PREMIER BALL RIGHT TO CALL FOR HUMBER VALLEY PAVING INQUIRY

Guest Post Written by Ches Crosbie

Newly installed
Premier Dwight Ball went on record back in 2014, saying he wanted to see a
judicial inquiry called into the Humber Valley Paving debacle.  And reassuringly, in December 2015, upon
being sworn in as Premier, he issued a mandate letter to his new Minister of
Justice instructing him to call an inquiry into the Humber Valley Paving
“situation”. 
The deeply troubling
spectacle of  Humber Valley Paving saw the
Department of Transportation forgive Frank Coleman and his paving company up to
$20 million in contracting liabilities, and release two bonds in the same
amount, as Coleman was about to become the Danny Williams-anointed (and
unopposed) candidate for the PC Party leadership and premiership of
Newfoundland and Labrador. 

In September 2014, the
auditor general released a report on the huge and unprecedented indulgence granted
Coleman just days before Paul Davis won the PC Leadership Convention and became
party leader and incoming premier in September 2014.  Coleman’s name was on the bonds which
guaranteed completion of the Trans Labrador Highway work undertaken by his company,
Humber Valley Paving.
In a September 30,
2014 post, highly regarded blogger Uncle Gnarley pronounced:
“How Premier Davis
responds to the findings [of the auditor general] will constitute the standard
of integrity that will mark his office.”
Uncle Gnarley added
that after reading the report, he was “quite certain” that a judicial inquiry
should be called forthwith. 
How did Paul Davis,
after becoming Premier in October 2014, respond to the auditor general’s
findings on the Coleman affair?  He refused
to call an inquiry.  Whether this
constituted a failure of integrity or not I will leave others to debate.  Davis never promised to call an inquiry, and
therefore did not renege on a commitment.
But Davis’ decision
not to shed further light on this shady affair was an early test of his
leadership and a significant reason why he was defeated in the November 30,
2015 election, and is no longer Premier. 
He failed to demonstrate a clear break with the PC past, and project to
voters that he was following a new agenda of his own, instead of an agenda set
by someone else.
As former U.S.
President George W. Bush once said, if you don’t follow your own agenda, you
will soon be following someone else’s agenda. And you thought George W. Bush
was dumb!
The Province has a new
government, and an early test of the standard of integrity the new government
will set was whether Premier Ball did what both the public good and his own desire
to expose the facts require him to do, namely call a judicial inquiry into the
Humber Valley Paving scandal.  By
mandating Andrew Parsons, his Justice Minister, to do exactly this, Premier
Ball has passed this early test with distinction.
A judicial inquiry is
needed because of the limitations the auditor general worked under, and imposed
on himself.  The auditor general could
look at documentation.  The auditor
general could interview people likely to possess knowledge of the whirlwind,
single day decision to allow Humber Valley Paving to exit what had become an
onerous contractual obligation to finish the Labrador Paving Contract.  

The limitations inherent in “interviewing”
people are that they are not under subpoena, not under oath, not under threat
of purgery if they deliberately mislead, and most important of all, not exposed
to cross examination, which is well understood by lawyers to be the most
powerful engine for the discovery of truth known to the law.
As to review of
documentation as a means of discovering the truth, the auditor general
concluded that: “There is no documentary evidence of undue influence in the
decision to mutually terminate the contract.”
But an absence of
documentary evidence of undue influence is not an absence of undue
influence.  Astonishingly, contrary to
all good practice, there was no documentation surrounding the decision to
cancel the contract whatsoever! 



The auditor general allowed himself to be
checkmated by a complete lack of documentation surrounding the decision to
terminate the contract, a lack of documentation which many think is so contrary
to all sound management control and accountability practice in government as to
suggest a deliberate cover-up.
Judges are skilled at
making inferences from incomplete and absent evidence.  A missing paper trail, where extensive
documentation is normal practice, would not stop a judicial commissioner from
drawing the necessary conclusions as to undue influence or as to any other
issue.
The auditor general
added:

We have not been able
to satisfy ourselves why two Ministers, within one half hour,  independently contacted the deputy  minister of transportation and works to
inquire about the status of HPV on the morning of March 13, 2014.

We have not been able
to satisfy ourselves why the process to come to an arrangement with HPV to
terminate the contract…had to be concluded the day before the nominations
closed for the leadership of the progressive conservative party of Newfoundland
and Labrador.
Clearly, the auditor
general’s staff interviewed the two ministers, and was not “satisfied” with
their explanations, but having no documentation to explain the situation, could
not answer what impetus initiated the process on the morning of March 13, 2014 whereby
the contract was terminated by the end of the day.  Nor could the auditor general establish why
the termination was urgent, or what involvement the Premier’s Office might have
had.
Incredibly, the report
also found that Transportation Minister Nick McGrath instructed his deputy
minister not to inform the Premier’s Office of the decision to cancel.  And the deputy minister complied!  According to then Premier Marshall, he found
out about this six weeks later. This led to the finding by the auditor general
that:
Minister McGrath
knowingly withheld information from the Premier of Newfoundland and Labrador
related to the decision to mutually terminate the contract.
The presence of
protocols in government aimed at ensuring the Premier knows of significant
decisions, and in particular, politically significant decisions, before they
are made, has caused eyebrows to arch at Marshall’s denial of knowledge.  But his failure to immediately fire McGrath
on learning of his deception caused a collective shaking of heads.  Instead, McGrath was left in cabinet for a
further six months, until a new Premier Davis told him he could jump or be
pushed.
Just what precipitated
the whirlwind of decision making aimed at letting Frank Coleman’s paving
company off the hook for liabilities in the millions and transferring them to
taxpayers, on the day before he was to put his name in unopposed as candidate
for Premier, remains a mystery shrouded in an enigma.  

Whether undue influence was indeed exercised
remains unresolved, and respect for good governance has caused Premier Dwight
Ball to now undertake what Premiers Tom Marshall and Paul Davis failed to do:
initiate a judicial inquiry to expose just why and how it all happened.  By taking this decision, the Ball government has
signalled a new commitment to integrity in government and respect for the
public trust.  

The same public trust
requires that the terms of reference for the inquiry ensure that no significant
question about the astonishing Humber Valley Paving affair remains unanswered.
_________________________________________________________________________
Ches Crosbie is a personal injury lawyer and owner of
Ches Crosbie Barristers, St. John’s.
Des Sullivan
Des Sullivan
St. John's, Newfoundland and Labrador, Canada Uncle Gnarley is hosted by Des Sullivan, of St. John's. He is a businessman engaged over three decades in real estate management and development companies and in retail. He is currently a Director of Dorset Investments Limited and Donovan Holdings Limited. During his early career he served as Executive Assistant to Premier's Frank D. Moores (1975-1979) and Brian Peckford (1979-1985). He also served as a Part-Time Board Member on the Canada-Newfoundland Labrador Offshore Petroleum Board (C-NLOPB). Uncle Gnarley appears on the masthead representing serious and unambiguous positions on NL politics and public policy. Uncle Gnarley is a fiscal conservative possessing distinctly liberal values and a non-partisan persusasion. Those values and opinions underlie this writer's views on NL's politics, economy and society. Uncle Gnarley publishes Monday mornings and more often when events warrant.

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3 COMMENTS

  1. Agreed that this was a totally shady deal that should be investigated. However there is a misconception out there that the province lost the opportunity to collect $19 million which is totally false. From memory HVP completed 60% of the work to the satisfaction of the government (ie no deficiencies to be corrected) and were paid 60% of the value of the contract (approx. $11.4 million). With HVP refusing to come back and complete the remaining 40% of the work the government was forced to retender the outstanding work. I understand that the tender for the remaining 40% came in approximately $2 million higher than the value of the remaining 40% of the HVP contract. Had the bonds not been released, the government would have been in their rights to go after the bonding company for this additional cost ($2 million) to complete the project. Never would the government been able to get the $19 million or even 40% of it (the value of the uncompleted work).

    • Your analysis that the taxpayer had to forgive only (only) $2 million may well be correct. My impression is that because of bundling with other work of the contract to finish, this is difficult to establish. Where I come from, $2 million is real money.
      As to oaths to tell the truth, these are mainly for show and mean very little. Cross examination can mean a lot more, but if it occurred, there is no indication of it in the text of the AG report, or in the inferences drawn (or not drawn) as to truth telling.