Alberta bureaucrats knew tobacco-litigation consortium less qualified
'Prevented public from discovering the truth,' expert says
Senior Alberta civil servants significantly altered an assessment, allowing former premier Alison Redford the opportunity to choose a legal consortium to which she had close personal and political ties for a potentially lucrative tobacco-litigation contract.
"The top civil servants, many of whom were also lawyers bound by the lawyer's code of ethics as well as the civil service code of ethics, seem to have been involved in this scandal up to their eyeballs," said Arthur Schafer, director of the University of Manitoba's Centre for Professional and Applied Ethics.
"They prevented the public from discovering the truth," Schafer said.
The much-touted independent review committee was comprised of senior justice and health ministry lawyers. They were tasked in 2010 with evaluating legal consortiums vying to represent Alberta in its $10-billion lawsuit against the tobacco industry. If successful, the lawsuit could be worth hundreds of millions of dollars in contingency fees for the winning consortium.
Four legal consortiums responded to Alberta Justice's call for expressions of interest in November 2010. Three were invited to give presentations to the review committee, which evaluated each consortium and produced a comparison of their comparative strengths and weaknesses.
Documents leaked to CBC News show the review committee inexplicably reversed its initial decision to eliminate International Tobacco Recovery Lawyers (ITRL), a consortium led by JSS Barristers, a Calgary law firm with close ties to Redford.
A partner in JSS Barristers is Redford's former husband Robert Hawkes. They divorced more than 20 years ago but Hawkes remained a strong political supporter. He led her transition team when she won the Progressive Conservative leadership campaign and became premier in 2011.
Redford resigned as Alberta premier in March 2014 and as an MLA in August of the same year after a series of scandals.
Briefing note altered
The leaked documents show the committee initially had ranked ITRL last due to its "lack of depth." It recommended Redford, who was then justice minister, should choose between two other equal but better-qualified consortiums.
But within a day of sending its assessment in a briefing note to Redford's executive assistant, Jeff Henwood, the committee produced a second version of the same briefing note.
The briefing note's second version inserted ITRL back into the competition, removed the reference to its last place ranking, listed its strengths, and recommended Redford choose the "appropriate" consortium from the three finalists.
There is nothing in the documents that indicates why the original briefing note was modified, or who made the dramatic reversal to the original version. There also is no explanation as to why the committee completely changed its recommendation.
Redford did not respond to an interview request but instead issued a brief statement through her lawyer to CBC News.
"Any allegation that the department informed me that ITRL was ranked last among the three firms bidding is false," Redford said, adding that the matter had been thoroughly investigated by Alberta's ethics commissioner.
There is nothing in the documents that indicates Redford saw the first briefing note.
A string of internal Alberta Justice emails also leaked to CBC News show some members of the review committee knew the second briefing note was inaccurate because it omitted the fact ITRL had been ranked last and was less qualified than the other two consortiums.
"Removing that sentence would suggest the third consortium is on the same footing as the other two, which is not the conclusion the Review Committee came to," senior justice official Lorne Merryweather wrote in a Dec. 8, 2010, email to justice assistant deputy minister Grant Sprague.
But the second briefing note was not corrected and Redford signed it.
Consortium not "best choice"
Less than a week later, on Dec. 14, 2010, Redford issued a memo in which she announced that, based on the briefing note, she had chosen ITRL and JSS Barristers as the "best choice" to represent Alberta in the tobacco litigation.
On Dec. 22, 2010, justice officials told ITRL and JSS Barristers they had been chosen to represent Alberta in the tobacco litigation.
A string of related emails leaked to CBC News show senior justice officials documented their concerns about how Redford had characterized her selection of ITRL - but only after the decision had already been made.
One email exchange in late December 2010 shows justice officials were concerned with Redford's claim in her Dec. 14, 2010, memo that ITRL represented the "best choice." The emails show there was a plan, which included Henwood, to change her memo to delete "best choice."
"As discussed, Jeff will get the Minister's memo changed so that the final sentence, a question seeking confirmation of the 'best choice' is deleted," states a Dec. 29, 2010, email written by a justice ministry lawyer.
"(Henwood) has asked that the responsive memo from (justice deputy minister Ray Bodnarek) to the Minister get signed off this week, and has asked for an addition of wording to the effect of: 'Therefore, based on the criteria, the International Tobacco Recovery Lawyers would be capable of adequately representing Alberta's interest.'"
A week later, Bodnarek wrote a memo to Redford which mirrored Henwood's proposed wording.
"You are correct that the Review Committee was of the view that any of the three proponents would be capable of adequately representing Alberta's interest," Bodnarek wrote. "Therefore, based on the criteria, the International Tobacco Recovery Lawyers would be capable of adequately representing Alberta's interest."
Henwood did not respond to interview requests. In an email he said, "my recollection after five years is not great, but I believe the department was responsible for reviewing the proposals and providing an evaluation of the relative strengths and weaknesses of each consortium to the Minister for her review."
Documents selectively released
In response to a CBC News freedom of information request in 2012, Alberta Justice released Redford's 2010 memo, which still contained the "best choice" reference. But citing legal privilege, the ministry withheld all other documents which revealed ITRL was ranked last and had been initially eliminated in the independent review process.
Ottawa lawyer Michel Drapeau, an expert in access to information, said the decision by Alberta Justice to release Redford's "best choice" memo, while withholding documents which contradicted this claim, appears to have been based more on politics than the law.
Drapeau said the information in the memo and the other documents was clearly "linked" and Alberta Justice should have either applied privilege to all the documents, including Redford's memo, or waived privilege on all the documents.
"The part of the story that has been released is in fact very comfortable with her version of events and very supporting of the decision," Drapeau said.
None of the senior justice and health officials with direct knowledge of how ITRL and JSS Barristers came to win the litigation contract have corrected the public record.
Bodnarek is now a provincial court judge. He is on holidays and did not respond to interview requests from CBC News forwarded to him by his secretary.
Sprague is now deputy minister of Alberta Energy. He also did not respond to interview requests over the past two days. The review committee's third member, health assistant deputy minister Martin Chamberlain, is away on holidays and could not be reached.
"I think it is really important if we are going to restore public trust in the Alberta civil service that these people be held accountable," Schafer said.
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