The plaintiff called the mayor of Coquitlam "a whistleblower."
The defendant argued Richard Stewart is out for "self-preservation."
Either way, Mayor Stewart's letter about evidence that Metro Vancouver CAO Jerry Dobrovolny swore in an affidavit last December is the subject of an application now before the Vancouver Law Courts.
Last Thursday (April 6), Master Terry Vos reserved his judgment on a bid by the Spanish company Acciona to cross-examine Dobrovolny on a second affidavit he gave last month that responded to Stewart's letter.
The civil case is "a bit of a side show," Metro Vancouver’s counsel Karen MacDonald said, referring to two other actions before the courts between Metro and Acciona.
In the first, Acciona is suing Metro for $250 million for wrongful dismissal after Metro ended its contract for Acciona to design and build the North Shore Wastewater Treatment Plant in North Vancouver; in turn, Metro is countersuing for $500 million.
But the events since Acciona's termination in January 2022 have taken a strange turn.
Last May, Acciona revealed to Metro that one of its former employees, Anika Calder, had confidential documents from Metro about the dismissal.
Calder, the daughter of Peter Steblin, Coquitlam's now retired city manager, took photos of the Metro documents that were on her father's city laptop in his kitchen and opened via Stewart’s login credentials.
Acciona's counsel, Craig Dennis, told Vos that discussions were ongoing with Metro until last December when Metro — "without warning" — filed a court injunction to preserve the confidential documents on Acciona’s systems.
In that case, Metro wants a court injunction to allow a forensic investigator to dig into Acciona's computers to see how far its confidential documents got, and to destroy them.
To add to the injunction case, Dobrovolny swore an affidavit about the leaked information and the sharing of login credentials by Metro directors.
In January, Stewart wrote a letter through his lawyer — to both Metro and Acciona — to contradict some of Dobrovolny’s evidence in his affidavit.
In response, Dobrovolny offered a second affidavit to "clarify" his stance.
For five hours last Thursday, Vos listened to the lawyers' arguments, often shaking his head about the additional legal issues since the main civil action was filed.
In the latest case, Acciona contends it needs to cross-examine Dobrovolny as, it claims, his evidence in the two affidavits is material to Metro’s injunction application (for a forensic investigator).
Dennis told the court that, contrary to Dobrovolny’s evidence, Acciona has complied with Metro’s requests and has even provided Metro with its notes following interviews with Steblin and his daughter about the leaked documents.
Dennis alleged Dobrovolny may have provided the court with “incomplete, inaccurate or misleading evidence” based on what Stewart wrote in his letter, and accused Metro of having “unclean hands” in the legal proceedings.
Stewart's unsolicited letter, which was read out in part in court, accuses Dobrovolny of "errors and inaccuracies" about the sharing of confidential information and login credentials by Metro directors with senior municipal staff.
Dennis also claimed Dobrovolny "walks back on his second affidavit" following the letter by Stewart, whom Dennis claims seeks a "complete and factually accurate record" before the injunction hearing begins.
"Mayor Stewart voluntarily came forward out of concern that the record wasn’t accurate," Dennis said, noting Dobrovolny was "fully aware" that Metro directors could share their login credentials with senior city staff.
"He wanted to come forward for the benefit of the parties and to correct the record....The court will want a full explanation of what Mr. Dobrovolny said."
Still, Metro lawyers argued that Stewart’s letter “only muddies the waters with inflammatory” rhetoric.
"Unfortunately, Mayor Stewart decided to insert himself," MacDonald said, noting Stewart is no longer a Metro director. "This is no whistleblower coming from the inside. This is a self-preservation letter."
MacDonald also pointed out that while three months have passed since Stewart penned his letter, the mayor has yet to provide an affidavit despite claiming he would.
“This letter isn’t evidence and shouldn’t be treated as such,” she told the court.
MacDonald also contended that Dobrovolny offered a second affidavit after Stewart’s letter “in the prudence of the political sphere that we were in.”
She argued that none of the information Dobrovolny gave in his second affidavit is contradictory, and that it is not relevant to the injunction application.
“No material facts are actually in dispute here,” she said. “We felt it was necessary to reassure the court [with a second affidavit]. We needed to address what was said in [Stewart’s] letter.”
MacDonald urged the court to toss Acciona’s application, saying a cross-examination of Dobrovolny “isn’t going to assist the court. There’s no point. It’s not going to move the needle.”
Still, Dennis retorted that Metro is playing down Stewart’s letter and Dobrovolny’s second affidavit “doesn’t clear anything up.”
No date has been set for Vos’ ruling.
Timeline
- April 2017: Metro Vancouver hires Acciona to design and build the North Shore Waste Water Plant
- June 2021: Acciona extends the project target dates by 26 months
- July 2021: Metro gives Acciona notice of contractual breaches
- January 2022: Metro Vancouver fires Acciona
- March 2022: Acciona sues Metro for $250M for wrongful dismissal; Metro countersues for $500M
- May 2022: Acciona reveals Anika Calder, a former employee, leaked Metro’s termination letter
- December 2022: Metro applies for a court injunction to preserve the evidence on Acciona’s computers via a forensic investigator; Jerry Dobrovolny files an affidavit about Metro’s leaked documents
- January 2023: Coquitlam Mayor Richard Stewart responds to Dobrovolny’s affidavit
- March 2023: Jerry Dobrovolny files a second affidavit; Acciona applies to cross-examine Dobrovolny
