Guest Post by Cabot Martin
An interesting piece appeared in the New York
Times last week concerning a big dust up between President Donald J. Trump and
his, to put it mildly, “estranged” niece, Dr. Mary L. Trump. Both Donald J. and
her father, Fred Jr, were sons of Fred Trump Sr., the Trump family patriarch.
Dr. Trump has a “tell all” book coming out next
week that promises to give the world a unique look inside the mental world of a
man who has wreaked havoc on his nation and the world for the past three and a
half years and is bidding , through re-election, to repeat this extraordinary
performance .
The title of her book foreshadows it’s substance: “
Too Much - Never enough : How My Family Created the World’s Most Dangerous
Man”.
Now Dr. Mary L. Trump (she has a PhD in Clinical Psychology
and is a certified Clinical Psychologist) is obviously not your average
political commentator and The Donald has wheeled out his overworked legal team
in an attempt to use the courts to avoid the publication of her professional/personal scrutiny.
He seeks to suppress the publication of her book
based on a 20 year old Non Disclosure Agreement signed by Dr. Trump in the aftermath
of a family fight over Fred Trump Sr.’s will.
Nothing new here yet you might say.
Too true; The Donald is, if nothing, a one track,
relentless, attack machine whose tactics do not vary.
However, it was Dr. Trump’s defense to Pres Trump’s
reliance on the Non Disclosure Agreement that caught my eye.
In a word, fraud.
Her lawyers have filed documents with a New York court
alleging that Dr Trump’s signature on the Non Disclosure Agreement was induced
by fraudulent statements by The Donald as to the value of certain assets
covered by the will.
And citing precedents going back to Roman times, who
used the phrase ex dolo malo
non oritur actio to assert that one cannot expect the court to
help you profit from one’s own fraudulent activities, her lawyers claim that
the court should not enforce the fraud based Non Disclosure Agreement to The
Donald’s advantage.
Again so what ?
Uncle Gnarley is dedicated to helping solve this
Province’s pressing problems you say – why all this Trump business?
Well, it just so happens that the essence of the
defense that Dr Trump is mounting is a defense of what we in Canada call “civil
fraud” and it may be of direct and great
relevance to getting out of the greater part of our current Muskrat Falls
pickle.
Based on legal precedent as to use of the “Civil Fraud” defense in Canada and basic principles
of equity , Nova Scotian utility Emera, our gatekeeper Muskrat “partner” foisted
on us by Ottawa, seems to have a big problem – and of their own making.
Because under the concept of “Civil Fraud”, all
those contracts by which Emera’s lawyers have so painstakingly sought to bind
us into inaction, and thus perpetual poverty, could well be fatally flawed by
their “civil fraud” origins.
Yes, all those interlocking, cross referencing,
signed, sealed and delivered, stacks and stacks of paper, a blizzard of words, legalese
and subsidiaries, all trying ,like the Upper Churchill Contract, to put remedy
beyond the reach of the victim, are at risk of tumbling down – if they have
been built on fraudulent sand.
For it seems plain that Emera either knew, or
should have known, that those December 2012 Muskrat Falls cost and financing
numbers used to justify the Province’s Sanction Decision were built on sand –
as exhaustively explained by Mr. Justice Richard LeBlanc in his Commission of
Inquiry Report.
Yes, that LeBlanc Report, delivered on March
12,2020, less than a mere 4 months ago, whose adequate public examination has
so far been yet another COVID-19 victim.
Time to urgently revisit that seminal Report – to
Read, Mark and Inwardly Digest - when there is a tiger pacing about in your
living room, it is best to make it your priority.
I hasten to add, Mr Justice LeBlanc’s findings
were foreshadowed by the shocking allegations of costing improprieties at
Sanction by a former Muskrat Falls project engineer in an "Uncle
Gnarley" online article on January 30,2017.
So, if we decided to “Walk Away”, what would
happen ? What would it cost us ?
Maybe nothing near as much as has been made out in
most quarters.
Because Emera may well not be in a position to
come to any court with the clean hands necessary to enforce any of those Nalcor/mera Muskrat contracts – and project funders and Emera’s shareholders may have
thereby been put at extreme risk.
At least that is my opinion.
And to those, who, induced by their fatalistic
hopelessness and lack of energy, say to this - BS – a pipedream - and at the
same time have not done an exhaustive examination of the legal basis for a Civil
Fraud defense, I say, you are part of the problem.
Indeed, mere principles of inter-provincial utility
and decency demand that we get to the bottom of this Emera matter – disruption
or no disruption.
It comes to this.
Because of Muskrat, we are about to enter into
extremely critical negotiations with Ottawa, with, we are told, no cards to
play and predictable results.
In the great web of $13 Billion worth of political
and commercial machinations that is Muskrat, the idea that we, in this Province
alone, are totally responsible for the outcome is to take naivety to a
nihilistic fault.
While we have grown morbidly obsessive among the
size and financial consequences of the $13 Billion bill for Muskrat, we tend to
forget that this is a big deal for Ottawa too, partly because the $13 Billion
number is so big, partly because they are on the hook directly for $7.9 Billion
of that via their loan guarantees and partly because they played a central role
in the whole scheme.
Rest assured, it has Ottawa’s serious attention
and that they are actively organizing and implementing their strategy.
However, like Emera, Ottawa may not be coming to
these negotiations with clean hands either.
The truth is that the decision of the Harper Government
in Ottawa to give Muskrat the green light by financially backstopping the
project, without doing any real due diligence, and for a myriad of reasons,
some of which were contrary to this Province’s best interests, makes them
culpable too.
And the fact that they made Emera’s project
participation a requirement of Federal funding makes them doubly culpable.
Such a requirement just a new wrinkle in the Upper
Churchill situation when we were, in effect, denied the right to transmit Upper
Churchill power to market across Quebec. In this case, there was to be no clean route
across Nova Scotia without cutting Emera in – in a big, bargain basement,
relatively risk free, way.
And merely because of Ottawa’s guarantee, the
Canadian Imperial Bank of Commerce’s decision to facilitate many billions in
loans to Muskrat without conducting their normal due diligence process, which,
if at all competent, would have spotted the flaws in the egregiously, under
calculated project costs at Sanction, makes them culpable as well.
Indeed, one would have to search Canada hard historically
to find a larger, more powerful and more tight knit gathering of commercial and
political power than that which our $13 Billion called forth; and anyone who
thinks they did not seek to maximize their advantage is living in Dreamland.
What, Oh what, to do ?
Well, one very promising way to cut through this
truly Gordian Knot is a “warp speed” Joint Federal/Provincial Inquiry into all
aspects of the Muskrat Falls Project.
We really do need to know - Who knew What and When?
And we must not be afraid to insist on truly adequate
answers.
For we have even been told that our “continued
existence as a Province” depends on it.
And as the results of the new expanded Muskrat
Inquiry could materially improve our negotiating position, it is not in our best
interests to enter into negotiations with Ottawa on Muskrat before the results
of that new Inquiry are made public.
One of the great benefits of a Joint Federal/Provincial
Inquiry could, and should, be broader Terms of Reference than those of the LeBlanc
Inquiry, which was hobbled by jurisdictional issues and restricted Terms of
Reference.
It would have been easy for Dr. Mary L. Trump to
have given in to The Donald and his legal bullying – to his web of paper.
But she is made of sterner stuff.
Are we?