Alison Redford government's 'exclusivity' rationale for hiring legal consortium nonsense: expert
Alberta government did not prevent the consortium from competing for other tobacco-litigation business
The government of former premier Alison Redford repeatedly defended its choice of a legal consortium, with close ties to the Conservative party, for a potentially lucrative tobacco-litigation contract by claiming it agreed to work exclusively for Alberta.
But a CBC News investigation has found the consortium personally chosen by Redford in December 2010 — International Tobacco Recovery Lawyers (ITRL) and its lead Calgary law firm JSS Barristers — was apparently allowed by Alberta to compete for other tobacco-litigation business.
In an emailed statement, Glenn Solomon of JSS Barristers said ITRL agreed it would not represent other jurisdictions without the consent of the Alberta government.
"ITRL has always honoured that agreement," Solomon said.
But Redford never told the public that ITRL was allowed to compete for other tobacco-litigation business. And in fact, she said the fact that another consortium — Bennett Jones — declined to offer exclusivity created a "perceived" conflict of interest which buttressed her decision to choose ITRL.
Bennett Jones is now conducting tobacco litigation for six provinces.
University of Manitoba ethics professor Arthur Schafer said Redford's exclusivity rationale makes no sense.
"The criterion of exclusivity rules out the most experienced, knowledgeable firm (Bennett Jones) that would be able to bring the best resources to the people of Alberta for this litigation," said Schafer, director of the university's Centre for Professional and Applied Ethics.
Earlier this week, CBC News revealed the "independent" process by which Redford, while Alberta's justice minister, chose ITRL and JSS Barristers had been manipulated.
A review committee, comprised of senior justice and health ministry lawyers, had initially ranked ITRL last because it lacked depth, and had instead recommended in a briefing note Redford choose between Bennett Jones and the paired firms of Field Law and McLennan Ross.
But within a day of sending the first version of the briefing note to Redford's executive assistant, the committee changed its assessment. In a second version of the same briefing note, it inserted ITRL back into the competition, removed its last-place ranking and told Redford to choose the "appropriate" of three consortiums.
Less than a week later, she chose ITRL and specifically referenced the perceived and actual conflicts of the consortiums.
Consortium ranked last
There has never been any public explanation from the past or present government as to why the committee changed its initial assessment. The Notley government on Monday announced a review will be conducted by a retired Supreme Court of Canada justice. The review is to look specifically at whether an ethics commissioner's investigation of conflict-of-interest allegations against Redford was provided with all the relevant information. It is to be completed by Feb. 29, 2016.
Nothing in the documents indicates Redford saw the first version of the briefing note. Redford said the ministry never told her the consortium was initially ranked last.
Alberta's $10-billion lawsuit against the tobacco industry — the largest in the province's history — is an attempt to recoup some of the health-care costs associated with smoking. If successful, it could provide a multi-billion-dollar windfall for the province's depleted coffers, and potentially hundreds of millions of dollars in contingency fees for ITRL and JSS Barristers.
When CBC News revealed on Nov. 28, 2012, that Redford had personally chosen a consortium to which she had close personal and political ties, it created a firestorm of controversy in the legislature.
After, and even before, the story appeared, the Redford government claimed a major factor in choosing the consortium was its willingness to work exclusively for Alberta.
Chronology casts doubt on claim
A chronology assembled from internal government documents casts doubt on that claim.
An internal Alberta Justice briefing note, which appears to have been created on Dec. 8, 2010, states ITRL "would not represent other jurisdictions without our consent."
On Dec. 10, 2010, Nunavut issued its request for proposals for its tobacco litigation contract.
In a Dec. 14, 2010 memo, Redford chose ITRL.
The winning consortium was notified on Dec. 22, 2010, and negotiations on a contingency fee agreement began shortly after.
A Nunavut government spokesman said the territory's bid process closed Jan. 14, 2011, and confirmed ITRL was among the bidders within the deadline. Solomon however, said ITRL sought permission to bid from Alberta in February 2011 and submitted its bid in March 2011.
On April 4, 2011, Nunavut announced ITRL had won its tobacco litigation competition.
On June 21, 2011, ITRL signed a contingency fee agreement with Alberta, which meant the deal with Alberta was sealed.
A Nunavut government spokesman told CBC News that in early December 2011, three lawyers from the ITRL consortium, including JSS Barristers partner Robert Hawkes, travelled to Iqaluit in an attempt to finalize the consortium's agreement with the territory.
Hawkes and Redford were once married. They divorced more than 20 years ago but he remained a strong political supporter. He was part of a committee that encouraged Redford to run for the Tory leadership in February 2011 and he led her transition team when she became premier.
Solomon said Hawkes would not have been involved in either the Alberta or Nunavut litigations.
On Dec. 7, 2011, three lawyers from the ITRL consortium — Greg Monforton, Paul Harte, and Bradley Robitaille — became members of the Law Society of Nunavut, which would allow them to represent the territory in tobacco litigation.
Instead, then justice minister Jonathan Denis' press secretary, Josh Stewart, sent an email to CBC News in which he said, "the consortium's Alberta appeal was that it was focused on the Alberta lawsuit — not on other provinces or other lawsuits."
On Nov. 28, 2012, the CBC News story appeared and, in response to questions from the opposition, Denis told the Alberta legislature his government wanted a consortium "that acts solely for Alberta taxpayers."
Denis did not respond to interview requests.
Seeking other business
But that same day, JSS Barristers issued a public statement in which it boasted ITRL had been chosen by Nunavut for its tobacco litigation. The statement made it clear the consortium was still seeking to represent the territory.
"To date, (ITRL) has not been given leave by Alberta to represent Nunavut," the statement said.
On Nov. 29, former justice minister Verlyn Olson told the legislature he understood exclusivity was a key factor in choosing ITRL but he confirmed the consortium had been seeking to represent Nunavut. "But I don't believe that that (has) actually been formalized in any way," he said.
The next day — Nov. 30, 2012 — JSS Barristers partner Glenn Solomon told CBC News in a letter that "(ITRL) is not acting for Nunavut, as the Alberta government has not consented to (ITRL) accepting such a retainer."
In an emailed statement to CBC News late last week, Solomon said Alberta refused ITRL permission to represent Nunavut in May 2012, which is when Alberta first announced ITRL had been chosen and CBC News first revealed the consortium's close ties to Redford.
But despite this, Solomon said ITRL continued to pursue the Nunavut business.
"ITRL remained hopeful that the Government of Alberta might determine later that ITRL could act, as Nunavut was a small jurisdiction and any engagement would be handled out of Ontario," he said. "We continued our dialogue with Nunavut for that reason. However, the Government of Alberta did not ever provide its consent for ITRL to act for Nunavut, and so ITRL never entered into a retainer agreement with Nunavut."
After CBC News revealed in late November 2012 that Redford had personally chosen ITRL, two opposition parties made formal requests for an investigation by Alberta's ethics commissioner.
During the subsequent investigation in 2013, Redford told the commissioner that "during the selection process (Alberta Justice) asked for a commitment that each of the bidders would agree to represent only Alberta.
Redford said Bennett Jones declined to provide that commitment.
"I was advised that these would be potential conflicts of interest in the conduct of the file and therefore are the perceived conflicts," Redford told the ethics commissioner.
At that time, Bennett Jones was already representing New Brunswick.
Ethics expert Arthur Schafer said the newly revealed documents show none of the explanations provided to the public for Redford's selection of ITRL and JSS Barristers are believable.
"It is a scandal piled on a scandal," Schafer said. "It is nonsense piled on nonsense."
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