The Judicial Inquiry into the 50% share sale of Collingwood Utility Services Corporation to PowerStream Inc. was requested by the Town of Collingwood by Resolution 042-2018.
The Inquiry’s mandate is to inquire into the sequence of events leading to the sale transaction, the Request for Proposal (RFP) process, fees and benefits paid to anyone in relation to the sale transaction and contracts entered into among the parties. The Inquiry will also look into the allocation of proceeds of the transaction for recreational facilities at Central Park and Heritage Park and any fees or benefits paid to any person or the entity involved in the creation of the recreational facilities. The Inquiry will examine the impact of these events on the ratepayers of the Town of Collingwood as they relate to the good governance of the municipality and make any recommendations the Associate Chief Justice may deem appropriate and in the public interest.
Judicial Inquiries are a way for governments to examine issues and problems outside the regular legislative process. Inquiries can help communities to benefit from independent, neutral consideration of matters in the public domain. Public inquiries can help develop public policy and make recommendations that will serve the public in the future.
The report of the Collingwood Judicial Inquiry is available at http://www.collingwoodinquiry.ca/
[November 2, 2020, 2:30 p.m.] - The Town of Collingwood hosted a virtual Collingwood Judicial Inquiry press conference for the media with Mayor Brian Saunderson, following Justice Frank Marrocco’s presentation of the Judicial Inquiry Report.
[October 30, 2020] - The report of the Collingwood Judicial Inquiry will be posted to the Inquiry’s website at noon on November 2, 2020 and will be live-streamed on Rogers television, Channel 53 in Collingwood.
26 February 2018 – On Monday, February 26, 2018, the Council of the Town of Collingwood passed a resolution to request a judicial inquiry be conducted, into the process undertaken in 2012 which resulted in the sale of 50% of Collus, the Town’s electric utility.
Pursuant to Section 274(1) of the Municipal Act, 2001, Council has the authority to request the Chief Justice of the Superior Court of Justice appoint a judge to look into the process and other matters surrounding the transaction. Council believes that a judicial inquiry is the most effective, objective way to provide answers to a number of questions raised regarding the transaction, and to provide much-needed transparency on the sale of one of the municipality’s biggest assets.
A Commission of Inquiry can be requested to look into any matter connected with the good government of the municipality, the conduct of any part of the public business of the municipality, or the conduct of individuals involved in the transaction.
The Town of Collingwood hopes that this process will provide necessary answers and strengthen the Town’s accountability and transparency provisions.
Further information will be provided when available.
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:
1. 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
2. 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:
a. To obtain, bearing in mind cost and the principles of proportionality, all documents necessary to understand the following:
i. the sequence of events leading to the Transaction, including the Request for Proposal process commissioned by the Town of Collingwood;
ii. 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;
iii. any subsequent contracts entered between or among the Town of Collingwood and PowerStream, Collus PowerStream and any other Collus company;
iv. Any fee or benefit of any kind paid, or conferred, by or on behalf of PowerStream to any person in relation to the transaction;
v. 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;
vi. The salaries, benefits and emoluments of any kind paid to any employee of Collus PowerStream and any other Collus company;
vii. The allocation of the proceeds of the transaction to the construction of the recreational facility at Central Park and Heritage Park.
viii. 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.
b. 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:
a. Was there adequate Council oversight of the transactions listed above?
b. Was Council’s delegation of authority in relation to the transaction appropriate?
c. Did council receive sufficient independent professional advice prior to delegating its authority to conduct the RFP negotiate or finalize the Transaction?
d. 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?
Please note: The official resolution will be contained within the approved Council Minutes.
Why did the Judicial Inquiry cost so much more than originally indicated?
A judicial inquiry, once launched, must act independently and cannot be diverted from its mission of investigating for factual evidence. Although the final cost was an unexpected outcome, the Inquiry was launched to obtain answers to public concerns in a thorough, public, and transparent way.
How much did the Judicial Inquiry cost, and what were the costs for?
The original estimated budget for the Collingwood Judicial Inquiry was $1.6 million. To date, the Town has processed and paid over $8.2 million. The costs will continue to be tallied through the completion of all associated bills and will be posted to the Town’s website.
The initial costing assumptions were based on a nine-month inquiry and approximately eight weeks of investigative work and eight weeks of actual hearings. Council and the public were made aware at the outset that billing rates, and length of the inquiry, would determine the actual expenditures.
How are the costs of the Inquiry incurred?
The costs of a judicial inquiry are comprised primarily of legal fees for both inquiry counsel and witnesses, researchers and data handlers, administrative staff, office space and equipment, travel expenses, and subject matter experts.
The Town provided the initial scope of the work to be done and then the costs were incurred by the Commission as it carried out is work. By doing things such as providing the location for the sessions and some technical support, the Town managed fiscal exposure to the best of its ability and within the limits allowable to still enable an independent process for the Inquiry.
Where did the funds came from and how will they be replenished?
In June of 2020, Council made the decision to not use proceeds from the sale of the Collingwood Airport, and the remaining shares of the Town’s hydro utility, to fund the Inquiry without public consultation. The ensuing public engagement did not yield a strong desire by the public to have the asset sale proceeds be used for this purpose.
Council have directed staff to utilize reserve and available in-year funds to pay for the Inquiry, and all costs to-date have been paid. Through future budgets, these reserves will be replenished.
How does a judicial inquiry provide value for money?
A judicial inquiry is a process that occurs in front of the public to ensure transparency and openness regarding the findings of an inquiry, and has the ability to compel the release of information. This ability is beyond the scope and powers of a municipality.
Beyond this, it is incumbent upon all municipalities, and the Province, to use the findings and recommendations to improve the conditions of the community. Although it is a subjective judgment, value for money will be determined by the success of the judicial inquiry in providing recommendations and the municipality in implementing these recommendations.
Can the report lead to criminal charges?
The purpose of a judicial inquiry is not to determine criminality.
The Town and public are aware that the OPP have described an investigation into possible wrongdoing related to the subject matter of the Collingwood Judicial Inquiry as open and ongoing.
Does Council have a role in encouraging the OPP to act on findings resulting from the Judicial Inquiry?
Council has no prescribed role in encouraging the OPP to act as a result of the Inquiry findings but may ensure that the OPP is aware of the Inquiry report.
Can the Town sue any parties who pled or were found to have played a significant role in allowing the events to happen?
Depending upon the facts and findings, the Town could seek to recover financial damages to the Town through legal means. A thorough review, legal advice, and an understanding of balance between the costs to pursue recovery and the likely amount of a recovery would be required prior to a Council decision to proceed.
Is it possible for participants within the Inquiry to sue each other?
Yes, they could. The Town may not be aware of this happening. It is possible to submit periodic Freedom of Information requests to the Attorney General if there is a desire to know, however at this point it is unclear what value this information would have to the Town.
Was any new information uncovered because of the Collingwood Judicial Inquiry?
A large amount of information was made public during the Inquiry process, and the public was made aware of information that was unavailable previously. The full set of information from the Judicial Inquiry and the final report can be found via the Judicial Inquiry’s website at http://www.collingwoodinquiry.ca/
In 2019, the position of Accountability Officer and Lobbyist Registrar was created to ensure that the Town’s procedures and policies are clearly set out and accessible and that the Town’s operations are transparent and compliant with relevant legislation, regulation, and best practice.
In December 2017, Town Council appointed Principles Integrity to act at its Integrity Commissioner providing accountability services to the Town beginning January 1, 2018.
Open and Transparent Communications
In 2015, the Town implemented and approved a Community Engagement Strategy 2015 and a communication protocol as well as hired a Communications Coordinator.
Accountability and Transparency Policy
Provides guidance on how the Town of Collingwood can ensure municipal matters are approached in an accountable and transparent manner.
Code of Conduct for Council, Local Board and Committee Members
The Code of Conduct and corresponding Code of Conduct Complaint Protocol were implemented to enhance public trust and improve the quality of public administration and governance by encouraging high standards of conduct on the part of all government officials.
Council-Staff Relations Policy
The Council-Staff Relations Policy exists to guide the business interactions between Members of Council and Staff and provide a framework for that relationship. It helps ensure a respectful and productive relationship between and amongst Council, Members of Council, and Staff of the Town.
Closed Meeting Investigator
The Town of Collingwood has engaged the services of the Ontario Ombudsman as the Municipal Closed Meeting Investigator to conduct investigations upon receipt of a complaint in respect to meetings or parts of meetings that are closed to the public.
The Lobbyist Registry came into effect on January 20, 2020. It is an online tool that documents instances of substantive communication, such as telephone calls, meetings, or e-mails between those who lobby and Members of Town Council or Town staff in a centralized database that is easy to access and search by the public and interested stakeholders.
In November 2017, the role of Coordinator, Records & FOI to ensure compliance with the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).
Changes were made to the Town’s Procurement By-Law and relevant processes to establish consistent standards within the procurement cycle to ensure that purchases are made by the Town of Collingwood in a way that reflects the best value for the taxpayer, protects the Corporation's financial interests and encourages competitive bidding.
A new online engagement platform was introduced (Engage Collingwood) for residents to learn, participate and get involved in various Town of Collingwood initiatives, programs, and decision making. This contributed to increased public participation in the Town’s budget processes.
• Records Management & FOI Coordinator position created.
• Brought IT Services in-house (all server and electronic information is within the Town’s custody & control.
• Council / Committee Governance Remodel: Implemented Standing Committees allowing matters to be heard before a Committee of Council before going to Council for full consideration.
• Council / In-camera meeting presentation material is all managed by Clerk Services within the iCompass/TOMRMS electronic records system. Ensure all hardcopy records from all meetings that are distributed at meetings be provided to the Clerk to be retained and filed accordingly.
• Implemented an annual employee performance management system.
• Live Streaming of all Council and Standing Committees.
• Changes to the Procedural By-law – verification for going in-camera to be confirmed by Clerk.