically to which leaks?
12· · · · · · ·Q.· Leaks in the mall, just general
13· ·leaks in the mall.· I think you said something to
14· ·the effect --
15· · · · · · ·A.· Probably from the day it was built
16· ·in 1980.
17· · · · · · ·Q.· So you'd heard about leaks since
18· ·then?
19· · · · · · ·A.· Yes, yes.
20· · · · · · ·Q.· So on that date that we heard
21· ·evidence, and I could call the Exhibit No. 3374
22· ·up.
23· · · · · · ·This is a business action record of Tom
24· ·Derreck.· And at page five, I don't think any of
25· ·this is in dispute.· You had a meeting with
·1· ·Mr. Derreck on October 19th and this note was used
·2· ·to refresh people's memory.· See on October 19th.
·3· ·It says:· "Outstanding - Draft action plan
·4· ·approved by all.· Discussed briefly with Mayor,
·5· ·who approved of what has been done."
·6· · · · · · ·So you had this?
·7· · · · · · ·A.· Yes.
·8· · · · · · ·Q.· And when you learned about the
·9· ·action that Mr. Derreck had taken, did you feel no
10· ·urge to go over and see the leaks and the problems
11· ·that he was reporting for yourself?
12· · · · · · ·A.· I was satisfied with his -- his work
13· ·that he was doing.
14· · · · · · ·Q.· So you were satisfied that a
15· ·gentleman who had only been in town for days was
16· ·taking substantial -- you might even say, you
17· ·know, drastic action about the leaks.· And you'd
18· ·been here for 25 years, or however long, and you
19· ·were simply content to trust his judgment?
20· · · · · · ·A.· Yes, I was.
21· · · · · · ·Q.· Those are all my questions, thank
22· ·you.
23· · · · · · ·THE WITNESS:· Thank you.
24· · · · · · ·THE COMMISSIONER:· Thank you.· Who's
25· ·going next?
·1· · · · · · ·CROSS-EXAMINATION BY MR. MYLES:
·2· · · · · · ·Q.· Good afternoon, Mr. Farkouh.
·3· · · · · · ·A.· Hello, Mr. Myles.
·4· · · · · · ·Q.· You know who I am?
·5· · · · · · ·A.· Yes.
·6· · · · · · ·Q.· I represent SAGE.· I'm not a lawyer.
·7· ·I have a few questions for you.· Ms. Kuka, if we
·8· ·could have AGCP000003378 put on the screen,
·9· ·please?
10· · · · · · ·And this is a letter from Mr. Leistner
11· ·to Mr. Carswell, the president of Algo --
12· · · · · · ·MS. KUKA:· Exhibit No. 467.
13· · · · · · ·BY MR. MYLES:
14· · · · · · ·Q.· Thank you.· If we scroll down about
15· ·the purchaser, the last line:
16· · · · · · ·"The direct benefit of the Algo Centre to
17· · · · · · ·the success of the retirement living
18· · · · · · ·program is substantial, but cannot be
19· · · · · · ·monetized."
20· · · · · · ·It was obvious from the start when this
21· ·negotiation with -- with them started that we were
22· ·aware, the City was aware, of how important this
23· ·benefit would be?
24· · · · · · ·A.· Yes.
25· · · · · · ·Q.· Very.
·1· · · · · · ·A.· Very, yes.
·2· · · · · · ·Q.· In fact.· If we turn the page, in
·3· ·reasons for purchase.· It's blocked out at the top
·4· ·there.· But I'm concerned with:
·5· · · · · · ·"City Council's future planning and
·6· · · · · · ·operational decisions will be directed so
·7· · · · · · ·as not to compromise the economic
·8· · · · · · ·well-being of Algo Centre."
·9· · · · · · ·Now, I realize this is coming from
10· ·Mr. Leistner, but it's clear he had the
11· ·understanding from the meetings that he attended
12· ·that this would be the City's method of how to
13· ·make sure that was this going to make this a
14· ·success.
15· · · · · · ·A.· Well, certainly the City was
16· ·concerned about the future of the hotel and the
17· ·mall portion.
18· · · · · · ·Q.· The next paragraph:
19· · · · · · ·"Secondly, because of the relationship
20· · · · · · ·noted above, there is a direct monetary
21· · · · · · ·fall-back benefit for this Purchaser, if
22· · · · · · ·required.· The flexibility the property
23· · · · · · ·tax system allows the City to indirectly
24· · · · · · ·support the enterprise by a reduction in
25· · · · · · ·its taxes, which currently are in excess,"
·1· · · · · · ·Of half a million annum.· How would he
·2· ·get to know this if it wasn't discussed?
·3· · · · · · ·A.· I'm not sure what, Mr. Myles, what
·4· ·you're asking me what he knows.
·5· · · · · · ·Q.· Was -- I'll rephrase the question.
·6· ·Mr. Kennealy, Mr. Bauthus and yourself went up and
·7· ·talked to him?
·8· · · · · · ·A.· Yes, we did.
·9· · · · · · ·Q.· Could you tell us if someone in that
10· ·group at that time mentioned this benefit that
11· ·could be applied to the Algo Centre?
12· · · · · · ·A.· I don't recall the exact
13· ·conversations we had.
14· · · · · · ·Q.· Thank you.· Now, you've indicated
15· ·you didn't go in the mall very often?
16· · · · · · ·A.· That's right.
17· · · · · · ·Q.· But you had frequent meetings with
18· ·Mr. Kennealy in his office?
19· · · · · · ·A.· No, I didn't have frequent meetings.
20· ·I would attend board meetings.
21· · · · · · ·Q.· You didn't go to the mall to have
22· ·meetings with him?
23· · · · · · ·A.· Not frequently, no.
24· · · · · · ·Q.· And when you did, you never noticed
25· ·any leaks in the library or anywhere else?
·1· · · · · · ·A.· No, I did not.
·2· · · · · · ·Q.· Thank you.· I'd like to talk to you
·3· ·about the passing of By-law 03-29, the Property
·4· ·Standards By-Law.· And your reading from the --
·5· · · · · · ·THE COMMISSIONER:· Do you want that
·6· ·brought up?· Or you happy to deal with it without
·7· ·it being brought up?
·8· · · · · · ·BY MR. MYLES:
·9· · · · · · ·Q.· Exhibit No. 6-71, I believe.
10· · · · · · ·MS. KUKA:· There is no 6-71.
11· · · · · · ·MR. DOODY:· Or try 6-7.
12· · · · · · ·MR. MYLES:· Yes, 6-7.
13· · · · · · ·THE COMMISSIONER:· Which is it?
14· · · · · · ·MS. KUKA:· 6-7.
15· · · · · · ·THE COMMISSIONER:· Thanks.
16· · · · · · ·BY MR. MYLES:
17· · · · · · ·Q.· And the question put the you is,
18· ·"Did you read it at the time, sir?"· And your
19· ·reply was, "I would have reviewed it and as I
20· ·would have done any other by-law that would have
21· ·come before me."· But you stated you didn't
22· ·understand it.
23· · · · · · ·A.· I don't believe said I didn't
24· ·understand it.· I said I didn't -- I don't
25· ·remember all the provisions that were in it.
·1· · · · · · ·Q.· "I can't say I was specifically
·2· ·aware of all of the provisions of this by-law," is
·3· ·what you did say.
·4· · · · · · ·A.· That's correct.
·5· · · · · · ·Q.· And then you go on to say:
·6· · · · · · ·"Along with other material that I would
·7· · · · · · ·have had for that particular meeting that
·8· · · · · · ·this would have appeared on, I can't say
·9· · · · · · ·with confidence I read every provision and
10· · · · · · ·understand every provision that was in
11· · · · · · ·that by-law."
12· · · · · · ·That by-law was Property Standards
13· ·dealing with safety and people's health and
14· ·welfare?
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· And you would promote that without
17· ·understanding what it was involved?
18· · · · · · ·A.· Clearly at the time I read it, I
19· ·understood it, but I couldn't recite it to you at
20· ·a future date.
21· · · · · · ·Q.· But you didn't understand it you
22· ·said?
23· · · · · · ·A.· No, I didn't say I didn't understand
24· ·it.· I don't believe that was the case.
25· · · · · · ·Q.· You weren't specifically aware of
·1· ·all the provisions.· If you didn't know the
·2· ·provisions, you couldn't understood it, could you?
·3· · · · · · ·A.· Yes, I could understand it.
·4· · · · · · ·Q.· Without reading all of the
·5· ·provisions and understanding them?
·6· · · · · · ·A.· No, I would have read all the
·7· ·provisions.
·8· · · · · · ·Q.· But you said you didn't.
·9· · · · · · ·A.· Whether I can recall all the
10· ·provisions.
11· · · · · · ·Q.· I'm going to read it again, sir.· "I
12· ·can't say I was specifically aware of all the
13· ·provisions of this by-law."
14· · · · · · ·A.· Yes, that's what I said, but I read
15· ·them.
16· · · · · · ·Q.· But you didn't understand them?
17· · · · · · ·A.· Not necessarily.
18· · · · · · ·Q.· And this dealt with safety of
19· ·people?
20· · · · · · ·A.· Yes.
21· · · · · · ·Q.· Later on there was an incident with
22· ·the Property Standards By-Law was put into force
23· ·when you put a fence up around a property?
24· · · · · · ·A.· Yes.
25· · · · · · ·Q.· You used it then?
·1· · · · · · ·A.· Yes.
·2· · · · · · ·Q.· So you were aware that you had these
·3· ·powers and could use them for other things in the
·4· ·City?
·5· · · · · · ·A.· Yes.
·6· · · · · · ·Q.· Such as getting repairs done to the
·7· ·mall?
·8· · · · · · ·A.· What I believe I've said in my
·9· ·testimony is I did not realize that the Property
10· ·Standards By-Law had the power in it to cause the
11· ·implementation of the repairs to the roof.· I
12· ·always understood that the Property Standards
13· ·By-Law dealt with, as Mr. Doody called it,
14· ·cosmetic issues.
15· · · · · · ·I did not realize at the time that it
16· ·had those provisions in it that Mr. Derreck
17· ·brought to our attention in 2006.
18· · · · · · ·Q.· Thank you.· Having said that the
19· ·mall was that important, and with all the issues
20· ·that we've discussed here and heard evidence on,
21· ·there was a kind of understanding in the City that
22· ·you didn't want to shut the mall down or -- and
23· ·there were four of five different incidents and
24· ·Mr. Allard alluded to it twice.· Once in verbal
25· ·testimony when he said, I believe, that he
·1· ·couldn't understand why nothing was done with the
·2· ·mall and when he was leaving, beginning to
·3· ·understand that now.· And he alluded to it in a --
·4· ·in his notes when he said this is the first time
·5· ·in four years that I've had a complaint about the
·6· ·mall.
·7· · · · · · ·It was alluded to inspect memos with
·8· ·Councillor McTaggart where we don't want to go to
·9· ·the health and safety.· We don't want to get the
10· ·Ministry in here.· We don't want to shut the mall
11· ·down or any part of it.
12· · · · · · ·That was sort of a belief that's come
13· ·out in testimony here about fixing the mall roof
14· ·with Mr. Nazarian.· People just didn't want to
15· ·deal with the mall or shut it down in any way.
16· · · · · · ·Would you say that was a standard
17· ·feeling across the City that people knew that and
18· ·they weren't going to bother with it?
19· · · · · · ·A.· I don't believe that was the
20· ·evidence, Mr. Myles.
21· · · · · · ·Q.· What do you think was the evidence,
22· ·sir?
23· · · · · · ·A.· That that wasn't the case.
24· · · · · · ·THE COMMISSIONER:· What specific part of
25· ·Mr. Myles' allegation do you specifically disagree
·1· ·with?· What part of Mr. Myles' assertion do you
·2· ·disagree with?
·3· · · · · · ·THE WITNESS:· He made several
·4· ·assertions, Your Honour.
·5· · · · · · ·THE COMMISSIONER:· Which ones do you
·6· ·disagree with?
·7· · · · · · ·THE WITNESS:· That there was some sort
·8· ·of pressure or influence not to do anything that
·9· ·affects the mall.· That's not the case at all.
10· · · · · · ·BY MR. MYLES:
11· · · · · · ·Q.· There was a memo about this
12· ·vibrating roof that was put out by a City
13· ·inspector, Mr. Swan I believe, that he said the
14· ·roof is vibrating evidently worse than normal.
15· · · · · · ·When you have a vibrating roof, that's
16· ·not normal.· When it's actual movement on the
17· ·roof, that needs to be looked at.· Here's a City
18· ·official that's phoning the mall and they sent a
19· ·guy up to take a look to see what's going on.
20· · · · · · ·So they are aware that there's a problem
21· ·there, but the City officials aren't going to come
22· ·over and shut the mall down to have a look at it?
23· · · · · · ·A.· What year would that be, Mr. Myles,
24· ·that you're referring to?
25· · · · · · ·Q.· I don't have that exhibit, sir, I'm
·1· ·sorry.· While I'm getting help with that, perhaps
·2· ·we could have CELP000004681 put up, please,
·3· ·Ms. Kuka.
·4· · · · · · ·MS. KUKA:· Exhibit No. 11-84.
·5· · · · · · ·MR. MYLES:· Thank you.
·6· · · · · · ·BY MR. MYLES:
·7· · · · · · ·Q.· This is a series of e-mails in
·8· ·April 28 of 2005, with the whole pretty well
·9· ·Council on there, including yourself, health and
10· ·safety issue.· The last line of the first
11· ·paragraph:· "I am not sure why it now seems to
12· ·have become an issue requiring Council involvement
13· ·and discussion."· And so Troy Speck is the one
14· ·that sent that and he did not want this brought to
15· ·Council for some reason.
16· · · · · · ·And this is after Cathy McTaggart says
17· ·further down in the next e-mail.· A health and
18· ·safety issue again with high importance.· "I feel
19· ·that this is something we must deal with at our
20· ·next Caucus meeting, which I believe is this
21· ·coming Monday."
22· · · · · · ·And I'd like to go down to the very last
23· ·e-mail -- no, sorry.· The next one down.· Thank
24· ·you.· And I'll go to the big paragraph there.
25· ·"Can you please advise me on how to file a health
·1· ·and safety issue complaint concerning the
·2· ·condition of the library?"· And this was from
·3· ·Suzanne Morin.
·4· · · · · · ·Now, obviously with all of the people
·5· ·involved there, somebody should have known how to
·6· ·fill out a health and complaint and got it done or
·7· ·got back to her on how to do that.· That didn't
·8· ·happen it looks like.
·9· · · · · · ·There are a lot of complaints that are
10· ·gone in and Council and people on Council were
11· ·aware of it, but nobody was taking any steps
12· ·really to look into it.· It was all sort of
13· ·smoothed out and dealt with verbally rather than
14· ·taking direct action to solve this problem.· Would
15· ·you agree with that?
16· · · · · · ·A.· No, I don't.
17· · · · · · ·Q.· What steps were taken to solve the
18· ·leaking problem?
19· · · · · · ·A.· Mr. Speck was involved with the
20· ·librarian and the Board.· And the personnel
21· ·director, Mrs. Leddy, was working with
22· ·Mrs. Fazekas at this point.· There was a flurry of
23· ·activity that was going on.
24· · · · · · ·Q.· Were the activities of these people
25· ·you mentioned going on stop the leaks?
·1· · · · · · ·A.· Not to stop the leaks.· But they
·2· ·were working with the staff, it was staff activity
·3· ·that was going on.
·4· · · · · · ·Q.· And what activity was that to fix
·5· ·the leaks?
·6· · · · · · ·A.· I don't know what your -- what
·7· ·you're -- I'm not sure what you're asking.
·8· · · · · · ·Q.· I'm following your --
·9· · · · · · ·A.· No.· You're asking me if there was
10· ·anybody helping to file a health and safety and
11· ·I'm saying to you there was people because there's
12· ·a Health and Safety Committee that's made up of
13· ·management and made up of staff.· And it is
14· ·administered through the personnel department.
15· ·And they have the resources to work with the staff
16· ·at the library to work on that.· That was my
17· ·answer to you.
18· · · · · · ·Q.· And you were included in this group,
19· ·so you must know what steps were taken to deal
20· ·with this --
21· · · · · · ·A.· I don't think I was included in this
22· ·group of activity here.
23· · · · · · ·Q.· If we go back to the first e-mail
24· ·please, Ms. Kuka.· You're copied on this, sir, as
25· ·all Council members are.· This whole series of
·1· ·e-mails.
·2· · · · · · ·These people can't fix the leaks.· They
·3· ·can only suggest that somebody get something done
·4· ·about it and they go to Council.· Council is put
·5· ·off because they don't want them going to Council.
·6· ·And they try to deal with it without going through
·7· ·Council.· But what was being done?· What happened
·8· ·to fix the leaks?· The leaks never ever did get
·9· ·fixed.· This is a CAO and he's not taking steps to
10· ·get this thing done.
11· · · · · · ·A.· I don't believe that's the case,
12· ·Mr. Myles.
13· · · · · · ·Q.· Well, he's even said they don't want
14· ·to bring people in like the Ministry of Labour and
15· ·he doesn't want the Health and Safety.
16· · · · · · ·MR. CASSAN:· Mr. Commissioner, that
17· ·statement is one that Mr. Myles has made
18· ·previously.· It's not accurately reflected in the
19· ·documents.· I don't have the document number
20· ·before me.· But the actual statement was that
21· ·they've done everything short of bringing the
22· ·Ministry of Labour or the Ministry of Health.
23· · · · · · ·And the mischaracterization is something
24· ·that I think, even though Mr. Myles is doing an
25· ·excellent job and not as counsel, we do need to
·1· ·look carefully at what the evidence in front of us
·2· ·does actually say.
·3· · · · · · ·THE COMMISSIONER:· There is a
·4· ·difference, Mr. Myles, between -- there's a
·5· ·difference in how you characterize what was said.
·6· · · · · · ·MR. MYLES:· Thank you, appreciate that.
·7· ·I have no further questions --
·8· · · · · · ·THE WITNESS:· But I'd like to correct
·9· ·the record, Mr. Myles, about that question you
10· ·posed to me about the vibration and the building
11· ·inspector and I asked for the date on that.· Would
12· ·we have the date?
13· · · · · · ·BY MR. MYLES:
14· · · · · · ·Q.· I do now.· That was Monday, 25th of
15· ·February, 2008.
16· · · · · · ·A.· Mr. Myles, my term ended on December
17· ·1st, 2006.
18· · · · · · ·Q.· Yes, sir.· I wasn't talking about
19· ·your term.· I'm talking about --
20· · · · · · ·A.· I can only be responsible for what I
21· ·--
22· · · · · · ·Q.· I'm talking -- I was talking about
23· ·the general feeling in the community that nothing
24· ·was being done with the mall and it was obviously
25· ·carried out through an awful lot of departments
·1· ·and places and that was the -- I'll ask you.· It's
·2· ·a general feeling of the public that nothing was
·3· ·being done about the mall and not just the public,
·4· ·but the City employees to fix leaks.
·5· · · · · · ·A.· That's your opinion.
·6· · · · · · ·Q.· I'm asking you yours.
·7· · · · · · ·A.· I think the evidence has been
·8· ·presented and I've answered all the evidence that
·9· ·was put forward to me.
10· · · · · · ·Q.· But that doesn't answer my question,
11· ·sir.
12· · · · · · ·A.· I think there was lots of efforts
13· ·taking place.
14· · · · · · ·Q.· Thank you.
15· · · · · · ·MR. MYLES:· Thank you, Mr. Commissioner.
16· · · · · · ·THE COMMISSIONER:· Thank you.
17· · · · · · ·CROSS-EXAMINATION BY MR. ROY:
18· · · · · · ·Q.· I want to thank Mr. Myles for
19· ·covering some of the topics that I might have
20· ·otherwise touched on.
21· · · · · · ·Mr. Farkouh, I'm Peter Roy.· I'm the
22· ·lawyer for ELMAC.
23· · · · · · ·You may know, sir, that I've had a long
24· ·involvement with the community of Elliot Lake and
25· ·that for many years I was the legal counsel,
·1· ·litigation counsel for Rio Algom.· Were you aware
·2· ·of that?
·3· · · · · · ·A.· No, I wasn't.
·4· · · · · · ·Q.· And that I was involved in the
·5· ·negotiations that arose out of the cancellation of
·6· ·the Hydro contracts, the closing -- opening and
·7· ·closing of the Stanley Mine, and the various
·8· ·salvage undertakings that have gone on over the
·9· ·years.
10· · · · · · ·Mr. Farkouh, I want just to touch on
11· ·your educational background.· I understand you
12· ·have a Masters of Business Administration?
13· · · · · · ·A.· Yes, I do.
14· · · · · · ·Q.· And you went to Western?
15· · · · · · ·A.· Yes, I did.
16· · · · · · ·Q.· And what year did you graduate, sir?
17· · · · · · ·A.· 1973.
18· · · · · · ·Q.· I guess we were there at the same
19· ·time.· You -- prior to doing your MBA, what course
20· ·of study did you follow?
21· · · · · · ·A.· I did a Bachelor of Science and then
22· ·I did a Graduate Diploma in Commerce in Sudbury,
23· ·in between --
24· · · · · · ·Q.· At Laurentian?
25· · · · · · ·A.· Yes.· In between Western first
·1· ·degree, Laurentian, then back to Western.
·2· · · · · · ·Q.· So you were pretty highly -- I
·3· ·suggest that you're probably the most highly
·4· ·educated Mayor that the City of Elliot Lake has
·5· ·had.
·6· · · · · · ·A.· I don't know about that, but.
·7· · · · · · ·Q.· Darn close I'll bet, right?· And
·8· ·you're a successful businessman, sir?
·9· · · · · · ·A.· Yes, I am.
10· · · · · · ·Q.· You run three car dealerships.· Do
11· ·you run any other businesses?
12· · · · · · ·A.· I do consulting.
13· · · · · · ·Q.· Business consulting?
14· · · · · · ·A.· Yes.
15· · · · · · ·Q.· In terms of what?· What aspect of
16· ·consulting are you involved in?
17· · · · · · ·A.· Usually I make presentations about
18· ·economic development issues.
19· · · · · · ·Q.· When you did your MBA, sir, what do
20· ·you specialize in?
21· · · · · · ·A.· Finance and marketing.
22· · · · · · ·Q.· Okay.· And you're still active in
23· ·those fields, or active in business and active in
24· ·you consulting work?
25· · · · · · ·A.· Not as active in the consulting, but
·1· ·in the business part.
·2· · · · · · ·Q.· May I ask, sir, how old are you?
·3· · · · · · ·A.· I will be, on the 27th of May, 66.
·4· · · · · · ·Q.· Okay.· And you're fine?· Your
·5· ·memory's fine?· Your recollections are fine?
·6· · · · · · ·A.· Well, I try.
·7· · · · · · ·Q.· You try.· But there's nothing you
·8· ·know of --
·9· · · · · · ·THE COMMISSIONER:· He's just a
10· ·youngster.
11· · · · · · ·MR. ROY:· He's two years older than I
12· ·am.
13· · · · · · ·THE COMMISSIONER:· Don't explore that
14· ·subject in too much detail, please.
15· · · · · · ·THE WITNESS:· I always say age is a
16· ·number.
17· · · · · · ·BY MR. ROY:
18· · · · · · ·Q.· Age is a number, but there's nothing
19· ·physically you're aware of that would affect your
20· ·--
21· · · · · · ·A.· No, I'm in good health.· Knock on
22· ·wood.
23· · · · · · ·Q.· Knock on wood.· As we all knock in
24· ·unison.· I believe you stated that the mines
25· ·started closing in 1990?
·1· · · · · · ·A.· Yes.
·2· · · · · · ·Q.· What mine was that in 1990, do you
·3· ·recall?
·4· · · · · · ·A.· Yes.· They started actually, Denison
·5· ·and Quirke mine.
·6· · · · · · ·Q.· And Quirke was a Rio Algo mine?
·7· · · · · · ·A.· Well, there was three Rio Algo mines
·8· ·running.· There was Quirke One, Quirke Two, and
·9· ·Panel, and Stanley.· And Denison had their main
10· ·mine.
11· · · · · · ·Q.· And did you only become aware that
12· ·those closings were going to take place in 1990 or
13· ·did you have any prior indication that was going
14· ·to happen?
15· · · · · · ·A.· No, knowledge.· It was a visit to my
16· ·office in January of 1990 by the two local mining
17· ·executives.
18· · · · · · ·Q.· And who was it who visited you?
19· · · · · · ·A.· Oh, you're testing my memory.· I
20· ·think one of them was Harry Waschuck.
21· · · · · · ·Q.· Right.
22· · · · · · ·A.· And for Denison, I believe it might
23· ·have been Fergus Kerr.
24· · · · · · ·Q.· And when you say they visited your
25· ·mayoralty office?
·1· · · · · · ·A.· Yes.
·2· · · · · · ·Q.· It must have been a shock to you?
·3· · · · · · ·A.· It was a shock.
·4· · · · · · ·Q.· You've testified that you saw the
·5· ·City of Elliot Lake becoming a ghost town.
·6· · · · · · ·A.· Yes.
·7· · · · · · ·Q.· Who first came up with idea of
·8· ·Retirement Living?
·9· · · · · · ·A.· It was started as a committee in
10· ·1987 as part of our economic development.· We had
11· ·an economic development committee with really very
12· ·little resources in it.· And it was Mrs. Dimock
13· ·along with --
14· · · · · · ·Q.· Mrs.· Dimock was a Denison employee?
15· · · · · · ·A.· She was the vice-president of
16· ·housing for Denison.
17· · · · · · ·Q.· Right.
18· · · · · · ·A.· And Mr. Dictoyot who was the manager
19· ·of housing and personnel for Rio Algom.
20· · · · · · ·Q.· Right.
21· · · · · · ·A.· And then we put together a committee
22· ·of Council that had Councillor Mann, Fred Mann.
23· ·And then we were each asked to put in $25,000.· So
24· ·the kick off for that program in 1987 was $75,000
25· ·just to start advertising.
·1· · · · · · ·The mining companies at the time owned
·2· ·their own properties and so they did their own
·3· ·rental and but it was marketed as the Elliot Lake
·4· ·Retirement Living Program.
·5· · · · · · ·Q.· And the objective was to eventually
·6· ·take over that housing?
·7· · · · · · ·A.· Well, what was happening clearly
·8· ·leading up to 1987, the two mining companies had
·9· ·overbuilt, based on estimates that were not
10· ·realized.
11· · · · · · ·Q.· You mean they built for workers that
12· ·they didn't need?
13· · · · · · ·A.· Exactly.
14· · · · · · ·Q.· Because of the fall-off in the
15· ·demand for uranium?
16· · · · · · ·A.· Exactly.· So they had a number of
17· ·their homes that were never lived in.· They were
18· ·brand newly built and sitting vacant.
19· · · · · · ·Q.· So was the thought at that time that
20· ·the City would pick up that or Retirement Living
21· ·would pick up those homes and move into the
22· ·retirement business?
23· · · · · · ·A.· Well, the thinking was actually that
24· ·you would bring in residents who did not need a
25· ·job.· They had their own -- they were
·1· ·self-sufficient, through pensions or other means,
·2· ·and that they would occupy these --
·3· · · · · · ·Q.· You didn't want any lawyers showing
·4· ·up, I take it.
·5· · · · · · ·A.· They were welcome too.· Retired
·6· ·lawyers.· Retired judges.
·7· · · · · · ·Q.· I'm kidding.· I'm talking about
·8· ·pensions.
·9· · · · · · ·But the -- sorry, lost my train of
10· ·thought there thinking about retirement.
11· · · · · · ·But starting in 1987, you were a
12· ·Councillor at that point?
13· · · · · · ·A.· Yes, I was.
14· · · · · · ·Q.· And you started to breathe life into
15· ·this program, didn't you?
16· · · · · · ·A.· Yes.
17· · · · · · ·Q.· It became a long-term objective for
18· ·the City.· I'm going to suggest to you, sir, that
19· ·it was pretty well known that given the grade of
20· ·the ore in the Elliot Lake area and the falling
21· ·price of uranium and falling demand at that time,
22· ·that these mines were going to eventually, sooner
23· ·rather than later, close.
24· · · · · · ·A.· I don't believe that that was the
25· ·common knowledge around.· The common knowledge
·1· ·around was that they had long-term contracts into
·2· ·the year 2030.
·3· · · · · · ·Q.· The Hydro contracts.
·4· · · · · · ·A.· Well, not only the Hydro contracts,
·5· ·but they had them with the Tokyo Electric.· They
·6· ·had them with the British Utility Company.· They
·7· ·had them with the Tennessee Valley Authority.· And
·8· ·of course Ontario Hydro, which was our guarantor
·9· ·basically, because Ontario Hydro will be here for
10· ·a long time.
11· · · · · · ·Q.· So you -- and you knew about all
12· ·those contracts?
13· · · · · · ·A.· Not -- not intimately, no.
14· · · · · · ·Q.· You remember them, though?
15· · · · · · ·A.· Yes, yes.
16· · · · · · ·Q.· You were aware of them.· And were
17· ·you aware of there being cancellations with
18· ·respect to those contracts?
19· · · · · · ·A.· Yes.
20· · · · · · ·Q.· And when did the first contracts
21· ·start being canceled?
22· · · · · · ·A.· I don't know.
23· · · · · · ·Q.· To the best of your knowledge, was
24· ·it before 1990?
25· · · · · · ·A.· I really don't know.
·1· · · · · · ·Q.· Okay.· But at that - starting in
·2· ·1987 and moving on, before the time you became
·3· ·Mayor, were you concerned about the economic base
·4· ·of the City?· I'm thinking of the mall.· You've
·5· ·said the small was key to I think it was the
·6· ·second largest tax -- source of tax revenue apart
·7· ·from the mines.· Is that --
·8· · · · · · ·A.· No.· Commercial.
·9· · · · · · ·Q.· Commercial?
10· · · · · · ·A.· Yes, that's why we had the
11· ·residential --
12· · · · · · ·Q.· Yes, sorry, of course.· In the
13· ·commercial sphere.
14· · · · · · ·There's been some evidence given with
15· ·respect to the library and the library moving into
16· ·the mall.· There was a fair bit of space that was
17· ·taken up by the library in the mall, was there
18· ·not?
19· · · · · · ·A.· I believe 8,500 square feet.
20· · · · · · ·Q.· I think that's right.· I thought it
21· ·was 8,000,· but if it's 8,500, that's good.· You
22· ·were on the Board of the library at that stage,
23· ·weren't you?
24· · · · · · ·A.· I was on the Board from --
25· · · · · · ·Q.· Was it '85 to '88?
·1· · · · · · ·A.· December '85 until I became Mayor,
·2· ·which would have been December of '88.· So I was
·3· ·on for three years.
·4· · · · · · ·Q.· Okay.· So that was, I suggest to
·5· ·you, sort of an important vote of confidence from
·6· ·the City to -- to the commercial base of Elliot
·7· ·Lake by moving this large tenant into the mall,
·8· ·would you agree?
·9· · · · · · ·A.· Yes.
10· · · · · · ·Q.· And they were actually at that point
11· ·one of the anchor tenants, if not the anchor
12· ·tenant in the mall?
13· · · · · · ·A.· Yes.
14· · · · · · ·Q.· Okay.· So you were in favour of
15· ·that?
16· · · · · · ·A.· Yes, I was.
17· · · · · · ·Q.· And that achieved your objective
18· ·of -- or one -- one of the steps in achieving your
19· ·objective in preventing Elliot Lake from turning
20· ·into a ghost town?
21· · · · · · ·A.· At this point in time, Elliot Lake,
22· ·this would have been '89, the mines were still
23· ·going.· They didn't announce the closures until
24· ·1990.· So this is a year before when the library
25· ·moved into the mall.
·1· · · · · · ·Q.· Okay.· But you must have felt that
·2· ·that was a vote of confidence for the mall?
·3· · · · · · ·A.· Yes, for the mall, yes.
·4· · · · · · ·Q.· Were you aware that the mall was
·5· ·having any difficulties that time in terms of
·6· ·attracting long-term major tenants?
·7· · · · · · ·A.· Yes, they were losing tenants.
·8· · · · · · ·Q.· They were losing tenants.· Yes, they
·9· ·were.
10· · · · · · ·A.· Yes.
11· · · · · · ·Q.· And -- and this helped fill that
12· ·gap?
13· · · · · · ·A.· Yes.
14· · · · · · ·Q.· Who hired Mr. Kennealy?
15· · · · · · ·A.· The Board.
16· · · · · · ·Q.· Was it the Board of Retirement
17· ·Living?
18· · · · · · ·A.· Yes.
19· · · · · · ·Q.· Dictoyot was on the Board at that
20· ·time, was he?
21· · · · · · ·A.· Yes, he was.
22· · · · · · ·Q.· Was he the driving force behind
23· ·hiring Mr. Kennealy?
24· · · · · · ·A.· He was one of the 12 directors.
25· · · · · · ·Q.· And you were on the Board?
·1· · · · · · ·A.· Yes, I was.
·2· · · · · · ·Q.· And was the whole Board in favour of
·3· ·hiring Mr. Kennealy?
·4· · · · · · ·A.· Yes.
·5· · · · · · ·Q.· And it's accurate for me to say,
·6· ·sir, that you and perhaps not just you, but many
·7· ·people have a very high regard of Mr. Kennealy and
·8· ·a great deal of respect for his abilities?
·9· · · · · · ·A.· Yes.
10· · · · · · ·Q.· Are you neighbours?
11· · · · · · ·A.· Same street.
12· · · · · · ·Q.· Same street?
13· · · · · · ·A.· But not neighbours.
14· · · · · · ·Q.· Not neighbours.· Close?
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· I understand you walk a fair bit?
17· · · · · · ·A.· Yes, we do.
18· · · · · · ·Q.· You and Mr. Kennealy walk a fair bit
19· ·together?
20· · · · · · ·A.· Yes, we do.
21· · · · · · ·Q.· Do you walk daily?
22· · · · · · ·A.· No.
23· · · · · · ·Q.· How many times a week?· It might
24· ·embarrass me when you answer that question.
25· · · · · · ·A.· Maybe two, three times.
·1· · · · · · ·Q.· Two, three times a week?
·2· · · · · · ·A.· Yeah.
·3· · · · · · ·Q.· And these are exercise walks --
·4· · · · · · ·A.· Yes.
·5· · · · · · ·Q.· -- that go on for --
·6· · · · · · ·A.· Yes.
·7· · · · · · ·Q.· -- some -- how long are these walks
·8· ·usually?
·9· · · · · · ·A.· Probably 35 minutes.
10· · · · · · ·Q.· Now, we know that you're a fairly
11· ·avid golfer?
12· · · · · · ·A.· I'm not avid, but I do golf.
13· · · · · · ·Q.· I didn't say you were good.· I said
14· ·you were avid.
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· And Mr. Kearns is often a frequent
17· ·partner of yours on the golf course?
18· · · · · · ·A.· Yes, he is.
19· · · · · · ·Q.· And I'm told that you may have
20· ·introduced Mr. Kennealy into the wonders of the
21· ·game of golf as well?
22· · · · · · ·A.· Oh, Mr. Kennealy is a proficient
23· ·athlete in his own right.
24· · · · · · ·Q.· He was in -- I think he had a hockey
25· ·scholarship to St. Lawrence?
·1· · · · · · ·A.· That's right.
·2· · · · · · ·Q.· I'm from Copper Cliff and there are
·3· ·lots of hockey players that came out of Copper
·4· ·Cliff and went to St. Lawrence, and RPI and Brown.
·5· ·It's a wonderful spot.· So is he better than you
·6· ·guys are?
·7· · · · · · ·A.· I think we're all equal.
·8· · · · · · ·Q.· You're all equal.· You play golf
·9· ·fairly frequently, though?
10· · · · · · ·A.· A couple of times a week.
11· · · · · · ·Q.· Okay.· Do you walk or do you ride?
12· · · · · · ·A.· Oh, no.
13· · · · · · ·Q.· It's been years since I looked at
14· ·the golf course.
15· · · · · · ·A.· It depends on the weather.
16· · · · · · ·Q.· When I looked at it years ago, it
17· ·was a track, and by that I mean it wasn't really
18· ·much of a golf course.· And I think you fellas --
19· ·Retirement Living got together and decided that
20· ·one of the things you'd like to have to attract
21· ·people into this community would be a golf course.
22· · · · · · ·A.· Yes.
23· · · · · · ·Q.· A decent golf course.
24· · · · · · ·A.· Well, it was part of an overall
25· ·strategy called the Destination Elliot Lake.
·1· · · · · · ·Q.· Sure.· The fish were already here,
·2· ·but you had to get a golf course and you have one
·3· ·now?
·4· · · · · · ·A.· Yes, we do.
·5· · · · · · ·Q.· Pretty decent?
·6· · · · · · ·A.· Yes.
·7· · · · · · ·Q.· Mr. Doody asked you about how you
·8· ·dealt with your role and competing -- perhaps
·9· ·competing interests while serving as the Mayor and
10· ·serving as a member of the Board of Retirement
11· ·Living.
12· · · · · · ·Now, I -- you've been on that Retirement
13· ·Living Board, I guess, from '91 to '99, and you
14· ·left for a term restriction at that time?
15· · · · · · ·A.· I think there was another one prior
16· ·to '99 that I would have been off.· Because
17· ·there's six years.
18· · · · · · ·Q.· It's a six-year period.
19· · · · · · ·A.· Two years, two years, and then you
20· ·have to go off for a year.· So I -- but I was
21· ·definitely off in '99?
22· · · · · · ·Q.· And you went back in 2000?
23· · · · · · ·A.· Yes.
24· · · · · · ·Q.· And in 2000, you were on as a
25· ·representative for St. Joseph's Hospital.
·1· · · · · · ·A.· No, 2007, I believe.
·2· · · · · · ·Q.· 2007 you were the rep for
·3· ·St. Joseph's Hospital?
·4· · · · · · ·A.· Yes.
·5· · · · · · ·Q.· And do you know, sir, whether did
·6· ·Mr. Kennealy approach the Board of St. Joseph's to
·7· ·request that you be made the Board representative
·8· ·on Retirement Living at that time?
·9· · · · · · ·A.· No.· I approached them.
10· · · · · · ·Q.· You approached them?
11· · · · · · ·A.· Yes, because I had been a director
12· ·for the hospital for 12 years --
13· · · · · · ·Q.· Right.
14· · · · · · ·A.· -- prior to becoming Mayor.· So I
15· ·was very familiar with the workings of the Board
16· ·of Directors of the hospital.
17· · · · · · ·Q.· Right.· So you asked the Board to
18· ·appoint you to Retirement Living, not
19· ·Mr. Kennealy?
20· · · · · · ·A.· That's right.
21· · · · · · ·Q.· I'm sure that you and Mr. Kennealy
22· ·take great pride in your accomplishments in
23· ·bringing Retirement Living to the point that it is
24· ·now?
25· · · · · · ·A.· Yes.
·1· · · · · · ·Q.· And I don't know whether it was
·2· ·complimentary or not, but there have been signs
·3· ·around the City where people have referred to you
·4· ·as King George and Mr. Kennealy as Prince Richard.
·5· ·Are you aware of that?
·6· · · · · · ·A.· Not really.
·7· · · · · · ·Q.· Not really?· You've heard it though,
·8· ·you've seen those signs, haven't you?
·9· · · · · · ·A.· I don't pay attention.
10· · · · · · ·Q.· Hard to avoid, weren't they, down at
11· ·the bottom of -- you said to Mr. Doody that you
12· ·saw your primary role on the Board of Retirement
13· ·Living as the advocate for the City's interests to
14· ·ensure Retirement Living is conducting the
15· ·business in the best interest of the population of
16· ·Elliot Lake, and to stabilize the community of
17· ·Elliot Lake to help it grow and survive from
18· ·becoming a ghost town.· And you went onto say --
19· ·I'll just read it:
20· · · · · · ·"So I saw my role if there's any concerns
21· · · · · · ·that the Council might have had or
22· · · · · · ·concerns that I might have learned from
23· · · · · · ·the my interaction with the public that I
24· · · · · · ·would take those concerns and make sure
25· · · · · · ·that Retirement Living is always acting in
·1· · · · · · ·best interests of the taxpayers of Elliot
·2· · · · · · ·Lake."
·3· · · · · · ·And I suggest to you, sir, that that's
·4· ·precisely the course you followed and that
·5· ·description of your duties dictated how you
·6· ·carried out your role both on Retirement Living
·7· ·and with the City.
·8· · · · · · ·A.· Yes, sir.
·9· · · · · · ·Q.· Now, I take it it's not just acting
10· ·in the best interests of the taxpayers of Elliot
11· ·Lake, it's acting in the best interests of the
12· ·citizens of Elliot Lake?
13· · · · · · ·A.· That's correct.
14· · · · · · ·Q.· So it's not just an economic --
15· · · · · · ·A.· No.
16· · · · · · ·Q.· -- drive that you have?
17· · · · · · ·A.· No.
18· · · · · · ·THE COMMISSIONER:· Is this a good time,
19· ·Mr. Roy, to take our afternoon break?
20· · · · · · ·MR. ROY:· Yes, it is.
21· · · · · · ·---· Afternoon break taken at 3:30 p.m.
22· · · · · · ·---· Upon resuming at 3:45 p.m.
23· · · · · · ·BY MR. ROY:
24· · · · · · ·Q.· Farkouh, Mr. Doody was asking you
25· ·about the caucus meetings that you had.
·1· · · · · · ·A.· Yes.
·2· · · · · · ·Q.· The Council caucus meetings.· And
·3· ·just to refresh your memory, you said:
·4· · · · · · ·Yes, and the purpose, the rationale for
·5· · · · · · ·it, was given that you have councillors on
·6· · · · · · ·different committees and these councillors
·7· · · · · · ·are not up to date on what these
·8· · · · · · ·councillors are doing with their
·9· · · · · · ·committees.· It was a forum to bring the
10· · · · · · ·very custom councillors into one session
11· · · · · · ·where there could be this informal and
12· · · · · · ·free exchange of information and ideas.
13· · · · · · ·And that's an accurate explanation of
14· ·the reason why you had those caucus meetings?
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· And that's reflective of your
17· ·management style, is it not?· You want to have --
18· · · · · · ·A.· Yes.
19· · · · · · ·Q.· -- casual, frank exchanges of
20· ·information?
21· · · · · · ·A.· Yes.
22· · · · · · ·Q.· So that everybody can understand
23· ·what's going on and make sure that everybody
24· ·involved in a decision is on the same page?
25· · · · · · ·A.· Yes.
·1· · · · · · ·Q.· You also said, and I think you've
·2· ·been asked by Mr. Myles and perhaps other counsel
·3· ·this afternoon, that in a City like Elliot Lake
·4· ·it's pretty easy to know what's going on?
·5· · · · · · ·A.· Yes.
·6· · · · · · ·Q.· And if you ask any questions, you're
·7· ·going to find out pretty much anything you want or
·8· ·need to know?
·9· · · · · · ·A.· Yes.
10· · · · · · ·Q.· You were happy when Retirement
11· ·Living decided to acquire the mall?
12· · · · · · ·A.· Yes, I was.
13· · · · · · ·Q.· And you said it was, at that stage,
14· ·the lifeline for the community?
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· You were asked at that time -- I'll
17· ·just read it.
18· · · · · · ·MR. ROY:· Mr. Commissioner, I wasn't
19· ·sure what the procedure was with respect to
20· ·drawing up transcript references, so if you'll
21· ·bear with me while I read.· It's about a page.
22· · · · · · ·THE COMMISSIONER:· Just tell us what the
23· ·reference is, that's all.
24· · · · · · ·MR. ROY:· Okay.· This is at pages 867
25· ·and 68 of the record.
·1· ·BY MR. ROY:
·2· ·Q.· You said:
·3· ·"Because of the experience we had leading
·4· ·up to this, there wasn't too many
·5· ·investors knocking on our door to come and
·6· ·invest in Elliot like.· And given the
·7· ·importance of the mall and the hotel to
·8· ·the community and to our infrastructure,
·9· ·it was almost the lifeline give given to
10· ·us by Retirement Living.· And I'm certain
11· ·it wasn't an easy decision for the Board
12· ·to make this decision to go -- to give the
13· ·go ahead to Mr. Kennealy to go at it
14· ·because this is going outside their
15· ·comfort zone, if you wish, of property
16· ·rentals, of residential.· And at this
17· ·point in time, this was a major
18· ·undertaking with a high risk.· It could
19· ·have easily not worked out and that would
20· ·have jeopardized the entire Retirement
21· ·Living Program and by extension the
22· ·community's survival."
23· ·That's accurate?
24· ·A.· Yes, it is.
25· ·Q.· And then you were asked by
·1· ·Mr. Doody:· "I take it, sir, you were consulted
·2· ·before the Board made its decision?"· And you
·3· ·responded:
·4· · · · · · ·"I might have been.· I can't tell you.· I
·5· · · · · · ·mean, I was the director so obviously I
·6· · · · · · ·was in touch with Sister Quackenbush who
·7· · · · · · ·was the general -- the CEO of St. Joseph's
·8· · · · · · ·Hospital because we worked together on a
·9· · · · · · ·number of· projects.· So it is -- I can't
10· · · · · · ·tell you who and how, but I was made aware
11· · · · · · ·of the course of our own representative,
12· · · · · · ·Mr. Krado."?
13· · · · · · ·A.· Yes.
14· · · · · · ·Q.· "Kept me up-to-date on what was
15· ·happening at that point."
16· · · · · · ·Now, just stopping there, sir.· You
17· ·might have been consulted at the time that the
18· ·mall was going to be acquired?· That's an
19· ·understatement, is it not?
20· · · · · · ·A.· Well, I was involved in the previous
21· ·year, this -- you're talking about 1999 here?
22· · · · · · ·Q.· Well, I think that's when the mall
23· ·was acquired.
24· · · · · · ·A.· Yes, that's right, but the decision
25· ·to move forward with the purchase was in 1988 and
·1· ·I was on the Board.
·2· · · · · · ·Q.· Sorry, 1998?
·3· · · · · · ·A.· 1998, I'm sorry.
·4· · · · · · ·Q.· Yes.
·5· · · · · · ·A.· And I was on the Board and I was --
·6· · · · · · ·Q.· And in 1999 you weren't?
·7· · · · · · ·A.· That's correct.
·8· · · · · · ·Q.· Right.· Okay, and then the question
·9· ·was:
10· · · · · · ·"And I assume both as a Board member and
11· · · · · · ·as the Mayor you were in constant contact
12· · · · · · ·with Mr. Kennealy about this?"
13· · · · · · ·And your answer was:· "Yes, we would
14· ·talk, yes, absolutely."
15· · · · · · ·QUESTION:· Because as you told us, you
16· · · · · · ·viewed it as an extraordinarily -- it was
17· · · · · · ·extraordinarily important to the future of
18· · · · · · ·the City.
19· · · · · · ·ANSWER:· Absolutely no doubt."
20· · · · · · ·And during this -- this period in 1999,
21· ·did Mr. Kennealy keep you advised of the progress
22· ·of the acquisition and the details with respect to
23· ·it?
24· · · · · · ·A.· Not directly, no.
25· · · · · · ·Q.· I'm sorry, you said you were -- you
·1· ·were in touch with him --
·2· · · · · · ·A.· I was in touch.
·3· · · · · · ·Q.· In constant contact with him?
·4· · · · · · ·A.· Yes.
·5· · · · · · ·Q.· You didn't discuss this most
·6· ·important component of the --
·7· · · · · · ·A.· Not that I recall any specific
·8· ·matter to the mall, no.
·9· · · · · · ·Q.· When you went off the Board, did you
10· ·lose interest in the prospects of Retirement
11· ·Living?
12· · · · · · ·A.· No.· I just had too many other
13· ·things that I had to be involved in.· The
14· ·Retirement Living Board wasn't the only activity I
15· ·had as Mayor.
16· · · · · · ·Q.· Sorry, this is in 1999.· You were in
17· ·Mayor at that point, but you're off the Board?
18· · · · · · ·A.· That's right.
19· · · · · · ·Q.· And the future of Elliot Lake, as
20· ·you have told us --
21· · · · · · ·A.· Yes.
22· · · · · · ·Q.· -- was hinging on the acquisition of
23· ·this mall?
24· · · · · · ·A.· But when I left the Board in 1998,
25· ·it appeared that the commitment of the Board was
·1· ·already made and it was just following through the
·2· ·process that they had to go through.
·3· · · · · · ·Q.· I'm going to suggest to you, sir,
·4· ·that it would have been inconceivable for
·5· ·Mr. Kennealy not to have consulted with you and
·6· ·made sure that he had your approval prior to the
·7· ·completion of this acquisition.
·8· · · · · · ·A.· I don't agree with that.· He didn't
·9· ·need my approval at this point.
10· · · · · · ·Q.· As Mayor of the City he didn't need
11· ·your approval?
12· · · · · · ·A.· Well, he already had my input the
13· ·previous year as a member of the Board and the
14· ·decision was made to move forward with it.· And
15· ·when I left the Board, it was completing the due
16· ·diligence that they had to do with the offer.
17· · · · · · ·Q.· You were asked about the flow of
18· ·information between Retirement Living and City
19· ·council.· And in part your answer is:
20· · · · · · ·"QUESTION:· So if there was a matter
21· · · · · · ·coming before the Board of Retirement
22· · · · · · ·Living, how did you find out what the
23· · · · · · ·position the City wanted to take on
24· · · · · · ·that -- those issues?
25· · · · · · ·ANSWER:· I don't -- I'm not sure I
·1· · · · · · ·understand your question because as I
·2· · · · · · ·mentioned in my opening statement about
·3· · · · · · ·Retirement Living, its interest was the
·4· · · · · · ·same interest as the community.· It was
·5· · · · · · ·part of the fabric of the community.
·6· · · · · · ·There was always a flow of information
·7· · · · · · ·between the community, the Council,
·8· · · · · · ·Retirement Living, the general manager of
·9· · · · · · ·Retirement Living.· He was quite active in
10· · · · · · ·the community.· He would make
11· · · · · · ·presentations to the community.· He would
12· · · · · · ·make presentations to Council from
13· · · · · · ·time-to-time.· He was in constant contact
14· · · · · · ·with the CAO of the municipality.· And it
15· · · · · · ·never arose that there was any situation
16· · · · · · ·where there wasn't a flow of information
17· · · · · · ·between the two organizations and the
18· · · · · · ·community at large."
19· · · · · · ·And I take it that was still the case in
20· ·1999?
21· · · · · · ·A.· Yes.
22· · · · · · ·Q.· What do you mean by there wasn't --
23· ·there wasn't any situation?
24· · · · · · ·"It never arose that there was any
25· · · · · · ·situation where there wasn't a flow of
·1· · · · · · ·information between the two organizations
·2· · · · · · ·and the community at large."
·3· · · · · · ·Are you saying that all of the
·4· ·information was open to members of the community?
·5· · · · · · ·A.· No, I didn't say that.· But there
·6· ·was a flow of information.
·7· · · · · · ·Q.· A restricted flow?
·8· · · · · · ·A.· I wouldn't say it's restricted.
·9· ·There -- we had common interests and information
10· ·would flow back and forth because the success of
11· ·the municipalities is the success of Retirement
12· ·Living.
13· · · · · · ·Q.· Right.· You said we had common
14· ·interests.· Did you mean the City and Retirement
15· ·Living?
16· · · · · · ·A.· Yes.
17· · · · · · ·Q.· Because you're also talking about
18· ·the community at large.· And I just want to
19· ·clarify that answer.
20· · · · · · ·A.· When I say the City, I'm referring
21· ·to the community at large.
22· · · · · · ·Q.· You're not referring to your role as
23· ·Mayor and the role of Council?
24· · · · · · ·A.· No.· I'm talking about -- I see
25· ·myself as representative of the community.
·1· · · · · · ·Q.· So if you knew something, feel the
·2· ·community should know it?
·3· · · · · · ·A.· If it's relevant, yes.
·4· · · · · · ·Q.· Mr. Kennealy gave evidence on
·5· ·April 17th.· And he was asked by Mr. Doody about
·6· ·the January 31st, 1998, annual meeting of
·7· ·Retirement Living.· And you were still on the
·8· ·Board at that time.
·9· · · · · · ·A.· Yes, I was in '98.
10· · · · · · ·Q.· I believe the agenda and minutes of
11· ·that meeting were marked as Exhibit No. 3227.· It
12· ·may or may not be helpful for you to pull them up.
13· ·I'm not going to go through them in detail.
14· · · · · · ·Mr. Doody asked you if you turn to the
15· ·next slide -- sorry, he asked Mr. Kennealy --
16· · · · · · ·"QUESTION:· If you would turn to the next
17· · · · · · ·slide, sorry the second next or the one
18· · · · · · ·that ends 24, two pages on.· This slide
19· · · · · · ·indicates you were looking for evaluation
20· · · · · · ·of the mall and the hotel and detailed
21· · · · · · ·financials on the mall and the hotel.· A
22· · · · · · ·review of the in-place leases, a financial
23· · · · · · ·and qualitative review, a review of the
24· · · · · · ·physical structure, and identification of
25· · · · · · ·possible solutioning.· Do I understand you
·1· ·correctly that the reason you wanted that
·2· ·information was for the reason we have
·3· ·discussed.· That is determining the value
·4· ·of the mall?
·5· ·ANSWER:· Determining the value and gaining
·6· ·an understanding of its role in the
·7· ·community, yes.
·8· ·QUESTION:· All right.· And did any members
·9· ·of the Board ask why you were undertaking
10· ·a review of the physical structure?
11· ·ANSWER:· I think they -- I can't -- I
12· ·cannot recall a specific question.· Gosh,
13· ·I can't recall a specific question, but I
14· ·think they understand why we were looking
15· ·at the mall.· It was 60, 70% of the total
16· ·retail space in the mall in the community.
17· ·It was significant.
18· ·QUESTION:· Was there a concern of which
19· ·you were aware at that point by any
20· ·members of the Board about the physical
21· ·condition of the mall, particularly
22· ·relating to the leaks on the parking deck?
23· ·ANSWER:· No, not that I recall, no.
24· ·QUESTION:· Do you recall any discussion
25· ·with Mr. Krado or Mr. Farkouh about the
·1· · · · · · ·fact that you were getting a review of the
·2· · · · · · ·physical structure?
·3· · · · · · ·ANSWER:· It is -- I cannot recall a
·4· · · · · · ·specific discussion.· It is inconceivable
·5· · · · · · ·to me that we would not have talked about
·6· · · · · · ·it given that they were at the Board table
·7· · · · · · ·and given that we would have been
·8· · · · · · ·reviewing this with all the Board members
·9· · · · · · ·and discussing it with them."
10· · · · · · ·Now, given the fact that that's
11· ·Mr. Kennealy's evidence, would you agree that it
12· ·was inconceivable that Mr. Kennealy would not have
13· ·discussed the move to get an assessment of the
14· ·physical structure of the building at the time?
15· ·You would have known that?
16· · · · · · ·A.· Yes.
17· · · · · · ·Q.· And he would have told you?
18· · · · · · ·A.· Yes.
19· · · · · · ·Q.· Is it not true, sir, that if we see
20· ·a topic on the agenda or the minutes of a board
21· ·meeting at which you attended and which
22· ·Mr. Kennealy attended, it would be inconceivable
23· ·that he wouldn't discuss those items with you?
24· · · · · · ·A.· While I'm attending the Board
25· ·meeting?
·1· · · · · · ·Q.· Yes.
·2· · · · · · ·A.· Yes.
·3· · · · · · ·Q.· And is it his practice to have a
·4· ·casual exchange before the Board meeting?
·5· · · · · · ·A.· Not normally.
·6· · · · · · ·Q.· About those topics?
·7· · · · · · ·A.· Not normally, no.
·8· · · · · · ·Q.· Can I have Exhibit No. 3240, please?
·9· ·That's -- these are minutes of a meeting of the
10· ·Board of Retirement Living dated December 3, 1998,
11· ·and at that meeting the Board was discussing the
12· ·purchase of the mall from Algoma Central
13· ·Properties.· Can you just blow that up a little
14· ·bit, please?· And you're noted as being in
15· ·attendance at that meeting, sir?
16· · · · · · ·A.· Yes, I was.
17· · · · · · ·Q.· I take it that the -- there's no
18· ·question that the acquisition of the mall was very
19· ·material transaction for Retirement Living?
20· · · · · · ·A.· Yes, it was.
21· · · · · · ·Q.· And as a director, I assume you were
22· ·mindful of your duties to both the Board and the
23· ·City?
24· · · · · · ·A.· Yes.
25· · · · · · ·Q.· And as Mayor, you carried out those
·1· ·duties with the utmost good faith and attention to
·2· ·detail?
·3· · · · · · ·A.· Yes.
·4· · · · · · ·Q.· And Exhibit No. 67 is the Nicholls
·5· ·Yallowega Bélanger report of November 12, 1998.
·6· ·And pages 24 to 28 of that report list a range of
·7· ·very significant costs that might arise.· So pages
·8· ·24 to 28 of that report list some costs.· They
·9· ·were solution one and solution two.· And the costs
10· ·were totaled.
11· · · · · · ·Mr. Kennealy has testified at page 5450
12· ·of his transcript that you were -- that the
13· ·meeting was discussing the acquisition of the mall
14· ·and the hotel, and you were trying to decide
15· ·whether to go ahead at the course of that evidence
16· ·he says that he handed out pages 24 to 28 to the
17· ·people who were in attendance at that meeting.
18· ·You may have had that evidence put to you by
19· ·Mr. Doody, and I think you said he might have, but
20· ·you couldn't recall.· Is that --
21· · · · · · ·A.· That's accurate.
22· · · · · · ·Q.· Is that your recollection, he might
23· ·have handed it out, but you couldn't recall?
24· · · · · · ·A.· I don't recall reading the numbers.
25· · · · · · ·Q.· Do you recall reacting to the
·1· ·magnitude of the numbers that were being put
·2· ·forward as an expert's analysis of what you might
·3· ·expect to have to do with respect to this
·4· ·acquisition you were in the course of approving?
·5· · · · · · ·A.· No, I don't recall any of the
·6· ·numbers.
·7· · · · · · ·Q.· They are material numbers, are they
·8· ·not, with respect to the size of the acquisition?
·9· · · · · · ·A.· Yes, they are.
10· · · · · · ·Q.· How -- how is it conceivable, sir,
11· ·that given your background, your training, your
12· ·business acumen, and the importance of this deal
13· ·that you would not recall --
14· · · · · · ·A.· Just didn't recall.
15· · · · · · ·Q.· -- numbers of this magnitude?
16· · · · · · ·A.· I can't explain it.· I just don't
17· ·recall it.
18· · · · · · ·Q.· You're not suggesting that
19· ·Mr. Kennealy is not telling the truth, are you?
20· · · · · · ·A.· No, I'm not at all.
21· · · · · · ·Q.· So if you can't recall what
22· ·Mr. Kennealy can recall, I take it you wouldn't
23· ·disagree with what he's saying?
24· · · · · · ·A.· I don't disagree that he presented
25· ·the papers.· I just don't recall reading them or
·1· ·anything sticking in my mind about these numbers.
·2· · · · · · ·Q.· Mr. Kennealy never mentioned the
·3· ·confidentiality agreement to you that he had with
·4· ·Algoma Central Properties?
·5· · · · · · ·A.· No.
·6· · · · · · ·Q.· Did you ask him when you got the --
·7· ·you said in your evidence that you didn't know
·8· ·about that confidentiality agreement until you got
·9· ·the Commission's package?
10· · · · · · ·A.· That's right.
11· · · · · · ·Q.· And you reviewed it?
12· · · · · · ·A.· That's right.
13· · · · · · ·Q.· Were you a little annoyed when you
14· ·saw what it was?
15· · · · · · ·A.· I wasn't annoyed and I wasn't
16· ·surprise.
17· · · · · · ·Q.· You expected there to be an
18· ·agreement that said people couldn't tell you
19· ·things?
20· · · · · · ·A.· Given the sensitive information that
21· ·they were looking for.
22· · · · · · ·Q.· What sensitivity are you talking
23· ·about?
24· · · · · · ·A.· The retail study information.
25· · · · · · ·Q.· Well, what about the physical state
·1· ·of the building?
·2· · · · · · ·A.· I didn't -- it didn't occur to me.
·3· · · · · · ·Q.· I mean, that's millions of dollars
·4· ·we're talking about here.
·5· · · · · · ·A.· But I think it also involved the
·6· ·financials of the hotel.
·7· · · · · · ·Q.· Yeah.· And the --
·8· · · · · · ·A.· And the mall.
·9· · · · · · ·Q.· And the mall.
10· · · · · · ·A.· Yeah.· It's reasonable that the
11· ·owners didn't want that information released.
12· · · · · · ·Q.· Sure, but there's an expected --
13· ·that's an expected revenue stream and some
14· ·confidentiality with respect to that.· But on the
15· ·other side of the equation is the expected outlay
16· ·that you might be looking at if you acquired the
17· ·mall.
18· · · · · · ·A.· But at this point in time, I don't
19· ·recall about the confidentiality agreement, so I
20· ·couldn't comment on it if I didn't know about it.
21· · · · · · ·Q.· And you didn't drill down on any of
22· ·those numbers to say what are we buying into here?
23· ·What kind of liability is the City exposing itself
24· ·to?
25· · · · · · ·A.· No.
·1· · · · · · ·Q.· You've also testified that you never
·2· ·discussed the leaks in the mall with Mr. Kennealy?
·3· · · · · · ·A.· That's correct.
·4· · · · · · ·Q.· In all the time?
·5· · · · · · ·A.· That's correct.
·6· · · · · · ·Q.· Up to the point you gave your
·7· ·evidence, you'd never discussed the leaks in the
·8· ·mall with Mr. Kennealy?
·9· · · · · · ·A.· No.· Can I correct that?
10· · · · · · ·Q.· Sure.
11· · · · · · ·A.· We discussed it when I attended that
12· ·meeting in June of 2006.· You asked me in all the
13· ·time.· In 2006, there was a meeting that was
14· ·convened to discuss the leaks with Mr. Kennealy as
15· ·the representative of the mall owners and
16· ·Mr. Speck and members of the Library Board.· 2005,
17· ·I'm sorry.
18· · · · · · ·Q.· Your counsel tells me it was 2005.
19· · · · · · ·A.· Yes, it is.
20· · · · · · ·BY MR. DOODY:· That's what the documents
21· ·show as well.
22· · · · · · ·BY MR. ROY:
23· · · · · · ·Q.· You can correct me.
24· · · · · · ·A.· No, that's -- that's correct.· 2005.
25· · · · · · ·Q.· That's fine.· But that's the first
·1· ·time --
·2· · · · · · ·A.· I believe it's June 15, 2005.
·3· · · · · · ·Q.· When numbered Ontario company, it's
·4· ·1425164 Ontario Limited and NorDev Group entered
·5· ·into an agreement of purchase and sale with Bob
·6· ·Nazarian for $8.2 million, that's with respect to
·7· ·the sale of the mall, were you involved in
·8· ·approving that sale?
·9· · · · · · ·A.· If I was a member of the Board, I
10· ·would have, yes.
11· · · · · · ·Q.· The agreement of purchase and sale
12· ·is Exhibit No. 706.
13· · · · · · ·Ultimately, the final purchase price was
14· ·$6.2 million.· Quite a material drop in price.
15· · · · · · ·What can you tell me that -- that you
16· ·did with respect to approving or disapproving of
17· ·that $2 million reduction in price?
18· · · · · · ·A.· I believe the resolution would have
19· ·empowered the Chair and Mr. Kennealy to proceed
20· ·with the -- with the offer.· And they would have
21· ·been given a guideline on it and that would have
22· ·been in the minutes.
23· · · · · · ·Q.· So if we look at the original
24· ·resolution, we should see an approval for the sale
25· ·at 8.2 million or whatever lesser number the
·1· ·designated individuals --
·2· · · · · · ·A.· I can't give you the details, but
·3· ·there's obviously whenever such a transaction
·4· ·takes place, the Board there's always a leeway
·5· ·that's given to the -- to the Chair and the
·6· ·general manager so that they could react and then
·7· ·bring it back to the Board for approval.
·8· · · · · · ·Q.· Well, you had a signed agreement of
·9· ·purchase and sale for 8.2 million?
10· · · · · · ·A.· Yeah.
11· · · · · · ·Q.· What explanation were you given for
12· ·the $2 million reduction?
13· · · · · · ·A.· I don't recall.· I think it came
14· ·down in steps actually.· It came down from 8.2 to
15· ·7.2 initially.
16· · · · · · ·Q.· Well, what do you recall?
17· · · · · · ·A.· I just recall that there was three
18· ·separate steps to it.· It started off at 8.2, went
19· ·to 7.2, and then the final offer was at
20· ·6.2 million.
21· · · · · · ·Q.· You mean the final amendment to the
22· ·agreement of purchase and sale.· Did you ask --
23· · · · · · ·A.· I don't believe -- I stand to be
24· ·corrected whether I was still on the Board when
25· ·the final offer at 6.2 came in.· I'm not sure of
·1· ·the date of that.
·2· · · · · · ·Q.· I think it was August of that year,
·3· ·sir.
·4· · · · · · ·A.· I stand to be corrected.· I was on
·5· ·the Board.· Yeah, I'm thinking about the purchase
·6· ·which was in '99.
·7· · · · · · ·Q.· Well, as a Board member and an
·8· ·experienced businessman, approving the $2 million
·9· ·reduction in the purchase price, would you not
10· ·want to get a firmer grasp of what the reason was
11· ·for that reduction?
12· · · · · · ·A.· I think we had confidence in the
13· ·general manager and he was doing the negotiations
14· ·on behalf of the Board.
15· · · · · · ·Q.· Is that Mr. Kennealy?
16· · · · · · ·A.· Yes.
17· · · · · · ·Q.· You didn't discuss it with him?
18· · · · · · ·A.· No.
19· · · · · · ·Q.· Say, Richard, what happened to the
20· ·2 million bucks?
21· · · · · · ·A.· No.· I don't recall anyway.
22· · · · · · ·Q.· Well, you don't recall a material
23· ·reduction in the most material asset under your
24· ·control as a director?· That's your evidence?
25· · · · · · ·A.· Yes.
·1· · · · · · ·Q.· Okay.· Those are my questions,
·2· ·Mr. Commissioner.
·3· · · · · · ·THE COMMISSIONER:· Thank you.· Who is
·4· ·next?· Mr. Bisceglia.
·5· · · · · · ·CROSS-EXAMINATION BY MR. BISCEGLIA:
·6· · · · · · ·Q.· Mr. Farkouh, my name is Joe
·7· ·Bisceglia.· I have a couple of questions.
·8· · · · · · ·Just so that I appreciate your evidence,
·9· ·I gather that, A, you had no involvement in the
10· ·decision for the library to locate in the mall, is
11· ·that correct?
12· · · · · · ·A.· No.· I, as the Mayor, I would have
13· ·been involved because it's ultimately the decision
14· ·of Council to commit to such a expenditure.
15· · · · · · ·Q.· There may be some debate about that.
16· ·But you had no discussions· with the Library
17· ·Board, Ms. Fazekas or Mr. Liautaud in negotiating
18· ·the terms of the lease or the Board making that
19· ·decision?· You were involved in the budget item
20· ·approving of the lease.· Is that what your
21· ·evidence is?
22· · · · · · ·A.· I can't recall the exact
23· ·negotiations that happened at that point.
24· · · · · · ·Q.· Let me ask the question this way.
25· ·Ms. Fazekas has testified that after complaints
·1· ·with respect to their original location and the
·2· ·water leaks and the problems they were having
·3· ·there, a search was sent about to find new
·4· ·location.· Do you recall her evidence in that
·5· ·regard?
·6· · · · · · ·A.· Yes, yes, I do.
·7· · · · · · ·Q.· And they went as far as having
·8· ·elevation drawings or an architect hired for the
·9· ·purposes of dealing with the new location.· Do you
10· ·recall that evidence?
11· · · · · · ·A.· Yes, I do.
12· · · · · · ·Q.· She then went on to say that Council
13· ·made a decision not to fund the construction of a
14· ·new location because of budgetary restraints.
15· ·Those are my words, not necessarily hers.
16· · · · · · ·A.· No, that's correct.
17· · · · · · ·Q.· And then one fine day, you showed up
18· ·at the library Board meeting with Mr. Liautaud and
19· ·advised them, that is the Board of the library and
20· ·all concerned, that the library was going to be
21· ·located in the mall.· Do you recall that evidence
22· ·in.
23· · · · · · ·A.· No, I don't recall that.
24· · · · · · ·Q.· I would like to read to you her
25· ·evidence at page 1118 of the transcript.· On being
·1· ·questioned, the question was:
·2· · · · · · ·"QUESTION:· So what happened next?
·3· · · · · · ·ANSWER:· So the plans of study was
·4· · · · · · ·conducted.· There is no vacant lot or
·5· · · · · · ·premises that is recommended.· The
·6· · · · · · ·architect is hired.· The plan is done, but
·7· · · · · · ·that is not approved by Council.
·8· · · · · · ·QUESTION:· So what is the next step that
·9· · · · · · ·was taken?
10· · · · · · ·ANSWER:..."
11· · · · · · ·This is Ms. Fazekas?
12· · · · · · ·A.· Yes.
13· · · · · · ·Q.
14· · · · · · ·"ANSWER:· The next step that I remember
15· · · · · · ·was Mr. Farkouh brought Mr. Liautaud, who
16· · · · · · ·was the mall manager at the time, to a
17· · · · · · ·library Board meeting indicating that the
18· · · · · · ·Council had decided we would move into the
19· · · · · · ·mall.
20· · · · · · ·QUESTION:· And would that have been a
21· · · · · · ·meeting that took place in early 1989?
22· · · · · · ·ANSWER:· Yes.
23· · · · · · ·QUESTION:· Okay.· And so Mr. Farkouh was
24· · · · · · ·the Mayor at the time?
25· · · · · · ·ANSWER:· Correct.
·1· · · · · · ·QUESTION:· And do you recall the reaction
·2· · · · · · ·of the library at the meeting?
·3· · · · · · ·ANSWER:· Well, the library Board members
·4· · · · · · ·were very concerned because they were
·5· · · · · · ·aware that there had been leaks in the
·6· · · · · · ·mall and we were just trying to get out of
·7· · · · · · ·a building in a similar situation.· So we
·8· · · · · · ·didn't want to move into a building that
·9· · · · · · ·had leaks.· So they were very concerned.
10· · · · · · ·QUESTION:· Okay.· Do you recall what
11· · · · · · ·explanation was given to the Library Board
12· · · · · · ·and yourself by Mr. Farkouh as to why the
13· · · · · · ·library should go into the mall?
14· · · · · · ·ANSWER:· Well, the library would act as
15· · · · · · ·what they call another anchor tenant
16· · · · · · ·because we would occupy 8500 square feet,
17· · · · · · ·and we also, under the conditions of the
18· · · · · · ·renovation, had to have a 20 year lease."
19· · · · · · ·I can go on.· That was her evidence.· So
20· ·it looks like you attended a meeting, you
21· ·generated the initiative at least for that
22· ·relocation.
23· · · · · · ·A.· I don't recall.
24· · · · · · ·Q.· You don't recall?
25· · · · · · ·A.· I don't recall that incident.
·1· · · · · · ·Q.· That's rather important because --
·2· · · · · · ·A.· Yes.
·3· · · · · · ·Q.· -- because it seems to me that your
·4· ·evidence was that you had limited information as
·5· ·to the nature and extent of the leaks in the mall
·6· ·And if the reason being given to you by the
·7· ·library Board and the library staff, they didn't
·8· ·want to go there because of their concerns about
·9· ·leaks, obviously in 1988, '89, when that
10· ·negotiation is being conducted, you were made
11· ·aware by the library people of their concerns
12· ·about going into another leaky building.
13· · · · · · ·So I put it to you for you to say that
14· ·you had little or no knowledge of the leaks for
15· ·years about the mall is simply not accurate.
16· · · · · · ·A.· I don't agree with you.
17· · · · · · ·Q.· Just so that I understand this, the
18· ·City of Elliot Lake was concerned with respect to
19· ·the financial situation, so the City Council
20· ·approves the expenditure of public funds for the
21· ·purposes of assisting a nonprofit corporation in a
22· ·potential investigation -- I'm sorry, in the
23· ·investigation of a potential purchase, is that
24· ·fair?
25· · · · · · ·A.· That's fair.
·1· · · · · · ·Q.· Right.· In the process of doing so
·2· ·though, there is a numbered company incorporated
·3· ·which is called NorDev, is that correct?
·4· · · · · · ·A.· Yes.
·5· · · · · · ·Q.· And that's done on the advice of
·6· ·KPMG.· We have their legal opinion or accounting
·7· ·opinion as to the validity of that transaction.
·8· · · · · · ·And you then have NorDev that is a
·9· ·profit corporation, is that correct?
10· · · · · · ·A.· Yes.
11· · · · · · ·Q.· Right.· Now, in looking through the
12· ·material, it appears that any time that NorDev
13· ·does a transaction, notwithstanding the public
14· ·interest that you're concerned about?
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· They hide behind the corporate veil
17· ·saying that that information is not available to
18· ·the public.· Doesn't that conflict with your duty
19· ·to the community and to your responsibilities as a
20· ·Councillor or the Mayor?
21· · · · · · ·A.· I believe when I was -- this
22· ·question was put to me, there was four items in
23· ·that confidentiality agreement.
24· · · · · · ·Q.· I'm not talking about the
25· ·confidentiality agreement at this point.· I'm
·1· ·talking about your responsibility as a Mayor.
·2· · · · · · ·A.· Yes.
·3· · · · · · ·Q.· Or as a Councillor.
·4· · · · · · ·A.· Yes.
·5· · · · · · ·Q.· And dealing with a private corporate
·6· ·entity.· Because that's what NorDev is.· A profit
·7· ·corporation.
·8· · · · · · ·A.· Yes.
·9· · · · · · ·Q.· Notwithstanding it's been funneled
10· ·through Retirement Living.· Don't you see that as
11· ·being a conflict?
12· · · · · · ·A.· No, I don't.
13· · · · · · ·Q.· You don't.· Well, when NorDev sold,
14· ·the money that it profited from the sale went into
15· ·NorDev, right?
16· · · · · · ·A.· I believe it went from NorDev --
17· · · · · · ·Q.· Well, it may have been ultimately
18· ·funneled, but it went into NorDev?
19· · · · · · ·A.· Yes.
20· · · · · · ·Q.· The City of Elliot Lake didn't
21· ·profit from that directly?
22· · · · · · ·A.· No, it didn't.
23· · · · · · ·Q.· No.· So you're using public funds
24· ·for the purposes of advancing the interests of
25· ·so-called nonprofit corporation that has a
·1· ·corporate entity as affiliated corporation that is
·2· ·profit making.· So you subsidized -- you
·3· ·subsidized a profit-making venture with public
·4· ·funds, didn't you?· You don't see that, sir?
·5· · · · · · ·A.· You know, to me --
·6· · · · · · ·Q.· Well, here's the problem, you see,
·7· ·because if it was that important a public
·8· ·facility, why wasn't the money spent from the
·9· ·get-go to do all of the repairs to the roof?
10· · · · · · ·A.· I don't believe that -- if it was
11· ·required to be spent, I believe it would have been
12· ·spent.
13· · · · · · ·Q.· Well, you see, you say you didn't
14· ·know about the leaks.
15· · · · · · ·A.· That's right.
16· · · · · · ·Q.· Mr. Kennealy says he didn't know
17· ·about the leaks.
18· · · · · · ·A.· That's right.
19· · · · · · ·Q.· The people that worked there didn't
20· ·think that the leaks were all that serious.· The
21· ·tenants said otherwise and nobody seemed to have
22· ·paid attention to the tenants in that regard.· So
23· ·we can't all have all these people being right.
24· ·Somebody's wrong about the nature and extent of
25· ·the problem and the efforts made to correct them.
·1· · · · · · ·A.· You're right.
·2· · · · · · ·Q.· But clearly, though, you had
·3· ·expert's reports that indicated what was needed
·4· ·and the cost.· Right?· We know that, you had the
·5· ·Halsall Report.
·6· · · · · · ·A.· But, first of all, the Halsall
·7· ·Report, the first time I read it was in the
·8· ·material provided to me.· And when I saw their
·9· ·recommendation --
10· · · · · · ·Q.· You mean just now or at the time of
11· ·the purchase?
12· · · · · · ·A.· In February of this year.
13· · · · · · ·Q.· Oh, I see.· So you never saw that
14· ·before --
15· · · · · · ·A.· No, I didn't, because I was not on
16· ·the Board when the Halsall Report was produced
17· ·which is in 1999.
18· · · · · · ·When I read the Halsall Report, which I
19· ·imagine factually everybody in Retirement Living
20· ·would have seen it, the recommendation was to
21· ·continue the routing and sealing.
22· · · · · · ·So that's what -- I'm not trying to
23· ·defend it.· I'm saying, you know, I'm telling you
24· ·what the Halsall Report said.
25· · · · · · ·Q.· Well, the Commissioner will make
·1· ·some findings in that regard.· Those are all my
·2· ·questions, thank you.
·3· · · · · · ·A.· Thank you.
·4· · · · · · ·THE COMMISSIONER:· Mr. MacRae?
·5· · · · · · ·MR. MACRAE:· Thank you,
·6· ·Mr. Commissioner.
·7· · · · · · ·CROSS-EXAMINATION BY MR. MACRAE:
·8· · · · · · ·Q.· Good afternoon, Mr. Farkouh.
·9· · · · · · ·A.· Mr. MacRae.
10· · · · · · ·Q.· I have some questions leading up to
11· ·a final question with respect to a recommendation
12· ·that I'm asking -- I'll ask you ultimately whether
13· ·you endorse or if you could suggest a
14· ·modification.· But I'd like to run through your
15· ·history of your involvement in Elliot Lake
16· ·municipal politics, if I might, just to get some
17· ·background?
18· · · · · · ·A.· Sur.
19· · · · · · ·Q.· You first ran for office as a
20· ·Councillor, is that correct?
21· · · · · · ·A.· That's right, 1985.
22· · · · · · ·Q.· 1985.· Do you recall when the
23· ·election is in --
24· · · · · · ·A.· In November, first week.
25· ·November 10th, usually somewhere around there.
·1· · · · · · ·Q.· And you stood for election -- as I
·2· ·understand it, Councillors are elected at large in
·3· ·Elliot Lake, is that correct?
·4· · · · · · ·A.· Yes.
·5· · · · · · ·Q.· And you were elected at that point
·6· ·in time?
·7· · · · · · ·A.· Yes.
·8· · · · · · ·Q.· First time you ran, you were
·9· ·elected?
10· · · · · · ·A.· Yes.
11· · · · · · ·Q.· Do you recall -- there's a --
12· ·there's a procedure in Elliot Lake where there's a
13· ·Deputy Mayor that's appointed, is that correct?
14· · · · · · ·A.· Yes.
15· · · · · · ·Q.· And how does one become Deputy
16· ·Mayor?
17· · · · · · ·A.· The one with the highest -- the
18· ·Councilor that's elected with the top number of
19· ·votes.
20· · · · · · ·Q.· Do you recall who was Deputy Mayor
21· ·at the first time that you ran for election in
22· ·1985?
23· · · · · · ·A.· I believe it was Claire Dimock.
24· · · · · · ·Q.· Did you run for a second time for
25· ·Council?
·1· · · · · · ·A.· No.· For Mayor.
·2· · · · · · ·Q.· Your second attempt or your second
·3· ·process, rather, in dealing with municipal
·4· ·politics was to run for Mayor?
·5· · · · · · ·A.· That's right.
·6· · · · · · ·Q.· And I think your evidence before was
·7· ·that you ran against Roger Taylor, is that
·8· ·correct?
·9· · · · · · ·A.· Yes.
10· · · · · · ·Q.· And Mr. Taylor obviously was
11· ·defeated?
12· · · · · · ·A.· Yes.
13· · · · · · ·Q.· Was there a Deputy Mayor elected at
14· ·that election as well?
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· Who would have the Deputy Mayor been
17· ·then?
18· · · · · · ·A.· William Albert.
19· · · · · · ·Q.· Oh, and had Mr. Albert served on the
20· ·previous Council or was Mr. Elliot [sic] coming
21· ·into politics?
22· · · · · · ·A.· He had served in the earlier years.
23· ·He was one of the first Councillors when they
24· ·started having the elections.
25· · · · · · ·Q.· So just to get this right.
·1· ·Mr. Elliot [sic ] was not --
·2· · · · · · ·A.· Albert.
·3· · · · · · ·Q.· Mr. Albert, rather, Bill Albert was
·4· ·not part --
·5· · · · · · ·A.· The '85 Council, no.
·6· · · · · · ·Q.· Who was on the '85 Council, do you
·7· ·recall?
·8· · · · · · ·A.· With me?
·9· · · · · · ·Q.· Yes.
10· · · · · · ·A.· There was Ernie Masicot, there was
11· ·Claire Dimock, Ralph Brownley -- you're testing my
12· ·memory.
13· · · · · · ·Q.· Well, in any event, the first time
14· ·you were in Council, did you become a member of
15· ·various committees on Council?
16· · · · · · ·A.· Yes.
17· · · · · · ·Q.· Committees of Council, rather, such
18· ·as the finance committee, protection of persons
19· ·and property committee?
20· · · · · · ·A.· I'm not sure they had those.· They
21· ·had -- I remember there was the finance and budget
22· ·committee.· And then we had committees of the
23· ·whole at the time.
24· · · · · · ·Q.· During your first term in Council,
25· ·did you serve as a member of the finance
·1· ·committee?
·2· · · · · · ·A.· Yes, I did.
·3· · · · · · ·Q.· And then in your second election of
·4· ·politics, municipal politics, you became the
·5· ·Mayor.· And are you -- at that point in time, are
·6· ·you the ex-officio member of every committee?
·7· · · · · · ·A.· Yes.
·8· · · · · · ·Q.· And that gives you the right to
·9· ·participate in any of the committee meetings, is
10· ·that correct?
11· · · · · · ·A.· Yes.
12· · · · · · ·Q.· So I assume that you would have been
13· ·involved in the finance committee at that point in
14· ·time?
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· What about the process of hiring
17· ·individuals?· During your first or second term of
18· ·Council when you were first off Councillor and
19· ·secondly as a Mayor, if there was a department
20· ·head to be hired, would any of the committees of
21· ·Council be involved in that process?
22· · · · · · ·A.· Not from the CAO down.· The only
23· ·involvement of Council would be at the CAO level
24· ·and any other position is usually the
25· ·responsibility of the CAO.
·1· · · · · · ·Q.· So would I be correct in my
·2· ·understanding then that with respect to anyone who
·3· ·served or was hired as a CAO from the time that
·4· ·you became Mayor until you retired, that you would
·5· ·have been involved in the hiring --
·6· · · · · · ·A.· With the hiring the CAO yes.
·7· · · · · · ·Q.· And you would be -- would there be a
·8· ·recommendation made to Council with respect to who
·9· ·would be hired or would there be -- how would a
10· ·CAO be hired?
11· · · · · · ·A.· It's varied.· We've had selection
12· ·committees made up of members of Council.· And in
13· ·the one instant we asked -- we called on the CAO
14· ·of the City of Sudbury to assist us because we
15· ·were new at it.· And then a recommendation was
16· ·made to Council and subsequent hirings of CAOs,
17· ·all members of Council wanted to be involved.
18· · · · · · ·Q.· And was that in fact what happened?
19· · · · · · ·A.· Yes.
20· · · · · · ·Q.· So I'm correct then in 1989, you
21· ·became Mayor or 1988?
22· · · · · · ·A.· '88 of December.
23· · · · · · ·Q.· You're elected.
24· · · · · · ·A.· Actually you're sworn to office in
25· ·December of '88.
·1· · · · · · ·Q.· December of '88?
·2· · · · · · ·A.· Yeah.
·3· · · · · · ·Q.· And then you served continuously as
·4· ·Mayor until?
·5· · · · · · ·A.· Until December of 2006.
·6· · · · · · ·Q.· So is it fair to say you would have
·7· ·been involved or had experience with almost all of
·8· ·the committees of Council at that point in time?
·9· · · · · · ·A.· I didn't participate on some of
10· ·them, but all the standing committees of Council,
11· ·yes.
12· · · · · · ·Q.· And what are the standing committees
13· ·of Council?
14· · · · · · ·A.· They normally mirrored the
15· ·departments that the municipality is responsible
16· ·for.· You'd have essential services which would
17· ·have had Public Works on it, the Fire and the
18· ·Building and -- no, the Fire Department would be
19· ·part of essential services.· And then you would
20· ·have the legal and personnel.· You'd have the
21· ·finance and budget committee.· And you would have
22· ·the by-laws committee.
23· · · · · · ·Q.· And the by-laws committee, would
24· ·that -- that would deal with enforcement of
25· ·by-laws or what would --
·1· · · · · · ·A.· Not enforcement.· It would deal with
·2· ·issues related to different by-laws that would --
·3· ·that would require input from Council.· If a
·4· ·certain by-law that Council had enacted needed to
·5· ·be amended or changed, then it would be vetted at
·6· ·one of those committees through the Clerk or
·7· ·whoever that department head is responsible for.
·8· · · · · · ·Q.· For the particular by-law that would
·9· ·be discussed by that committee?
10· · · · · · ·A.· That's correct.
11· · · · · · ·Q.· And then that committee would make a
12· ·recommendation --
13· · · · · · ·A.· To Council, yes.
14· · · · · · ·Q.· And that would be, I assume, through
15· ·the committee of the whole process at that point
16· ·this in time?
17· · · · · · ·A.· In '85, it would have been, yes.
18· · · · · · ·Q.· And at some point in time, I haven't
19· ·heard evidence and I understand the evidence to be
20· ·that those weren't matters that would be brought
21· ·before the caucus committee?
22· · · · · · ·A.· No.
23· · · · · · ·Q.· The matters that a by-law matter
24· ·would be brought before -- how would it get to
25· ·Council after the committee -- the by-law
·1· ·committee had dealt with it?
·2· · · · · · ·A.· By resolution.· And then at every
·3· ·Council meeting, the committee chairs, each of
·4· ·these committees would have a chairperson.· And on
·5· ·the agenda, there would be reports that would come
·6· ·from the various chairs and they would introduce
·7· ·their own resolutions to Council and would -- they
·8· ·would have to be moved and seconded and debated
·9· ·and then voted on.
10· · · · · · ·Q.· With respect to your position on
11· ·these committees, if we can take for example the
12· ·finance committee, is that the proper term for it,
13· ·Mr. Farkouh?
14· · · · · · ·A.· It's changed different names, but
15· ·probably the last one was called finance and
16· ·budget committee.
17· · · · · · ·Q.· What other names did it have?
18· · · · · · ·A.· Budget committee.
19· · · · · · ·Q.· And would that be -- would that
20· ·committee be struck and that would be the same
21· ·committee?
22· · · · · · ·A.· For the term of Council.
23· · · · · · ·Q.· For the entire term of Council?
24· · · · · · ·A.· And sometimes we would -- mid-term I
25· ·would consult with the Councilors if they wanted
·1· ·to move around, and we would move different
·2· ·Councillors so they could have different
·3· ·experiences on different committees.
·4· · · · · · ·Q.· And so the finance committee --
·5· ·would the finance committee be the committee that
·6· ·was responsible for striking the tax?
·7· · · · · · ·A.· Yes.
·8· · · · · · ·Q.· And the budget?
·9· · · · · · ·A.· Yes.
10· · · · · · ·Q.· And when would those committees
11· ·begin deliberations with respect to the budgets?
12· · · · · · ·A.· They would probably begin in late
13· ·summer of the year.
14· · · · · · ·Q.· Of?
15· · · · · · ·A.· Of the previous year of the budget.
16· ·So let's say you're dealing with the year 2006.
17· · · · · · ·Q.· Yes.
18· · · · · · ·A.· You would start in July, August,
19· ·September of 2005.· And the budget would be struck
20· ·in May -- you try to get it as close the beginning
21· ·of the year, but often it drags on until the
22· ·spring.
23· · · · · · ·Q.· And who -- as Mayor of the City,
24· ·would you be responsible for ensuring that that
25· ·budget was struck in a timely fashion?
·1· · · · · · ·A.· Well, as Mayor I'm responsible for
·2· ·the workings of the Council.· But I wouldn't be
·3· ·the one -- there would be a chair that's
·4· ·responsible for that committee.· And I would be ex
·5· ·officio on it.
·6· · · · · · ·Q.· And were you involved in the finance
·7· ·committee at all as ex officio?
·8· · · · · · ·A.· Yes, yes.
·9· · · · · · ·Q.· On a regular basis --
10· · · · · · ·A.· Yes.
11· · · · · · ·Q.· Term to term.
12· · · · · · ·A.· Yes.
13· · · · · · ·Q.· So then as we move through your
14· ·terms you were -- were you ever acclaimed as
15· ·Mayor?
16· · · · · · ·A.· No.
17· · · · · · ·Q.· So you had to campaign?
18· · · · · · ·A.· I had to campaign every time.
19· · · · · · ·Q.· All right.· But you were ultimately
20· ·successful every time?
21· · · · · · ·A.· Yes.
22· · · · · · ·Q.· And would you agree with me that the
23· ·position of Mayor is the most responsible elected
24· ·position in the municipality?
25· · · · · · ·A.· Yes, it is.
·1· · · · · · ·Q.· And in fact, the person who fills
·2· ·the position of Mayor is expected or it's
·3· ·anticipated that they will actually be the leader
·4· ·of the community?
·5· · · · · · ·A.· Yes.
·6· · · · · · ·Q.· And Council provides support and
·7· ·advice, they vote on matters, but at the end of
·8· ·the day, the Mayor is the leader of the community
·9· ·from an elected official perspective?
10· · · · · · ·A.· Yes, it is.
11· · · · · · ·Q.· So that leads me to my question.
12· ·Just prior to your -- the last time that you stood
13· ·for election, when was that, Mr. Farkouh?
14· · · · · · ·A.· 2003.
15· · · · · · ·Q.· And I guess had -- you said you
16· ·weren't acclaimed.· Who ran against you in 2003?
17· · · · · · ·A.· Mr. Whitehead.
18· · · · · · ·Q.· Bob Whitehead?
19· · · · · · ·A.· Yes.
20· · · · · · ·Q.· That's Mr. Whitehead that used to be
21· ·on the School Board?
22· · · · · · ·A.· School Board, yes.
23· · · · · · ·Q.· So you were successfully re-elected
24· ·in 2003.· And at some point in time you made
25· ·decision not to run in the 2006 or 2007 election?
·1· · · · · · ·A.· That's correct. yes.
·2· · · · · · ·Q.· 2006?
·3· · · · · · ·A.· 2006 election.
·4· · · · · · ·Q.· We've heard evidence here that an
·5· ·order that was made by a very senior official
·6· ·within the municipality of Elliot Lake was allowed
·7· ·the remain outstanding for a period well in excess
·8· ·of two years.· Are you aware of that evidence?
·9· · · · · · ·A.· An order?· Like --
10· · · · · · ·Q.· Yes.· An order --
11· · · · · · ·A.· -- an enforcement.
12· · · · · · ·Q.· An enforcement order.
13· · · · · · ·A.· In, in what year was it issued?
14· · · · · · ·Q.· I don't have the exact date.· I
15· ·believe it was issued by Mr. Allard and it
16· ·remained outstanding.· It was -- the order was
17· ·issued in 2006 and I believe -- October 24th,
18· ·2006.
19· · · · · · ·A.· That's right, I believe there was
20· ·evidence of a Council meeting where the resolution
21· ·was debated.· Actually, it was in camera, but when
22· ·it came out of camera that directed the CAO of the
23· ·day, Mr. Derreck, to proceed with his report which
24· ·included a number of steps and one of them was the
25· ·order.
·1· · · · · · ·Q.· Thank you.· And with respect to that
·2· ·I understand you were -- you were leaving politics
·3· ·during that period of time?
·4· · · · · · ·A.· Yes.
·5· · · · · · ·Q.· Or you weren't standing for
·6· ·re-election.· And my question I'm trying to get it
·7· ·as straight as possible is, it appears that
·8· ·reports of outstanding orders were not brought to
·9· ·Council's attention on an annual basis in the
10· ·reports that were provided by department heads.
11· ·Would you agree with me?
12· · · · · · ·A.· Yes.
13· · · · · · ·Q.· And would you agree with me that
14· ·throughout your time in Council from 1985 until
15· ·2006, you would regularly receive annual reports
16· ·from all of the department heads?
17· · · · · · ·A.· We would receive reports, yes.
18· · · · · · ·Q.· And those reports would be reviewed
19· ·by yourself --
20· · · · · · ·A.· Yes.
21· · · · · · ·Q.· -- and other members of Council?
22· · · · · · ·A.· Yes.
23· · · · · · ·Q.· And would those reports sometimes,
24· ·during your history in municipal politics, would
25· ·those reports bring about any questions from
·1· ·Council for the department heads?
·2· · · · · · ·A.· Yes.
·3· · · · · · ·Q.· And during your time, were you aware
·4· ·of any reports that came from department heads
·5· ·that provided Council, and you as Mayor, with
·6· ·information about any orders, specific enforcement
·7· ·orders that had been issued?
·8· · · · · · ·A.· No, I don't remember any.
·9· · · · · · ·Q.· With respect to the mandate of this
10· ·Commission, I'm asking you of your opinion, do you
11· ·think it would be important that under the
12· ·Municipal Act that there be a requirement that all
13· ·outstanding enforcement orders be included in
14· ·every annual report from any department that is
15· ·entitled to issue those enforcement orders?
16· · · · · · ·A.· I think that would be a very good
17· ·recommendation.
18· · · · · · ·Q.· Thank you very much, those are my
19· ·questions.
20· · · · · · ·A.· Thank you.
21· · · · · · ·THE COMMISSIONER:· Mr. Kloeze?
22· · · · · · ·CROSS-EXAMINATION BY MR. KLOEZE:
23· · · · · · ·Q.· Good afternoon, Mr. Farkouh.· My
24· ·name is Darrell Kloeze.· I'm counsel for the
25· ·Province of Ontario.· I have just a few questions
·1· ·to ask you.
·2· · · · · · ·And I want to take you back.· You just
·3· ·articulated it yourself, I want to take you back
·4· ·to the period of Mr. Derreck's involvement after
·5· ·there was some serious leaks in the library in
·6· ·October of 2006.· And that involvement eventually
·7· ·led to a Council resolution --
·8· · · · · · ·A.· Yes.
·9· · · · · · ·Q.· -- to get the order that you've just
10· ·referred to?· Now, Mr. Derreck, as I understand
11· ·it, was taking action to address those leaks at
12· ·the library.· Were you aware at the time before
13· ·Mr. Derreck advised you of this that there was a
14· ·serious incidence of leaks in the library in
15· ·mid-October of 2006?
16· · · · · · ·A.· Yes, I was.
17· · · · · · ·Q.· Okay.· And were you aware that at
18· ·one point the leaks became so severe that Suzanne
19· ·Morin and Dan Gagnon had to make a decision to
20· ·actually close the library for at least parts of a
21· ·couple of days?
22· · · · · · ·A.· Yes.
23· · · · · · ·Q.· Okay.· And I wanted to ask you one
24· ·question we asked Mr. Derreck.· And that was, what
25· ·was Dan Gagnon's involvement in this?· Who was he
·1· ·and why was he involved in issues involving the
·2· ·library?
·3· · · · · · ·A.· Dan Gagnon best describe him, he was
·4· ·the Deputy CAO at the time.· He was involved in
·5· ·special projects, but basically he was the
·6· ·assistant to the CAO of the municipality.
·7· · · · · · ·Q.· Okay.· I want to -- oh, the other
·8· ·question I had on that was, you're aware that at
·9· ·that point Mr. Derreck actually put together a
10· ·draft action plan?
11· · · · · · ·A.· Yes.
12· · · · · · ·Q.· And you were brought to that draft
13· ·action plan last week.· I don't have to bring it
14· ·to you again.· I just want to ask you to recall
15· ·whether or not you remember part of the draft
16· ·action plan was that Ms. Leddy --
17· · · · · · ·A.· Yes.
18· · · · · · ·Q.· -- and Ms. Williams were to contact
19· ·the Provincial Ministries of Health and Labour.
20· ·Do you remember that that was part of the draft
21· ·action plan at least as of October 18th, 2006?
22· · · · · · ·A.· I don't remember that specifically,
23· ·no.
24· · · · · · ·Q.· Okay.
25· · · · · · ·A.· But if it was in the plan and it was
·1· ·submitted to Council, then obviously I would have
·2· ·seen it.
·3· · · · · · ·Q.· Okay, well, that's the point and
·4· ·that's why I wanted to ask you the question on
·5· ·this.· It was in Mr. Derreck's draft action plan
·6· ·on October 18th, but that part of the plan was
·7· ·actually taken out of the submission to Council.
·8· · · · · · ·A.· Okay.
·9· · · · · · ·Q.· Do you remember anything about that?
10· · · · · · ·A.· No.
11· · · · · · ·Q.· Okay.· I want to bring you to one
12· ·more document and that's Exhibit No. 11-125.
13· · · · · · ·Okay, the first page -- it's dated
14· ·October 24th, 2006.· And it says, "air testing for
15· ·mould at the Public Library."· I'm actually
16· ·interested in the second page, Ms. Kuka.· And it's
17· ·labeled "The co-operative health and safety
18· ·record", dated October 19th, 2006.· And this
19· ·appears to be something at the bottom you'll see
20· ·was signed by Suzanne Morin and she was the Chief
21· ·Librarian at the time?
22· · · · · · ·A.· I believe so.
23· · · · · · ·Q.· Okay.
24· · · · · · ·A.· I'm not sure if she was the Chief.
25· ·I think Mrs. Fazekas was still there.
·1· · · · · · ·Q.· I can't remember the timing.· Mrs.
·2· ·Fazekas, I think, had retired by that time and
·3· ·Suzanne Morin was the Chief Librarian?
·4· · · · · · ·A.· Was she?· Oh, okay.
·5· · · · · · ·Q.· I may be mistaken.· But Suzanne
·6· ·Morin was -- was --
·7· · · · · · ·A.· She was involved and she
·8· ·subsequently became the Chief Librarian, but I
·9· ·thought under my tenure was still Mrs. Fazekas.
10· ·So that's why I'm trying to --
11· · · · · · ·Q.· Okay.· But we see at the bottom of
12· ·the page --
13· · · · · · ·A.· Yes.
14· · · · · · ·Q.· -- Suzanne Morin's name is listed as
15· ·supervisor?
16· · · · · · ·A.· Okay.
17· · · · · · ·Q.· And the date is October 19th, 2006.
18· ·And I wanted to ask you if you know what this form
19· ·is?· Ms. Kuka, if you could come back to the top
20· ·of the page so we can see the heading again.· This
21· ·cooperative health and safety record.· Do you know
22· ·what this form is and the purpose --
23· · · · · · ·A.· No.· I would never seen something
24· ·like this before.
25· · · · · · ·Q.· Okay.· The source of information
·1· ·listed on the form, employees information and
·2· ·documentation on camera referring to leaks and in
·3· ·the ceiling and library.· And the second column,
·4· ·nature of concern, mold developing, leaks and
·5· ·ceiling panels becoming saturated and possibly
·6· ·falling.· Damaged books and equipment.· And the
·7· ·last point, safety of staff and the library
·8· ·patrons.· You didn't see this form?
·9· · · · · · ·A.· No.
10· · · · · · ·Q.· Ms. Kuka, if we could turn to the
11· ·next page.· This is again titled the Corporation
12· ·of the City of Elliot Lake, the policy and
13· ·procedure.· Subject work refusal procedure.· Are
14· ·you aware of this form?
15· · · · · · ·A.· No.· This would have been
16· ·administratively prepared by the management.· It's
17· ·not something we would have seen at Council.
18· · · · · · ·Q.· Okay.· But you're aware -- it
19· ·appears to me to be a procedure -- a City
20· ·procedure --
21· · · · · · ·A.· Yes, it is.
22· · · · · · ·Q.· -- to be followed when employees
23· ·refused to work because of health and safety
24· ·concerns?
25· · · · · · ·A.· Yes.
·1· · · · · · ·Q.· And you're aware it would be a
·2· ·serious matter if an employee did refuse work for
·3· ·a health and safety concern?
·4· · · · · · ·A.· Yes.
·5· · · · · · ·Q.· And it would be something that would
·6· ·be dealt with first at the Health and Safety
·7· ·Committee level?
·8· · · · · · ·A.· Yes.
·9· · · · · · ·Q.· And if that wasn't resolved, would
10· ·it be brought to your attention at some point?
11· · · · · · ·A.· No, no.· I've never seen anything
12· ·related to health safety that would have made its
13· ·way to the Council level in my experience.· It
14· ·normally would have been dealt with up to the --
15· ·at the CAO level.
16· · · · · · ·Q.· Okay.· Ms. Kuka, I just want to turn
17· ·to one more page and that is the page -- the same
18· ·document that ends 4521.
19· · · · · · ·And again this seems to be part of the
20· ·work refusal form that Suzanne Morin, she's listed
21· ·as the employee and as the supervisor.· I'm not
22· ·sure if that is completely accurate, but it seems
23· ·to be that she is the complainant on this?
24· · · · · · ·A.· Yes.
25· · · · · · ·Q.· And she's also the respondent on
·1· ·this because we see in section two, it's the
·2· ·supervisor's obligation to respond.· But Ms. Leddy
·3· ·is listed as the health and safety representative.
·4· ·So it appears that, to me at least, that a -- a
·5· ·procedure or process was begun to make a work
·6· ·refusal record, but the bottom half of the form is
·7· ·not filled out.· Are you aware -- you were not
·8· ·aware of this form?
·9· · · · · · ·A.· No.
10· · · · · · ·Q.· Okay.· Now, just one more question
11· ·about Mr. Derreck's evidence.· He testified that
12· ·he didn't feel it was necessary for the City at
13· ·that time or the library to contact the Ministry
14· ·of Health or labour because both Ms. Leddy and
15· ·Ms. Williams were -- were the health and safety
16· ·representatives and they had the health and safety
17· ·issues in hand at that time.
18· · · · · · ·And I was wondering whether Mr. Derreck
19· ·had discussed that matter with you.· Whether or
20· ·not it was necessary, on this occasion, to bring
21· ·these I can shoes to the Ministry of Labour?
22· · · · · · ·A.· I don't recall it, no.
23· · · · · · ·Q.· You don't recall any discussion?
24· · · · · · ·A.· No.
25· · · · · · ·Q.· Those are my questions.· Thank you,
·1· ·sir.
·2· · · · · · ·THE COMMISSIONER:· Thank you.
·3· · · · · · ·CROSS-EXAMINATION BY MR. CASSAN:
·4· · · · · · ·Q.· Mr. Farkouh, my name is Paul Cassan.
·5· ·I'm counsel for the City and I have some questions
·6· ·for you with respect to the City's interests in
·7· ·the Inquiry.
·8· · · · · · ·MR. CASSAN:· And certainly I'm mindful
·9· ·of the time, Mr. Commissioner, and I'll do my
10· ·best.
11· · · · · · ·BY MR. CASSAN:
12· · · · · · ·Q.· Commission Counsel, in the course of
13· ·the inquiry, has characterized the caucus meetings
14· ·as both secret meetings and as illegal meetings.
15· ·And I'm going to ask you about your impression of
16· ·that, but I need to take you through some issues
17· ·first.
18· · · · · · ·First of all, Mr. Doody took you through
19· ·various iterations of the Municipal Act that were
20· ·enforced during your tenure as Mayor.· But there
21· ·was no evidence in the material that Mr. Doody
22· ·took you through of an offence or fine or a
23· ·penalty if meetings were not held in accordance
24· ·with the Municipal Act.
25· · · · · · ·And I suggest that's because there is no
·1· ·such offence or penalty.· And I expect, would you
·2· ·agree with me, certainly during your time that the
·3· ·City was never charged or fined or otherwise
·4· ·penalized with respect to the caucus meetings?
·5· · · · · · ·A.· That's accurate.
·6· · · · · · ·Q.· And, Mr. Farkouh, the Municipal Act
·7· ·actually prescribes options for challenging
·8· ·actions of the City by bringing an application to
·9· ·the Superior Court to quash a by-law.· And the
10· ·definition of by-law includes an order or a
11· ·resolution.· And I expect it's true that this was
12· ·never done with respect to caucus meetings or
13· ·committee of the whole meetings at any time that
14· ·you were Mayor.
15· · · · · · ·A.· That's correct.
16· · · · · · ·MR. DOODY:· Mr. Commissioner, rule 39 of
17· ·our Rules of Procedure provides that you may
18· ·direct any counsel whose client shares a
19· ·commonality in interest with the witness to only
20· ·adduce evidence through non-leading questions.
21· ·Mr. Cassan's questions at this stage certainly
22· ·appear to show a commonality in interest with this
23· ·witness who was Mayor for 18 years.· And he's
24· ·putting leading questions to him, specifically
25· ·with respect to his client, that is the City's
·1· ·interests.· And my submission, it ought to be
·2· ·considered whether he ought to restrain himself to
·3· ·non-leading questions.
·4· · · · · · ·MR. CASSAN:· I have no problem with that
·5· ·that, Mr. Commissioner.
·6· · · · · · ·THE COMMISSIONER:· Thank you.· In any
·7· ·event, it appeared to me that this particular
·8· ·leading question was eliciting an answer which is
·9· ·not significantly controversial, but I think that
10· ·Mr. Doody's representations to me about the rules
11· ·is an appropriate one and of course I think you
12· ·indicate that you're aware of it and will conduct
13· ·yourself accordingly.· So that's fine.
14· · · · · · ·MR. CASSAN:· Thank you.
15· · · · · · ·BY MR. CASSAN:
16· · · · · · ·Q.· So now, Mr. Farkouh, can you tell me
17· ·your impressions about your thoughts with respect
18· ·to Commission Council's characterization of the
19· ·caucus meetings?
20· · · · · · ·A.· My evidence was that they were open
21· ·to the public.· And to me, they were public
22· ·meetings.
23· · · · · · ·Q.· Now, how do they -- leaving aside
24· ·the fact of whether or not they were permitted
25· ·under the various iterations of the Municipal Act,
·1· ·how did they actually function or work as a
·2· ·practical tool, in your experience?
·3· · · · · · ·A.· Would be another committee of
·4· ·Council that would be deliberating.· And in this
·5· ·particular case, there was no resolutions and no
·6· ·minutes that were kept.· But it was an open
·7· ·meeting of Council.· If a· member of the public
·8· ·chose to come in and the topic was not an in
·9· ·camera topic, then it would be discussed.
10· · · · · · ·Q.· And did you find them to be an
11· ·effective or useful tool?
12· · · · · · ·A.· Yes, they were.
13· · · · · · ·Q.· Now, if we assume that there was an
14· ·issue facing the City, any kind of an issue, did
15· ·the caucus meetings help in getting to a
16· ·resolution or were they -- were they in some way
17· ·obstructive to resolutions being made by Council?
18· · · · · · ·A.· Well, there were information -- for
19· ·information purposes and any resolution would have
20· ·to go to Council to be dealt with and debated.
21· ·Often the various committees that Mr. MacRae asked
22· ·me about, they would have resolutions that would
23· ·go directly to Council and then presented at
24· ·Council and dealt with.· That's where the
25· ·decision-making process is.
·1· · · · · · ·Q.· And when you were participating in
·2· ·the caucus meetings, did you think that there was
·3· ·anything wrong with those meetings?
·4· · · · · · ·A.· No.
·5· · · · · · ·Q.· And were there people on Council, in
·6· ·your estimation, who you think would complain if
·7· ·they thought that those were improper?
·8· · · · · · ·A.· I'm sure if there's some that felt
·9· ·they were improper, they would have complained.
10· · · · · · ·THE COMMISSIONER:· Didn't you feel that
11· ·or did you feel that these meetings were useful in
12· ·developing consensus among members?
13· · · · · · ·THE WITNESS:· Yes.
14· · · · · · ·THE COMMISSIONER:· And for that purpose
15· ·or at least once a consensus was developed, it
16· ·might obviate the need for debate at Council,
17· ·would it not?
18· · · · · · ·THE WITNESS:· In some cases, but in most
19· ·cases, there was always a debate that would take
20· ·place because there's reports that would have to
21· ·be attached and brought forward.· In some cases,
22· ·you would be correct, Your Honour, but in most
23· ·cases, I wouldn't say the consensus were fait
24· ·accompli, but they were part --
25· · · · · · ·THE COMMISSIONER:· But they were in some
·1· ·cases.
·2· · · · · · ·THE WITNESS:· They were in some cases,
·3· ·yes.
·4· · · · · · ·THE COMMISSIONER:· All right, thank you.
·5· · · · · · ·BY MR. CASSAN:
·6· · · · · · ·Q.· Now, we know that in 2007, which is
·7· ·after your term, Ms. Virginia McLean indicated
·8· ·that caucus meeting were not consistent with the
·9· ·amendments to the Municipal Act.· But during your
10· ·term, did any lawyer for the City advise you that
11· ·the meetings were improper?
12· · · · · · ·A.· No.
13· · · · · · ·Q.· And did anybody else, whether it's a
14· ·Councillor or a member of the public or staff tell
15· ·you that?
16· · · · · · ·A.· No.
17· · · · · · ·Q.· Now, when you were Mayor, were you a
18· ·member of FNOM?
19· · · · · · ·A.· Yes.
20· · · · · · ·Q.· And maybe you can tell the
21· ·Commissioner what FNOM is?
22· · · · · · ·A.· FNOM is the Federation of Northern
23· ·Ontario Municipalities and it represents all the
24· ·municipalities from Perry Sound north to the
25· ·Manitoba border.· I'm not sure -- I think there's
·1· ·another one that represents western, but it
·2· ·represents the northern municipalities, which
·3· ·would include Sudbury and Timmins and North Bay.
·4· · · · · · ·Q.· And were you a member or did you
·5· ·participate in ADMA?
·6· · · · · · ·A.· Can you --
·7· · · · · · ·Q.· ADMA?· Well, if you don't know what
·8· ·it is, you probably didn't.
·9· · · · · · ·A.· Association or --
10· · · · · · ·Q.· It's the Algoma District Municipal
11· ·Association.
12· · · · · · ·A.· We were members of it --
13· · · · · · ·Q.· Yes.
14· · · · · · ·A.· -- but I did not personally
15· ·participate.
16· · · · · · ·Q.· And in the course of your FNOM
17· ·meetings or otherwise as Mayor, did you converse
18· ·or liaise with other mayors or members of councils
19· ·of other municipalities?
20· · · · · · ·A.· Yes, we would.
21· · · · · · ·Q.· And are you aware of whether any
22· ·other municipalities used meetings similar to what
23· ·you have called caucus meetings?
24· · · · · · ·A.· No, I'm not aware.
25· · · · · · ·THE COMMISSIONER:· One way or the other?
·1· · · · · · ·THE WITNESS:· One way or the other.
·2· · · · · · ·BY MR. CASSAN:
·3· · · · · · ·Q.· Mr. Farkouh, can you think of any
·4· ·way at all that the existence of the committee of
·5· ·the whole meetings or the caucus meetings
·6· ·prejudiced the City's inspection or enforcement of
·7· ·the mall issues?
·8· · · · · · ·A.· Not at all, that I can recall.
·9· · · · · · ·Q.· And is there any connection that you
10· ·can envision between the existence of these
11· ·meetings and the collapse of the mall?
12· · · · · · ·A.· No.
13· · · · · · ·Q.· You were asked some questions about
14· ·enforcement -- I'm moving on from the caucus
15· ·meetings.
16· · · · · · ·And you were asked about enforcement of
17· ·the Property Standards By-Law.· And one option for
18· ·enforcement of municipal by-laws is for a taxpayer
19· ·to lay a private information.· In other words, for
20· ·a member of the community to say somebody's
21· ·breaching a particular by-law and it upsets me.
22· ·Do you know whether anybody ever laid a private
23· ·information with respect to the mall?
24· · · · · · ·A.· Not that I can recall.
25· · · · · · ·Q.· And also under the Municipal Act
·1· ·under section 440, it's available for a taxpayer
·2· ·to bring an application to restrain a
·3· ·contravention of a by-law.· Do you know whether
·4· ·anybody did that with respect to the mall?
·5· · · · · · ·A.· Not that I'm aware of.
·6· · · · · · ·Q.· Mr. Bisceglia asked you about a
·7· ·conflict of interest.· Are you familiar with the
·8· ·Municipal Conflict of Interest Act?
·9· · · · · · ·A.· Yes, I am.
10· · · · · · ·MR. CASSAN:· And, Mr. Commissioner, I
11· ·put section four of the Municipal Conflict of
12· ·Interest Act up.· I wonder if my friend
13· ·Mr. Bernard can show you that?
14· · · · · · ·THE COMMISSIONER:· Bring it down just a
15· ·bit.· Thank you.
16· · · · · · ·BY MR. CASSAN:
17· · · · · · ·Q.· Now, the section that I would like
18· ·you to comment on, Mr. Farkouh, is section four,
19· ·subsection h and this is one of the exceptions in
20· ·the Municipal Conflict of Interest Act, two
21· ·conflicts of interest.· I wonder if you could have
22· ·a look at that and give me your comments.
23· · · · · · ·A.· What specifically would you like me
24· ·to see?
25· · · · · · ·Q.· Well, I see that as an exception
·1· ·with respect to the issue of being appointed by
·2· ·Council as a member of a Board, Commission or
·3· ·other body and I think that would apply --
·4· · · · · · ·A.· Yes.
·5· · · · · · ·Q.· -- to your role with Elliot Lake
·6· ·Retirement Living and I would like your thoughts
·7· ·on that.
·8· · · · · · ·THE COMMISSIONER:· Well --
·9· · · · · · ·MR. CASSAN:· That's very leading, isn't
10· ·it?
11· · · · · · ·THE COMMISSIONER:· Ask him what him
12· ·anyway.
13· · · · · · ·BY MR. CASSAN:
14· · · · · · ·Q.· Were you aware of that and how did
15· ·that relate to your role on other committees?
16· · · · · · ·A.· I would have been probably aware of
17· ·this because I was also a member of the Police
18· ·Services Commission.· And I was a member of the --
19· ·at one time or another of the Algoma Health Unit,
20· ·the Algoma District Social Services Board.· And
21· ·all these Boards and Commissions have their own
22· ·by-laws and their own rules and confidentiality.
23· · · · · · ·I know specifically with the Police
24· ·Services Act, it's -- I can't recall, it's by
25· ·regulation that anything discussed of a
·1· ·confidential nature cannot be shared not even by
·2· ·the members of Council.
·3· · · · · · ·Q.· So does this section and this
·4· ·exception change or in any way alter your response
·5· ·to Mr. Bisceglia's suggestion that you were in a
·6· ·conflict of interest with respect to --
·7· · · · · · ·MR. BISCEGLIA:· Mr. Commissioner, I
·8· ·gather that the witness is being asked first to
·9· ·admit that when he's on Council that he is in fact
10· ·acting for the municipality.· And then when he is
11· ·conducting the business on the Board of Retirement
12· ·Living or NorDev, that he is still conducting
13· ·business for and on behalf of the community or the
14· ·City of Elliot Lake.· I think that's what that
15· ·exception makes reference to, with all due
16· ·respect.
17· · · · · · ·In other words, it's to advance the
18· ·interest of the municipality.· Not to advance the
19· ·interests of Retirement Living.
20· · · · · · ·THE COMMISSIONER:· And so repeat your
21· ·question?
22· · · · · · ·MR. CASSAN:· I'm just asking
23· ·Mr. Farkouh, Mr. Commissioner, if this exception
24· ·being drawn to his attention changes his response
25· ·with respect the Mr. Bisceglia's suggestion that
·1· ·he was in a conflict of interest.
·2· · · · · · ·THE COMMISSIONER:· I think that's fine.
·3· ·If you can answer.
·4· · · · · · ·THE WITNESS:· Given that I was appointed
·5· ·by a resolution of Council to the Retirement
·6· ·Living Board, this section would apply.· Because I
·7· ·am the appointee of the municipality and I'm there
·8· ·at the pleasure of the Council.
·9· · · · · · ·BY MR. CASSAN:
10· · · · · · ·Q.· And in that respect, do you actually
11· ·take instructions from Council?
12· · · · · · ·A.· If Council were to give me
13· ·instructions, I would certainly carry them
14· ·forward.
15· · · · · · ·Q.· Okay.· Now, with respect to the
16· ·Building Department's enforcement of by-laws, did
17· ·you ever tell the Building Department not to
18· ·enforce the Property Standards By-Law with respect
19· ·to the mall?
20· · · · · · ·A.· No, never.
21· · · · · · ·Q.· Did you ever say to them not to
22· ·enforce the Building Code with respect to the
23· ·mall?
24· · · · · · ·A.· No, never.
25· · · · · · ·Q.· Did you ever tell them not to
·1· ·inspect the mall or otherwise interfere with
·2· ·anything to do with the Building Department's role
·3· ·in the mall?
·4· · · · · · ·A.· No, never.
·5· · · · · · ·Q.· Thank you, sir, those are my
·6· ·questions.
·7· · · · · · ·A.· Thank you.
·8· · · · · · ·MR. KEARNS:· Mr. Commissioner, the only
·9· ·questions I would have would be dealing with my
10· ·friend Mr. Roy's questions about the reduction of
11· ·the purchase price.· And I do know that the
12· ·Commission already has evidence from Mr. Kennealy
13· ·in that regard and Mr. Nazarian will be coming as
14· ·well to answer those questions.· So those were the
15· ·only issues I might have had.· So I have no
16· ·questions.
17· · · · · · ·THE COMMISSIONER:· Mr. Doody?
18· · · · · · ·RE-EXAMINATION BY MR. DOODY:
19· · · · · · ·Q.· I just have one short series of
20· ·questions.· Mr. Cassan, if I could have Elmo back
21· ·on, please.· Apparently not, oh, here it is.
22· · · · · · ·Mr. Cassan asked you questions about the
23· ·Municipal Conflict of Interest Act and you were on
24· ·Council a long time and you were familiar with
25· ·this statute, right?
·1· · · · · · ·A.· Yes, I am.
·2· · · · · · ·Q.· You were regularly present when
·3· ·training sessions were conducted for new members
·4· ·of Council and it was explained to them?
·5· · · · · · ·A.· I wouldn't say regularly, but I made
·6· ·a point of understanding the Conflict of Interest
·7· ·Act.
·8· · · · · · ·Q.· And the way -- the way it works is
·9· ·it's directed to things that come before City
10· ·Council, right?· That's what it's about.· It's
11· ·about declaring a conflict of interest when things
12· ·come before Council, right?
13· · · · · · ·A.· Either direct or indirect interest.
14· · · · · · ·Q.· Right, but it's limited to things
15· ·that come before City Council?
16· · · · · · ·A.· Well, my interpretation of it as an
17· ·elected official, in your duties as a member of
18· ·Council, in any of your participation and
19· ·decisions that you make that you personally cannot
20· ·gain either directly or indirectly in a pecuniary
21· ·manner.
22· · · · · · ·Q.· Right.· And what it says, without
23· ·taking you through it chapter and verse of section
24· ·five, but what it says is, if you are present at a
25· ·meeting of Council where an issue arises for
·1· ·consideration by Council in which you have a
·2· ·direct or indirect pecuniary interest, you have to
·3· ·disclose it and not take part, right?
·4· · · · · · ·A.· That's correct.
·5· · · · · · ·Q.· And that's what the statute's all
·6· ·about.
·7· · · · · · ·A.· Okay, yes.
·8· · · · · · ·Q.· You agree with me?
·9· · · · · · ·A.· Yes, I do.
10· · · · · · ·Okay.· And so if you look to the section
11· · · · · · ·that Mr. Cassan asked you to look at,
12· · · · · · ·which is subsection 4(h) which is on the
13· · · · · · ·screen it says:· "Section 5 does not apply
14· · · · · · ·to a pecuniary interest in any matter that
15· · · · · · ·a member may have, first of all, by reason
16· · · · · · ·only of the member being a director or
17· · · · · · ·senior officer of a corporation
18· · · · · · ·incorporated for the purpose of carrying
19· · · · · · ·on business for and on behalf of the
20· · · · · · ·municipality or local board."
21· · · · · · ·Stop there.· We can agree, can we not,
22· ·that Retirement Living was not a corporation
23· ·incorporated for the purpose of carrying on
24· ·business for and on behalf of the City of Elliot
25· ·Lake.· That wasn't its purpose.· It's not an agent
·1· ·of the City.
·2· · · · · · ·A.· No.
·3· · · · · · ·Q.· Okay.· It also goes on to say:
·4· · · · · · ·"Section 5 does not apply to a pecuniary
·5· · · · · · ·interest in any matter that a member may
·6· · · · · · ·have by reason only of the member being a
·7· · · · · · ·member of a board, commission or other
·8· · · · · · ·body as an appointee of a council or local
·9· · · · · · ·board."
10· · · · · · ·And that's what Mr. Cassan asked you
11· ·whether you agreed that -- that your position on
12· ·Retirement Living was.· And what you told him was,
13· ·that in your view, you were on the Board of
14· ·Retirement Living as a appointee of Council?
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· Right?
17· · · · · · ·A.· I did.
18· · · · · · ·Q.· But turn the tables.· When you were
19· ·at Retirement Living as member of its Board and
20· ·matters come before the Board of Retirement Living
21· ·that affect your -- that affect the community,
22· ·this statute's got nothing to do with that, right?
23· · · · · · ·A.· I -- I don't know.· Because, I mean,
24· ·from a legal perspective, I'm a little confused
25· ·now.
·1· · · · · · ·Q.· Well, I can tell you, and tell me if
·2· ·you disagree with me, the only thing this statute
·3· ·has anything to do with is what you do when you're
·4· ·at Council as a member of Council and there's an
·5· ·issue that comes before Council in which you have
·6· ·a pecuniary interest.· And the statutes very
·7· ·clear.· You stand up and you say I have a
·8· ·pecuniary interest and you don't take part, right?
·9· · · · · · ·A.· Yes.
10· · · · · · ·Q.· Okay.· Now, let's go over to the
11· ·situation where you are in a Board meeting of
12· ·Retirement Living and a matter comes up at the
13· ·Board of Retirement Living that affects the
14· ·interests of the City.
15· · · · · · ·A.· Yes.
16· · · · · · ·Q.· Now, I think that's what Mr.
17· ·Bisceglia was asking you about.· And in those
18· ·circumstances, is it not the case that you're in a
19· ·position or could be in a position where the
20· ·interests of the City of Elliot Lake conflict with
21· ·the interests of Retirement Living, right?
22· · · · · · ·A.· Yes.
23· · · · · · ·Q.· And what did you do in those cases?
24· · · · · · ·A.· In those cases, it didn't happen
25· ·very often, I withdrew, left the meeting, and did
·1· ·not participate in the decision-making process.
·2· · · · · · ·Q.· Did you see that there was any
·3· ·potential for the interests of the City of Elliot
·4· ·Lake to be in conflict with the interests of
·5· ·Retirement Living when you were considering the
·6· ·issues relating to the potential purchase of the
·7· ·mall, and specifically the cost of the repairs and
·8· ·the necessity for the repairs that were directed
·9· ·to the Board's attention in the meeting of
10· ·December 3, 1998?
11· · · · · · ·A.· Given that I don't recall the nature
12· ·of the repairs or the cost of the repairs, but the
13· ·purchase of the mall I didn't see any conflict of
14· ·interest participating in purchase of the mall.
15· · · · · · ·Q.· Did you see that there was
16· ·potentially a conflict between the interests of
17· ·Retirement Living in buying the mall and not
18· ·paying the million dollars plus to fix it and the
19· ·interests of the City in having a safe mall?· Did
20· ·you consider those to be a conflict?
21· · · · · · ·A.· If -- if in that particular case
22· ·that Retirement Living knew that they needed to
23· ·spend that money and I was on the Board, I would
24· ·have taken the position of the City representative
25· ·which is this should be done.
·1· · · · · · ·Q.· But you did not -- you did not at
·2· ·that meeting of December the 3rd declare a
·3· ·conflict.
·4· · · · · · ·A.· Because I wasn't aware of any
·5· ·significant repair that would have to be done.
·6· · · · · · ·Q.· Well, Mr. Kennealy has testified
·7· ·that he did make you aware of that and you told
·8· ·Mr. Roy that -- that you don't dispute that
·9· ·evidence, although you don't recall it.
10· · · · · · ·A.· That's correct.
11· · · · · · ·Q.· Okay.· But you don't see that that
12· ·was a potential conflict between your duty to the
13· ·City and your duty to Retirement Living?
14· · · · · · ·A.· If I was aware of the nature of the
15· ·repairs and that they were not to be carried out,
16· ·I would certainly have opted for the City.
17· · · · · · ·Q.· Would you have declared a conflict?
18· · · · · · ·A.· At that point?
19· · · · · · ·Q.· Yes.
20· · · · · · ·A.· Yes.
21· · · · · · ·Q.· But you didn't from the minutes.
22· ·Right?
23· · · · · · ·A.· I wasn't aware of the repairs.
24· · · · · · ·Q.· Thank you, those are my questions.
25· · · · · · ·THE COMMISSIONER:· But you don't
·1· ·disagree with the basic proposition that had you
·2· ·known --
·3· · · · · · ·THE WITNESS:· Yes.
·4· · · · · · ·THE COMMISSIONER:· -- that there would
·5· ·have been a conflict?
·6· · · · · · ·THE WITNESS:· Yes, it would have been.
·7· · · · · · ·THE COMMISSIONER:· All right.· That's
·8· ·it.
·9· · · · · · ·MR. DOODY:· I think that completes the
10· ·business for the day, Mr. Commissioner.
11· · · · · · ·THE COMMISSIONER:· Thank you very much.
12· · · · · · ·MR. DOODY:· Tomorrow morning will be
13· ·Mr. Bauthus.
14· · · · · · ·THE COMMISSIONER:· Okay.· Thank you
15· ·we'll rise until 9:00 tomorrow, morning.
16· · · · · · ·---· Whereupon the Inquiry proceedings
17· ·were adjourned at 5:15 p.m.
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·1· · · · · · · · ·REPORTER'S CERTIFICATE
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·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
14· ·taken.
15· · · · · · ·Dated this 20th day of May, 2013.
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17· · · · · · · · · · · ·______________________________
18· · · · · · · · · · · ·PER:· HELEN MARTINEAU
19· · · · · · · · · · · ·CERTIFIED SHORTHAND REPORTER
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