Judicial Inquiry

The current Council has heard repeatedly from a number of independent and professional sources, including the reports from 3 lawyers, that the 2012 share sale transaction has major gaps in the paper work in terms of the underlying rationale for the sale of a 50% interest and the process followed by Council (including the very unusual delegation of authority to the Mayor to review and sign complex legal documents in January, 2012).

Over the 4-year term, this Council repeatedly requested information to fill in the gaps from Collus Powerstream and our partner with limited or no success and fundamental questions about the sale including, how was the 50% interest determined, did Council receive appropriate professional advice before delegating the authority to the Mayor, were the criteria for assessing the RFP process appropriate, all remain unanswered.

This is not acceptable for this Council or the taxpayers of Collingwood. How Council manages Town assets and spends taxpayers’ hard earned dollars is one of, if not, the most important jobs of Council.

It is equally important that Council make these critical decisions in an open and transparent way so that Council is accountable for these decisions. If Council cannot account for or explain how a very significant transaction was done, it is incumbent on Council to look into that transaction to discover why and how it was done and, where necessary, put processes in place to prevent those mistakes from recurring.

As Justice Cunningham, Commissioner of the Mississauga Public Inquiry, stated, “the overarching purpose of this inquiry is to look not only to the past, but to the future in a broad consideration of the good government of the Municipality”.

I believe that this Council has an obligation to the taxpayers to pursue a public inquiry to look into the unanswered fundamental questions around the transaction and make the recommended changes to our governance structure and processes to be sure that we follow best practices in the future. In the same way a municipality will proactively invest in its infrastructure, such as roads, recreation facilities and water treatment plants, to ensure sound and sustainable operations in the future, this Council is investing in a Public Inquiry to identify and address procedural gaps to strengthen our municipal governance structure.

The Motion
– moved by Deputy Mayor Brian Saunderson and seconded by Councillor Bob Madigan –

WHEREAS, under s. 274 of the Municipal Act, 2001 S.O. 2001, c. 25, the Council of a Municipality may, by resolution, request a judge of the Superior Court of Justice to inquire into or concerning any matter connected with the good government of the municipality, or the conduct of any part of its public business;

AND WHEREAS any judge so requested shall make inquiry and shall report the results of the investigation or inquiry to the Council as soon as practicable;

AND WHEREAS the Town of Collingwood concluded a Share Purchase Agreement on March 6, 2012 in which it sold 50% of Collingwood Utility Services Corporation to PowerStream Inc. (“the Transaction”; “PowerStream”);

AND WHEREAS concerns have been raised about the wisdom and reasons for the Transaction;

NOW THEREFORE the Council of the Town of Collingwood does hereby resolve that:

An inquiry is hereby requested to be conducted pursuant to s. 274 of the Municipal Act which authorizes the Commissioner to inquire into, or concerning, any matter related to a supposed malfeasance, breach of trust, or other misconduct on the part of a member of Council, or an officer or employee of the Town or of any person having a contract with it, in regards to the duties or obligations of the member, officer, or other person to the corporation, or to any matter connected with the good government of the municipality, or the conduct of any part of its public business; and

The Honourable Chief Justice Smith, Chief Justice of the Superior Court of Ontario, be requested to designate a judge of the Superior Court of Ontario as Commissioner for the inquiry and the judge so designated as Commissioner hereby authorized to conduct the inquiry in two stages:

To obtain, bearing in mind cost and the principles of proportionality, all documents necessary to understand the following:

the sequence of events leading to the Transaction, including the Request for Proposal process commissioned by the Town of Collingwood;

the nature and extent of the delegation of authority by Council to those who negotiated on behalf of the Town of Collingwood in relation to the RFP process and Transaction;

any subsequent contracts entered between or among the Town of Collingwood and PowerStream, Collus PowerStream and any other Collus company;

Any fee or benefit of any kind paid, or conferred, by or on behalf of PowerStream to any person in relation to the transaction;

The commercial relationship between PowerStream, Collus PowerStream and any other Collus entity and the Town of Collingwood prior to 2017 and in particular, any agreement entered into between or among any of these parties;

The salaries, benefits and emoluments of any kind paid to any employee of Collus PowerStream and any other Collus company;

The allocation of the proceeds of the transaction to the construction of the recreational facility at Central Park and Heritage Park.

The payment of any fee or benefit of any kind on behalf of any person of the entity involved in the creation or construction of the recreational facility.

Having conducted the documentary review to determine what, if any, public hearings ought to be held into the matters designated for the inquiry herein;

AND IT IS FURTHER RESOLVED THAT the Terms of Reference of the Inquiry shall be: to inquire into all aspects of the above matters, their history and their impact on the ratepayers of the Town of Collingwood as they relate to the good government of the municipality, or the conduct of its public business, and to make any recommendations which the Commissioner may deem appropriate and in the public interest as a result of the inquiry.

AND IT IS FURTHER RESOLVED THAT the Commissioner, in conduct the inquiry into the transactions in question to which the Town of Collingwood is a party, is empowered to ask any questions which he or she may consider as necessarily incidental or ancillary to a complete understanding of these transactions, and for the purpose of providing fair notice to those individuals who may be required to attend and give evidence, without infringing on the Commissioner’s discretion in conducting the inquiry in accordance with the Terms of Reference stated herein, it is anticipated that the inquiry may include the following:

Was there adequate Council oversight of the transactions listed above?

Was Council’s delegation of authority in relation to the transaction appropriate?

Did council receive sufficient independent professional advice prior to delegating its authority to conduct the RFP negotiate or finalize the Transaction?

Where the criteria developed to assess the proposals received during the RFP process appropriate and did the criteria serve the interests of the ratepayers of Collingwood?