BC Hydro using $24K fee threat to withhold SNC-Lavalin payments info

If you’ve been following Canadian news for the last few years, you probably heard of Montreal-based engineering giant SNC-Lavalin and its troubles. 

The company has extensive operations in Vancouver, some of which only became apparent when the World Bank blacklisted SNC-Lavalin in April over corruption at infrastructure projects in Bangladesh and Cambodia. Here is my Business in Vancouver story. 

I also reported on how SNC-Lavalin announced a company-wide whistleblower amnesty, in an effort for it to root out corruption from the inside. 

SNC-Lavalin was given the contract to build the Evergreen Line, the SkyTrain extension to the Tri-Cities. It also was involved in the Canada Line, Sea-to-Sky Highway project, Canada Line, Bill Bennett Bridge and as one of the last sponsors to sign-on with VANOC for the 2010 Winter Olympics. It has ongoing contracts with BC Ferries and BC Hydro. (Check out Laila Yuile's blog for much more on SNC-Lavalin).

In 2011, its Operations and Maintenance division began a five-year outsourcing agreement for BC Hydro facilities management services. 

SNC-Lavalin was paid $40,091,145 by BC Hydro for the year-ended March 31, 2012. For the previous two fiscal years, it was paid a combined $76.1 million. 

I recently filed Freedom of Information requests to BC Hydro, to get lists of payments made by BC Hydro to SNC-Lavalin and vice versa since 2010. 

In response, BC Hydro wants me to pay a combined $23,368.47 to fulfil my stated request -- not including 6 cents a page for photocopying. (BC Hydro's FOI department stubbornly insists on photocopying and mailing or couriering instead of the 21st century method of scanning and emailing. Power Smart and Penny Foolish, perhaps?)

BC Hydro’s long-winded, pessimistic fee estimate letters are below. Two years ago, Premier Christy Clark issued an edict for open data and information across government. Certainly BC Hydro can follow the leader. Unless it is hiding something for some reason. 

These excessive fees that BC Hydro wants to charge remind me of U.S. Senator Patrick Leahy (Democrat-Vermont) and his Sept. 30, 1986 statement on the tendency of governments to threaten FOI requesters with big bills, in order to prevent information from being accessed by citizens.

"Indeed, experience suggests that agencies are most resistant to granting fee waivers when they suspect that the information sought may cast them in a less than flattering light or may lead to proposals to reform their practices. Yet that is precisely the type of information which the (Freedom of Information Act) is supposed to disclose, and agencies should not be allowed to use fees as an offensive weapon against requesters seeking access to Government information...."

Needless to say, I will be appealing BC Hydro's excessive fees.

BC Hydro $17,692.20 FOI Fee Request

BC Hydro $5,676.27 FOI Fee Request

Not Done Properly: Dix's Dips failed British Columbians

Media and scholars will study for years to come how the BC Liberals defied the odds (and the polls) and won British Columbia's 40th provincial election on May 14. 

Liberal sources told me they were truly surprised at what happened. They would've been overjoyed with a minority government for Christy Clark, but were already resigned to hearing the words "Premier-designate, Adrian Dix." 

Dix departs on day 1: flawed from the start.

I haven't found any members of the so-called 801 Club, but I found sympathizers who vowed to stay home on election day. They would never vote NDP, but they said they couldn't vote to keep Clark as premier. 

Ultimately, it was the triumph of a fear-based advertising campaign. Fear and greed are the two most basic motivators of humans. The Liberals painted Dix as weak and voters were told time and again they should fear what he might do if given power. It was built on the premise that repetition can sometimes be perceived as reality, even if the message is false. The same spin doctors portrayed Clark as strong. It was laughable for her to claim fiscal responsibility, but more people bought it than bought the NDP narrative. 

The Weathervane ad, showing Dix's head swivelling in the wind under black clouds in a thunderstorm, was the last big salvo fired in the ad war that began with the infomercial that starred various Liberal insiders (who were portrayed as average British Columbians). The Liberals audaciously employed a weather metaphor when they had a dismal record in that category. The NDP had nothing to counter it. 

On the ground, the Liberals spent the last weekend promoting Green Party candidates in some swing ridings, hoping to split the NDP vote. On election day, Liberal candidates, such as Peter Fassbender, Suzanne Anton and Richard Lee, used social media to bash the NDP and/or get the vote out, despite the Elections Act's ban on transmitting or publishing advertising messages on election day. They finally stopped and deleted their messages. Those weren't the signs of a party confident of victory. 

As much as Dix was delivering a bright, positive Barack Obama-inspired message of hope and change, his campaign was too little, too late in expressing criticism of the Liberal record. When the NDP became critical, the Liberals framed it as being negative. The NDP could have prevented this. 

Re-using the Jack Layton playbook from the 2011 federal election was ill-conceived. Layton was not running to be Prime Minister, he was running to be the Opposition leader. Dix's fatal error was not highlighting the 12-year Liberal record of incompetence and corruption on a daily basis. Showing how the Liberals wasted resources and grew government would have been simple. Simple, just-the-facts storytelling (with a dash of humour) would have done the job and reminded British Columbians that it was time for a change in government. 

One practical step at a time? Dix should instead have been urging British Columbians to take a giant leap away from the Liberals. 

How could he have done so? By revealing the incidents of Liberal mistakes and misconducts one-by-one throughout the campaign, in a daily advent calendar-style opening, complete with historical newspaper quotes and broadcast clips. The only problem would have been choosing which 28 issues and incidents to highlight and in which order. Quick Wins, Wood Innovation and Design Centre, Liquor Distribution Branch, BC Hydro smart meters... those are just the tip of the iceberg. The list is so long, as per Laila Yuile's 100+ Reasons the Liberals Must Go.

While the Liberals spent a year-and-a-half reminding voters of Dix's 1999 backdated memo, Dix and the NDP should have reminded voters of the boxes and boxes and boxes of documents hauled out of the Legislature on Dec. 28, 2003 by police officers investigating the corrupt procurement process around the sale of BC Rail. There were more than 25,000 pages entered as evidence in Dave Basi and Bob Virk's bribery trial. 

Van Dongen's BC Rail cookie. (Facebook)

Dix's tour bus should have included trips to the former BC Rail terminus in Prince George and the recently demolished station in North Vancouver. It was not good enough to simply promise a two-year, $10 million judicial inquiry in the platform. The $6 million legal indemnity deal resonates with citizens but the NDP did little when the documents the government didn't want you to see were finally revealed during the campaign by Global BC's Jas Johal. In fact, independent John van Dongen did more to highlight the issue than the NDP did by publishing a photo of a themed cookie by an Abbotsford baker on Facebook and Twitter. 

The May 2 poll release from Angus Reid Public Opinion said the $6 million legal indemnity deal mattered a lot or somewhat to 67% of respondents -- 1% more than the way the Harmonized Sales Tax was introduced in 2009 by the Liberals.

People are mad as hell and not tolerating corruption anymore. Since the global economic crisis of 2008, corruption has been top-of-mind around the world. Consider the troubles in India listed in this BBC report. Or how new Chinese president Li Xinping is battling corruption (and how there is a BC Liberal connection, according to the Globe and Mail!). Closer to home, B.C. taxpayers need to keep an eye on embattled Montreal engineering firm SNC-Lavalin; the Evergreen Line contractor was blacklisted by the World Bank and is facing corruption investigations on four continents.

It was also not good enough for the NDP platform to focus solely on a BC Rail inquiry. A top-to-bottom overhaul of government is necessary. The Office of the Auditor-General proposed whistleblower protection. The Information and Privacy Commissioner has offered ideas on increasing transparency and accountability, including a duty to document law. The NDP didn't offer a new vision for openness and accountability. It was simply not confident in its ability to set and adhere to higher standards and deliver the good government that British Columbians truly desire.

The NDP needed a focussed plan to restore public trust. It didn't. It failed British Columbians.

Clark outruns conflict of interest train, but BC Rail still runs

Before I get into how Premier Christy Clark scored a rare victory in the final week before the official election campaign and how independent MLA John van Dongen has serious reservations about how the game was refereed, you must see this.

It is a letter to me from the private contractor who handles Freedom of Information requests for BC Rail. 

Yes, BC Rail still exists as a legal entity, even though CN took over the railway after the controversial 2003 privatization. (Read the A-to-Z primer on the BC Rail scandal from The Tyee here. Listen to The Investigators documentary from CKNW AM 980 here.)

BC Rail doesn't want you or me to know what happened at board meetings from 2003 and 2004, until sometime after the May 14 provincial election. It wants to consult with an unspecified public body before deciding what, if anything, it will release by May 29. Some of these records are now a decade-old. Why should they be kept secret? 

The reason was not given, but I am very curious. The BC Rail board of directors in 2003 included Jim Shepard, the former forestry, pharmaceuticals, military and construction equipment bigwig and Clark loyalist behind the Concerned Citizens For B.C. anti-Adrian Dix ad campaign. 

Don't forget how the BC Liberals fought tooth-and-nail to block Auditor-General John Doyle from seeing a copy of the $6 million indemnity agreement that forgave aides Dave Basi and Bob Virk of their legal bills after their surprise guilty plea in October 2010. That's the same John Doyle that a Liberal-dominated committee chose to replace as Auditor-General. Doyle has a habit of asking tough questions and offering critical opinions that don't correspond with the government's desired spin on topics ranging from BC Hydro's funny math to the folly of carbon offsets. 

BCRC 13002 Extension Letter

Regina lawyer Gerald Gerrand submitted his opinion on April 9 to B.C. Conflict of Interest Commissioner Paul Fraser in van Dongen’s Sept. 21 complaint about whether Clark was in a conflict of interest during the 2003 privatization of BC Rail. 

Gerrand was put on the case after van Dongen discovered that Fraser was in conflict of interest because his son, John Paul Fraser, is an assistant deputy minister appointed by Clark. 

“It is a major thrust of the complainant’s written submissions that a reasonable interpretation of the available information in 2003 is that Ms. Clark knew she had a conflict or apparent conflict of interest in the BC Rail matter, that she should have recused herself form all aspects of the issue from start to finish, and that in failing to do so she failed to observe her statutory obligations under the Act."

“Ms. Clark was not in a position of conflict of interest or apparent conflict of interest in relation to the BC Rail matter as alleged by the complainant Mr. van Dongen," Gerrand concluded.

“I'm not satisfied we have facts,” van Dongen told me. “That was ultimately the mission I felt the public was entitled to a full accounting of the facts, what she did, why she did it. What was her involvement? There were serious inconsistencies. Some of the inconsistencies that gave rise to the complaint were not dealt with, they were deemed outside the scope of the Conflict of Interest Act.” 

“There is no appeal under the Act, this is an interesting area of law where we have a law on the books which normally should have similar status to any other law. But this one doesn't get tested in court where quite frankly it would be better if it was. Because everything would be out in the open and a wittiness would have to testify under oath out in the open and it would be subject to cross examination. The process we have here is entirely secret, while we have the benefit of what the commissioner chose to put in his report, we don't have the benefit of the complete interviews and transcripts and documents.”

Van Dongen had a bad gut feeling when he met Gerrand to give his testimony on Jan. 21. 

“From the line of questioning, which appeared to be from the point of view of defence lawyer questioning a plaintiff, which shouldn't be the context here under the law, I became more concerned about the process,” van Dongen said. “It seemed to be questions led by someone representing her, as opposed to a neutral fact-finder, which I believe the public is entitled to under this legislation.”

“There's a very consistent theme to condemn anyone or anything that is viewed as adverse to Christy Clark's view of the world and that applies to potential witnesses like Basi and Virk, and any testimony they would be checked and tested and viewed with sufficient caution, but it's still evidence. 

“And similarly the comments (in Gerrand's opinion) about Alex Tsakumis or any other blogger. The suggestion that absolutely everything that's posted on a blog has no credibility, it wears a little thin and it's disappointing to see Gerald Gerrand pick up that theme.”

(Tsakumis, who revealed new, untested evidence of the BC Rail scandal on his blog, was neither contacted nor named by Gerrand. Gerrand only identified Tsakumis as a "political blogger." Was that because Tsakumis revealed how Gerrand financially supports the Liberal Party of Canada, the same federal political party as Clark?)

“The bias of the commissioner shows, he's not a neutral fact finder. Admittedly some of it's subtle, but some of it's not so subtle,” van Dongen said.

Van Dongen had much to say to me about three specific points in Gerrand's report. 

GERRAND: “Ms. Clark confirms that she attended cabinet meetings on the following days when matters related to the sale and/or lease of assets of BC Rail were a subject of some discussion: March 27, 2002, Dec. 4, 2002, June 18, 2003, Oct. 29, 2003, Nov. 19, 2003 (recusal on the BC Rail issue).”

Van Dongen: “He confirms the meetings she was in and the relevant ones for my submission... The meeting of July 23, I find it very hard to believe she wasn't in that meeting, but I would like to see more detail. 

“The emails of July 27, 2003 between Kieran to Bornmann and Bornmann back to Kieran give very detailed information that come out of cabinet that I don't believe were fabricated, there was no basis for someone fabricating that. 

“When the email is as explicit as Kieran saying to Bornmann, talk to Christy find out what's happening, words to that effect, there needs to be serious cross-examination of that, the issues around that memo, the issues around the July 23 meeting. We don't have anything conclusive around that.” 

(Read more about Bornmann in Canadian Lawyer Magazine's story "Admitted briber gets green light to practise law in Ontario.")

GERRAND: “Ms. Clark was present at the Oct. 29, 2003 meeting at which BC Rail was discussed. Following that cabinet meeting, Ms. Clark met with Commissioner Oliver in the afternoon at his office for approximately 90 minutes.... Ms. Clark has testified that she does not recall whether it was she or Commissioner Oliver who made the connection between (then-husband Mark Marissen’s Burrard Communications) contract with CIBC WM (the company handling the sale) and the BC Rail file, but she states it was discussed. While she did not consider there was a conflict of interest. Commissioner Oliver indicated that he would consider the question further and in the interim, she should be cautious.“It is Ms. Clark’s recollection that following her meeting with Commissioner Oliver on Oct. 29, 2003 she had no further involvement respecting the BC Rail issue.”

Van Dongen: “She goes to a cabinet meeting and after that on the same day has a meeting for 90 minutes, was the meeting set up ahead of time or did she ask for it on the spur of the moment after the cabinet meeting? We don't know that. 

“A one and a half hour meeting is a very long meeting on a so called conflict that they both claim now was not a conflict at all. She doesn't recall who raised, who made the connection. You mean it came up by accident? There's a huge unanswered question here about why she went to the meeting.

“It is relevant to ask why would she do these disclosures on a very superficial basis, leave the impression with everyone she was declaring a conflict of interest, we find out now there was absolutely no conflict, it was black and white. It's relevant to ask: why'd you go through all that drama?”

GERRAND: “While Mr. Bornmann was unable to confirm the authenticity of that specific document ( Pilothouse June 24, 2003 briefing note about the June 18, 2003 cabinet meeting attended by Clark)... I will assume for purposes of this discussion that  it is authentic...”

Van Dongen: “A fascinating statement. Unable or unwilling? He remembers enough detail to say it was different than the one the RCMP showed him. It's interesting when you read the transcript of Bornmann's interview with the RCMP, the detail that he claims he can remember and then everything that he doesn't recall. Some of what he doesn't recall and some of what he does remember is pretty self-serving in terms of the narrative that ultimately unfolded here. This guy has no credibility, he wasn't put under oath, he responded to written questions. But he goes out of his way to claim that she was not a source for anything. How does he explain the July 27 memo, that wasn't put to him?”

“You had a person two-and-a-half years ago presenting herself as candidate for leader of the party and, in turn, the position of premier, which is the most powerful and responsible position in B.C. It behooves us to know everything we can about the candidate, it certainly behooves us to look at past performance, and where there are gaps of information, it behooves us to ask the questions. I’m simply motivated by getting the facts. 

"To suggest I'm an accuser, is not legitimate. To suggest I don't like Christy Clark is irrelevant."