1 THE NORTH BATTLEFORD WATER INQUIRY APPLICATIONS FOR STANDING & FUNDING HELD: JUNE 26, 2001 TROPICAL INN NORTH BATTLEFORD, SASKATCHEWAN C.V. REPORTING SERVICES LTD. #500 ­ 224 ­ 4th Avenue South Saskatoon, Saskatchewan (306) 242­3455 e­mail: cvreporting@sk.sympatico.ca

2 THE NORTH BATTLEFORD WATER INQUIRY The following applications for standing and funding were received by the Commission and were heard by Mr. Justice Robert D. Laing on the 26th day of June, 2001 at the Tropical Inn, 1001 Highway 16 Bypass, North Battleford, Saskatchewan. Commission Counsel: McDougall Gauley Mr. J. Russell APPLICANTS: The City of North Battleford Priel Stevenson Hood & Thornton Mr. L. Ted Priel, Q.C. (Application for Standing & Funding) The Battlefords District Health Robertson Stromberg Mr. Gary D. Young, Q.C. (Application for Standing) Association of Professional Mr. Robert H. McDonald Engineers & Geoscientists of Director of Membership Services Saskatchewan of the Association of Professional Engineers & Geoscientists of Saskatchewan (Application for Standing) The Government of Saskatchewan Department of Justice ­ (as represented by) Civil Law Division (Application for Standing) (a) Saskatchewan Environment Ms. L.M. Schwann and Resource Management (b) Saskatchewan Health Mr. R.G. Hischebett (c) Saskatchewan Municipal Mr. R.E. Petrich Affairs and Housing (not present at the hearing, presentation made by Ms. Schwann) (d) Saskatchewan Water Mr. T. Michael McDougall Corporation Saskatchewan Environmental Hnatyshyn Gough Society and Nature Saskatchewan Mr. E. Scott Hopley (Application for Standing & Funding) Dr. J. Gerharde Benade McKercher McKercher & Whitmore Dr. David Butler­Jones and Mr. N.G. Gabrielson, Q.C. Dr. Eric Young (Application for Standing) Canadian Union of Public Mitchell Law Firm Employees, Local 287 Mr. Robert W. Mitchell, Q.C. and Ms. Sandra G. Mitchell

(Application for Standing & Funding) Scharfstein, Gibbings, Walen Scharfstein, Gibbings, Walen & & Fisher, on behalf of 427 Fisher Individuals and Corporations Mr. G.J. Scharfstein affected by the contaminated (Application for Standing & Funding) potable water in North Battleford

3 I N D E X Opening Remarks by Mr. Justice R.D. Laing .....................Page 4 Applications for Standing: Mr. Priel .....................................................Page 9 Mr. Young .....................................................Page 15 Mr. McDonald ..................................................Page 16 Ms. Schwann ...................................................Page 19 Mr. McDougall .................................................Page 26 Mr. Hischebett ................................................Page 28 Mr. Gabrielson ................................................Page 31 Mr. Mitchell ..................................................Page 33 Mr. Scharfstein ...............................................Page 36 Mr. Hopley ....................................................Page 44 Applications for Funding: Mr. Priel .....................................................Page 48 Mr. Hopley ....................................................Page 63 Mr. Mitchell ..................................................Page 72

Mr. Scharfstein ...............................................Page 80

4 1 COMMISSIONER: Good morning, ladies and gentlemen, counsel. I 2 think we're going to have to increase the wattage in here if 3 we're going to hold all of our hearings in this particular 4 room. In any event, I'm Justice Robert Laing of the Court of 5 Queen's Bench, who, as I guess most of you know, I have been 6 designated to conduct this particular inquiry into a situation 7 that developed here in North Battleford in the spring of this 8 year. The purpose of the hearing scheduled for today and 9 tomorrow is to determine which parties will be granted 10 standing to participate in the formal hearings of this North 11 Battleford Water Inquiry anticipated to commence in September, 12 2001, and, also, to hear submissions with respect to the 13 applications for funding parties who are applying for standing 14 and who without receiving financial assistance would not be 15 able to effectively participate in the hearings. However, 16 before addressing these topics, I would first like to make a

17 few general remarks. 18 The reasons for this Inquiry arise out of the 19 events that resulted in the public water system of the City of 20 North Battleford becoming contaminated in the spring of this 21 year as a result of Cryptosporidium bacteria being present in 22 the City's water supply, and at the same time a significant 23 number of persons became ill. The purpose of the Inquiry, as 24 set out in the Order in Council dated May 10, 2001, is to 25 inquire into and report on and make findings and recommenda­

5 Opening Remarks By The Commissioner 1 tions with respect to any and all aspects of the following 2 matters: The circumstances that led to the current 3 contamination of the public water supply of the City of North 4 Battleford; the adequacy and effectiveness of the actions 5 taken by the officials of the Government of Saskatchewan, the 6 Battlefords District Health Board and the City of North 7 Battleford leading up to and in response to the discovery of 8 the contamination of the public water supply in the City of 9 North Battleford; the effect, if any, of the regulations, 10 bylaws, policies, guidelines, procedures and practices of or 11 applicable to the Government of Saskatchewan, the Battlefords 12 District Health Board and the City of North Battleford on the 13 events referred to above, and, as well, any other relevant

14 matters that the Commission considers necessary to determine 15 that the City of North Battleford's public drinking water is 16 safe in the future. 17 It is intended to thoroughly pursue all aspects 18 of this mandate set out in the foregoing and all public 19 hearings will be held here in North Battleford. Recognizing 20 that it will be difficult for interested citizens of North 21 Battleford to attend any or all of the hearings, the 22 Commission has established a website and it is our intention 23 to post all evidence presented at the hearings, whether 24 documentary or oral testimony, within several days of that 25 evidence being submitted to the Inquiry. In this way evidence

6 Opening Remarks By The Commissioner 1 presented at the Inquiry will be available to far more 2 citizens than could possibly personally attend the hearings 3 and will assist in the hearings hopefully being more public 4 than they would otherwise be. 5 To implement the mandate of the Commission I 6 have appointed Mr. Jim Russell Commission counsel, who is 7 seated here on the right, and Mr. Warren Bickford, executive 8 director of this Inquiry, and most of you have already met Mr. 9 Bickford. Mr. Russell's responsibility will be the gathering 10 and sorting of information in the form of documents and 11 interviews with a view to presenting relevant evidence to the

12 Inquiry once hearings commence. Mr. Russell is the person to 13 contact with respect to all matters of a legal nature. Mr. 14 Bickford will oversee all aspects of administering the Inquiry 15 and is the person any party or member of the public should 16 contact with respect to all matters that are not of a legal 17 nature. 18 The Commission has published rules of practice 19 and procedure and for those of you who have not had an 20 opportunity to review them, the Commission has opted for the 21 non­adversarial model that appears to have been favoured by 22 most recent commissions of inquiry, including the Walkerton 23 Inquiry. The object of the rules is to ensure procedural 24 fairness to all persons and parties, while leaving the primary 25 responsibility for the calling of evidence to Commission

7 Opening Remarks By The Commissioner 1 counsel. It may be that some of these rules can be improved 2 upon and any party is free to raise any concerns or 3 suggestions with respect to the rules directly with Mr. 4 Russell. 5 It is recognized that interested parties, 6 whether directly involved in the events to be investigated or 7 not, can make a valuable contribution to the investigatory and 8 advisory functions of this Inquiry, and such parties are

9 welcome. One of the concerns I will have as Commissioner when 10 considering applications for standing is the effective, 11 efficient, timely and fair conduct of this Inquiry. To this 12 end, as you are aware, we are on tight time lines. The Order 13 in Council was issued on May 10th of this year and now we are 14 at the end of June and, as I've indicated, we intend to start 15 the hearings in September and, therefore, there is going to 16 have to be a great deal of information flow over the months of 17 July and August, and anyone who receives standing is certainly 18 going to be very much encouraged to cooperate fully with 19 Commission counsel in attempting to expedite the flow of 20 information so that we can stay within this particular 21 timetable. Without it we will have difficulty meeting our 22 time lines, I suppose that means, to the extent I'm speaking 23 to the lawyers present, I know that as lawyers we're very 24 familiar with the adversarial model and taking our time and 25 ensuring that every last "t" is crossed and "i" is dotted

8 Opening Remarks By The Commissioner 1 before we step forward into the courtroom or into any 2 particular hearing, but I don't think that luxury is going to 3 be available to us in this hearing. Just as preparation will 4 have to be on the go, as well as ­­ in other words, the idea 5 that you can be fully prepared for every possible eventuality 6 before we start the first hearing is not very likely and I

7 don't think it's required, because if you observe our 8 Commission rules, to the extent possible we intend to provide 9 can­says and documents and advise all parties at least two 10 days in advance or three days in advance of any particular 11 testimony of what is coming down, or what will be called at 12 the hearing two or three days later. So in one sense each 13 party will want to prepare its own position, but we will 14 encourage you to be flexible and cooperate with Commission 15 counsel to the extent possible. 16 Now as other commissions have decided, and we 17 have made no decisions in this respect, there are three 18 theoretical categories for party participation available, 19 these are full participation, special participation and 20 observer status. I emphasize they are theoretically 21 available, however, depending on what rulings we eventually 22 make with respect to these standing hearings, I can assure 23 everyone that any party granted any one of these standings 24 will have access to working spaces at designated counsel 25 tables at all hearings and I would, therefore, ask that in

9 Opening Remarks By The Commissioner 1 your presentations today, and you have all submitted written 2 applications, that you emphasize the level of participation 3 that you would like to involve yourself in or your clients in,

4 as the case may be, and why. 5 I intend to reserve all applications for 6 standing and eventually funding and report in writing on those 7 applications within approximately two weeks. 8 So that, I think, those consist of the opening 9 remarks I would like to make. I have emphasized that we are 10 all in this together, Commission counsel, myself as the 11 Commissioner, and yourself as the parties, and we are hoping 12 that we can run a reasonably collegial hearing without 13 sacrificing in any way the role that each of you have to play 14 in representing your clients or in getting to the facts that 15 are necessary to bring this Inquiry to a close. Without 16 further adieu then, I believe that would consist of what I 17 would like to say at this time and we'll now move into the 18 standing applications hearings. 19 Yes, Mr. Priel, I believe you are representing 20 the City of North Battleford and you are first on the agenda. 21 MR. PRIEL: Yes, thank you. 22 COMMISSIONER: Yes, proceed as you see fit, Mr. Priel, if you 23 would, please? 24 MR. PRIEL: I can be, and I will be relevantly brief, Mr. 25 Commissioner. I represent the City of North Battleford. Our

10 Mr. Priel Application for Standing 1 application is for standing status before your Commission with

2 respect to all aspects of the Inquiry. In terms of 3 justification for our application, I want to just very briefly 4 speak to the first couple of items in the Terms of Reference 5 for your Inquiry. The first is that you inquire into the 6 circumstances that led to the current contamination of the 7 public water supply of the City of North Battleford, and, 8 secondly, the adequacy and effectiveness of actions taken with 9 respect to that particular issue by all of the various major 10 participants, including my client. The third item, of course, 11 talks about the appropriateness of guidelines and policies, 12 bylaws, et cetera, of all of the parties, including my client. 13 As I read your rules, what you have done is you have said that 14 status will be accorded to parties who can satisfy you that 15 they're directly or substantially affected by the Inquiry, and 16 who represent clearly ascertainable interests and perspectives 17 that are essential to your mandate. It goes without saying, I 18 think, sir, that my client fits that bill. 19 COMMISSIONER: Well, I think, in fairness to your client, Mr. 20 Priel, I agree with you. 21 MR. PRIEL: Thank you. 22 COMMISSIONER: In other words ­­ 23 MR. PRIEL: I won't go any further on that then, sir. 24 COMMISSIONER: ­­ to the extent we are having hearings it 25 would be not very effective if the City of North Battleford

11 Mr. Priel Application for Standing

1 weren't a party, and to that extent I agree that ­­ 2 MR. PRIEL: That was going to be my conclusion, sir. 3 COMMISSIONER: Yes. 4 MR. PRIEL: The only other comment that I wanted to make, 5 Mr. Commissioner, was this, that you obviously have a number 6 of applications before you that are applications for standing 7 and without identifying any of those and saying that my client 8 agrees or disagrees with you granting standing to these 9 parties, I just ask that in considering those applications 10 that you keep in mind what that party can usefully add to the 11 process, which is essentially a fact­finding process. Other 12 than that, Mr. Commissioner, I have no further comments 13 unless you have any questions. 14 COMMISSIONER: I don't know, does Commission counsel have any 15 questions at this time? 16 MR. RUSSELL: Just one point of general public interest that 17 I would like to raise with Mr. Priel at this stage and it's 18 not specifically with him, it's probably going to be a 19 recurring theme during the course of today. Various of the 20 parties applying for standing, of course, are also involved in 21 a lawsuit surrounding the events we'll be investigating as a 22 Commission, and I think perhaps the public interest has to be 23 concerned at the participation of Mr. Priel and his client at 24 the same time as the lawsuit is being handled somewhat 25 concurrently, I guess, because as our rules of practice and

12 Mr. Priel Application for Standing 1 procedure make clear, the grant of standing before this 2 Inquiry brings with it certain obligations, and just to be 3 brief, if we look at rule 3, all parties and their counsel are 4 deemed to undertake to adhere to the rules of practice and 5 procedure, or Rule 11, parties have to provide the names of 6 all witnesses and provide to Commission counsel all relevant 7 written evidence, and that theme is reiterated throughout our 8 rules, but, also, of course, in the Order in Council 9 establishing the Inquiry, the general theme is struck that 10 this is a non­adversarial proceeding, and that we're not here 11 to ascribe legal guilt or liability in any way. Now I'm not 12 trying to put Mr. Priel on the spot, I think we have to 13 perhaps address these matters up front. I believe that those 14 provisions could possibly place legal counsel involved in the 15 lawsuit in a difficult situation at times, and I think I have 16 to, from the public interest perspective, to put to Mr. Priel 17 questions along the lines of "Well, how will involvement in 18 that lawsuit and the legal duty that you owe to your client in 19 that lawsuit affect your obligations before this Inquiry in 20 the way you see yourself participating?" Are you fully aware 21 of those rules I have referred to and are you undertaking to 22 comply with them? What will you do in the event that the 23 possibility of ­­ you see a conflict between your duty to your 24 client in the lawsuit and the rules of practice and procedure 25 before the Commission here? So, as I say, this is not just an

13 Mr. Priel Application for Standing 1 issue for you, but it might be one for you to comment upon at 2 this time from your perspective. 3 MR. PRIEL: I'm not sure whether Mr. Russell wants me to 4 comment on everything that he raised, but I can tell you, Mr. 5 Commissioner, that my client would not be applying for status 6 if it wasn't prepared to adhere to the rules that you've set, 7 and the rules that you've set are rules which, as I understand 8 them, require full and frank disclosure. If I understand, my 9 duties as counsel on any litigation I have those same 10 obligations. I don't see any conflict, one can't foresee all 11 eventualities and say there will be no possibility of 12 conflicts down the road, I can't tell you that and be totally 13 frank, but at this point I don't see any possibility of 14 conflict, I don't see any problem with my representing the 15 City of North Battleford with respect to your Inquiry and my 16 firm also representing the City of North Battleford with 17 respect to the lawsuit, and I think that you'll find that 18 there are several other counsel that will be appearing before 19 you today that will have that same kind of problem. 20 COMMISSIONER: Yes. Well, that's fair enough. I think Mr. 21 Russell in raising the question, and as he made plain, it 22 wasn't directed at you particularly, Mr. Priel ­­ 23 MR. PRIEL: I understand that. 24 COMMISSIONER: ­­ but rather in general terms a number of the 25 parties who are applying for standing are involved in a civil

14 Mr. Priel Application for Standing 1 lawsuit brought by certain citizens of North Battleford, and I 2 think to some extent probably the question emphasizes that 3 from this Inquiry's perspective, that's probably largely a red 4 herring and kind of an irrelevant situation from the point of 5 view of this Inquiry. When the Government appointed this 6 Inquiry, they, I assume, intended that all facts relevant to 7 the water situation would become public in the course of this 8 Inquiry, and so whether a participant happens to ­­ or at 9 least a party to that lawsuit happens to have standing before 10 this Commission or reads about it three days later in the 11 transcript, I think, is neither here nor there, the facts will 12 come out and I don't believe that the lawsuit should be a 13 governing factor in anyone's conduct and certainly won't be a 14 factor in how this Inquiry proceeds from here on. 15 MR. PRIEL: Thank you, sir. If you have no further 16 questions, then that concludes my remarks. 17 COMMISSIONER: No, I thank you. I guess that's fair and, as I 18 say, you're an obvious party for standing, your client is ­­ 19 MR. PRIEL: Thank you, sir. 20 COMMISSIONER: ­­ and I am reserving it, but nevertheless. So 21 thank you. 22 MR. PRIEL: Thank you, sir. 23 COMMISSIONER: All right, the Battlefords District Health

24 Board seems to be next. 25 MR. YOUNG: Thank you, Mr. Commissioner.

15 Mr. Young Application for Standing 1 COMMISSIONER: You're Mr. Gary Young. Just identify yourself 2 for the record, please. 3 MR. YOUNG: Gary Young, acting for the Battlefords District 4 Health Board. The District Health Board is asking that it be 5 granted standing to participate fully in the Inquiry, and the 6 Board makes the request on the basis that it meets both of the 7 grounds required to be met by the rules for the Inquiry with 8 respect to the granting of standing. 9 Firstly, the District Health Board has 10 information and knowledge that is essential for the Inquiry to 11 carry out its mandate. Under The Public Health Act, 1994, the 12 District Health Board is responsible for the administration 13 and enforcement of the Act. In doing so, the District Health 14 Board through its medical health officer, its Public Health 15 inspectors and others participated fully in the investigation 16 and in the control of the outbreak of cryptosporidiosis. 17 Respectfully, the Inquiry, in the submission of the Board, 18 cannot help but benefit from hearing from these witnesses. 19 Secondly, the issues before the Inquiry are 20 public­health related. The Board, of course, has a direct

21 interest in all public health matters. As part of its mandate 22 the Inquiry will be reviewing the effectiveness of the 23 regulations and of the guidelines under which the District 24 Health Board was operating. It is clearly important to the 25 Health Board that it be part of this review process. It has a

16 Mr. Young Application for Standing 1 direct interest in determining the cause of the outbreak and 2 in seeking the best possible solutions to controlling 3 outbreaks of this nature, and for these reasons we ask that 4 the District Health Board be granted full standing. 5 COMMISSIONER: Thank you. Any questions, counsel? 6 MR. RUSSELL: No questions. 7 COMMISSIONER: All right, thank you, Mr. Young. 8 MR. YOUNG: Thank you. 9 COMMISSIONER: Combined with your written application we'll be 10 in touch in due course. All right, the next applicant is the 11 Association of Professional Engineers and Geoscientists of 12 Saskatchewan. 13 MR. McDONALD: Good morning, Mr. Commissioner, my name is Bob 14 McDonald, I'm a director of Membership Services of the 15 Association of Professional Engineers and Geoscientists of 16 Saskatchewan. 17 COMMISSIONER: Yes. 18 MR. McDONALD: Our Association is applying for full standing

19 to participate in the Commission's Inquiry. The professions 20 of engineering and geoscience enjoy the privilege of self 21 regulation in Saskatchewan, much the same as the legal and the 22 medical profession. Our Association is responsible for 23 regulating the professions of engineering and geoscience 24 within Saskatchewan, again much the same as the Law Society or 25 the College of Physicians & Surgeons. Under The Engineering

17 Mr. McDonald Application for Standing 1 and Geoscience Professions Act, APEGS has a statutory mandate 2 to foster the practice of professional engineering and 3 professional geoscience in a manner to safeguard the public 4 that's in the public interest and to protect the environment. 5 Currently APEGS has approximately five 6 thousand members, many of whom are involved in engineering and 7 geoscience aspects of water resources, including water and 8 wastewater treatment, which also comes under the purview of 9 the practice of professional engineering and/or professional 10 geoscience within our enabling statute. Our members are 11 involved in the design, the construction, the operation and 12 the maintenance of water and wastewater treatment facilities. 13 They may be employed by all levels of government, federal, 14 provincial, municipal governments, may be vendors of equipment 15 and suppliers for water and wastewater treatment processes.

16 Industry that uses water must treat wastewater and consultants 17 that are involved, private sector consultants, that are 18 involved in providing services to governments and industries 19 as regards water and wastewater. 20 We believe that it is our public obligation and 21 responsibility to provide assistance to the Commission in 22 areas that touch on engineering and/or geoscience, staying 23 within our particular areas of expertise. Also, an obligation 24 to the people of the City of North Battleford and the 25 Battlefords area, and to assist the Commission in fulfilling

18 Mr. McDonald Application for Standing 1 its mandate. It would be our intention to provide assistance 2 by providing a brief, proffering a witness from the area of 3 water and wastewater, in certain cases, where necessary and 4 appropriate, to cross­examine witnesses, to follow through 5 with the proceedings and provide some closing comments on, 6 again, those areas that involve engineering and/or geoscience, 7 and, you know, that we feel that we have a public 8 responsibility to participate in this hearing. We will not be 9 seeking funding, we will be doing that on our own account. 10 COMMISSIONER: And is it your intention to be present for all 11 hearings in that respect? 12 MR. McDONALD: I think that it would be for most hearings. 13 Certain cases that are outside the bounds of engineering and

14 geoscience, some of the ­­ maybe Department of Health related 15 types of things we may or may not be having somebody here. 16 COMMISSIONER: All right, thank you. 17 MR. RUSSELL: Mr. Commissioner, just a few brief questions 18 for clarification, will the Association be represented before 19 the Commission by a lawyer with a practice certificate or who 20 will be here actually at the table? 21 MR. McDONALD: My expectation is that I may be doing that, I'm 22 a practicing lawyer as well as a practicing engineer, I 23 guess, and we may have one of our witnesses, you know, we have 24 an environment and environmental issues committee with people 25 that are involved actively in water and wastewater treatment

19 Ms. Schwann Application for Standing 1 that would be reviewing transcripts and assisting for 2 providing material for ­­ I suppose for me, trusting that I 3 may be spending a fair amount of time up here. 4 COMMISSIONER: All right, then thank you, Mr. McDonald, and as 5 we've indicated, we'll be in touch in the near future. Well, 6 we're moving along pretty well here in terms of the 7 presentations, the schedule we have, so we'll keep at it. The 8 Government of Saskatchewan has four applications before us, 9 the first one being Saskatchewan Environment and Resource 10 Management and Ms. Lian Schwann is here to speak to that

11 matter. 12 MS. SCHWANN: Good morning, Mr. Commissioner and ladies and 13 gentlemen, my name is Lian Schwann, I'm a lawyer with the 14 Government of Saskatchewan, Department of Justice, and I'm 15 here on behalf of the Government of Saskatchewan, and I'll get 16 to that in a moment, there might have been some confusion in 17 our application this spring, but we're really here on behalf 18 of just one legal entity and that is Her Majesty the Queen. 19 Let me say at the outset, and I would like to make this 20 observation, that on behalf of the Government we look forward 21 to giving evidence and providing full and open disclosure to 22 this Commission, notwithstanding other considerations that Mr. 23 Russell spoke of earlier, that we look forward to hearing the 24 evidence of the other parties and in the end receiving your 25 report and your recommendations, and I'm sure it's going to be

20 Ms. Schwann Application for Standing 1 very thoughtful. 2 Today I'm joined by my colleagues in the 3 Department of Justice, and at Saskatchewan Water Corporation, 4 Ms. Kylie Head, who assists me in representing Saskatchewan 5 Environment and Resource Management. Seated next to her is 6 Mr. Michael McDougall and he is the in­house counsel for Sask 7 Water. And next to him is Mr. Rick Hischebett, and he 8 provides legal advice to the Department of Saskatchewan

9 Health. All of the entities, except for one, which we have 10 identified in our application, although it looks like a long 11 list I am quite confident we'll be done in five minutes. 12 COMMISSIONER: Oh, there's no ­­ I'm not worried about time at 13 the moment, there's plenty of time. 14 MS. SCHWANN: All right, fair enough. As I said, we 15 collectively represent just one entity and we apologize if 16 there was any confusion with our application, and that entity 17 is the sole legal entity, is Her Majesty the Queen in Right of 18 Saskatchewan, or more commonly referred to as the Government 19 of Saskatchewan or the province. Now under the rubric of the 20 Government of Saskatchewan, the Government breaks itself down 21 for administrative and management purposes into departments 22 and sometimes into Crown corporations as well, and in this 23 particular circumstance I think we'd like to touch on just 24 briefly how each of these departments and Crown corps. are 25 involved in the North Battleford matter. They are for the

21 Ms. Schwann Application for Standing 1 purposes of this Inquiry, Saskatchewan Environment and 2 Resource Management, which I assume will carry the lion's 3 share of this matter, Saskatchewan Health, Saskatchewan 4 Municipal Affairs and Housing and the Saskatchewan Water 5 Corporation.

6 COMMISSIONER: If you could just slow down a touch, our 7 reporter may be having a little trouble, you're speaking 8 pretty quickly. 9 MS. SCHWANN: Fair enough. Our request today is quite 10 simple. On behalf of the Government, we are requesting full 11 standing throughout the course of the Inquiry, as complete as 12 that could possibly be, and we believe that this degree of 13 standing, the scope of standing, was also granted to the 14 Government of Ontario in the Walkerton matter and is, 15 therefore, consistent in that regard. Now to assist, Mr. 16 Commissioner, to assist you in understanding the roles and how 17 each department and Crown corp. is directly and substantially 18 involved in North Battleford, let me just take a moment to 19 describe what ­­ and just to assist, we call them SERM, the 20 Department of Saskatchewan ­­ 21 COMMISSIONER: Yes. 22 MS. SCHWANN: ­­ Environment and Resource Management, you're 23 probably familiar with them by now. 24 COMMISSIONER: Yes. 25 MS. SCHWANN: SERM's role simply is this, they are the

22 Ms. Schwann Application for Standing 1 provincial regulator of municipal drinking water and municipal 2 waterworks and municipal sewage works in terms of their 3 operation. My client, in our review of the documents, has had

4 involvement as far back as 1964 with North Battleford under a 5 precursor commission that used to be responsible for these 6 matters, the Water Resource Management Commission, and later 7 taken over by the Department of Environment in 1972. At the 8 time of the contamination problem this last spring SERM was 9 responsible for the regulation of the operation of municipal 10 waterworks and sewage works under The Environmental Management 11 Protection Act, and we refer to that in the short form as 12 EMPA, E­M­P­A, and the Water Pollution Control and Waterworks 13 Regulations. Under this regulatory scheme, my client sets 14 water quality objectives, that is, what are the parameters to 15 which they must test for. They prescribe sampling needs, they 16 prescribe testing frequency and other matters with respect to 17 sampling and testing. They conduct inspections, monitoring 18 and perform a compliance and enforcement role. The other 19 point I think worth mentioning is that shortly after knowledge 20 of the outbreak my client conducted a full inspection of both 21 the North Battleford waterworks and sewage works facilities 22 and so they will be able to provide evidence with respect to 23 what they learned, they may even offer evidence with respect 24 to the nature and cause of the contamination, which I think 25 is quite germane to 1(a) of the Terms of Reference.

23 Ms. Schwann Application for Standing

1 Therefore, if I can summarize SERM's 2 involvement, you can expect, therefore, to hear evidence with 3 respect to their involvement with the City of North Battleford 4 in the many years leading up to April, 2001, I'm not sure how 5 far back Mr. Russell wants to go, and thereafter a detailed 6 description and involvement, their involvement on a day­to­day 7 basis, if not hour­by­hour basis after they became aware of 8 the problem, and I believe that also fits into clause 1(b) of 9 the Terms of Reference, and we think we fit squarely within 10 1(a) and (b). On top of that, SERM has a large umbrella of 11 regulations, no bylaws, policies, guidelines, procedures, 12 practices, et cetera, all applicable to municipal waterworks 13 and sewage works, and I expect that this Commission may want 14 to hear from them with respect to those sorts of matters, and 15 on that basis they, too, would fit within 1(c) of the Terms of 16 Reference. 17 Now that's SERM's role. I would like my 18 colleagues to speak of theirs, but before I turn to Sask 19 Water, I'll just make a very brief comment about the 20 Department of Municipal Affairs and Housing, the lawyer that 21 represents this department is not with us today and, as such, 22 I mean all we can offer is some general observations. My 23 understanding is that this department provides generally 24 assistance and support and some perhaps expertise with respect 25 to municipal matters to municipalities. I understand that

24 Ms. Schwann Application for Standing

1 they are responsible within government for some degree of 2 infrastructure funding for waterworks and sewage works, and 3 that, indeed, this Commission has requested some documents 4 with respect to funding and issues of that nature, and I think 5 they're in the best position to give that evidence and provide 6 that information. 7 COMMISSIONER: I'm not clear ­­ I understand, certainly, that 8 all four departments that you've referred to are really the 9 Government of Saskatchewan, but are the various individual 10 departments asking for individual standing? In other words, 11 it has implications for our rules, if you are being given 12 standing certain things follow based on the rules we've 13 promulgated, and it would be times four as opposed to times 14 one, and I'm just not clear on that aspect. 15 MS. SCHWANN: Right. No, and I understand your question. 16 No, we were asking for single standing for the purposes of the 17 rules as well. Our difficulty is that each of us provide 18 advice to what ­­ I've been giving legal advice to the 19 Department of Environment for eleven years, Mr. Hischebett for 20 Health for eleven and I believe Mr. McDougall for Sask Water 21 for quite some time, so we each have a degree of knowledge and 22 expertise, we know these people and we would like to be 23 involved. Having said that, I see us as being, in many 24 respects, no different than a large law firm coming to 25 represent a large client, we have a very very large client

25 Ms. Schwann Application for Standing 1 with a lot of documents and a lot of evidence, but we expect 2 that, and we'll give you some degree of assurance here today, 3 that we will pool our questions for cross­examination and we 4 don't intend to have four sets of cross­examinations. We 5 expect that over the course of time, depending on how the 6 Inquiry unfolds, that we may have one of us here, there may be 7 four of here, but in the likelihood there will be at least one 8 or two people here from time to time. I expect that 9 Saskatchewan Environment and Resource Management will be here 10 from start to finish, for example ­­ 11 COMMISSIONER: Yes. 12 MS. SCHWANN: ­­ others will not. So, in short, we're just 13 trying to find a way to manage the file in a way that assists 14 this Commission and ably represents our different departments' 15 interests as well. 16 COMMISSIONER: All right, that answers my question, thank you. 17 Mr. Russell, do you have anything that you'd like to ­­ 18 MR. RUSSELL: Just in terms of the ­­ once again, the 19 lawsuit. Do you see any problem ­­ as a party and a defendant 20 in the lawsuit, do you see any problem with, you know, 21 complying with our rules and procedures because of the 22 existence of the lawsuit? 23 MS. SCHWANN: Well, there may be a problem, Mr. Russell, but 24 certainly our instructions are and it's ­­ and because this is 25 a government inquiry, after all, to be full, to be honest, to

26 Ms. Schwann Application for Standing 1 be complete and to help you and assist you in every way that 2 we possibly can to conduct this Inquiry, that's our intention. 3 It's a distraction, but it's something out there, we can't 4 ignore it, on the other hand our focus is on this Inquiry. 5 COMMISSIONER: Thank you. 6 MS. SCHWANN: Mr. Commissioner, if you'd like, Mr. McDougall 7 and Mr. Hischebett can offer some comment about their various 8 interests, if that would be of assistance? 9 COMMISSIONER: Well, I think it would be, certainly. Thank 10 you. 11 MR. McDOUGALL: Good morning, Mr. Commissioner. 12 COMMISSIONER: Good morning. 13 MR. McDOUGALL: As my colleague, Ms. Schwann, has identified, 14 my name is Michael McDougall and I'm here to speak with 15 respect to Saskatchewan Water Corporation. Ms. Schwann has 16 outlined the fact that this is one application by government 17 for standing and we fully support all the comments she's made 18 with respect to that. 19 With respect to specifically the mandate of 20 Sask Water, Sask Water is a Crown corporation established by 21 The Water Corporation Act. Pursuant to that legislation Sask 22 Water has a regulatory role with respect to water management, 23 approvals of works and allocation of water supply. Certain 24 sections of the Act provide that as its powers and purposes is 25 to receive and consider applications for approval for

27 Mr. McDougall Application for Standing 1 construction and operation of works, waterworks and sewage 2 works. The legislation also provides that no person shall 3 construct any of those types of works without having obtained 4 such approval from the corporation. So on that basis, Sask 5 Water believes that it certainly has an interest with respect 6 to the government's position here and it also has a role in 7 regulatory matters respecting work. 8 With respect to the circumstances surrounding 9 North Battleford, Sask Water personnel, as well as other 10 government personnel from the other departments represented 11 have attended and met ­­ or have attended at meetings with 12 those personnel and other officials from the community 13 subsequent to the events leading up to this Inquiry. 14 COMMISSIONER: All right. Do I understand, Mr. McDougall, 15 that to the extent the Commission has asked for disclosure and 16 that type of thing, that you would be the person to obtain 17 documents from the Saskatchewan Water Corporation, and I'm 18 thinking now of Commission counsel, in particular. Have you 19 and Ms. Schwann and the other lawyers ­­ does Commission 20 counsel communicate directly with you on such matters or does 21 he go through Ms. Schwann or ­­ I'm just not clear on that. 22 MR. McDOUGALL: No, I think Commission counsel would confer

23 directly with me with respect to documents arising out of the 24 Saskatchewan Water Corporation. 25 COMMISSIONER: Or persons to be interviewed or that type of

28 Mr. McDougall Application for Standing 1 thing? 2 MR. McDOUGALL: Yes. But my colleagues from the government 3 side and I have all discussed sort of these matters, so that's 4 how it will proceed forward on that basis. 5 COMMISSIONER: So in each case, to the extent that Commission 6 counsel is looking for any information within the area that 7 you have identified, in this case, the Saskatchewan Water 8 Corporation, you're the contact person? 9 MR. McDOUGALL: Yes, Mr. Commissioner. 10 COMMISSIONER: Thank you. 11 MR. McDOUGALL: And I think with that I'll conclude the remarks 12 for Saskatchewan Water Corporation ­­ 13 COMMISSIONER: All right. 14 MR. McDOUGALL Unless there's any questions. 15 COMMISSIONER: Anything else? 16 MR. RUSSELL: No. 17 COMMISSIONER: All right, thank you. 18 MR. HISCHEBETT: Good morning, Mr. Commissioner, my name is Rick 19 Hischebett, and I'm from Saskatchewan Justice as well, and I 20 make representations this morning on behalf of Saskatchewan

21 Health, as part of your mandate is to inquire into the 22 adequacy and effectiveness of actions taken by officials of 23 the Government of Saskatchewan and the effect of the 24 legislation of the policies on the circumstances which led to 25 the contamination of the North Battleford water supply. We

29 Mr. Hischebett Application for Standing 1 believe that Saskatchewan Health has information and evidence 2 and perspective that should be brought to this Commission. 3 The Minister of Health oversees the operation of The Public 4 Health Act in Saskatchewan. There are within that Act 5 requirements for municipalities to supply potable water, there 6 are powers that are present for designated Public Health 7 officers and Public Health officers to address and remedy 8 health hazards and requirements to report communicable 9 diseases, and while the administration of that Act is 10 primarily set for local authorities, or in this case the 11 Battlefords District Health Board, officials of Saskatchewan 12 Health were involved with respect to the decisions associated 13 with the boiled water advisory and the boiled water order that 14 were ultimately issued in this matter. Further, 15 cryptosporidiosis is a communicable disease under The Public 16 Health Act and there are reporting requirements associated 17 with that, and officials of the Department were involved with

18 respect to the follow­up and monitoring of cryptosporidiosis 19 in North Battleford, both in North Battleford and in other 20 areas of the province. 21 Finally, Saskatchewan Health operates the 22 provincial laboratory, which is the main lab in the province 23 where water samples and medical specimens are taken for 24 testing and reporting. So as a result we submit to you that 25 Saskatchewan Health will have information and perspective and

30 Mr. Hischebett Application for Standing 1 evidence that will be important for you to hear and to take 2 account of as part of your deliberations and inquiring into 3 the circumstances of this matter. 4 COMMISSIONER: All right, thank you. Any questions? All 5 right, thank you, Mr. Hischebett. 6 MR. HISCHEBETT: If I may, Mr. Commissioner, we just have one 7 further matter to bring to your attention, and that is just in 8 relation to a few comments with respect to the standing 9 application of other parties. 10 COMMISSIONER: If you have such comments, you're free to make 11 them. 12 MR. HISCHEBETT: It is certainly not our position at all to 13 oppose the application of any other party here today, and what 14 we do here is simply say to the Commission obviously it's your 15 function here to find the facts of the matter and to have the

16 people in front of you that you believe are necessary to do 17 the job that you've been mandated to do, and we do not in any 18 way wish to take exception to that. We do invite the 19 Commission to consider the role that Commission counsel we 20 believe plays in this matter, which is the role of the public 21 interest associated with this, and Commission counsel brings 22 to his position a balance associated with everything and all 23 questions that are associated with the matter arising. We 24 appreciate your comments early that there are different 25 categories of standing that may be available for this Inquiry.

31 Mr. Hischebett Application for Standing 1 We note that in the Walkerton case there were separate 2 categories of standing that were available and we see that the 3 parties here can play different roles and should play 4 different roles in bringing out the facts and observations and 5 evidence that is necessary for you to hear. We recognize that 6 this is your decision and we appreciate that you have full 7 opportunity to get the representations of all parties and we 8 just want to make it clear that with our four people appearing 9 at the table here today, that we don't expect to have all four 10 here, so from a standpoint of timing, we don't expect to 11 impede your Inquiry in any way, shape or form. 12 COMMISSIONER: All right, thank you. All right, well, now

13 the Government of Saskatchewan has now made its application 14 through the persons who have spoken so far and we're obviously 15 moving along well ahead of schedule, and I'm not sure if ­­ is 16 Mr. Hopley here on behalf of the Saskatchewan Environmental 17 Group? No. Well, then I see Mr. Gabrielson is here on 18 behalf of certain doctors, and I would ask if you're ready to 19 come forward, Mr. Gabrielson. 20 MR. GABRIELSON: Mr. Commissioner, I represent Dr. Benade, who 21 was the Medical Health Officer for the Battlefords District 22 Health Board at all times material to this Inquiry. I also 23 represent Dr. David Butler­Jones, who was the Chief Medical 24 Health Officer for the Province of Saskatchewan, and Dr. Eric 25 Young, who is the Deputy Chief Medical Health Officer for the

32 Mr. Gabrielson Application for Standing 1 Province of Saskatchewan. My application for standing is for 2 full standing on behalf of all three because they were 3 directly involved in much of the matters or all of the matters 4 giving rise to this Inquiry, both from the point of view of 5 involved in the diagnosis of the outbreak and then directly 6 involved in ultimately issuing the boiled water order. So 7 that I think they will obviously be witnesses at the Inquiry, 8 but they will also have a further and continuing interest in 9 determining the circumstances that gave rise to the 10 contamination, the adequacy and effect of the actions that

11 they and other officials took leading up to the discovery of 12 the contamination and the boiled water order, and also the 13 effect of provincial and municipal regulations upon their 14 duties. Now they have, I would suggest, a separate and 15 distinct interest from other employees of either the 16 Battleford Health District or the Province of Saskatchewan, 17 either under any of the various government departments, 18 because they are designated Public Health Officers within the 19 meaning of The Public Health Act, 1994, of Saskatchewan and, 20 therefore, have certain responsibilities and duties under that 21 Act. They are required to carry out that may not and will not 22 be the same as duties by other members and employees of those 23 two bodies, either the Battlefords Health District or the 24 Government. So to that extent they are quite concerned, 25 obviously, that those responsibilities are seen and followed,

33 Mr. Gabrielson Application for Standing 1 and to that extent feel that separate standing is required, 2 and they will not be applying for public funding for the 3 separate standing. 4 COMMISSIONER: Do I understand that you're saying that they 5 are statutory office holders, in other words under the statute 6 there is such a person as ­­ 7 MR. GABRIELSON: Public Health Officers are defined under The

8 Public Act Health and they are officers within the meaning of 9 that Act. 10 COMMISSIONER: And to the extent that your client, one of 11 them, I gather, Dr. Benade, is a Public Health Officer for the 12 District of Battleford or North Battleford? 13 MR. GABRIELSON: He was, he no longer is. He was at that time, 14 he had resigned his position shortly before, but stayed on 15 through it and right up until approximately the 1st of June. 16 COMMISSIONER: All right, thank you. Any questions? 17 MR. GABRIELSON: I should also point out that under the 18 Walkerton Inquiry the medical health officer was granted full 19 standing on the basis that ­­ I think it was put that he was 20 directly involved in the eye of the storm, and I think that 21 would be the case here as well. 22 COMMISSIONER: All right. Thank you. Yes, all right, Mr. 23 Mitchell on the list. Yes, the Canadian Union of Public 24 Employees, Local 287, Mr. Robert Mitchell, Q.C. 25 MR. MITCHELL: Thank you, Mr. Commissioner. As you have just

34 Mr. Mitchell Application for Standing 1 said, I represent CUPE Local 287, who is the bargaining agent 2 for almost of the ­­ well, all of the in­scope employees of 3 the City of North Battleford are represented by that Local. 4 Eight of those employees are regularly employed in the water 5 treatment plant and the same eight take care of the sewage

6 disposal plant, also, and that they're seeking standing in 7 respect of the following range of the Inquiry items, (a), (b) 8 and (c). 9 As Mr. Priel said in his submission to you, Mr. 10 Commissioner, this is primarily a fact­finding mission and the 11 crucial point as far as these employees are concerned is that 12 everything that was done with respect to the treatment of 13 water was done by one or all of them, and anything that was 14 not done was, if I can use the expression, not done by them. 15 They were the people with the hands­on responsibilities with 16 respect to the treatment of the water from the point it comes 17 out of the river to the point where it leaves the plant and 18 enters the water system of the City of North Battleford. So 19 that I think that all of them will figure prominently in your 20 Inquiry as you inquire into the facts. Some of these 21 employees have been there for very long periods. The senior 22 person, Lloyd Serool, has been there steadily since 1973 and 23 he will be able to tell the Inquiry a great deal about the 24 development of the plant from the very early stages, the 25 expansion, the purpose of the expansion, what has worked, what

35 Mr. Mitchell Application for Standing 1 hasn't worked, what has been tried, and so on, and I would 2 think that you would have a great interest in his evidence

3 and, indeed, in all of their evidence. They'll describe the 4 day­to­day workings of the plant. They'll describe the 5 policies and procedures that are in effect, that were in 6 effect, changes that had been made. They will also refer to 7 occasions where they took problems to the management of the 8 City and the City responded to these problems, or didn't in 9 some cases. We have not had an opportunity to fully brief 10 their evidence yet ­­ 11 COMMISSIONER: I understand. 12 MR. MITCHELL: ­­ so I'm not able to tell you what the 13 evidence will be, but it is there clearly. They're concerned 14 because they had the hands­on responsibility with respect to 15 water treatment, and so they ask to be represented in this 16 Inquiry because that is a great interest and a great concern 17 of theirs. As I put it in my application, it's possible that 18 they may become discredited in the eyes of their families or 19 their friends and the neighbours and the community, and they 20 want to protect themselves against that sort of thing because 21 their position is they didn't do anything wrong, they did it 22 all right, and that the problems that arose are not their 23 fault and they would like to come before you and try and 24 satisfy you that that is, in fact, the case. 25 COMMISSIONER: All right. I don't think it's necessary to go

36 Mr. Mitchell Application for Standing

1 into any more evidentiary matters at this point. 2 MR. MITCHELL: I just want to mention that they're also 3 concerned, looking down the line, that fact­finding inquiries 4 find facts and those findings very often point the finger at 5 somebody, somebody did or didn't do something, and they're 6 concerned that that may result in ­­ if the finger is, in 7 fact, pointed at one or more of those, that may result in some 8 kind of action being taken by their employer against them in 9 respect of those very things, not that they can use the 10 evidence that's given here in subsequent proceedings, but it 11 leads the employer to the same evidence and they want to be 12 able to nip that in the bud by trying to satisfy you that 13 their hands are clean. 14 COMMISSIONER: Well, that's fine. I understand what your 15 position is, thank you. Are there any questions, Mr. Russell? 16 MR. RUSSELL: No. 17 COMMISSIONER: All right. Well, thank you. 18 MR. MITCHELL: Thank you, Mr. Commissioner. 19 MR. SCHARFSTEIN: Mr. Commissioner, Grant Scharfstein ­­ 20 COMMISSIONER: Yes. 21 MR. SCHARFSTEIN: ­­ on behalf of, as of Friday, on behalf of 427 22 individuals and businesses that have been victims of the 23 supply of contaminated water by the City of North Battleford, 24 and for this group we are seeking full standing before this 25 Commission of Inquiry. I notice that in perusing the list of

37 Mr. Scharfstein Application for Standing

1 those applying for standing we really are the only group of 2 citizens before this Commission today that have been directly 3 and personally affected by the tainted water, and these 4 citizens, we submit, certainly have a substantial and direct 5 interest in the subject matter of this Inquiry. Indeed, it 6 could easily be said that this entire proceeding is for the 7 benefit of our clients and their constituency only, which is 8 the consumers of water in North Battleford and Saskatchewan as 9 a whole. It would be hard to envisage any group with a more 10 direct or substantial interest in subject matter in this 11 inquiry. I noted in the Walkerton Inquiry Commissioner 12 O'Connor granted full standing to persons or groups who had a 13 substantial and direct interest in the subject matter of the 14 Inquiry, and he stated, and I quote, "The residents of 15 Walkerton were seriously affected by the water contamination 16 and have a significant interest in the subject matter of the 17 Inquiry. Given the tragedy that the residents have suffered, 18 their interests must be represented." As in Walkerton, Mr. 19 Commissioner, our clients are the residents who have been and 20 who continue to be affected seriously by the water 21 contamination outbreak in North Battleford, our clients do 22 have a significant interest in the Inquiry, and we believe 23 should be represented in this matter. 24 Now what is it that our clients bring to this 25 Inquiry? Our clients seek to bring before this Inquiry the

38 Mr. Scharfstein Application for Standing 1 nature, scope and type of impact, physical, personal and 2 economic that they have experienced. The impact of the 3 contaminated water is an important part of the work of this 4 Inquiry we submit. I anticipate we will present evidence, 5 including expert evidence, dealing with the physical and 6 medical problems experienced by those affected, and the 7 economic and long­term effects of the contamination will also 8 be presented. 9 The residents of North Battleford and the 10 citizens of Saskatchewan also have a significant interest in 11 the circumstances that led to the contamination and the 12 various causes that may have contributed to it. Evidence that 13 relates to the issues of what happened and why I expect will 14 form a major part of the evidence again before this Inquiry. 15 We believe it would be of great benefit to this Inquiry that 16 these diverse citizens who have been affected by the 17 contaminated water will have come together as one group before 18 you today. There will be a great economy in having one 19 representative of such a large group coordinate their efforts, 20 evidence and information to present their perspective for 21 consideration. I expect that in cooperation with the 22 Commission and its counsel, our clients' considerable 23 evidence, perspective and experiences can be presented in a 24 meaningful, manageable and coherent manner and in a manner 25 that best utilizes this Commission's time.

39 Mr. Scharfstein Application for Standing 1 Now in addition to representing this large 2 group of directly­affected citizens, we also represent in the 3 same group a group of what in Walkerton were called the 4 injured victims, and I know that has been alluded to in 5 relation to the lawsuit that is currently ongoing. Although 6 the injured victims group could be seen as perhaps partisan, 7 they are nonetheless a critical voice to be represented. 8 This was certainly seen again in Walkerton to be the case, 9 however, unlike Walkerton in which there were at least two 10 other citizens groups that could represent the injured victims 11 as well, there are no other such groups here, and as stated 12 earlier we are the only representatives for not only the 13 injured victims, but the citizens who have suffered the 14 effects of the contaminated water. In our capacity and role 15 as a representative of the injured victims we will also 16 present their perspective, and as Commissioner O'Connor 17 stated, "The perspective of the residents and those who have 18 suffered must be heard", and we believe that is the case here. 19 I want to address just very briefly the issue 20 about the perception of possible concerns regarding the 21 concurrent proceedings in this Inquiry and the civil lawsuit 22 commenced by those we represent in the Court of Queen's Bench. 23 Certainly I reiterate what Mr. Priel has said, we will 24 cooperate fully and abide by all of the rules set by this

25 Inquiry and present any and all evidence as it's deemed

40 Mr. Scharfstein Application for Standing 1 relevant in cooperation with the Commission and its counsel 2 and assist in that regard. The relief sought by the injured 3 victims in this lawsuit is something that will be addressed in 4 a separate proceeding and involves issues that go well beyond 5 the mandate of this Inquiry, and in that respect they differ, 6 but that does not, I don't believe, in any way diminish the 7 importance and relevance of what these people have to say and 8 the perspective they bring, nor do I think that granting 9 standing to those we represent will put them in any way in an 10 advantageous position in relation to the legal action. In 11 fact, every one of the named defendants, I believe, is here 12 before you seeking standing and if any party to the legal 13 action is granted standing, all such parties that don't get 14 standing would directly be prejudiced by that to some degree. 15 For that reason we certainly do not oppose the granting of 16 standing of anyone that has applied here today, and we think 17 that that is the best method by which to get all of the facts 18 and evidence out. Those are our submissions, subject to any 19 questions that you may have, Mr. Commissioner. 20 COMMISSIONER: Well, I certainly agree that there should be a 21 citizens group from North Battleford represented at the 22 Inquiry and for reasons that you have identified, among

23 others, but on the level of standing under the rules that we 24 have promulgated so far, Commission counsel having the primary 25 responsibility of calling evidence and, of course, being

41 Mr. Scharfstein Application for Standing 1 available to take advice from any party or any counsel as to 2 witnesses that you propose or would like to have give evidence 3 in this Inquiry in the first instance, and then failing that 4 the right to apply to myself to hear that type of evidence, 5 I'm wondering if your clients have the same overall interest 6 and the general policy issues and the effects that ­­ you 7 know, how this might be avoided in the future, for lack of a 8 better term. In other words, I mean observer status goes 9 without saying. Special status for specific victim impact 10 and, you know, to the extent we get into that or the 11 Commission does, and also what it was like on the ground, so 12 to speak, during this particular episode, but then when we get 13 into all of the engineering aspects of water treatment, do 14 your clients really have anything to bring to that aspect of 15 the Inquiry? 16 MR. SCHARFSTEIN: I think in all honesty they would have very 17 little to bring to the technical aspects of what went wrong, 18 but I do think that, of course, they would have a substantial 19 interest in what went wrong and have certainly been directly

20 affected by it and would want to be here for that portion. I 21 agree, though, that as far as bringing evidence to the table 22 on those issues they certainly will bring to the table 23 evidence relating to when they first became ill ­­ 24 COMMISSIONER: Yes. 25 MR. SCHARFSTEIN: ­­ who they saw, what reaction they got from

42 Mr. Scharfstein Application for Standing 1 Public Health or the City of North Battleford, all of which 2 will be, I think, quite relevant to how the matter was handled 3 and directly within the Terms of Reference that you have. So 4 in that regard, yes, but in regard to the technical aspects 5 and the engineering specifics of what went wrong, there 6 wouldn't be much they could bring in that regard, I agree. 7 COMMISSIONER: All right, it was just a clarification 8 question. Thank you. Mr. Russell, is there anything you 9 have? 10 MR. RUSSELL: Just sort of one practical issue in that this 11 application is somewhat different from the others, in that the 12 constituents who you represent is obviously large and if we're 13 going to get through the process in the time we've allocated 14 for that, it's obviously not possible to call everyone and ­­ 15 so, first of all, my understanding and probably the kind of 16 information your clients are going to bring to this Commission 17 Inquiry would be impact information, but there must also be

18 some way of marshalling that evidence because we obviously 19 can't hear from all of them. I mean have you given some 20 thought to that? 21 MR. SCHARFSTEIN: Yes, we have. One of the things that as we 22 have been retained by these individuals we've sought is for 23 them to give us, for example, in writing their story, what do 24 they have to say about this, and certain particulars, and as 25 much information as they can give us. I think in working

43 Mr. Scharfstein Application for Standing 1 with yourself, Mr. Russell, as counsel for the Commission, we 2 can certainly indicate the full scope of what we have and can 3 probably between us certainly agree on what would be relevant 4 and what should be brought forward, and we can assist greatly 5 in that regard, cull it out. There are certainly those that 6 probably can't bring much of a substantial nature or that's 7 different than everybody else. So we agree, you're not going 8 to hear from 427 or 450 individuals, but there are those who I 9 think between us we could certainly ascertain would bring the 10 full breadth of the evidence that should be brought and, 11 again, in an economical and meaningful fashion. 12 COMMISSIONER: All right, thank you. All right, Mr. 13 Scharfstein, thank you. 14 Now is Mr. Hopley ­­ I wonder if he knew that

15 there were hearings today, did he? 16 MR. RUSSELL: Well, even if he relied upon the timetable, I 17 think he probably should have been here by now. Perhaps ­­ 18 COMMISSIONER: Well, perhaps we'll take a short break and see 19 if we can contact his office and see what's up. So we'll ­­ 20 obviously we're moving along nicely and ­­ let me ask other 21 counsel that are here. To the extent that the funding 22 applications were originally scheduled for much later in the 23 afternoon, would it be reasonable to say that if we broke for 24 lunch somewhere around 12:15, that we'd start again at 1:30 on 25 the funding applications, is that a ­­ for those of you who

44 1 are involved in that aspect? 2 MR. PRIEL: From my perspective and from the City's 3 perspective, sir, that's no problem. 4 COMMISSIONER: No. 5 MR. SCHARFSTEIN: No problem. 6 COMMISSIONER: No problem and no problem, Mr. Mitchell, and 7 the other person is not here. Well, then we'll take a short 8 break now with the idea that we'll either break for lunch if 9 we don't have Mr. Hopley showing up shortly and continue at 10 approximately 1:30. Thank you. 11 (HEARING ADJOURNED ­ 11:51 A.M.) 12 (HEARING RECONVENED ­ 1:30 P.M.)

13 COMMISSIONER: Well, good afternoon, we're resuming our 14 hearings from this morning and before we get into the funding 15 hearings, I guess, Mr. Hopley, you have a client that you 16 represent that you would like to apply ­­ on whose behalf you 17 would like to apply for standing, and perhaps we'll deal with 18 that first, if you could? 19 MR. HOPLEY: Sorry for being late. I am here now. 20 COMMISSIONER: Well, just state your name for the record, 21 please. 22 MR. HOPLEY: Scott Hopley and I'm here as counsel on behalf 23 of Saskatchewan Environmental Society and Nature Saskatchewan. 24 COMMISSIONER: Yes. 25 MR. HOPLEY: We are making an application seeking full

45 Mr. Hopley Application for Standing 1 standing at the hearing ­­ or the Inquiry. 2 COMMISSIONER: Yes, and to the extent that you are ­­ 3 obviously the topic of the Inquiry falls in the environmental 4 area, but could you give us some idea of what type of 5 participation or role that your clients might have in mind? 6 MR. HOPLEY: Well, my clients actually represent two of the 7 largest environmental groups in the province. Saskatchewan 8 Environmental Society has about 350 members, while Nature 9 Saskatchewan has over 2,000 members.

10 COMMISSIONER: Can you just get that microphone a little ways 11 here in front of you, please? Thank you. 12 MR. HOPLEY: And, actually, Nature Saskatchewan after the 13 Saskatchewan Wildlife Federation would be the largest 14 organized environmental group in the province. Both the 15 applicant organizations are active in a broad range of 16 environmental projects, including membership on a number of 17 multi­stakeholder advisory type committees. Specific to water 18 the Saskatchewan Environmental Society is involved in one 19 project and as well Nature Saskatchewan manages the Living by 20 Water project. This is a national initiative targeted to 21 individual waterfront residents to inform and motivate them 22 towards a more environmentally­ friendly living and to improve 23 shoreline habitat. 24 The Saskatchewan Environmental Society was 25 active in issuing another key message in 1997, which reported

46 Mr. Hopley Application for Standing 1 concerns of the Environmental Society that the province had no 2 enforceable standards for drinking water quality. So I think 3 both organizations have a longstanding interest in both 4 environmental concerns generally and also specifically the 5 water. 6 Now what I would propose that these two 7 applicants bring to this Inquiry is, first of all, Nature

8 Saskatchewan and the Saskatchewan Environmental Society, I 9 think, are distinguishable from other stakeholders and 10 applicants, in that these organizations are not tasked with 11 balancing competing interests. The focus of my clients is 12 purely on the health and the integrity of the ecosystem. Both 13 organizations recognize that a healthy provincial economy is 14 dependent on a healthy environment, and I think that these two 15 organizations bring a somewhat different perspective than any 16 of the others applying for standing. 17 In addition to a different and, I think, unique 18 perspective, both organizations, I think, would have a great 19 deal of expertise and experience in the areas to be looked 20 into at the Inquiry. For example, the board of directors of 21 the Saskatchewan Environmental Society claims to have people 22 with considerable expertise in chemical engineering, 23 environmental engineering, environment and medicine, 24 agriculture and law, environmental law, toxicology, 25 physiology, biophysics and veterinary medicine. In addition,

47 Mr. Hopley Application for Standing 1 although he's not on the board of directors of the SES, Hans 2 Peterson is a member and he's the head of another 3 environmental group, the Safe Drinking Water Foundation, and 4 he has indicated that he would be available to provide support

5 if we're granted standing. In addition, Marie­Anne Bowden, 6 who is here with me today, is an environmental law academic. 7 She is currently writing a paper for a journal, the Canadian 8 Water Resources Journal, and it's an article which she hopes 9 to publish on well head and watershed protection. So the 10 members of the two applicant organizations would bring a great 11 deal of support to our standing and I think would contribute 12 in a material way if we're granted standing. 13 COMMISSIONER: All right, thank you. Any questions? 14 MR. RUSSELL: Just a few points of clarification, Mr. 15 Commissioner. Mr. Hopley, I mean you've outlined the 16 expertise which is available to yourself and your clients 17 through their various organizations, but is the role you'd 18 like to play specifically you'd like ­­ you'd like to suggest 19 appropriate expert evidence that might be called before the 20 Commission? In other words, do you want to merely suggest to 21 myself in the role of Commission counsel who should be called, 22 the appropriate questions to ask, or are you seeking a more 23 active role in front of the Commission yourself? 24 MR. HOPLEY: Yes, we'd seek ­­ well, I think if we could 25 work in a collaborative role with Commission counsel in

48 Mr. Hopley Application for Standing 1 suggesting potential witnesses and that sort of thing, but in 2 addition we would be seeking full standing to be present at

3 the hearings to give the applicants who ­­ having counsel 4 present to give the applicants an opportunity to have counsel 5 cross­examining witnesses from a purely environmental 6 perspective and to inquire in advance the particular event of 7 the organizations who are seeking standing. 8 MR. RUSSELL: Okay, so you see your role then at the counsel 9 table, but only in the environmental context. 10 MR. HOPLEY: Well, I think that that's what we have unique 11 to add. I don't think that we're seeking to try and exert the 12 role of Commission counsel or implicate ­­ 13 MR. RUSSELL: No, I realize that, but I'm just trying to 14 narrow down the role you're seeking to play. 15 COMMISSIONER: All right. Well, then, as I indicated this 16 morning, Mr. Hopley, I'm just reserving all of these 17 applications and we'll hopefully have something out within two 18 weeks or so and ­­ so thank you, and I guess we'll hear from 19 you again shortly on another matter. 20 MR. HOPLEY: Thank you. 21 COMMISSIONER: All right. Well, I guess we're going to move 22 into the applications for funding stage and in accordance with 23 the list that was circulated, I guess the City of North 24 Battleford, Mr. Priel, is up first. 25 MR. PRIEL: Thank you, sir. Mr. Commissioner, my client

49 Mr. Priel Application for Funding

1 makes an application to the Commission for funding and asks 2 that you make an order that the Commission pay all of the 3 costs of legal counsel, all of the disbursements of legal 4 counsel, the costs of consultants and the costs of expert 5 witnesses as may be required by the Inquiry. On the question 6 of funding you'll be familiar with obviously the funding 7 guidelines that have been published by the Commission ­­ 8 COMMISSIONER: M'hm. 9 MR. PRIEL: ­­ and I refer to item number 2, the Criteria, 10 and I'll just review them briefly and come back and deal with 11 them in more detail in a moment, but it first of all requires 12 that the applicant have standing for the Inquiry, and I 13 suspect that in due course an order will be made that my 14 client have standing. Secondly, that we'd be able to 15 demonstrate insufficient financial resources to enable us to 16 adequately represent the interests, and, thirdly, to provide a 17 written proposal with respect to the use we intend to make of 18 the monies. And what I found was interesting, sir, was item 19 number 3, which indicates that you will also consider other 20 factors in making the funding recommendation, including the 21 following, and then there are some matters that are 22 delineated, but what that tells me is that you have a broad 23 discretion that you can exercise with respect to the grant or 24 a decision not to grant funding. I note in reviewing the 25 Terms of Reference for the Inquiry, that item number 5 in the

50 Mr. Priel

Application for Funding 1 Terms of Reference. 2 COMMISSIONER: Item 5? 3 MR. PRIEL: Yes. Item number 5 indicates that you shall 4 determine applications by those parties, if any, or those 5 witnesses, if any, to the public inquiry that apply to have 6 their legal counsel paid for by the Commission and further 7 determine at which rate counsel shall be paid for their 8 services. So that as I see it, sir, the obligation is yours 9 to set guidelines or rates as you see fit. 10 COMMISSIONER: Which we have done to some extent as a 11 preliminary matter. 12 MR. PRIEL: Right, and I understand, and I'll come to that, 13 I intend to address that, Mr. Commissioner. What I want to 14 say first of all is that I suspect that my client would be 15 accorded standing, so that we would pass the first hurdle, if 16 you will. With respect to the second hurdle, and that is you 17 being satisfied that my client can't afford to adequately 18 represent or put forward its position before the Inquiry, I 19 can't say to you with any degree of credibility at all my 20 client can't do that because obviously it can. The question 21 is should it be forced to do that? And that brings into play 22 issues of fairness and equity and things of that nature. 23 Now if we look back, sir, to the ­­ if we look 24 at the major players, the major participants that will be 25 before you, and I don't say that in the derogatory sense in

51 Mr. Priel Application for Funding 1 terms of the other applicants for status, but there are, as I 2 would see it, three major participants in your Inquiry, the 3 first is my client, the City of North Battleford, the second 4 is the Province of Saskatchewan and the third is the District 5 Health Board, local District Health Board. The province, of 6 course, has a number of departments that have some 7 responsibility for the delivery of safe water, but, indeed, 8 counsel has said that it's really just one entity and that's 9 the province, but there are three major participants. And if 10 you consider those three major participants and the four or 11 five departments of the province and my client, and you ask 12 yourself where is the funding coming for all of these parties 13 for this Inquiry? Well, it's all coming from the provincial 14 treasury with the exception of my client. My client is the 15 only one that is not totally funded directly or indirectly by 16 the province. We didn't call this Inquiry, my client didn't 17 ask for it. The Inquiry was called by the province. Now my 18 client is then put into a position where we are required to 19 put forward our position and our perspective with respect to 20 what occurred that gave rise to the issues that you're to look 21 at in your Terms of Reference, and I appreciate the fact that 22 Commission counsel has said and you have said, sir, that this 23 is not to be an adversarial process, and we appreciate what 24 that requires and what that entails, but I think we would all 25 be more than a little bit naive if we didn't conclude that

52 Mr. Priel Application for Funding 1 someone somewhere will wear some blame as a result of this 2 problem, and there are going to be parties before you that are 3 going to be advocating a particular position, advocating a 4 particular finding, advocating their perspective, their view 5 of how you should look at the facts, and all of those things 6 will have an impact in some forum, perhaps not your forum, but 7 in some forum. All of those issues will have an impact in 8 someone deciding who should wear the blame for this. Now 9 what we have then, sir, is we have funding guidelines that 10 are, as I read them, they're prepared by the Department of 11 Justice. 12 COMMISSIONER: No, that's not quite right. The terms of ­­ 13 well, the Terms of Reference certainly indicating they have a 14 discretion, but, no, I, as Commissioner, basically, to be 15 honest, adopted the Walkerton guidelines on the issue of 16 funding and that's what you have before you. 17 MR. PRIEL: But I'm ­­ and I realize that you have, but I'm 18 asking that you set that aside, Mr. Commissioner, and do a 19 made in Saskatchewan set of funding guidelines that are fair 20 and equitable, because these, I suggest, are not fair and 21 equitable. They are, as I read them, it says, "Saskatchewan 22 Justice has advised the North Battleford Water Inquiry that it 23 has determined the appropriate rate", et cetera. 24 COMMISSIONER: Well, that has to do with the rates, though, so

25 ­­

53 Mr. Priel Application for Funding 1 MR. PRIEL: But they're a party to this, sir. Counsel for 2 the government said this morning that there is only one entity 3 that should be before you with respect to the government and 4 that's the Province of Saskatchewan. 5 COMMISSIONER: But just on the question of hourly rates, which 6 is really what ­­ 7 MR. PRIEL: I'll be getting to that one, too, yeah. 8 COMMISSIONER: The rates you see are the rates that Walkerton 9 allowed in Ontario and I, as Commissioner, said to the 10 Government of Saskatchewan, "Those rates look reasonable to me 11 given the nature of the Inquiry, so will you approve them?" 12 So they didn't tell me what rates there should be, I asked 13 them if they would, as the payor, and in fairness to counsel 14 in advance so that they didn't subsequently say, "No, that's 15 too much." So I just want to clarify that, Mr. Priel, at the 16 moment the rates that are scheduled there are my decision on 17 the rates, not anybody else's. 18 MR. PRIEL: And I guess I misread then or read too much 19 into the comment and I'm sorry about that, sir, but I guess 20 the point I make is that I would ask that you bring your own 21 thought to bear on it and make your own decision with respect

22 to funding and that you make an order with respect to funding 23 that would see senior counsel be paid at a rate of $250 an 24 hour and junior counsel be paid at a rate of $130 an hour, and 25 that you make an order approving junior counsel with respect

54 Mr. Priel Application for Funding 1 to the City of North Battleford. And, sir, I do that looking 2 at the table to my left and seeing four counsel here 3 representing the Province of Saskatchewan, and I say in 4 fairness and equity, my clients, we're not looking to have 5 four lawyers here, we're looking to have senior counsel and a 6 junior counsel and we're looking to have counsel paid what 7 they would normally be paid in representing a client. Now if 8 you decide in your discretion that that's too rich and you 9 want to scale it back, that certainly is your prerogative, 10 sir, but what I would ask is that you allow counsel to bill 11 its client for the fees and have the province make a 12 contribution at whatever rate you set toward those fees. So 13 in other words, counsel would then have an opportunity to have 14 its client pay the difference between what would normally be 15 paid and what you would order the province's contribution to 16 be. 17 COMMISSIONER: Yes, that's a point that when we approved the 18 guidelines for reimbursement, or as I've indicated, basically 19 adopted the Walkerton ones in terms of ­­

20 MR. PRIEL: And I'm suggesting that that wouldn't be 21 appropriate. 22 COMMISSIONER: ­­ that there is a provision in there that if 23 you obtain funding, that you can't obtain funding from any 24 other source, and I think in discussing it with Commission 25 counsel as well, that perhaps is not particularly an

55 Mr. Priel Application for Funding 1 appropriate clause to continue in our guidelines, only because 2 of our Saskatchewan situation, and, in particular, the fact 3 that there is this lawsuit out there. In other words, leaving 4 aside ­­ I'm reserving all funding applications as well, if I 5 haven't said so, but one of the concerns ­­ in the end result, 6 there is only one tax payer, as you can appreciate, Mr. Priel, 7 whether it's a civic one or a provincial one, it's the same 8 one in certain circumstances. 9 MR. PRIEL: Yes. 10 COMMISSIONER: What I'd like you to address is to the extent 11 you're also acting for in defence, I gather, of the civil 12 action that has been commenced against the City of North 13 Battleford ­­ 14 MR. PRIEL: Yes, I am. 15 COMMISSIONER: ­­ clearly there will be overlap in preparation 16 that would be required probably in the defence of that civil

17 action in any event, and I was just wondering if you could 18 provide us any assistance in terms of ­­ in other words, I can 19 see where the hours spent at these hearings are fine, water 20 hearing expenses, they aren't benefitting anything in 21 particular. 22 MR. PRIEL: Right. 23 COMMISSIONER: At the same time under our rules we have 24 Commission counsel primarily responsible for leading all the 25 evidence, even though the suggestions for that evidence may

56 Mr. Priel Application for Funding 1 come from individual parties, and so when we get down to 2 preparation time, really as we visualize it, apart from ­­ 3 even with expert witnesses, the rules provide, "Well, you 4 first of all make it known to Commission counsel, if he should 5 decline to call that expertise, then you have the right to 6 apply yourself." 7 MR. PRIEL: Are you talking about preparation time 8 pre­hearing, pre­September? 9 COMMISSIONER: Well, I'm just talking preparation time in 10 general, yes. In other words, we don't ­­ on the funding 11 side, and I admit that we're not an overly wealthy province 12 however we slice it, so we want to be reasonable and we want 13 to be fair. 14 MR. PRIEL: And my client ­­ and I understand what you're

15 saying, sir, and my client feels the same way, that it's a 16 small Saskatchewan city that is visited with a very expensive 17 problem and seeks some assistance from the person that called 18 the party, and I think that I can help you with respect to the 19 preparation time, sir. I would not expect that we would be 20 submitting for payment by the Commission any bills before you 21 begin your hearings in September. 22 COMMISSIONER: M'hm. Well, that's helpful to know, yes, and I 23 think it's a reasonable position to ­­ for anything before the 24 hearings commence. 25 MR. PRIEL: Now after that, preparation time and hearing

57 Mr. Priel Application for Funding 1 time is ­­ 2 COMMISSIONER: Yes, do you have any ­­ 3 MR. PRIEL: ­­ we would be submitting, and one of the other 4 things that ­­ and I hope I'm not sort of getting off the line 5 of discussion that you were wanting to be on, but one of the 6 other concerns that I had was a requirement that our accounts, 7 which are privileged, or would disclose privileged 8 information, would be required to be sent to the Department of 9 Justice, who although we're not in an adversarial situation 10 here, certainly isn't on my client's side of the table, and I 11 would not want to have to be in a position where privileged

12 information would be disclosed, and I would hope that we could 13 invoice or client and have our client certify to Saskatchewan 14 Justice that, indeed, "X" dollars of this account relates to 15 the Inquiry and we'd like it paid. 16 COMMISSIONER: Well, I have something that I'd like to 17 question you on and I'll raise it with other applicants as 18 well, because when it comes to preparation time, and I 19 understand that obviously there's ­­ your client is a direct 20 participant so you have individual fact­finding to do, other 21 of the persons acts ­­ and CUPE as well has some background 22 inquiring to do from their own clients, other applicants, and 23 I'm throwing this out so that applicants can address it, such 24 as the citizens' group and perhaps the environmental group, 25 the preparation time in those cases will be just preparing to

58 Mr. Priel Application for Funding 1 either cross­examine or to understand the evidence that's 2 coming up with respect to any one day of hearings, and there 3 have been formulas out there that simply fund to the extent of 4 one hour of preparation for every hour of hearing or one and a 5 half hours of preparation for every hour of hearing, leaving 6 aside ­­ that is, in other words, as a Commission we can't say 7 ­­ or I'm not anxious to have the situation where you spend ­­ 8 and I don't mean you personally, somebody spends, "Oh, I think 9 this is an important day tomorrow, I'm going to spend five

10 hours preparing for this", and the next person says, "Well, it 11 doesn't look so important to me, I'm going to spend half an 12 hour." Because under our rules we're inviting counsel to get 13 together and determine the order of cross­examination of any 14 one witness, and clearly the persons in my view who have the 15 most direct interest in that type of evidence would be the 16 lead cross­examiners, and I can assure you now I'll be rather 17 brutal on duplication. Once somebody has asked the question 18 and the answer has been given, it's not going to be asked a 19 second time or a third time, and that's just simply in the 20 interests of our own time. In other words, we allow a certain 21 leeway in the courtroom. So we're certainly encouraging 22 counsel collegially to ­­ and apparently it worked very well 23 in Walkerton is what we're told, somebody decided who is the 24 lead and then others will, by definition of their interest, 25 have some follow­up questioning that is specific to their

59 Mr. Priel Application for Funding 1 client or whatever. So when you're going to take the lead on 2 a cross­examination, then you're going to have a little more 3 preparation than the next time when you're simply sitting back 4 and you're number 8 in line or whatever, and as a Commission 5 we're wrestling with how is the fairest way to order 6 preparation time, because the one thing I don't think it can

7 be is say let the bill will be what it will be, Mr. Priel, we 8 have to set some guidelines. 9 MR. PRIEL: And, sir, I hear you on that and I understand 10 that, and you can order guidelines, and ­­ 11 COMMISSIONER: Yes, and I'm looking for your input on those 12 guidelines as well. 13 MR. PRIEL: Right, and I just wanted to approach it from a 14 little different perspective and say to you that my client may 15 view this particular issue as being important and there may 16 be ­­ or I may view it as being important and I say "I need to 17 do some prep time on that" and I put the time into it, and it 18 may be that your guidelines would only allow two hours of 19 preparation for that, but I put in ten hours. Well, my client 20 will pick up the rest, but I don't think it would be 21 appropriate, sir, for Sask Justice or the Commission here to 22 be saying, "We are only going to fund one hour of prep time 23 and Mr. Lawyer, if you want to do more, you're on your own 24 hook." 25 COMMISSIONER: No, no, I've already allowed that I think that

60 Mr. Priel Application for Funding 1 provision that you can't be paid otherwise might have to come 2 out of those rules, but what I have in mind, where it's 3 leading to in terms of your concern about disclosing 4 privileged information to the Department of Justice, there's

5 two things to me, this Commission is not funded in the sense 6 we don't have a budget and our own bank account, Justice is 7 paying the bills as we go. 8 MR. PRIEL: Right. 9 COMMISSIONER: So to the extent they go to Justice that's why 10 it's framed in that way. The second point is if we keyed it 11 off of hearing time and preparation time, then you don't have 12 to put in any detail, you attended 30 hours of hearings, you 13 get so much preparation and somebody, Mr. Bickford or somebody 14 certifies, "Yes, Mr. Priel was here for 30 hours", and the 15 bill will be what it will be. 16 MR. PRIEL: Yes, and I ­­ 17 COMMISSIONER: I mean that's what ­­ I'm certainly inviting 18 comments on that, but I'm simply disclosing how ­­ we've been 19 wrestling ourselves with how to handle this funding issue. 20 MR. PRIEL: Right, and I'm not sure how you're going to 21 wrestle the preparation time to the floor, Mr. Commissioner. 22 COMMISSIONER: Well, I think there's preparation time ­­ 23 MR. PRIEL: It's so subjective in terms of what the client 24 may require or the lawyer might feel is appropriate. You may 25 end up taking a figure and say for every eight hours of

61 Mr. Priel Application for Funding 1 hearing we're going to allow four hours of prep time or eight

2 hours of prep time, and if you do that, that's fine. I mean I 3 can ­­ when you were practicing you did enough insurance 4 defence work you'd be pretty familiar with some of those kinds 5 of concepts that might ­­ that payers might be comfortable 6 with, and I think that your experience ­­ 7 COMMISSIONER: I don't think my previous experience is helping 8 me much on this issue. 9 MR. PRIEL: But I can suggest that my view is that if you 10 were to allow one hour of preparation time for each hour of 11 hearing time ­­ 12 COMMISSIONER: Well, I mean I just threw that out as a 13 suggestion to counsel. 14 MR. PRIEL: That's what I've always done in looking at 15 trial time, Mr. Commissioner, is to indicate to a client that 16 I think that I need about one day of prep time for every day 17 of trial and that usually works out to be close. 18 COMMISSIONER: Okay. Thank you. 19 MR. PRIEL: The one other matter that I'd like you to 20 consider, sir, is that counsel be allowed to invoice the 21 client, so that I would be allowed to invoice my client and 22 have my account paid, and then the province would reimburse my 23 client, rather than having the lawyers having to carry these 24 costs for significant periods of time because sometimes the 25 province doesn't pay as swiftly as other clients might.

62 Mr. Priel Application for Funding

1 COMMISSIONER: Well, I haven't asked them that. 2 MR. PRIEL: Yeah, well, maybe that's just my experience 3 talking, Mr. Commissioner. Those, I think, Mr. Commissioner, 4 are all of the comments, I think, that I can usefully make, 5 unless you have some further questions. 6 COMMISSIONER: No, I think I have touched on the matters I had 7 in mind, but, Mr. Russell, do you have anything that you'd 8 like to ask? 9 MR. RUSSELL: Just a couple of points for clarification, Mr. 10 Priel. You're saying that it was not your intention to submit 11 bills for work done prior to the hearing in September, so, for 12 instance, if I am requesting your presence to interview 13 witnesses and represent the interest of your client, you're 14 saying that you would not be submitting bills for that 15 exercise? 16 MR. PRIEL: No. 17 MR. RUSSELL: Okay. In the event that the Commissioner were 18 to allow you to submit your accounts to your client, there is 19 in the rules the ability of the Commission to have the 20 accounts reviewed independently, and that rule would still 21 apply, I'm assuming. And in relation to our guidelines are 22 there any other matters in those guidelines, for instance, 23 this 75 per cent rule with junior counsel, is that 24 objectionable to you or ­­ 25 MR. PRIEL: I had asked that the rate be set at $130 an

63 Mr. Priel Application for Funding 1 hour. 2 MR. RUSSELL: But still you would say 75 per cent when 3 they're attending ­­ 4 MR. PRIEL: No, that that be the rate and not 75 per cent 5 of that rate. 6 MR. RUSSELL: I see. Okay, thank you. 7 COMMISSIONER: All right, thank you, Mr. Priel. 8 MR. PRIEL: Thank you, sir. 9 COMMISSIONER: All right, I think we're back to Mr. Hopley 10 again, are we? No, I'm sorry. I forget what order these 11 were in. It is you, Mr. Hopley, yes. 12 MR. HOPLEY: Well ­­ 13 COMMISSIONER: Yes, Mr. Hopley, sorry. 14 MR. HOPLEY: Well, at the outset, I guess, one thing I'd 15 like to observe is that I've done quite a bit of work under 16 the Legal Aid tariff, so the $250 an hour that Mr. Priel is 17 suggesting seems fine to me. 18 COMMISSIONER: Sure. 19 MR. HOPLEY: Our application is an application primarily 20 restricted to the ­­ first of all, we're agreeable to the ­­ 21 if standing is granted and if the funding is granted, we are 22 agreeable to the guidelines as set out and we'd be satisfied 23 with those guidelines as applied by the Commissioner. We are 24 seeking approval for payment for counsel and we're also 25 seeking separate approval to use a litigation support

64 Mr. Hopley Application for Funding 1 assistant, as set out in my written material, and that's an 2 individual currently employed by the Saskatchewan 3 Environmental Society. One other point we'd be requesting, 4 that if it becomes necessary for our clients to retain an 5 expert witness, and assuming that we obtain leave to call that 6 witness at the Inquiry, we would hope that that disbursement 7 would be a recoverable expense. 8 Turning to the reasons why we're making the 9 application now for funding, quite simply if funding isn't 10 granted my clients would not have the ability to retain 11 counsel and participate in the Inquiry. Both are a registered 12 non­profit charitable organization. The Saskatchewan 13 Environmental Society does not receive government funding for 14 its core activities, and although Nature Saskatchewan has 15 somewhat greater support in the way of government funding, 16 neither organization has anything like the resources that 17 would be necessary to retain counsel. In addition, I don't 18 think that it's realistic to suggest that either organization 19 would be able to contribute to the expenses of counsel. The 20 time frame is really short and that realistically eliminates 21 the chance to do any private fund­raising. In addition, I 22 would suggest that the benefits to my client organizations 23 participating in this sort of inquiry with the consequent 24 expense of retaining counsel are not always benefits that are 25 intuitively apparent to those individuals typically donating

65 Mr. Hopley Application for Funding 1 to my client organizations. In effect, what I'm saying, 2 people contributing funds to Nature Saskatchewan and 3 Saskatchewan Environmental Society typically want their 4 donations to go to specific projects or to public education 5 directly. So the thought of having a big fund­raiser to pay a 6 lawyer is just not going to generate huge public support. 7 Having said that, I think that both of my clients have offered 8 to contribute in very significant non­financial ways. Ms. 9 Bowden is here today on her own time. Quite frankly the 10 application that was put together was a product largely of the 11 Saskatchewan Environmental Society and not the law firm of 12 Hnatyshyn Gough, and these are professional people who 13 normally for contributing the types of services that they have 14 and that they have committed to the program in standing and 15 funding, are people who are contributing time and their 16 professional standing, and for them time is money. So I think 17 that there is a real big contribution that's being made and 18 it's just not in the form that would allow for paying of legal 19 fees. 20 There is one other thing which I'd like to 21 address briefly and this has to do with preparation time. 22 COMMISSIONER: Well, I would like you to address, you know, 23 what type of funding do you think you're looking for in terms

24 of specifics or comment, if you wish, on some of the things 25 that I've said as to possibilities and ­­

66 Mr. Hopley Application for Funding 1 MR. HOPLEY: In my experience it often takes one and a half 2 to two hours of preparation time for every hour spent at a 3 hearing or in trial, and I think that junior lawyers are often 4 taking much more time than that. The difficulty with limits 5 is that at this point I'm unclear as to how document­intensive 6 the Inquiry will be, and I'm also unclear how much cooperation 7 from the various parties from whom documents may be sought, 8 what degree of cooperation that there will be. Our 9 organizations have support people who are familiar with the 10 extent and the types of documents that should be in existence. 11 If everything is delivered, then, accordingly, the preparation 12 time is much reduced. 13 COMMISSIONER: Well, our expectation is certainly, and to the 14 extent, perhaps, some of the parties may be aware of this, but 15 our intention is, and obviously there are some parties that 16 have more documents to contribute than others and may take a 17 little longer, but starting hopefully now, as the Commission 18 receives documents from parties, we are intending to be 19 web­based and anybody who is a party will have access to those 20 documents and, quite frankly, we're going to be asking you to 21 pay your own costs of printing in most cases. In other words,

22 the documents are there, you pick and select what you want, 23 but when we come to actual witnesses ­­ so whatever the 24 documents that the Commission considers relevant and of use to 25 the Inquiry, and that will largely be Mr. Russell, they will

67 Mr. Hopley Application for Funding 1 be available to all parties who have standing. When it comes 2 to actual witnesses being called, our hope is that, again 3 through Mr. Russell, every party will know in advance that on 4 such and such a day witnesses A, B and C are being called, 5 these ten documents will be referred to Witness A, these ten 6 will be referred to Witness B, and then it will be up to you 7 as counsel whether you think something more than those ten 8 documents should be put to the witness in cross or otherwise, 9 but I don't visualize at this point anyway where information 10 flow from the point of view of everyone ­­ Commission counsel 11 is really taking charge of the information flow and, likewise, 12 any party that has documents that they wish to have part of 13 the Inquiry would make them available to him. 14 MR. HOPLEY: Yes, I understand that, and I guess it's my ­­ 15 if the process flows smoothly like it's intended to, then 16 certainly an hour and a half to two hours of prep time for 17 every hour of hearing time is more than ample preparation 18 time, but if the process is ­­ if we get bogged down on issues

19 of my client saying, "Hold it, there's more stuff here", and I 20 would believe that that is the sort of thing that would be 21 directed through Commission counsel, if we get ­­ if we start 22 experiencing problems in convincing parties that documents 23 that were I think ­­ documents are relevant and should be 24 produced or if there is problems ­­ I understand that early in 25 the Walkerton Inquiry there were many disputes over whether or

68 Mr. Hopley Application for Funding 1 not documents needed to be produced as well as disclosed and 2 there were a number of privilege fights. 3 COMMISSIONER: Yes. 4 MR. HOPLEY: And all of those things become quite labour­ 5 intensive, and not only ­­ you know, for every application 6 you've got, you know, it's more hours in commission and you 7 need sort of more hours of prep time, so ­­ although sometimes 8 procedural fights can be resolved without much ­­ 9 COMMISSIONER: Well, let me put it this way ­­ I understand 10 what you're saying, you can't anticipate every possibility 11 that may arise in the course of an inquiry, that's fair 12 enough, but as a general proposition one of the reasons I'm 13 throwing out this time, preparation time to hearing time, is 14 depending on which level, which participant you represent, I 15 guess, I'm guessing that there are going to be times when 16 you're doing no preparation, simply because the issue is

17 engineering or the issue is ­­ and yet you'll still be given 18 credit for having been at the hearing in that one hour, so 19 there is a little bit of Peter and Paul involved in this 20 concept admittedly and ­­ 21 MR. HOPLEY: Well, I think that ­­ first of all as far as 22 the cross­examination in the hearing is concerned, I couldn't 23 agree more, that duplication is a waste of everyone's time and 24 I get bored listening to myself speak, so I don't know why 25 anybody would be different, but as far as ­­ I do see my

69 Mr. Hopley Application for Funding 1 clients as representing a somewhat different perspective. I'm 2 certainly sensitive to, I think, the concerns that Mr. Russell 3 was raising as to, well, you know, isn't that why Commission 4 counsel is here? But I don't think that the environmental 5 interests are necessarily restricted to one aspect of ­­ 6 COMMISSIONER: No, no, and I hope I haven't suggested that. 7 No, I think, as I said earlier, and you weren't here this 8 morning, we welcome the fact that there are interested parties 9 who weren't specifically involved in the events, so I'm 10 certainly not quarrelling with you being here or your client 11 being here. So as I understand, leaving aside the issue of 12 actual time at the hearing and general preparation time, your 13 application would include funding for any expert witnesses in

14 the event that you got permission to call such expert 15 witnesses that weren't already called by Commission counsel, 16 and any extraordinary items that may come along such as court 17 proceedings arising out of the ­­ 18 MR. HOPLEY: Yes, and whatever other reasonable 19 disbursements as provided for in ­­ 20 COMMISSIONER: Yes, disbursements, I think, go with it. Yes, 21 fair enough. 22 MR. HOPLEY: Yes, and the application points out that 23 although I don't see the need to have two counsel here present 24 at the Inquiry ­­ 25 COMMISSIONER: No, you have applied for a paralegal

70 Mr. Hopley Application for Funding 1 equivalent. 2 MR. HOPLEY: Yes, and there are some efficiencies within our 3 office, where Ms. Ross who has actually has been at the bar 4 for longer than me and has a Masters degree in law in an 5 environmental law area, there is certain preparation 6 efficiencies which could be done faster if she's doing things 7 with me, look at this and look at that. So I would seek 8 approval to have her provide some support services and if ­­ 9 and I think it's set out in the application ­­ if there is 10 some reason why on a particular witness or on a particular day 11 we do believe it would be of value to have two counsel here,

12 certainly we would be in agreement that there be an 13 appropriate reduction for the presence of the second counsel. 14 COMMISSIONER: All right. All right, thank you. As I say, we 15 are still thinking our way through this and we haven't made 16 any decisions, so we'll ­­ 17 MR. HOPLEY: Okay. 18 COMMISSIONER: Thank you, Mr. Hopley. 19 MR. RUSSELL: Could I just ­­ 20 COMMISSIONER: Oh, I'm sorry, Mr. Russell, yes. 21 MR. RUSSELL: Just a couple of issues. I mean I think 22 leading up to the hearing I don't think there needs to be much 23 concern about the extraordinary situations that might be 24 thrown up. I would understand that your principal obligations 25 are going to be to come up with documentation, relevant

71 Mr. Hopley Application for Funding 1 documentation and relevant witness lists that you will then be 2 giving to me, so I think that's where you would spend your 3 time. Secondly, I suppose, if I then wished to interview your 4 witness, you would probably wish to be present at the time I 5 interview that witness, but our intention is that I will do 6 the document gathering. If issues like privilege arise and 7 you see that someone is claiming privilege or whatever else 8 that you think is inappropriate, I think you bring that to my

9 attention, I would make the decision on whether or not action 10 needs to be taken. If you think I make the wrong decision, 11 then you're free to go to the Commission and say the wrong 12 decision has been made and I think you could discuss at that 13 time possibly how to fund any extraordinary action that the 14 Commissioner thinks should be paid. 15 MR. HOPLEY: Yeah, I don't have any ­­ I agree with that. 16 COMMISSIONER: What we're trying to stay away from is global 17 budgeting because we really don't know how many days of 18 hearings we're going to have at this point is the fact of the 19 matter, and ­­ so it seems that a piecework type of approach 20 to the thing is perhaps the fairest to everyone rather than 21 trying to ball­park a number, which may or may not be ­­ 22 MR. HOPLEY: Yeah, no, and both myself and my clients are ­­ 23 we're agreeable to that, we don't want this process to be 24 tainted with out­of­control expenses. 25 MR. RUSSELL: I didn't see in your application, did you

72 Mr. Hopley Application for Funding 1 also ­­ you said the guidelines were acceptable to you, did 2 you indicate in your application which category you placed 3 yourself and Ms. Ross in? 4 MR. HOPLEY: I didn't actually, I like to think of myself as 5 somewhat unique among lawyers, as being fairly modest. I 6 didn't know where to put either Ms. Ross or myself and so

7 that's why ­­ I certainly wouldn't ­­ while I would expect 8 that Mr. Priel would be at the top of the seniority level, I 9 don't know where I fit, whether ­­ you know, at sort of less 10 than ­­ 11 COMMISSIONER: Well, we can probably ­­ we can probably assess 12 that, too, in the sense that you're ­­ 13 MR. HOPLEY: Yes. 14 COMMISSIONER: What is a paralegal rate, do you have a rate 15 that comes to mind in terms of a paralegal, or what we call 16 paralegals, there may be another discipline that ­­ 17 MR. HOPLEY: I proposed in the application $25 an hour. 18 COMMISSIONER: Oh, you did, okay. 19 MR. HOPLEY: I think we would be ­­ if push came to shove, I 20 think that we could do it for less than that. 21 COMMISSIONER: No. Okay, I had overlooked the fact that you 22 had mentioned 25. All right, thank you. 23 MR. HOPLEY: Thank you 24 COMMISSIONER: Yes, Mr. Mitchell. 25 MR. MITCHELL: Thank you, Commissioner. I think it's clear to

73 Mr. Mitchell Application for Funding 1 all of us that without funding the Local would not be able to 2 participate, the membership base is too small. They have a 3 sum of money on hand, as you know, but this is hard­gamed

4 territory for the union that has to cover off a number of 5 different possibilities. One or two big arbitrations would 6 clean them out, you know, and on top of that they try and 7 build towards a rainy day of strike action, perish the 8 thought, at some future time. I want to tell the City that no 9 such action is contemplated right now, but you never know, Mr. 10 Commissioner, what the future may bring. 11 I think that the Local meets the criteria. 12 They can't really look to their members for any greater fee 13 because it is a low salary bargaining unit, as you will see by 14 the Collective Agreement, and it takes a long time to put 15 together any significant amount of money if your source of 16 revenue is union dues, nor can they look to the national 17 union, the national union simply doesn't have a policy 18 covering this, and the implications of them making an 19 exception in this case are just not feasible, they would then 20 have to fund all sorts of other little lawsuits that go on in 21 some of their locals, that they just don't want to get into 22 that particular problem area. So they've got kind of a hard 23 policy that they can't provide funding for this kind of a 24 situation. 25 The other thing, Mr. Commissioner ­­ I keep

74 Mr. Mitchell Application for Funding 1 wanting to call you My Lord, but I ­­

2 COMMISSIONER: No, I think Commissioner is fine. 3 MR. MITCHELL: Yes. That's years of training. ­­ is that 4 we're not in the lawsuit, so we have no investigating going on 5 in connection with the lawsuit, as is the case with Mr. Priel 6 and probably others, and the Local just simply hasn't been 7 able to fund any preliminary investigation. So our 8 investigation to this point consists of one three­hour meeting 9 with five people of the eight people, and we did a hurried 10 tour of the plant to sort of get our head around what kind of 11 a workload this would be. It's a big one, as you can 12 appreciate. There is the eight people there and then there 13 are other witnesses who at least have to be talked to to see 14 whether they have any information that might assist the 15 Inquiry, and then the technology of the place is something 16 that I think I have to get my head around completely. In 17 order to adequately represent these people I have to 18 understand the nuts and bolts of what they do because they do 19 a lot of things, My Lord. I mean it's surprising to me, at 20 least, there is a lot of things put in and taken out of the 21 water on its way from the river to your glass that's in front 22 of you right now, a lot of action, and to adequately represent 23 them I've got to get my head around it, and I can't lay off 24 that cost to an insurance company or to anybody else, I have 25 got to look to the Commission for funding.

75 Mr. Mitchell Application for Funding

1 COMMISSIONER: Well, I can see certainly to the extent that 2 you have eight employees who may well end up ­­ I'm not 3 predicting this ­­ but as witnesses or potential witnesses, 4 certainly you have to familiarize yourself with their duties 5 and the environment in which they operate, I guess, and then I 6 can certainly see where you would, you know, have to be 7 present perhaps if Commission counsel or somebody else wants 8 to interview those very same people, et cetera, but once you 9 have that background and once we get to the actual hearing 10 stage ­­ so I can see your request is for some lump sum to 11 bring yourself up to speed, for lack of a better term. 12 MR. MITCHELL: Right. 13 COMMISSIONER: And then once we get to the hearing stage, 14 would you visualize participating throughout the whole of 15 the ­­ like I mean, for example, there is a Health District 16 and doctors and Public Health, there is a whole health issue 17 there that on its face wouldn't directly appear to impact your 18 particular clients, but ­­ 19 MR. MITCHELL: Yeah, these are pretty relaxed days, you know, 20 where you wouldn't have to do any preparation work at the end 21 of it. 22 COMMISSIONER: Yes. 23 MR. MITCHELL: Yet there'd be others where ­­ 24 COMMISSIONER: But you'd intend to be here, is that what 25 you're saying?

76 Mr. Mitchell Application for Funding 1 MR. MITCHELL: Well, I think so. You know, it may become 2 clear that it's wasting my time, but, you see, everything that 3 was done there, as I said this morning, was done by my ­­ 4 COMMISSIONER: Yes. 5 MR. MITCHELL: ­­ people. 6 COMMISSIONER: No, I understand, and a good part of it on the 7 engineering side and the like ­­ 8 MR. MITCHELL: Yes. 9 COMMISSIONER: ­­ certainly your clients are very much 10 involved. 11 MR. MITCHELL: Yes. So when the SERM inspector comes around 12 to do what they do, my guys do it with them, you know ­­ 13 COMMISSIONER: I understand. 14 MR. MITCHELL: ­­ and so on and so forth. I can't ­­ I just 15 can't easily foresee when I'll ­­ when there would be days 16 when I would not have to be here. 17 COMMISSIONER: Okay. 18 MR. MITCHELL: But that may ­­ 19 COMMISSIONER: No, no, I was just asking in a general sense. 20 So with respect to the ongoing days of hearing, as you say, 21 had you ­­ one of the aspects of hearing an application that 22 is somewhat difficult for us is what amounts to two counsel 23 for ­­ you know, I think two counsel for the whole Inquiry 24 would be difficult. You know, I can understand that ­­ 25 MR. MITCHELL: Sure.

77 Mr. Mitchell Application for Funding 1 COMMISSIONER: ­­ at some points, but I just thought if you 2 want to address that issue I would ­­ 3 MR. MITCHELL: Well, I'll live with however you see it, Mr. 4 Commissioner. Certainly two counsel on doctors' days or 5 Environmental Society days would not be justified. Two 6 counsel when our people are being examined and cross­examined 7 and two counsel when the certain City people are giving 8 evidence would be, in my view, necessary. So you certainly 9 wouldn't get any argument from me if you laid down some 10 guidelines around that. 11 The other thing that I wanted to mention that 12 is not addressed in my material is the kind of obvious point 13 about the lost time of the working people when they have to 14 come here and give evidence, they have to be compensated for 15 that. 16 COMMISSIONER: You mean they will not be paid ­­ 17 MR. MITCHELL: Yes, that's right. 18 COMMISSIONER: ­­ if they have to show up here? 19 MR. MITCHELL: M'hm. 20 COMMISSIONER: Well, we can give them a subpoena, you know. 21 MR. MITCHELL: Yes. 22 COMMISSIONER: No, I'm serious. 23 MR. MITCHELL: I know. If this were a union arbitration and 24 they had to come and give evidence on behalf of the union, the 25 union would pay their lost days, their lost time.

78 Mr. Mitchell Application for Funding 1 COMMISSIONER: Okay, yes. But otherwise whatever contract is 2 in place doesn't include witness time or court time? 3 MR. MITCHELL: No, no, and I'm sure that is the case out of 4 this, too, and so ­­ this is not our arbitration, it's just 5 sort of the one that was landed on us and we feel, again, 6 these people ought not to lose wages on account of coming to 7 assist the Commission. 8 COMMISSIONER: As witnesses? 9 MR. MITCHELL: As witnesses. 10 COMMISSIONER: Well, you may want to follow up by sending us a 11 copy of the Collective Agreement. I mean I'm not doubting 12 your word, but I just think I'll need some ­­ 13 MR. MITCHELL: Yes. 14 COMMISSIONER: ­­ basis for why, and some agreements include 15 it and some don't. 16 MR. MITCHELL: It's in the material and I haven't examined 17 this agreement from that point of view. 18 COMMISSIONER: Okay, people not to be out wages as witnesses, 19 we certainly agree with that and we can pay witness fees 20 wherever we feel it appropriate. 21 MR. MITCHELL: Yes. 22 COMMISSIONER: Okay. Fine, thank you. Any questions, Mr. 23 Russell?

24 MR. RUSSELL: Just two. Are there any other aspects of the 25 guidelines which you think are particularly inappropriate in

79 Mr. Mitchell Application for Funding 1 your case? 2 MR. MITCHELL: No. My position is much simpler because I'm 3 not involved in the lawsuit ­­ 4 MR. RUSSELL: Okay. 5 MR. MITCHELL: ­­ and so I don't have those difficulties. 6 MR. RUSSELL: And how would you ­­ I didn't see it in your 7 application, how would you, you know, propose rendering the 8 account? 9 MR. MITCHELL: The way we had seen it structured is that the 10 Local would be funded and we would submit our bills to the 11 Local and they would do whatever they have to do according to 12 the rules laid down by the funding agency. I think that's 13 sending it to the provincial government and having somebody 14 there approve it, but that's ­­ that doesn't ­­ we haven't 15 finalized that either. 16 MR. RUSSELL: No, I just wondered if you had any suggestions. 17 MR. MITCHELL: Just the way we had seen it, the union has set 18 up a special account to receive this funding and appointed 19 signing officers, so we had proposed to use that technique. 20 COMMISSIONER: When we adopted the Walkerton funding rules,

21 just in the interests of time more than anything, we forgot 22 the fact that we're not funded, so that we can't give you a 23 chunk of money. 24 MR. MITCHELL: I don't know whether I should mention this or 25 not, but in past life I've had the privilege, if you call it

80 Mr. Mitchell Application for Funding 1 that, of ordering an inquiry, and my recollection is we simply 2 paid all the bills like that, and let the chips fall where 3 they may, and the Walkerton approach to it, which you've 4 adopted here was a new experience for me. 5 COMMISSIONER: Well ­­ 6 MR. MITCHELL: I don't know whether that's an appropriate 7 thing to say, I mean you have to play the hand that's dealt to 8 you. 9 COMMISSIONER: Well, I think that ­­ when you say the fact 10 that ­­ in the past you're saying counsel just billed whatever 11 they billed and the government paid it? 12 MR. MITCHELL: Yes. And they're referred to as the good old 13 days. 14 COMMISSIONER: When lawyers' fees were $25 an hour. 15 MR. MITCHELL: Yes, that's correct. 16 COMMISSIONER: Okay, thank you, Mr. Mitchell. 17 MR. MITCHELL: Thank you, Mr. Commissioner. 18 COMMISSIONER: Mr. Scharfstein.

19 MR. SCHARFSTEIN: Mr. Commissioner, on behalf of the four hundred 20 plus individuals who represent the citizens affected by this 21 matter, again our submissions on funding presupposes a 22 decision that we're granted standing ­­ 23 COMMISSIONER: Well, that's to be assumed, that's right. 24 MR. SCHARFSTEIN: ­­ as with everybody. 25 COMMISSIONER: That's to be assumed.

81 Mr. Scharfstein Application for Funding 1 MR. SCHARFSTEIN: The fact of the matter is without funding they 2 won't be represented here, they don't have any of the funds 3 available or the mechanism to obtain the funds to pay for 4 counsel to represent them here at these hearings. The group 5 that we represent, many are elderly fixed­income people, there 6 is a hundred and some that are infants, it's a group that is 7 not in a position financially to fund this Inquiry or 8 representation at this Inquiry. We think certainly, though, 9 there's huge economies to this Commission in having them come 10 together as a group instead of four hundred individuals coming 11 in to have their say, and I think it can be managed well in 12 that respect and very economically. 13 I think that we meet the criteria again for the 14 standing and funding, in that we're not able to raise it 15 ourselves. I think I'd like to address, though, the issues

16 you've raised a bit about the logistics of what do we foresee 17 as the funding that we're looking for. 18 COMMISSIONER: As I say, we can see that the funding for 19 counsel being present at the hearings, well, that's an 20 identifiable item and it's over and above that that we're ­­ 21 MR. SCHARFSTEIN: Yeah, I think that ­­ first of all our intent 22 would be to have two people present, myself most often, if 23 not, one of my partners who would be at the same rate that was 24 determined by this Commission, and Mr. Ryan, a paralegal who 25 has been working with us for some time, and we've suggested a

82 Mr. Scharfstein Application for Funding 1 rate for him of $40 an hour as being appropriate for the time 2 that he's here. So certainly the time that we're here, we 3 expect and anticipate we would like full standing to be here 4 throughout the Inquiry, because all of the aspects of this 5 Inquiry affect and relate to the people that we represent. I 6 think that as far as prep time and things of that nature, with 7 our group you're probably looking at a minimum of that kind of 8 thing. We'll certainly work with the Commission counsel in 9 assisting him and letting him know who we represent, what 10 their stories are, what they can bring to the table, what we 11 think might be important or relevant, and that will take some 12 time between now and September, and certainly that can be 13 accommodated. Unlike all the other people here, all the other

14 groups here, ours is a diverse group, and it's a little more 15 difficult when you're culling through 450 different scenarios 16 as to what to do. So some time will be taken in that process 17 with counsel for the Commission, but only with counsel for the 18 Commission to assist him. 19 I agree wholeheartedly in the process that will 20 be conducted with cross­examinations. I would expect that in 21 the totem­pole of who gets to examine and cross­examine, we 22 would be near the bottom on most. I would expect there would 23 be minimal cross­examination by us in most circumstances, and 24 that the prep time, therefore, in that regard would be 25 somewhat minimal. All I can say is I think the rates that

83 Mr. Scharfstein Application for Funding 1 have been set are fair, we have no problem with the rates that 2 the Commission has suggested. I think that our method of 3 billing would simply be to submit a bill to the Commission on 4 a weekly, monthly basis, whatever the Commission feels is 5 appropriate. It certainly can and should be reviewed for 6 reasonableness in the time spent and, if appropriate, then be 7 paid. There is not a lot of magic to it in that respect. So 8 I don't foresee that it's going to be hours and hours and 9 hours of prep time. I can also say that we will submit bills 10 to the Commission if funding is available that will in no way

11 be a duplication of or in substitution for the costs and 12 expenses of the litigation. They will be matters related 13 purely to this Commission of Inquiry and attendance here, as 14 well as any cross­examinations and prep time that was 15 absolutely necessary for these purposes and not for the 16 purposes of the litigation. So I don't think that there 17 should be too much of a concern about any overlap in that 18 regard. Certainly will evidence be tendered here that's going 19 to be relevant to us and useful in a litigation, I think 20 that's obvious, there will be, and that's the same for all the 21 parties, but we won't be using the Commission's ticket to 22 prepare for litigation. 23 COMMISSIONER: Okay. Thank you. Mr. Russell, do you have 24 any ­­ 25 MR. RUSSELL: No, I mean that was ­­ that's my principle

84 Mr. Scharfstein Application for Funding 1 concern, I mean, in the case of your clients, Mr. Scharfstein, 2 if you can ­­ this is the most difficult area to distinguish 3 between preparation for the Inquiry and preparation for the 4 litigation. So am I hearing you say that you won't be billing 5 for anything that ­­ I mean I've heard you say that in a 6 general way there will be no duplication, and I think we will 7 agree on that on principle, but I'm just concerned about 8 identifying in practice how we will avoid that. For instance,

9 the interviewing of witnesses, you would obviously have to do 10 it for the litigation and I obviously will have to interview 11 some witnesses for the purposes of the Inquiry, so how will we 12 break that down there, where would that bill go? 13 MR. SCHARFSTEIN: Well, I think that if it's required for the 14 purposes of the Inquiry, we would expect that if we get 15 funding, that the Commission would pay it, simple as that. In 16 that respect, would there be duplication? Perhaps, I suppose. 17 Not duplication, it would be work that we've done and it's 18 paid for by the Commission that maybe we might otherwise have 19 had to have done in the litigation that we now don't have to. 20 When it comes to cross­examining a particular witness, perhaps 21 the work we do in that regard, certainly if it's necessary for 22 the Inquiry, we would expect to be funded for that. Will that 23 then reduce the amount of the billable time put in on the 24 litigation file? Well, I expect it would as a practical 25 matter. I don't think those will be very significant or

85 Mr. Scharfstein Application for Funding 1 common, but will those things happen from time to time? I 2 expect they will. At the end of the day our position would 3 simply be that if in reviewing a bill the Commission or its 4 counsel feel that there's entries that aren't reasonable, then 5 we'll give a detailed account. We'll have no objection to

6 doing whatever you feel is reasonable at the end of the day. 7 MR. RUSSELL: So your anticipation would be, for instance, 8 that you and I would discuss beforehand a possible area of 9 witnesses we need to go and interview, and once we've agreed, 10 then we're on Inquiry time because the Inquiry has decided 11 that that needs to be done. 12 MR. SCHARFSTEIN: Yes. 13 MR. RUSSELL: But you wouldn't go out individually and do 14 these things and report back to me? 15 MR. SCHARFSTEIN: No. I mean we've interviewed four hundred 16 people already and certainly none of that time is going to be 17 billed to the Commission. What we can now do is come to the 18 Commission and say, "Okay, of these people, we think it may be 19 important or relevant that you hear from these 5, 10, 20, 30", 20 whatever it is, and you will then choose which ones you're 21 interested in hearing further from that might be helpful to 22 the Commission. I foresee that as the process. 23 MR. RUSSELL: That's all. 24 COMMISSIONER: Okay. Well, thank you, Mr. Scharfstein. 25 MR. SCHARFSTEIN: Thank you.

86 1 COMMISSIONER: Well, as I indicated, we'll ­­ I don't know if 2 there is anything as counsel you wish to raise at this stage 3 that we haven't touched on. We more or less have been dealing

4 with the Commission's agenda today and certainly there will be 5 opportunities for counsel to meet with Mr. Russell along the 6 way, but if there is anything else anyone would like to raise 7 at this time ­­ 8 MR. SCHARFSTEIN: Mr. Commissioner, I was just wondering if any 9 thought has been given as to how long has been set for the 10 hearings, when they may start, and how would a day run, start 11 at ten, go to five, has that kind of thing been thought about 12 or talked about? 13 COMMISSIONER: Briefly. We have assigned two weeks in 14 September and two weeks in October. Have you been made aware 15 of those days? 16 MR. SCHARFSTEIN: Yes, I think we actually have. 17 COMMISSIONER: Mr. Russell has ­­ 18 MR. SCHARFSTEIN: I don't know if we have specific dates. 19 COMMISSIONER: All right. Well, in our search this room seems 20 to be the most appropriate room in North Battleford to hold 21 the inquiry, so we had to book our time ­­ and it's a good 22 incentive to get our work done ­­ around the hotel's schedule 23 as to when this was available, and hence we've booked two 24 weeks in September, and I think starting September the 10th or 25 September 17th.

87

1 MR. HOPLEY: The 10th. 2 COMMISSIONER: September 10th and September the 17th, and then 3 we've booked two weeks in October, again it's around the 10th 4 of October, it's not the first of October, and then we have 5 booked all of November. Now we recognize you're not going to 6 go twenty days in a row on an inquiry, but again it was simply 7 trying to book the ­­ preserve the time, and we're going to 8 make every effort to try and get our hearings over with by the 9 end of November because then we run into the Christmas party 10 season and this room isn't very available in December is what 11 it amounts to. So in terms of sitting time we have talked 12 about in general terms 9:30 to 12:30 and 2 to 5, try and get 13 in about six hours a day. If counsel thought we should start 14 earlier, at 9 or something like that, then certainly we would 15 be prepared to consider that, but that's about as far as we've 16 got so far. Yes? 17 MS. MITCHELL: Mr. Commissioner, you referred in your opening 18 remarks to a website, do you have the address of that website 19 at the present time? 20 COMMISSIONER: Yes, we do, Mr. Bickford will have it, it's on 21 our letterhead, but I don't know if I have a copy of that with 22 me. 23 MR. BICKFORD: It's northbattlefordwaterinquiry, all one word, 24 dot ca. 25 MS. MITCHELL: Thank you.

88

1 COMMISSIONER: I should have remembered that. 2 MR. SCHARFSTEIN: Mr. Commissioner, one final point, just so that 3 ­­ and for record, I suppose, and it's not coming from you, 4 it's coming from me, if the hotel could be asked to provide a 5 little better lighting. I think you had mentioned that 6 earlier, but officially if a request could be made for a 7 little better lighting? 8 COMMISSIONER: Yes. I think we recognize that and whether 9 it's the hotel or the Commission who is supplying it, we're 10 going to try and improve on it somehow come hearing time. 11 All right? Well, then we look forward to your 12 cooperation and seeing you in September, if not before. Thank 13 you. 14 (HEARING CONCLUDED ­ 2:43 P.M.) 15 16 17 18 19 20 21 22 23 24 25

89 COURT REPORTER'S CERTIFICATE I, CHERYL L. FEADER, HEREBY CERTIFY THAT the transcript of evidence and proceedings, written on the foregoing pages numbered 1 to 88, inclusive, is to the best of my knowledge and belief, a true and correct transcript of my stenograph notes at the Standing and Funding Hearing for the North Battleford Water Inquiry. ___________________________________ Cheryl L. Feader Certified Official Court Reporter C.V. Reporting Services Ltd. Saskatoon, Saskatchewan