Monday, 19 August 2019


As the fun was winding down in Dildo, Jimmy Kimmel having accepted the title of Honorary Mayor rather than face an Election, Judge Richard LeBlanc was wrapping up the Inquiry into the Muskrat Falls Project. It was time to begin the contemplation of a problem far harder than that which had excited Kimmel’s viewers all week.

Likely, Kimmel had stolen even the “die-hards” who might have otherwise tuned in for the Inquiry’s last inning. There was no pleasure to be had in Goose Bay anyway. There was only the pained legal verbiage of banal lawyers representing Nalcor and the venal politicians — the “culprits” — as well as the “contractors” (Astaldi), the “silent”  (Newfoundland Power), and the senior bureaucrats, the “submissives”, whose practiced deference helped create the debacle.

Judge LeBlanc will have the last word; unlike Kimmel, cautious metaphor will be the least of his problems. 

As one of the interveners, I am glad it is over.

It was an essential piece of work, one whose creation was long sought by writers on this Blog, including this scribe. I acknowledge the Ball Government having called it, even if after some prodding.

I also look forward to the Commissioner’s Report and believe that Judge LeBlanc will deliver one that is fair and balanced and likely — dare I say — to satisfy no one.

There are some things I already miss: Commission Counsel Kate O’Brien’s star power, for example. She resigned a bit early, following her appointment to the Supreme Court, but left a profound impact on the Commission with a trail of determined, insightful and intelligent examination of Witnesses that spoke to her suitability to perform the complex and challenging role.
Commissioner Richard LeBlanc     (CBC Photo)

Except for those who spend a lot of time in and out of the courts, we might miss Co-Counsel, Barry Learmonth, too; his skilled, detailed and relentless Examinations having either elicited answers from reluctant storytellers or unceremoniously exposed their ill-intent. Altogether, his was also a superior performance.

Some of the Examinations were especially memorable. O’Brien’s patiently insistent handling of Ed Martin, during Phase I, qualifies. Weaker litigators might have lost patience with him far earlier but she stuck to her script, leaving it to LeBlanc to reign in the arrogant, failed CEO.  The Judge may have allowed his practiced patience with courtroom bullshit to slow his eventual dressing-down of the man but it came, even if somewhat late. “I've had it, Mr. Martin,” an exasperated LeBlanc bellowed, the hard crash of his gavel signifying that he had heard enough of Martin’s evasive bullying after more than two and a half days on the Witness Stand. “You're not being the witness here. You're trying to run the show. It's going to stop right now. And if it doesn't stop, unfortunately I'm not going to be able to hear the rest of your story.”

The Judge was not nearly finished: “You are not responsive to the questions. You're actually being rude as far as I'm concerned and I don't want it anymore. I wouldn't put up with it in court, and I'm not going to put up with it here,” LeBlanc continued, often wagging his forefinger in Martin’s direction.

Danny Williams might also have come in for an early and similar dose of the Judge’s wrath. The smug former Premier who — though having signed the Term Sheet with Emera and the Premier of Nova Scotia which put the Muskrat Falls project in motion — was unable to produce any of the analyses proving the worthiness of the project, which he boasted had been prepared by his Administration. Instead of merely enlisting Williams’ help in locating them, given the size of the debacle he had spearheaded, the Judge might have sent him off to Confederation Building with appropriate threats if the hunt did not end successfully. 

That said, Barry Learmonth’s interrogation — “mauling” is a better word — of former senior bureaucrat, Todd Stanley, during his “walk-back” from earlier assertions that Nalcor was a “runaway” train, as ordinary civil administration goes, should remain for every Muskrat watcher just a “click” away.

Irene Muzychka, who replaced O’Brien, did not have sufficient time to climb the steep learning curve, but junior Counsel Michael Collins’ tackling of complex engineering issues, his sharp memory of Witness testimony and project reports, and his unflappable and thorough questioning of Witnesses, did not go unnoticed.

There are some things I won’t miss, and not just the hours given to reading pre-Examination interviews and framing questions. I especially won’t miss watching ill-equipped lawyers representing “Parties with Standing” work through issues which they clearly did not understand.

If there was a fault with the Inquiry’s structure and process it was surely that engineers, economists, and other professionals were not permitted (ostensibly because of the requirements of the Public Inquiries Act) to ask questions to Witnesses directly. Such a process would have facilitated a more equal encounter; questions and answers from opposing professionals of similar training and expertise would have produced a more accurate and useful outcome and limited Witnesses’ ability to leave the questioner snowed. 

It is also worth remembering that there were only three Parties with Standing that did not represent Government or private interests (i.e. the Premier, bureaucrats, Nalcor officials). In addition to Counsel, public interest intervenors included only the Concerned Citizens Coalition, the Consumer Advocate, and the Grand River Keepers. The Crown barely played a role, a matter to which I may return another time. Notwithstanding their right to Counsel, the private interests were represented by well over twenty lawyers.

Did due process, permitting every politician and bureaucrat to protect their derrieres, place the public interest in a position of disfavour? I expect that, in time, this is an issue that government, policy institutions, and academics will assess.

Still, I am certain that the heft of Commission Counsel was a strong compensatory influence given not just their skill-sets but also the sheer volume of Exhibits examined and the number of issues raised.

As an intervenor, I might not be the best one to weigh the contribution of the Concerned Citizens Coalition or that of the other two public interest Parties. I hope that each of us made some mark on the outcome. For me, personally, David Vardy’s name will always stand out for his hard work, superior intellect and unwavering focus. Ron Penney and others, most preferring to be nameless, also offered their time and considerable expertise, all of whom justly deserve the moniker “citizen”.

Did the Commission hear all the issues on the minds of the Concerned Citizens Coalition? No, but the Coalition had ample opportunity to be heard and its 83-page written summation reflects views formulated both before and since the Inquiry got underway.

There are many members of the public who still believe that the Inquiry was a waste of money. I disagree, and have said so many times even knowing that nothing that the Commissioner reports will return the immense amount of public money squandered.

I remind people daily that, no differently than the Budget deficit and the out-sized public debt, the cost of repairing the financial damage caused to the province by this project has not struck home. When the bill arrives, presumably next year, I expect that Judge Richard LeBlanc will quickly replace Jimmy Kimmel as Newfoundland and Labrador’s media sensation. Just watch, too, as those power bills replace the high-toned humour for which Dildo was suitably recognized last week (and for which Dildonians deserve applause!).

The Judge’s Report will chronicle incompetence of comedic proportions. Unlike the week in Dildo, humour will be hard to find; even in tone expect only the pejorative. In which case it is well to remember that, when a far less smiley Judge LeBlanc (less than Jimmy Kimmel anyway) gives you the straight goods, be sure that you don’t shoot the messenger.