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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON March 20, 2002

Revisiting the Brome Lake
"Commission of Inquiry"

The 1999 Brome Lake Commission of Inquiry into the David Allen Gauthier lawsuit was totally unlike any commission of inquiry. Then again, no matter how often the media and public described it as such, by law it was nothing more than a committee appointed by a municipal council to investigate questions of fact. Moreover, by the way it was conducted and staffed, the inquiry shared very little in common with traditional commissions of inquiry.

A week or two at the most

While most commissions of inquiry take months if not years to achieve their mandates, the three " part-time" committee members had less than 30 days to determine why Gauthier's 1988 $450,000 lawsuit had never been referred to the town's insurers and whether the omission paved the way to an action in damages. What with their other full-time occupations they could hardly be expected to devote much more than the equivalent of a week to ten days to their mandate.

Too close for comfort?

Whether or not the committee appreciated the ramifications of their mandate, they would ultimately be obliged to inquire into the conduct of several past and present councilors as well as municipal administrators with whom they were in contact on a regular basis. The committee would naturally want to determine not only what they remembered about the lawsuit but who did what, when and why. Federal or provincial commissioners in similar circumstances would have been faced with a barrage of court challenges on grounds that such close ties with witnesses could seriously undermine any appearance of impartiality. Who acted as their legal counsel?

Both the wording and spirit of their mandate raised another serious obstacle, which no legitimate commission of inquiry encounters. The committee members were required to determine if there were possible 'claims' against anyone who would have caused prejudice to the property owners due to negligence, omissions or other causes'. The answer to such a wide-sweeping question encompassed both questions of fact and of law, yet contrary to any true commission of inquiry, their mandate failed to include the services of legal counsel. Would the citizens of TBL have been prepared to pay the costs? Not likely. Should the committee members have relied on the town's attorneys? Equally unlikely - according to the councilors who opposed the inquiry, the town attorneys had already concluded that there was no available recourse.

It would therefore seem logical to assume that when the committee members recommended, in June 1999, at the conclusion of their inquiry, that " no action be taken against anyone, whomsoever", their inquiry findings were never evaluated by an attorney.

Legal powers of the committee members

This is not to say that the committee members lacked all of the powers that are generally associated with commissions of inquiry. According to the Cities and Towns Act the committee's chairperson could sign and issue a summons requiring any person to appear before the committee in order to give relevant evidence, administer the oath to the witnesses and, if deemed expedient, order the witnesses to produce any papers or documents. On the other hand, unlike provincial or federal commissioners of inquiry, the enforcement powers were minimal. Any witness who neglected to appear, to give evidence or produce a document could only be fined up to a maximum of $40.

Inquiry powers not applied

So, how did the municipal committee members apply their special inquiry powers? They didn't. They preferred an "informal" approach. On May 25,12 days after the town clerk began producing what was left of the town file, the chairperson invited by registered letter, a total of 10 witnesses to "meet" with the "commissioners" in order to review the events surrounding the claim". Among the recipients were lawyers, councilors and municipal administrators, both past and present. Via the same letter, the chairperson offered each witness two possible date, with the understanding that each meeting would last approximately 30 minutes and concluded by asking them to confirm their availability by calling the commissioners.

Witnesses never testified under oath

Nine of the ten witnesses, who had been invited, presented themselves. The informal questioning was conducted at the town hall by the councilors who relied on a list of prepared questions. At no time were the witnesses asked to testify under oath and none did. While the lack of an inquiry budget may explain why no attorney was retained to question the witnesses there are not too many theories that can account for why the committee ruled out sworn testimony which is standard practice in any fact finding inquiry.

Did council O.K. the interrogation of witnesses?

One clue may be found in the wording of the May 3 resolution, which was submitted by the lead councilor who was pushing for the inquiry. While it specifically mandated the committee to review the town file and make the appropriate recommendations, it made no reference, whatsoever, to the interrogation of witnesses. In fact, a cursory examination of the two-page resolution could lead one to believe that when the mandate was drafted and subsequently confirmed by council it was never intended that the committee interrogate witnesses. This could explain why the resolution only refers to the right of the chairperson " to issue a summons requiring any person to appear before the committee for the purpose of producing any papers or documents..."

One likely theory....

One likely theory is that, after reviewing the town documents the committee members realized that they had little choice but to call witnesses. However, because of the council's "lukewarm" support, at best, for their inquiry, despite the vote of 4 to 1, coupled with the town administrators' lack of enthusiasm they probably thought they could obtain more cooperation from the witnesses with a softer approach. They may have even believed that by ordering the witnesses to appear and having them to testify under oath, some witnesses would refuse to participate and, if push came to shove, their mandate would end up being challenged before the courts.

In fairness to the committee members, whose hard work and determination remain unchallenged, they would probably be the first to admit that due to their inexperience they may have swallowed more than they could chew.

While I, for one, will never know whether the conclusions would have been any different had the mandate been assumed by a true commission of inquiry, I can't help but wonder.