Canada, Legal Ethics

The View From Up North: Top Practitioner Hounded By Conflict Allegations

Always make sure you do a conflict check before taking on a new client, or else you could wind up in a costly and embarrassing mess like this.

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I must return to the words of my dear departed criminal law professor, Ron Delisle. “Justice must not only be done, but it must also be seen to be done.” He was, of course, paraphrasing the 1st Viscount Hewart, a British judge in the early part of the 20th Century, but that supreme sentence is just another way of articulating our most important democratic principal: The Rule of Law.

Nobody is bigger than the law. As a democratic society we expect our legal system to both come to the fair outcome and to do so with transparency. There should be no trace of bias, no smell of conflict. That applies to all government functions, whether judicial, quasi-judicial, or investigatory.

That’s your zesty appetizer. Now the meat and potatoes.

The City of Brampton, Ontario, is being carefully scrutinized for how it handled a controversial property development known as the South West Quadrant project. It was to include three phases of downtown development at a budget of $500 million.

In connection with the project, some city staff were accused of wrongdoings. The city hired a lawyer, George Rust-D’Eye, to investigate these alleged wrongdoings. Rust-D’Eye has an exceptional reputation within the Ontario legal community as a municipal lawyer. In fact, in 2007, he was awarded the Ontario Bar Association’s Award of Excellence in Municipal Law. He has spent the majority of his career advising municipalities on a vast range of matters. If I had to hire someone to investigate staff wrongdoing, Rust-D’Eye would be at the top of my list.

So, what’s the problem?

Rust-D’Eye’s former firm, Weirfoulds, performed more than $2 million worth of legal work for the City of Brampton between 2007 and 2014.

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AND, during at least a portion of 2007 to 2014, Rust-D’Eye was both a partner of the firm (until 2013) and co-chair of Weirfoulds’s pre-eminent municipal group.

AND, Weirfoulds provided legal advice to the city regarding the very South West Quadrant project Rust-D’Eye was asked to investigate.

Your conflicts detector should now be screaming like the back-up indicator on a garbage truck.

If you’re the City of Brampton, how can you possibly hire Rust-D’Eye to investigate a project on which his former firm worked?

If you’re Rust-D’Eye how can you possibly accept that retainer?

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The city released a statement that said, to the best of its knowledge, Rust D’Eye never worked on the South West Quadrant project. Weirfoulds also “categorically” confirmed to the city that Rust-D’Eye had no direct or indirect involvement in the project, although I find it hard to believe as the senior statesman in the municipal group he didn’t at least have indirect involvement. I take Weirfoulds’s statement to mean Rust-D’Eye never spoke to any of his colleagues about the project over lunch, never reviewed anything with respect to the project, was never cc’d on any emails, etc. Maybe…

Rust-D’Eye was not so categorical in his denial. The best he could offer was he didn’t remember if he was personally involved in the South West Quadrant project. Thus, his former firm is absolutely certain Rust-D’Eye was not involved, but the man himself not so sure. Makes it hard to accept Weirfoulds’s categorical statement at face value…

But, here’s the key point: It Just Doesn’t Matter (“I.J.D.M.”). The whole thing stinks. There are a dozen firms in Ontario with the relevant experience to investigate these alleged staff wrongdoings. Choose any one of them, Brampton. The citizens of the Flower City deserve to know whether staff acted inappropriately AND to trust the investigation was conducted by an impartial, conflicts-free investigator.

Everything I read about George Rust-D’Eye says he’s an ethical practitioner. Just because he once worked for Weirfoulds doesn’t necessarily mean he wouldn’t conduct a fair, impartial investigation, even if it meant probing his ex-firm’s conduct in the South West Quadrant project.

I.J.D.M. Justice must not only be done, but it must also be seen to be done. No potential bias, no conflicts.

Rust-D’Eye’s investigation cost the citizens of Brampton $308,000, which was five times more than the original estimate. Want to know the results of the investigation?

I.J.D.M. It’s forever tainted. Throw it in the garbage along with $300k and drop a match.

What really gets me about this story is how easy it should be to prevent conflicts. Just a bit of education as to what constitutes a conflict, a bit of common sense, and leadership that requires all staff to diligently consider conflicts before awarding a tender.

How hard is that?

Whether this cluster was done mistakenly, negligently, or with malice aforethought, I.J.D.M.

The citizens of Brampton should be very angry. Heads should roll. That would be justice — both done, and seen to be done.

That’s the View from Up North. Have a great week.

Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Steven Dykstra Law Professional Corporation, a boutique corporate/commercial law firm located in the greater Toronto area. You can contact Steve at steve@stevendykstralaw.ca. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@Law_Think), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).

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