DIVISIONAL COURT FILE NO.:412/04
DATE: 20050715
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN: 407 ETR CONCESSION COMPANY LIMITED (Applicant)
AND: REGISTRAR OF MOTOR VEHICLES (Respondent)
BEFORE: C. CAMPBELL J.
COUNSEL: Nina Bombier & Rebecca Jones for the Applicant
M. Michele Smith & Troy Harrison for the Respondent
Adam Fanaki for the witness Mr. Baker
HEARD: June 28, 2005
E N D O R S E M E N T
[1] This is the third time and more than the third full day that this Court has been asked by the parties to this judicial review application to deal with what essentially is the scope of the record that will be before the Divisional Court panel.
[2] The first motions before me dealt with scope of production; this one with refusals and undertakings.
[3] As I expressed previously, in my view a Divisional Court motions judge is not in this case in a position to rule in detail on what the record before the panel should consist of. I reach this conclusion since it appears that the two sides to this litigation have quite different views of what the record should consist of – much of which was not formally before the Registrar, only of which he may have been aware.
[4] It would appear that the Applicant is of the view that under the statute, the company is entitled to have the Registrar enforce notice of licence cancellation when the Registrar has been provided with a s. 22 Notice. 407 relies in part on previous practice before it purchased the toll highway, for its position.
[5] The Registrar relies on the provisions of the Highway 407 Act, 1998 and its regulations and takes the position that previous practice under the statute and the previous statute is not relevant to consideration of the obligation of 407 to satisfy the Registrar under the 407 Act. The Registrar, it is urged, before putting plates into plate denial or cancellation, must first satisfy himself that the legal requirements or preconditions to plate denial or cancellation set out in the 407 Act, the regulations and agreements have been met, thereby minimizing the potential for erroneous plate denial or plate cancellation.
[6] There are two competing views and the absence of a formal record before the Registrar makes determination of relevancy most difficult.
[7] In my previous endorsement, I had proposed that the parties make production and answer questions on the basis that the panel would be the final arbiter of relevancy. It is difficult, if not impossible, to know from the viewpoint of a motions judge how far factual matrix or factual context should go.
[8] The material on this motion consisted of two volumes from each side that when taken together, amounted to approximately 900 pages of transcript and correspondence, which I have read, dealing with undertakings and refusals, most of which deal with relevancy issues along with approximately 70 pages of refusal/undertaking charts.
[9] I propose to rule on those that are to my mind obvious from the point of view of what I might have interest in if I were a panel member. As to the remainder, I propose to leave to the panel in this sense: it seems to me if one side should persuade the panel as to the relevance of an area of questioning that has been refused by the other side, the requesting side might ask for an adverse inference to be drawn against the refusing side.
[10] The parties prepared charts of the issues, questions, answers/refusals with a column for “Disposition by the Court.” These charts are appendices to this endorsement and reference should be made to them for responses to specific questions.
[11] General comments with respect to the area of questioning of each of the witnesses, which is in the following paragraphs, should be read together with the charts.
Refusals on Examination of Randy Luyk on January 19, February 21 to 24, March 3, June 17 (Appendix A – pp. 1-28)
[12] Many of the questions and refusals made on the basis of relevancy reflect the differing views of the two sides as to just what information the Registrar is entitled to have before issuing a plate cancellation.
[13] It became obvious during the course of submissions that 407 takes the position that the Registrar is not entitled to “look behind” the s. 22 Notices submitted by 407, which contain the certificate of a senior corporate officer and the report of the “independent auditor.”
[14] In determining whether specific questions should be answered, I was guided by what information in my view the Divisional Court Panel would consider helpful in reaching a decision on which side’s version of the legal test should prevail, with the object of reducing that information, in volume terms, to a minimum.
[15] In instances where I have simply noted the position of a party in respect of refusal, I leave counsel the opportunity to advise the panel of the refusal and why it was made and if so advised, to draw an inference.
Refusals Chart for Gary Baker (Appendix B – pp 29-44)
[16] Much of the information that was sought from Mr. Baker is subject to the objection by Baker and 407 that essentially what is sought is his professional opinion on the appropriate standard for this type of audit, rather than answers to factual inquiries. Only questions in this series have been ordered answered where they are appropriate for an understanding of the parties’ positions. The answer given to Q. 94 does apply to a number of other questions.
[17] A number of questions have been withdrawn where no disposition appears.
Refusals & Undertakings in the Cross-Examination of Frank D’Onofrio (Appendices C and D pp 45-50 and 51-57 respectively)
[18] Many of the questions refused on the examination of this witness had to do with the practice of the office of the Registrar in applying jurisdiction to deny plate renewal, either under the previous regime of Highway 407 or other statutes where the Registrar has similar powers. The answers were refused on the basis that the other regimes and other legislation are different and therefore irrelevant. It is difficult as a motions judge to make a determination as to whether some other regimes may be considered in “pari materia” to what is said to be the obligation of the Registrar in this proceeding.
[19] In some of the instances, I have upheld the refusals, not because I think they are always well founded, but in no small part because it is necessary to close off the record in this Judicial Review before the hearing date.
[20] I recognize that in doing so, there will be argument about the meaning of other regimes but I would not expect there to be any new “evidence” of those regimes where answers have been refused on the same subject.
[21] Certain of the undertakings given on the cross-examination of Mr. D’Onofrio were really refusals and are dealt with on that basis.
Refusals on Examination of Bruce McCuaig (Appendix E pp 58-59)
[22] I have determined that with the exception of one question to be answered, the parties will be in a position to argue about the scope of Mr. McCuaig’s office and responsibility without the need for further information that is really in the nature of discovery.
Additional Matter
[23] One further issue was raised before me for which having now received written submissions, I have concluded that if it is necessary to do so, I should only hear it on the basis of a formal motion.
Conclusion
[24] As I expressed on previous motions in this matter before me, I have great concern that this matter is not properly framed to be dealt with by a panel hearing a judicial review application as opposed to an action.
[25] Given the nature of the argument that is apparent from a reading of the transcripts, this is a matter that cries out for a mediated resolution. I am concerned that a judicial determination will not bring peace to parties who will be in a contractual relationship for a long time to come.
[26] This Court will assist in any way possible should the parties see fit to proceed with a dispute resolution process other than proceeding with the judicial review.
[27] The process of management of this application has not been a pleasant experience for me, as it appears that it has not been for counsel. It would appear that the attitude of combative parties is to some extent reflected in the conduct of their counsel.
[28] Counsel have agreed to a timetable for the production of compendia and facta [407 factum by August 15, 2005; the Registrar’s factum by September 26, 2005; and a reply if any by October 7], a process that I can only hope will produce a record in reasonable volume for the hearing panel.
C. CAMPBELL J.
Released:
APPENDIX A: Refusals
Refusal to answer questions on the examination of Randy Luyk ,
dated January 19, 2004, February 21, 22, 23, 24, March 3.
Issue and Relationship to pleadings or affidavit
Description
Question
Page No.
Specific Question
Answer or precise basis for refusal
Disposition by Court
Numbers of Plate Denials if no artificial limits – relevant to volume of plate denial requests
527
149
How many people are eligible to be submitted to plate denial, in the 407’s opinion, if the Registrar were implementing it today
Irrelevant. In addition, 407ETR has undertaken, at para. 51 of Mr. Luyk’s Supplementary Affidavit, to limit plate denial requests to 500 per month (for three months), 1000 per month (for the following three months) and 2000 per month (for the following six months).
To be answered. Notwithstanding the proposal by 407 this question is to be answered in order of magnitude terms.
Numbers of Plate Denial – eligible accounts not included in sample – relevant to volume of plate denial
815
214-215
Will you give us a list of the accounts that are eligible for plate denial, but not included in the sample (those that could potentially, but were not included in the sample provided to the auditor)?
Irrelevant. In addition, we have advised the Respondent of the plate denial criteria by answer to an undertaking at Q. 973. See also Q.1832, where Mr. Luyk testifies that 407 ETR does not select the independent auditor’s sample
To be answered with respect to the population from which the sample was taken. 407 is to provide the Province with the number of plates submitted to plate denial from which the independent auditor was sampling.
Numbers of Plate Denial – eligible accounts not included in sample
815
215
Will you provide me with the accounts eligible, in your view, for plate denial, a list of those accounts you say were eligible, but were not included in the sample.
Irrelevant. See above
407 is required to confirm the number of plates that were eligible for plate denial, but which were not submitted to the Registrar. If this number is not the difference between the numbers provided in answer to Items 1 and 2, 407 is to advise why..
Plate denial eligibility - number of plates the 407 considers eligible for denial under the $100 threshold – relevant to volume of plate denial
1903
547-548
Will you advise me of the number (of plates) that 407 considers eligible for plate denial that are under that amount (self imposed threshold of $100 allegedly owing)?
Irrelevant. See above
To be answered, if not subsumed within answer to Item 1.
Audit - internal audit working papers – preconditions – “readily available”
189
60-61
Produce the internal audit work working papers?
Irrelevant. The Registrar is not entitled to information about 407ETR’s internal audits.
Not ordered to be answered.
Audit – s.16 reports – preconditions
189
62
Produce the s.16 audit reports?
Irrelevant. See above
Not ordered to be answered.
Production – dossiers
189
63-66
Produce the complete dossiers with respect to the samples that were audited 100%
Irrelevant, and no such dossiers exist
Not ordered to be answered.
Audit – Registrar’s concerns – preconditions
1869-1870
534-535
You were aware that the Registrar was concerned about the audits that he was getting from the auditor that you had provided?
Vague. In addition, see Qs. 1301, 1705
To be answered
Audit – advice from external auditors to internal auditors – preconditions
1536
440-441
Will you advise if Deloittes gave any advice on improvements or enhancements to the systems and procedures for improving the reliability of plate denial identified (to internal auditors or others)?
Irrelevant
407 takes the position that they are not obligated to provide this level of information to the Registrar. While this might have some relevance in the Application, it is not ordered due to considerations of cost, time and complexity of record.
Audit of process – notes of discussions between 407 and discussions between the 407 and the external auditor re: the audit process (particular what an “unqualified opinion” means)
1543
442
There are any notes of that discussion (with anyone from the 407 and Gary Baker about the appropriate error levels and confidence levels for plate denial audits)? If so, will you produce them?
Irrelevant
Not ordered to be answered.
Audit – scope – preconditions
1919
552-553
Can you advise whether the auditor starts with the Section 16 notice or does he start at the Section 22 notice?
Irrelevant, and in any event, the independent auditor’s working papers have been produced (over 407ETR’s objection)
Either not argued or not pursued.
Audit – working papers – preconditions
1995
588
You are refusing to produce the working papers from those audits (dealing with the elimination of s.16 audits or the rolling of the s.16 audits into s.22 audits)?
Irrelevant. See above
Registrar has not pursued on basis that external auditor only audits from s. 16 notice. Given time and cost, working papers not ordered produced..
Confidence Level and Error – rates – Registrar is end user of plate denial audit under Act and regulation and is entitled to know nature of audit undertaken – relevant to accuracy of plate denial requests
1595
452
Will you advise me if the sample was intended to achieve any targeted confidence level or error rate?
Irrelevant. The Registrar is not entitled to information about 407ETR’s internal audits
To be answered with respect to the population from which the sample was taken.
Confidence Level and Error Rate – sample size – Registrar is end user of plate denial audit under Act and regulation and is entitled to know nature of audit undertaken – relevant to accuracy of plate denial requests
1598
452-453
Will you advise me of the sample size of the population, the results and the confidence level for these tests?
Irrelevant. The Registrar is not entitled to information about 407ETR’s internal audits
To be answered with respect to the population from which the sample was taken; as to remainder, not ordered produced – see #9 above for details.
Certificate – confidence level and error rate information – Registrar is end user of plate denial audit under Act and regulation and is entitled to know nature of audit undertaken – relevant to accuracy of plate denial requests
1601
453-454
Will you provide me with the information on the confidence level and error rates that was intended to achieve (to provide assurance to the CFO that a certificate can be issued)?
Irrelevant. The Registrar is not entitled to information about 407ETR’s internal audits
Not ordered produced – see #9 above for details. The Registrar urges and I leave to the panel whether there is an adverse inference to be drawn in respect of what 407 says is an internal audit.
Error rate and Confidence Level – Registrar’s concern – preconditions
1868
533-534
You were aware that the Registrar was not satisfied with the error rate and confidence level that the auditor was providing audit opinions on, is that correct?
Mr. Luyk already provided evidence in this regard at Qs. 1705, 1715 and 1716
Appears already answered.
Controls – audit – preconditions
1468
423
Will you find out what audit controls were done to test the controls used to mitigate erroneous plate denial (including to solve a problem of a customer who may be put in plate denial erroneously after the fact, and to check that people are not going into there erroneously) and provide those audits or tests?
Irrelevant. The Registrar is not entitled to information about 407ETR’s internal audits. The independent auditor has produced the working papers with respect to the independent audits
Not ordered to be answered.
See #9 above for details.
Controls – audit – preconditions
1483
427
Can you confirm for me whether these audits (by internal or external auditors) test the controls themselves (e.g. are the controls tested)?
Irrelevant. The Registrar is not entitled to information about 407ETR’s internal audits. The independent auditor has produced the working papers with respect to the independent audits
Not ordered to be answered.
See #9 above for details.
Controls - Audit of controls – of the 100% testing – preconditions
1534
439
Has the auditor performed any testing of the reliability of controls that produced error free accounts?
The independent auditor has produced the working papers with respect to the independent audits
Appears already answered.
Controls – audit – preconditions
1535
440
Has internal audit ever prepared audits or done any testing of the reliability of the controls that produce these so-called error free accounts and if they did, in both situations, will you produce the audits.
Irrelevant. The Registrar is not entitled to information about 407ETR’s internal audits.
First part to be answered. Audits not ordered produced due to time/cost considerations.
Customer Service – surveys – preconditions
605
161
Will you produce any surveys done with respect to your customer service problems at that time (November 1999)?
Irrelevant
Not ordered produced – see #9 above for details. Respondent entitled to urge panel that little if any weight be placed on paragraphs of affidavit re customer survey[^1]
Customer Service – departure of customer service advocate – preconditions
860
234
Did the customer service advocate leave the 407 because she was disheartened by the way 407 handled its customer complaints?
Irrelevant
Not ordered produced – see #9 and #21 above for details.
Customer service - list of questions asked of initial group of customers contacted by the 407 prior to being put in the plate denial list – preconditions
1027
287
Will you provide a list of the questions that were asked of the initial group of customers?
Irrelevant
Not ordered produced – see #9 and #21 above for details.
Customer Service – surveys – preconditions
1046
293
Will you provide us with a copy of the customer service survey?
Irrelevant. In addition, counsel for the Respondent was given the opportunity to inspect these documents, and did so
Not ordered produced – see #9 and #21 above for details.
Customer Service - average number of calls from customers that it took to resolve issues – preconditions
1055
295
Will you provide me with information on the average number of calls it took to resolve an issue?
Irrelevant
Not ordered produced – see #9 and #21 above for details.
Customer Service –average number of calls from customers that it took to resolve issues for the period in which they are requesting plate denial – preconditions
1056
295
Will you provide me with information on the average number of calls it took to resolve an issue during the period of time for which you were requesting plate denial from the Registrar?
Irrelevant
Not ordered produced – see #9 and #21 above for details.
Customer Service – complaints – preconditions
1066
298-299
Will you provide us with the information on the complaints that come to your company?
Irrelevant
Not ordered produced – see #9 and #21 above for details.
Customer Service - BBB – preconditions
1075
302
Will you find out whether the Better Business Bureau has made a complaint or observation about not being able to resolve issues with the 407?
Irrelevant
Not ordered produced – see #9 and #21 above for details.
Customer Service – scripts – instructions to not refer certain calls to managers – preconditions
1087
305
Will you provide the information on call scripting?
Irrelevant
Not ordered produced – see #9 and #21 above for details.
Customer Service – scripts
– preconditions
1091
307
Will you provide the call script and the decision tree on what would determine how calls, particularly complex calls, move through the escalation process?
Irrelevant
Not ordered produced – see #9 and #21 above for details.
Customer Service – scripts – preconditions
1094
308
Will you provide the definition and documents relating to what constitutes an “unresolved” call that would go to the customer advocacy group?
Irrelevant
Not ordered produced – see #9 and #21 above for details.
Customer Service – definitions of complaint – preconditions
2111
644-645
From the period of time from the commencement of the Section 22 notices that are in your application record until February 28th, will you provide me with the various definitions of complaint that the 407 has?
Irrelevant
Not ordered produced – see #9 and #21 above for details.
Customer service -
Complaint process – preconditions
2113
646
Will you provide me with any instructions that were given to 407 staff not to escalate complaints?
Irrelevant
Not ordered produced – see #9 and #21 above for details.
Customer service -
Complaint process – preconditions
2113
646
Will you provide the policy of the 407 that indicates that some calls and complaints were not to be escalated during that relevant period of time for which you have put in evidence concerning the number of complaints?
Irrelevant
Not ordered produced – see #9 and #21 above for details.
Plate Denial – refresh addresses – preconditions
679-683
176-178
Do you send out invoices to somebody based on the records (address) you checked back when the person first used the highway?
The answer was provided at Q. 684
Appears already answered.
Plate denial – Registrar’s position – 407 aware of Registrar’s position – Respondent entitled to admission from applicant
1150-1151
326
You are aware that the Registrar's concern with respect to recommencing plate denial is based in no small measure on the company's acknowledged history of erroneous plate denials, continuing customer service issues, and the company's refusal to allow an appropriate audit of its plate denial system?
Irrelevant and improper question
Not ordered produced – see #9 above for details.
Plate Denial – withdrawal of 20 of 25 requests to plate deny – preconditions
1694-1695
478-479
25 license plates were forwarded to the Ministry requesting plate denial, and then subsequently 407 asked them to remove 20 of those plates from posting, correct?
Asked and answered. See Q. 1176
407 takes the position that the Registrar is not entitled to any more information than has been provided.
Plate Denial - Returned Mail – preconditions
658
173
Can you give me some idea of the percentages of invoices that would be sent back by returned mail?
Irrelevant. In addition, 407 ETR provided information re: the percentage of Section 16 and 22 notices returned to sender in May, 2004 (See Exhibit 8 to Mr. Luyk’s Supplementary Affidavit)
Not ordered produced beyond approximation.
407 takes the position that the Registrar is not entitled to any more information than has been provided.
Plate denial exclusions
1029
287
How many plates are on the exclusion list right now?
Irrelevant. 407 ETR advised in answer to an undertaking at Q. 1015, that the exclusion list is not static, but is a holding place for accounts
Not ordered produced – see #9 above for details.
Plate denial exclusions - size of the excluded list – preconditions and basis for audit
1032
288
Can you give us an idea of the volume of plates on that exclusion list?
Irrelevant. See above
Not ordered produced – see #9 above for details.
Plate denial – meeting notes re: meeting on plate denial – preconditions
1168
331-332
Are you refusing to produce the minutes or notes with respect to the meetings between the Ministry and the 407 that you've put in your affidavit?
Irrelevant and overbroad
Parties have agreed that further production of notes will not be insisted on that might otherwise be considered as relevant.
Plate Denial – RL’s minutes of meetings with the Ministry – preconditions
1168
331-332
Will Mr. Luyk produce his notes from meetings with the Ministry on plate denial?
Irrelevant and overbroad.
Plate Denial – minutes or notes of meeting - preconditions
1282
369-370
Produce notes or minutes from anyone with the 407 of the meeting of October 24, 2001?
We undertook to do so and produced Mr. Luyk’s notes
Parties have agreed that further production of notes will not be insisted on that might otherwise be considered as relevant.
Plate Denial – reliability – preconditions
1521
436-
Would you produce those change requests that pertain to system improvements to improve the reliability of plate denial?
Irrelevant
Not ordered produced – see #9 above for details.
Plate Denial – awareness of reasons for Ministry’s concerns – preconditions
1692
477-478
Looking at Exhibit 67 to Frank D'Onofrio's first affidavit, do you agree that this was a statement as of September 2003 of the position with respect to the company's continuing failure to resolve plate denial issues?
Irrelevant
Not ordered produced – see #9 above for details.
Plate Denial – errors – why certain requests for plate denial were invalidated – preconditions
1953
567
Can you check and tell me on what basis each individual plate was invalidated?
Irrelevant. Invalidation involves accounts not submitted for plate denial
Not ordered produced – see #9 above for details.
Plate Denial – file 300
2078
627-628
Will you produce the 407’s plate denial files? What is file 300 (or 500 if it’s a ‘5’)?
Irrelevant and overbroad
Parties have agreed that further production of notes will not be insisted on that might otherwise be considered as relevant.
Plate Denial – Walker’s files
2082
628-629
What did Mr. Walker call his file?
Irrelevant
Parties have agreed that further production of notes will not be insisted on that might otherwise be considered as relevant.
Plate Denial – meeting notes – relevant to confirm outstanding issues as known by the 407
1164, 1168
329-330, 331-332
Will you produce notes from other individuals at 407 who attended these meetings with the Ministry
representatives concerning plate denial?
Irrelevant and overbroad
Parties have agreed that further production of notes will not be insisted on that might otherwise be considered as relevant.
Error rate and confidence level – additional audits – preconditions
1710
485
You agree that if the Registrar is not content with the error rates and the error limits in the audit, then no amount of auditing would be useful to the Registrar from the Registrar's perspective?
Irrelevant
Not ordered produced – answer only Yes or No if possible.
Error rate and confidence level – 1.5% error rate not acceptable – preconditions
1716
487
You know that the Registrar has said he is not content with 1.5 percent, correct?
Answered at Q. 1718
Appears already answered.
Not ordered produced – see #9 above for details.
Errors (plate not found) – preconditions
1135
319-321
What is the statistic around the number of licence plate enquires that are returned as “plate not found” errors?
Irrelevant
Not ordered produced – see #9 above for details.
Errors – 20 of 25 accounts noted for plate denial then request withdrawn – preconditions
1197
344
Would you provide us with the invoices to show that they, in fact, have paid their accounts in the meantime and that's why they were not resubmitted for plate denial?
Irrelevant and overbroad. 407 ETR has provided information in response to an undertaking at Q. 1187 about the three accounts in question
Appears already answered.
Not ordered produced – see #9 above for details.
Errors – invoices with respect to accounts that were not re-submitted – preconditions
1197
345
In light of the clear conflict in the evidence here, I'm requesting the evidence that these persons were, in fact, made ineligible for plate denial, as you say, after they were withdrawn from the request to the Registrar. If that's by way of invoice or other documentation, I would like that documentation.
See above
Not ordered produced – see #9 above for details.
Errors – invoices with respect to accounts that were not re-submitted – preconditions
1197
345
I would like those invoices or any other documentation that establishes whether they were, in fact, eligible for plate denial.
See above
Exhibit – whited out – best evidence
2067
621-623
Provide copy of exhibit 53 (of the affidavit of Luyk) with the handwritten notes.
Provided in answer to an undertaking at Q. 140
Subject to continuing undertaking to answer if possible to the extent not already answered. 407 states already answered.
Exhibit – whited out – best evidence rule
2070
624
Did you or anyone at 407 white out this document (exhibit 53 of the affidavit of Luyk)?
Irrelevant. A copy of the document with handwriting has been produced
Subject to continuing undertaking to answer if possible to the extent not already answered.
Exhibit – request for originals with handwriting – best evidence
2057
617
It appears that exhibit 20 (of the affidavit of Luyk) has handwritten notes on it that have been whited out. Please provide a copy that has the original handwriting on it.
We have been unable to locate a copy with original handwriting
Subject to continuing undertaking to answer if possible to the extent not already answered.
Exhibit – whited out
2073
624-625
And you will see that this Exhibit 47 (of the affidavit of Luyk) at the second paragraph on page 388 of the record, page 2 of the document, has a number of little dots beside it; isn't that correct?
The original Exhibit 47 has been shown to the Respondent. In addition, 407 ETR has transcribed Mr. Walker’s handwriting on the document for the Respondent
Subject to continuing undertaking to answer if possible to the extent not already answered.
Exhibit – whited out
2074
625
The next page, paragraph number 2, question number 2 (exhibit 47 of the affidavit of Luyk) on the right‑hand column, there appear to again be the same dots - isn't that correct?
See above
Exhibit – whited out
2075
626
Mr. Luyk, the marks on this document (exhibit 47 of the affidavit of Luyk) similar to the dots we looked on the prior exhibit; isn't that right?
See above
Subject to continuing undertaking to answer if possible to the extent not already answered.
Exhibit – whited out
2088
631-632
Produce document and advise as to who’s handwriting is found on exhibit 47 and what it says
See above
See #56 above.
Exhibit – whited out
2089
632
Advise as to who’s handwriting is found on exhibit 47 (of the affidavit of Luyk) and what it says
See above
See #56 above.
Exhibit – whited out
2096
636
Advise me as to whether it is Mr. Walker’s writing on the document (exhibit 47 of the affidavit of Luyk) and what it says?
See above
See #56 above.
Exhibit – whited out
2097
637-638
Advise me as to who whited out the document (exhibit 47 of the affidavit of Luyk) and when?
See above
Subject to continuing undertaking to answer if possible to the extent not already answered.
Exhibit – whited out
2099
638
Advise as to what the writing says on Exhibit 44 (of the affidavit of Luyk)
An undertaking was given and answered
See #56 above.
Exhibit – whited out
2106
640
Can you read what is under that, Mr. Luyk (under where it says “conceptually ok”)?
See above
See #56 above.
Exhibit – whited out
2109
643-644
Will you advise me as to whether it was someone from the 407 who whited out the document (exhibit 44 to affidavit of Luyk)?
See above
Subject to continuing undertaking to answer if possible to the extent not already answered.
IT – audit - Strata system – this audit (of plate denial process) deals with the 407 steps leading to plate denial – preconditions
1453-1458
419-420
Will you provide me with the audit report on the Strata system?
Irrelevant
Not ordered produced – see #9 and #21 above for details.[^2]
IT – audit – this audit (of plate denial process) deals with the 407 steps leading to plate denial – preconditions
1490-1491
429
Will you find out if there was a post go live audit of the IT system, and if there was, provide it?
Irrelevant
407 takes the position that its own internal audits are no business of the Registrar in respect of his statutory function. See #21 above.
IT - Refusing to answer why they changed the software – preconditions of plate denial, s.13 of 407 Act – bill proper person
373
119
What was the reason that the software was changed to the Strata system?
Irrelevant
407 takes the position that its own internal audits are no business of the Registrar in respect of his statutory function. See #21 above.
IT - plate denial errors – preconditions
736
190
The system as it existed at the time that you were sending these plate denial requests in, could have resulted in plate denial in error?
Irrelevant
407 takes the position that its own internal audits are no business of the Registrar in respect of his statutory function. See #21 above.
IT - errors – internal processes – preconditions
1120
316
So you don't agree that it would be better if 407's internal controls identified these problems before the, they sent the invoices out?
Irrelevant, and asked and answered at 1117
Appears already answered. 407 takes the position that its own internal audits are no business of the Registrar in respect of his statutory function. See #21 above.
IT – audit – preconditions
1452
418-419
Will you provide the results of testing by the auditor, if there is any?
The independent auditor’s working papers have been produced
Appears already answered. Plus see #21 above.
IT audit – Strata system – preconditions
1458
420
Did you have the design or other aspects of the Strata system tested and will you provide an audit report if there was one.
Irrelevant
407 takes the position that its own internal audits are no business of the Registrar. Plus see #21 above.
IT – audit - preconditions
1463
421-422
Would you provide me what evidence the auditors look for in proving that the charges and other charges are appropriate?
The independent auditor’s working papers have been produced. The Registrar is not entitled to information about 407 ETR’s internal audits
407 takes the position that its own internal audits are no business of the Registrar. Appears already answered. Plus see #21 above.
IT – change requests – preconditions
1497
430-431
Will you provide that documentation (change requests between the 407 and its technology service providers)?
Irrelevant
407 takes the position that its own internal audits are no business of the Registrar.
IT – database of plate denial issues – preconditions
1660
469
Would you produce that report, the issue database?
Irrelevant. The Registrar is not entitled to information about 407 ETR’s internal audits
407 takes the position that its own internal audits are no business of the Registrar. Plus see #21 above.
Notes of meeting - notes from meetings involving Tait, Baker and Luyk – relevant to audit and preconditions
1376
397-398
Could you provide me with the dates of any meetings you had with Allen Tait and Gary Baker and any notes from those meetings?
An undertaking was provided and was answered
Appears already answered.
Notes of meeting - Baker, Tait and Brown - at which the Ministry indicated that a 4% error rate was not acceptable – preconditions
1672
472-473
Does 407 have its own internal minutes of this meeting (meeting of January 15, 2003 with Gary Baker and Charles Brown and Allen Tait)?
An undertaking was provided and was answered
Parties have agreed that further production of notes will not be insisted on but might otherwise considered as relevant
Notes of meeting of January 15, 2003 – best evidence rule
1964
578-579
Will you produce any notes you have of the meeting with MTO of January 15, 2003 which you and Mr. Walker and Mr. Baker attended?
An undertaking was provided at Q. 1672 and was answered
Parties have agreed that further production of notes will not be insisted on but might otherwise considered as relevant
Board Recognition Chart
331
109
Will you produce a resolution chart for 407?
Irrelevant
Not ordered produced – see #9 above for details.
Organization chart from 1999
333
109
Do you have an organization chart as of 1999 and if so will you produce it?
Irrelevant
Not ordered produced – see #9 above for details.
Is RL the best person to answer the questions – relevant to best evidence rule
407
125
Are you the person best able to answer questions relating to plate denial at 407?
Irrelevant
Not ordered to be answered.
Plate Denial – prerequisites
– preconditions under s.13
446
133
It would not be appropriate for the Registrar to plate deny if you had not done that (separately identify the amount of the toll or any administration fee and interest)?
Irrelevant. Calls for the witness to provide a legal interpretation
Not ordered to be answered.
Address refresh - date on which they started refreshing addresses again with the Ministry – preconditions
1104
311
When did you start refreshing returned mail with the Ministry, returned invoices?
Irrelevant
To be answered.
Engagement letter – preconditions
1553
444
Will you produce the signed copy of the engagement letter of D&T?
The signed copy was produced by Deloitte & Touche LLP
Appears already answered.
Affidavit – who should have sworn it
1610
455
Is there any reason why Mr. Walker did not swear this?
Irrelevant and improper
Not ordered to be answered.
Affidavit – who should have sworn it
1611
455-456
Was Mr. Walker out of the country for any period of time such that he couldn't swear this affidavit?
Irrelevant and improper
Not ordered to be answered.
Productions – what has been produced
Exhibit 1
187
60
Confirm what from the 2 page list at exhibit 1 you have produced and what you have not?
Irrelevant
This question referred to p. 51 of the additional productions. 407 is to review Exhibit 1 to Luyk affidavit and advise which items have been provided in material produced
Production – produce documents from exhibit 1
189
76
Produce balance of documents at exhibit 1 that have not been produced
Irrelevant and overbroad
Not ordered to be answered.
Production – accounts eligible for plate denial
189
62-63
Produce list of accounts eligible for plate denial
Irrelevant
Not ordered to be answered.
Production – customer service
189
72
Produce customer surveys, results of surveys and comments of customers as well as surveys containing information on customer service complaints that might result in a request for plate denial
Irrelevant. In addition, counsel for the Respondent was given the opportunity to inspect these documents, and did so
Not ordered produced – see #9 above for details.
Production – aging and movement of accounts - “readily available”
189
72
Will you produce documents relating to the aging of accounts and movement of outstanding accounts?
Irrelevant
Not ordered produced – see #9 above for details.
Production – invoices to collection agency - “readily available”
189
71-72
Will you produce material that deals with when you send invoices to the collection agency?
Irrelevant
Not ordered produced – see #9 above for details.
Production – dispute resolution process
189
75-76
Produce additional documentation setting out the procedures followed in 407's dispute resolution customer service handling?
Irrelevant
Not ordered produced – see #9 above for details.
Production – communications between 407 and auditors - “readily available”
189
76-77
Will you provide information regarding communications between 407 and its auditors, beyond what is already produced?
Deloitte & Touche has produced binders of materials
Appears already answered.
Production - spreadsheets
1763
500-501
Will you produce the spreadsheets that you say would have been provided to Mr. Jamieson containing the information that ultimately would have been rolled up into the numbers contained in the presentation?
407 ETR has located the spreadsheet that was sent to the Province (although not to Mr. Jamieson). It will be produced
Appears already answered.
Revenue – impact of suspending plate denial – relates to statements in affidavit that receivables have increased
375
119
In 1999, approximately what was your revenue per month?
Irrelevant
To be answered in gross understandable terms.
Revenue – impact of suspending plate denial – relates to statements in affidavit that receivables have increased
376
119-120
In 2004, approximately what was your revenue per month?
Irrelevant
To be answered in gross understandable terms.
s.16 – financial threshold – relevant to volume of plate denial requests
506
145
Will you make inquiries and advise whether there is a financial threshold before s.16 notices would be sent?
Irrelevant
Section 16 Audits – production – preconditions
813
211
Will you produce s.16 internal audits?
Irrelevant. The Registrar is not entitled to information about the internal audits
Not ordered produced – see #9 above for details.
s.16 and s.17 notices – preconditions
1636
463
Will you produce material from the internal audit group (reviews of the plate denial processes placed on invoices, the issuance of Section 16 notices, the Section 17 dispute resolution process, and the issuance of Section 22 notices)?
Irrelevant. The Registrar is not entitled to information about the internal audits
Not ordered produced – see #9 above for details.
s.16 and s.17 notices – preconditions
1637
463
Will you produce the other reports you say in your affidavit are plate denial processes, including the testing of the s.17 dispute resolution process?
Irrelevant. The Registrar is not entitled to information about the internal audits
Not ordered produced – see #9 above for details.
s.22 Audit – dossier of customers – preconditions
815
213
It also indicates that a full dossier was used for each and every customer tested, with evidence of Section 22 audit steps. Will you produce those?
Irrelevant. The Registrar is not entitled to information about the internal audits
Not ordered produced – see #9 above for details.
s.22 Audit – dossiers and working papers – preconditions
1005
280-281
Will you produce the full dossier indicating exactly what Section 22 audit steps have been taken.
Irrelevant. The Registrar is not entitled to information about the internal audits
Not ordered produced – see #9 above for details.
s.22 – eligible accounts – info on plate denial audit – Registrar is end user of plate denial audit under Act and regulation and is entitled to know nature of audit undertaken – relevant to accuracy of plate denial requests
1593
451
Do you know the populations that were sampled and will you provide that information?
Irrelevant. The Registrar is not entitled to information about the internal audits
Not ordered produced – see #9 above for details.
s.22 – customer dossiers – preconditions
1627
461
Will you produce the dossier with respect for customers tested with evidence of the Section 22 audit steps?
Irrelevant. The Registrar is not entitled to information about the internal audits
Not ordered produced – see #9 above for details.
Video system – errors - percentage of plates billed correctly – preconditions of plate denial, s.13 of 407 Act – bill proper person
343
111
Will you provide me with a copy of the report dealing with the percentage of plates that were billed correctly?
Irrelevant
Not ordered produced – see #9 above for details.
Video system – errors - percentage of plates billed correctly – preconditions of plate denial, s.13 of 407 Act – bill proper person
345
112
When you say the majority of plates were recognized, can you approximate what constituted the majority?
Irrelevant
Not ordered produced – see #9 above for details.
Video Report – preconditions
347
112-113
Will you advise of the percentage of plates that were not properly identified?
Irrelevant
Not ordered produced – see #9 above for details.
Video system - accuracy of the plate recognition software – preconditions
1146
324
What is your information as to the accuracy of the video recognition system?
Irrelevant
Not ordered produced – see #9 above for details.
Video system – plate recognition - accuracy of the plate recognition software – preconditions
1149
325-326
Can you tell me the accuracy of the video system?
Irrelevant
Not ordered produced – see #9 above for details.
Plate denial – date of legal advice
Withdrawn
1171
332-333
When did the 407 get legal advice with respect to reinstating the plate denial?
N/A (withdrawn)
N/A (withdrawn)
Audit – why relying upon exhibit
Withdrawn
2055
614-615
Are you relying on this chart as an important indication of exactly what the nature of the audits were?
N/A (withdrawn)
N/A (withdrawn)
Audit – why was information not provided previously
Withdrawn
2056
615-617
If this is such an important, clear demonstration of what the auditing was showing, why would you leave this information to the Registrar to figure out on its own? Why wouldn't you have produced a chart like this to the Registrar before this was commenced?
N/A (withdrawn)
N/A (withdrawn)
Exhibit - Walker - notes Withdrawn
2071
624
Mr. Ken Walker, to whom this letter was addressed, which is Exhibit 53, had a habit of writing on letters he received, didn't he?
N/A (withdrawn)
N/A (withdrawn)
APPENDIX A (cont’d): Refusals
Refusal to answer questions on the examination of Randy Luyk, dated June 17, 2005.
Issue and Relationship to the pleading or affidavit
Question
Page No.
Specific Question
Answer or precise basis for refusal
Disposition by the Court
Customer Service – preconditions
2224
654
Will you provide me with the directions you give your collection agency in terms of collecting these accounts?
Irrelevant
407 takes the position that they are not obligated to provide this level of information to the Registrar. While this might have some relevance in the Application, it is not ordered due to considerations of cost, time and complexity of record.
Audit – Independence – preconditions
2541-2552
743
Advise me whether Deloittes or 407, ever informed the Ministry or consulted the Ministry on those alternatives (around the issue of defining the sample size and efficiency / costs) set out in the email of January 22, 2004?
Advise if Mr. Baker was giving to 407 various alternatives as to how to conduct his audit, each of which would have cost implications?
And of course if there is any documentation that suggested you did advise the Ministry, will you produce it?
407 ETR will determine whether it has information in this regard
Subject to continuing undertaking to answer if possible to the extent not already answered.
Audit – Independence – preconditions
2553-2560
745
Will you advise me as to who initiated the review of alternative (forms of plate denial audits) and costs?
If there is a response to Mr. Walker from Mr. Baker on this issue will you provide it to me?
Irrelevant
Not ordered produced – see #1 or #2 above for details.
Audit - Independence – preconditions
2305-2307
675
Will you produce the report of Deloittes on the plate denial system?
Irrelevant. The review in question concerned the Peoplesoft system
Not ordered produced – see #1 or #2 above for details.
Audit – Independence – preconditions
2502-2504
731
What were their D&T’s billable hours for that review (the pre‑review of the design of plate denial processes)?
Irrelevant
Not ordered produced – see #1 or #2 above for details.
Audit – Independence – preconditions
2429-2430
709
Would you produce that contract (Strata or PeopleSoft audit of the design of plate denial processes)?
Irrelevant
Not ordered produced – see #1 or #2 above for details.
Audit – Independence – preconditions
2505- 2506
731
Will you provide information on the hourly rates of the persons doing the work at Deloittes for the review of the design of plate denial process?
Irrelevant
Not ordered produced – see #1 or #2 above for details.
Audit – Independence – preconditions
2507-2508
732
Will you provide me with information on what their normal charge would have been for the review of the design of the plate denial process, had they had not gotten you to agree to this term (discount if obtained future plate denial work)?
Irrelevant
Not ordered produced – see #1 or #2 above for details.
Audit - Independence - preconditions
2282
666
Who at Deloittes did you use with respect to the PeopleSoft project?
Irrelevant. 407 ETR has undertaken to confirm that they are not involved in the plate denial audits
Not ordered produced – see #1 or #2 above for details.
Audit - Independence - preconditions
2296
670
Can I have a copy of the contract with Deloittes in relation to their work on the PeopleSoft project?
Irrelevant
Not ordered produced – see #1 or #2 above for details.
Audit - Independence - preconditions
2303
673-674
Can you point to any documents or any recollection that you have that anyone at 407 or Gary Baker or anyone from Deloittes told the Ministry internal auditors that Deloitte Touche had designed the plate denial system, the very system they were then being asked to audit?
See Exhibits 31 (letter dated February 5, 2001) and 35 (letter dated March 27, 2001) of Mr. Luyk’s Affidavit
Appears already answered.
Audit – Independence – preconditions
2501
729-730
With respect to the June 19th engagement letter, isn't it correct that the only way that Deloitte Touche could recover that discount is if they do get that future (plate denial) work?
Irrelevant
Not ordered produced – see #1 or #2 above for details.
Audit – preconditions
2396-2406
701-703
Would you advise me as to who it was that took out the requirement that there be final concurrence by the MTO, whether it was 407 or whether it was Deloittes, and why they did so?
I would like to mark the documents I have referred to as the next exhibits. The e‑mail dated December 16 would be Exhibit 10. The e‑mail dated June 18, 2002 would be Exhibit 11. The e‑mail dated October 30, 2002, with the attachment dated October 31, 2002, is Exhibit 12.
Irrelevant
Not ordered produced – see #1 above for details.
Audit – preconditions
2458-2465
720 -721
Will you advise me as to who requested that reference to the company and MTO having access to the working papers be deleted and why?
Advise whether it was your auditor's advice to the 407 that the Ministry of Transportation should have access to the working papers?
Irrelevant
Not ordered produced – see #1 above for details.
Audit - preconditions
2332-2334
684
You would agree that the Ministry continue to have a sincere concern with respect to the proposed level of accuracy outlined in the audit approach and related error rate as indicated at Exhibit 85 of your affidavit?
It was a Ministry concern as of October 30, 2002, wasn't it, as stated in that letter?
Irrelevant and improper question
Not ordered produced – see #1 above for details.
Audit – preconditions
2407-2409
704
Would you confirm if the representation letter was signed and provide a copy of the signed version?
I also would like to know who it was that suggested or asked that the MTO's concurrence be deleted.
Signed representation letters have been produced by Deloitte & Touche LLP
Appears already answered.
Not ordered answered.
Audit – preconditions
2493-2495
727
Did anyone at 407 ever ask Gary Baker why he felt that the objectives presumably needed to be agreed to by MTO?
Irrelevant. In addition, Mr. Baker was examined
Appears already answered.
Audit - preconditions
2310 - 2311
676
You have no reason to disagree with the information at Exhibit 47 of your materials, number 8, which indicates that the MTO auditor needed to discuss his own findings with Ministry officials before the final okay could be provided?
Subsequent correspondence (Exhibit 49 and 50 of Mr. Luyk’s Affidavit) demonstrate the Ministry’s confirmation that the audit methodology was acceptable
Appears already answered.
Audit – preconditions
2335-2336
686
Mr. Luyk, did you understand that to be the Ministry's concern as of that date?
At tab 88, your tab 88 at page 546 of your affidavit, there is an auditor's report signed by Deloitte Touche dated October 31, 2002. It indicates that ‑‑ it has five bullet points that set out the criteria under which the audit was conducted, and the fifth refers to the statement of control objectives dated July 4, 2002 and supplementary briefing notes dated June 18, 2002. Can I have those briefing notes?
I may have some questions arising out of it. The statement of control objectives, there is one in your materials. I want to make sure we are dealing with the correct one, July 4, 2002
Irrelevant. The letter speaks for itself
The Briefing Notes were produced by letter dated February 17, 2005
Appears already answered.
Audit – preconditions
2313
678
At tab 50, number 8, a letter dated November 5, 2001 to Ken Walker, the second paragraph, it is evident from that that the Ministry was still concerned about the level of error; isn't that right?
Irrelevant. The letter speaks for itself
Appears already answered except as to whether 407 has done testing of reliability of controls..
Audit – preconditions
2314
679
As of January 30, 2002, which is a letter at Exhibit 51 to your affidavit, there were still unaddressed concerns that the Ministry had referred to as loose ends by Mr. Walker; isn't that correct?
Irrelevant. The letter speaks for itself
Appears already answered.
Audit – preconditions
2410
705
Will you check and advise whether it was Deloittes' suggestion that MTO concurrence be obtained?
Irrelevant
Not ordered produced – see #1 above for details.
Audit – preconditions
2456
712-713
If there is any communication or correspondence that 407 has that suggests it did not agree (that for their purposes they would use a tolerable error rate of 3 percent, with a 90 percent confidence level)?
Marked Exhibit 13 (July 15 e‑mail attaching the June 19th, 2002 agreement)
Irrelevant
Not ordered produced – see #1 above for details.
Audit – preconditions
2500
729
Mr. Luyk says he does not know what Mr. Walker was referring to when he talks about these objectives in the e‑mail. I have asked Mr. Luyk to provide me with that information from 407 - confirm they are a generalized set of objectives to be used for the audit referred to in this e‑mail.
Irrelevant
Not ordered produced – see #1 above for details.
Response to allegations – revenue
2227
656
Please advise me.as to how much our revenues have increased since May of 1999, the period of time you deal with in paragraph 87 of your affidavit.
Irrelevant
Not ordered produced – see #1 above for details.
Preconditions
2570-2572
748
Advise whether, after the presentation, the 407 undertook to provide the Ministry with any additional information, other than the presentation of the slide show, with respect to the matters presented in the slide show, and if so, what information?
407 ETR will attempt to determine whether it undertook to provide the Ministry with additional information
Appears already answered, but if further information was to be provided, what was it?.
Preconditions
2582
751-753
Does the slide show have anything in it whatsoever that responds to the matters that need to be reviewed by an independent auditor to satisfy the Registrar of the accuracy of plate denial requests prior to reinstatement?
Do I understand your position or your evidence to be there are no circumstances under which the Registrar can refuse to deny licence plates as long as he received a Section 22 notice?
Irrelevant and improper question
Asked and answered at Q. 1406
Not ordered produced – see #1 above for details.
APPENDIX B: MOTIONS FOR REFUSALS, UNDERTAKINGS AND UNDER ADVISEMENTS
REFUSALS CHART FOR GARY BAKER
Issue & relationship to pleadings or affidavit
Ques.
No.
Page No.
Specific Question
Answer or precise basis for refusal
Disposition by the Court
Refusal to answer a question relating to the scope of audit.
Q. 94
P.25,
L.15 – 21
To advise whether Deloitte & Touche audited invoices that were sent to people who had never been on Highway 407.
The actual question was: in the circumstance that an invoice was sent to someone who had not been on the highway, did Deloitte go back and audit that invoice.
The question is based on the hypothetical fact scenario that Deloitte audited invoices that were issued to individuals who had not used Highway 407.
In his testimony, Mr. Baker provided a full description of the scope of the audit. For example, Mr. Baker testified that Deloitte did not audit whether the transaction information on the original invoice was accurate (p. 25, lines 12 – 14) and did not audit that the invoice accurately reflected the licence plate that was on the highway (pp. 26-27). As such, to the extent that this question relates to the scope of the audit, it has been fully answered.
Already answered to the extent required.
Refusal to answer a question relating to scope of audit.
Q.370
P.100, L.8 – P.101, L.1
To advise whether Gary Baker checks to see if an invoice is legitimately charged to a licence plate.
This question has been answered. See response to item 1 above regarding the scope of the audit.
Question withdrawn.
Refusal to answer a question relating to scope of audit.
Q.377
P.103, L.15 – 20
To advise if it is Gary Baker’s position that whether or not a person travels on Highway 407 is of no consequence to a section 22 audit.
This question is not appropriate as it requires Mr. Baker to interpret the legislation and provide an opinion regarding what may be of consequence under such an interpretation. These are legal issues.
Not required to answer.
Refusal to answer a question relating to scope of audit.
Q.390
P.106, L.17– P.108, L.9
To confirm that if the accuracy of the plate recognition system is not within section 22 and the regulations thereunder, it is not within the scope of Gary Baker’s audit.
This question is not appropriate as it is a hypothetical question which is based upon a particular interpretation of the legislation which may or may not be accurate.
In addition, as noted in response to item 1 above, Mr. Baker testified as to the scope of the audit.
Not required to answer.
Refusal to answer questions relating to scope of audit.
Q.743
P.232, L.19 – 23
To advise whether Gary Baker’s audit would detect accounts with incorrect billings.
The actual question was: if the account described at page 634 of Exhibit “71” to the Affidavit of Frank D’Onofrio was submitted for plate denial, would the audit have detected a problem.
As stated during his examination, Mr. Baker does not have any knowledge regarding the particular account at issue. The question is posed as a hypothetical that is based on the assumption that the account had been submitted for plate denial. Further, Mr. Baker has already testified as to the scope of the audit.
See answer given to Q. 94 above.
Already answered to the extent required.
Refusal to answer questions relating to scope of audit.
Q.756
P.237, L.3 – 24
To advise whether there was any way Gary Baker’s audit could detect, in the absence of a formal dispute under section 17 of the Highway 407 Act, a misread plate that had been billed incorrectly.
The question was answered (see p. 237, q. 755). Mr. Baker has advised that the audit may not necessarily detect such an error.
Already answered.
Refusal to answer a question relating to communication with MTO officials regarding acceptable tolerable rate of error.
Q. 182
P.43, L.21 – P.46, L.6
To advise whether Gary Baker’s working papers contain any electronic notes of discussions or communications with Ministry officials regarding plate denial.
Mr. Baker has stated that he does not believe there are any notes of discussions or communications with Ministry officials in the working paper files (p. 45, q. 180).
The Ministry has received production of all of the working paper files and is capable of reviewing these files to ensure that there are no notes of discussions. It is onerous to request a non-party to conduct such a review. Further, the relevance of any such notes has not been established.
Question withdrawn.
Refusal to answer a question relating to communications with MTO officials.
Q.361
P.98, L.2 – 12
To advise whether there are any notes in Gary Baker’s working papers regarding discussions with Ministry officials about access to the working papers, and, if so, to advise of their location in the file.
The Ministry has received production of all of the working paper files and is capable of reviewing these files to ensure that there are no notes of discussions with respect to access to working papers. It is onerous to request a non-party to conduct such a review.
Question withdrawn.
Refusal to answer a question relating to acceptable tolerable rate of error.
WITHDRAWN
Q. 209 –210
P.52, L.7 – P.53, L.2
To advise whether the factors used by Gary Baker to determine an acceptable tolerable rate of error and confidence level were based on his professional judgment.
Question withdrawn.
Refusal to answer a question relating to acceptable tolerable rate of error.
Q.215
P.53, L.18 – P.54, L.1
To advise whether Gary Baker knew that the Ministry did not agree with the tolerable rate of error and confidence level used by Deloitte & Touche.
This question was answered at pages 37 to 39, 126 and 208 to 209.
Question withdrawn.
Refusal to answer a question relating to whether consequences of plate denial material to audit report.
Q.223
P.56, L.2– 6
To advise whether Gary Baker knew that denying a person’s licence plate could affect his or her livelihood.
This question is not relevant and not appropriate. The question requires Mr. Baker to speculate on the potential impact of the plate denial process upon unknown individuals.
Not required to answer.
Refusal to answer a question relating to whether consequences of plate denial material to audit report.
Q.523
P.157, L.5 – 11
To advise whether Gary Baker agrees that if people who use their vehicle for work have their licence plate erroneously lifted, they will not be able to use their vehicle until it is taken out of plate denial.
See response to item 11 above.
Refusal to answer a question relating to material considerations in the audit report.
Q.278
P.69, L.13 – P.70, L.8
To advise of the last time Gary Baker looked at Article 23 of the Concession and Ground Lease Agreement.
Article 23 of the Concession and Ground Lease Agreement is not relevant to the issues in this proceeding. See pages 262 to 263.
Question withdrawn.
Refusal to answer a question relating to material considerations in the audit report.
Q.279
P.70,
L.10 – 13
To advise whether Gary Baker is aware of anything in Article 23 of the Concession and Ground Lease Agreement that is material to his audit reports.
See response to item 13 above.
Question withdrawn.
Refusal to answer a question relating to material considerations in the audit report.
Q.285
P.73, L.6 – 18
To advise whether Gary Baker agrees that it would be material if the impact of erroneous plate denial influenced the Registrar in terms of relying on the report.
Mr. Baker testified that materiality is determined by reference to what will change or influence the decision of the person relying upon the report [p. 73, q. 284]. Mr. Baker further testified that the Registrar did not communicate to Mr. Baker what the Registrar considers to be material [p. 176, q. 576].
It is not appropriate to pose hypothetical questions to Mr. Baker based on the assumption that the alleged impact of plate denial would be material to the Registrar. Further, the issue of whether the alleged impact of erroneous plate denial would be material in such a hypothetical circumstance is not relevant to the issues in the litigation.
Not required to answer.
Refusal to answer a question relating to material considerations in the audit report.
Q. 294
P.76, L.22 –
P.78, L.1
To advise whether the risk to the Registrar of erroneous plate denial is immaterial to Gary Baker’s opinion as set out in the audit reports.
It is unclear as to what constitutes the “risk to the Registrar” for the purpose of this question. It is not appropriate to require Mr. Baker to attempt to assess the alleged risk to the Registrar. Further, Mr. Baker has already testified that in performing the audit, he considered the risk of errors, including an assessment of the risk that they might result in an erroneous plate denial [pp. 73-74].
Question withdrawn.
Refusal to answer questions relating to material considerations in the audit report.
Q.731
P.229, L.4 – 13
To advise whether Gary Baker agrees that the tolerable error rate is significant in the context of section 49 of the ‘Standards for Assurance Engagements’ (CICA Handbook).
The question is not relevant and not appropriate. The question seeks Mr. Baker’s opinion with respect to the interpretation of a particular provision of the CICA Handbook. The interpretation of this provision is a legal issue.
Answer the following: whether Gary Baker agrees that tolerable error rate is significant to his audit.
Refusal to answer a question relating to material considerations in audit report and scope of audit.
Q.489
P.141, L.16– P.143, L.9
To advise whether ‘significance’ and ‘materiality’ are synonymous for the purposes of Gary Baker’s audit opinion.
See response to item 17 above. This question seeks Mr. Baker’s opinion regarding the interpretation of particular terms as used in the CICA Handbook. The interpretation of these terms is a legal issue and as such, is not an appropriate question for Mr. Baker.
To be answered.
Refusal to answer a question relating to material considerations in audit report and scope of audit.
Q.518
P.153, L.16 – 21
To advise whether it was appropriate, based on the rules in the Canadian Institute of Chartered Accountants handbook, for Gary Baker to consider the impact on the Registrar of putting people erroneously into plate denial.
This question is not appropriate as it requests an opinion from Mr. Baker regarding the interpretation of the CICA Handbook and the legislation.
Not required to be answered on the basis that it is a professional opinion.
Refusal to answer a question relating to role of legislation in audit reports.
Q.377
P.102, L.14 – P.103, L.14
To advise whether Gary Baker is aware that the legislation states that an invoice for travel on Highway 407 will be sent to the person in whose name the licence plate is issued, unless the vehicle has a transponder.
The question is not appropriate. The question requires Mr. Baker to opine on the legal issue of the correct interpretation of the Highway 407 Act.
Not required to be answered on the basis that it is a professional opinion.
Refusal to answer a question relating to role of legislation in audit reports.
Q.392
P.109, L.7 – P.110, L.1
To advise whether Gary Baker is obligated to interpret the legislation [Highway 407 Act and the Regulations thereunder].
The question is not appropriate. The question requires Mr. Baker to opine on the legal issue of whether he is obligated to interpret the Highway 407 Act.
Not required to be answered on the basis that it is a professional opinion.
Refusal to answer a question relating to role of legislation in audit reports.
Q.393
P.111, L.19– P.114, L.3
To advise why the audit report states that Gary Baker has interpreted the Act, regulation and agreements set out in the statement of control objectives if he does not in fact provide an interpretation.
The question is not appropriate as it is based on a false assumption; namely, that the audit report states that the auditor has interpreted the Act. In fact, the audit report refers to the interpretation of the Act as set out in the statement of control objectives and supplementary briefing notes.
Not required to be answered on the basis that it is a professional opinion.
Refusal to answer a question relating to use and reliability of audit reports.
Q.509
P.148, L.18 – P.150, L.4
To advise whether Gary Baker agrees that the Registrar relies on the audit reports to ensure that people are not erroneously put in plate denial.
Not appropriate and irrelevant. The question seeks evidence from Mr. Baker regarding why the Registrar relies on the audit reports. Such a question is appropriately directed to the Registrar.
Not required to be answered.
Refusal to answer a question relating to responsibility for setting tolerable rate of error.
Q.531
P.159, L.25 – P.160, L.4
To advise whether Gary Baker agrees that the desired level of precision (i.e. tolerable error rate) forms an essential part of the quality management program and/or customer service program.
Not appropriate and irrelevant. Mr. Baker is unable to provide evidence on what Highway 407 would consider as an “essential” part of its quality management or customer service program. Such a question is appropriately directed to Highway 407.
To be answered. Advise whether Gary Baker agrees that the desired level of precision (tolerable error rate) is an essential part of his audit.
Refusal to answer a question relating to nature of audit.
Q.692
P.211, L.21 – P.212, L.3
To advise if Gary Baker considered this to be a high risk engagement because of the dispute between the Ministry and the 407.
The issue of why Mr. Baker considered the audit to be a high risk engagement is not relevant.
To be answered.
Refusal to answer a question relating to nature of audit.
Q.692
P.212, L.4 – 8
To advise of the factors that led Gary Baker to consider this a high risk engagement.
See response to item 25 above.
To be answered.
Refusal to answer questions relating to nature of the audit.
Q.733
P.230, L.10 – 13
To advise whether Gary Baker had to abide by the standards set out in the CICA Handbook when conducting his audit.
Not relevant and not appropriate. The question requests Mr. Baker to opine on the application of the CICA Handbook to the conduct of the audit. Mr. Baker is not being examined as an expert witness.
To be answered in respect of s. 58.15 of the CIAC only.
Was Gary Baker guided in his audit by this?
Refusal to answer questions relating to additional audits.
Q.882
P.272, L.3 – 17
To advise whether Gary Baker would at the Registrar’s request conduct an audit to an error rate as close to zero as possible.
This question was posed during re-examination and did not arise from the examination by counsel for 407 ETR.
In any event, the question is a hypothetical question and is not relevant.
Not required to be answered.
Refusal to answer a question regarding whether Gary Baker was aware of Registrar’s position on tolerable rates of error.
Q.577
P.176, L.13 – P.177, L.18
To advise whether Gary Baker was aware that the tolerable rate of error of 3 percent with a 90 and 95 percent confidence level was unacceptable to the Registrar.
This question has been answered. Mr. Baker has testified that he was not aware of an agreement having been reached in respect of the error rate and confidence level [pp. 37 to 40, qs. 133 to 149] and that he does not recall whether the Registrar ever indicated an intolerable error rate [p. 126, qs. 442 and 443].
Question withdrawn.
Refusal to answer a question regarding whether Gary Baker was aware of Registrar’s position on tolerable rates of error.
Q.704
P.218, L.1 – 9
To advise whether Gary Baker is aware, based on paragraphs 27 and 28 of Frank D’Onofrio’s affidavit, that the Registrar does not consider 3 percent as a tolerable rate of error.
The issue of whether Mr. Baker is now aware from the affidavit evidence filed in the proceeding and other sources of information as to the position of the Registrar is not relevant.
Not required to be answered.
Refusal to answer a question regarding whether Gary Baker was aware of Registrar’s position on tolerable rates of error and independence of auditor.
Q.714
P.220, L.17 – 21
To advise whether Gary Baker agrees that until the Ministry received the engagement letter (between Deloitte & Touche and 407) on February 18, 2005, it would not have known that the audit was done subject to Ministry approval of the tolerable error rates.
Mr. Baker cannot provide evidence as what was known or not known by the Ministry at a certain point in time. Questions relating to the knowledge of the Ministry should be posed to the Ministry’s representatives.
Question withdrawn.
Refusal to answer a question regarding whether Gary Baker was aware of Registrar’s position on tolerable rates of error.
Q.726
P.226, L.4 – 7
To advise whether Gary Baker agrees that even where a professional standard has been met, it may fall short of the Registrar’s requirements.”
Not relevant and not appropriate. The question requests Mr. Baker to opine on the legal issue of the requirements of the Registrar and on the interpretation of accounting standards.
Not required to be answered on the basis that it is a professional opinion.
Refusal to answer a question regarding whether Gary Baker was aware of Registrar’s position on tolerable rates of error.
Q.727
P.226, L.9 – P.227, L.6
To advise whether Gary Baker now knows that his audit report does not meet the Registrar’s requirements.
The issue of whether Mr. Baker is now aware of the Registrar’s position is not relevant to the issues in this proceeding. Further, the issue of whether the reports meet the requirements of the Registrar is ultimately a legal issue.
Not required to be answered on the basis that it is a professional opinion.
Refusal to answer a question regarding whether Gary Baker was aware of Registrar’s position on tolerable rates of error.
Q.728
P.227, L.19 – 22
To advise whether Gary Baker is under the impression that the Registrar is content with a tolerable error rate of 3 percent.
See response to item 33.
Further, Mr. Baker has already testified that he was not aware of an agreement having been reached in respect of the error rate and confidence level [pp. 37 to 40, qs. 133 to 149] and that he does not recall whether the Registrar ever indicated an intolerable error rate [p. 126, qs. 442 and 443].
Already answered.
Refusal to answer a question relating to audit fees.
WITHDRAWN
Q.651
P.202, L.9 – 19
To advise whether $50 would be a significant sum to the 407.
Refusal to answer a question relating to audit fees.
WITHDRAWN
Q.652
P.202, L.21 – 24
To advise whether $100 would be a significant sum to the 407.
Refusal to answer a question relating to independence of auditor.
Q.693
P.212, L.13 – 19
To advise whether Gary Baker agrees that his decision to produce audits despite the Ministry’s disagreement with the error rates appears to create an impression of taking sides.
The question is not relevant and not appropriate. Further, in posing the question, counsel for the Registrar refused to clarify as to what was meant by the terms “impression” or “taking sides” and who held such an “impression”.
Not required to be answered.
Refusal to answer a question relating to independence of the auditor.
Q.716
P.221, L.12 – P.222, L.10
To advise whether Gary Baker agrees that if the Registrar did not know that Mr. Baker was conducting his audit subject to the Ministry’s approval of the error rates and yet was receiving audit reports predicated on the statement in the engagement letter that a 3 percent tolerable error rate with a 90 percent confident level was appropriate for the auditor’s purposes, that this would create the impression of taking sides.
See response to item 37 above. In addition, it is not appropriate to require Mr. Baker to attempt to provide evidence as to the “impression” that may be held by the Registrar.
Not required to be answered.
Refusal to answer a question relating to independence of the auditor.
Q.725
P.224, L.3 – P.225, L.23
To advise whether Gary Baker agrees that the independence requirements set out in section 26 of the ‘Standards for Assurance Engagements’ (CICA Handbook) allow the Registrar to consider the issuance of Mr. Baker’s audit reports despite any agreement over the audit criteria and to withdraw approval of Deloitte & Touche as the independent auditor based on the appearance of the independence of the auditor.
The question is not appropriate. The question seeks Mr. Baker’s opinion regarding certain legal issues, such as the interpretation of certain provisions of the CICA Handbook and the rights of the Registrar.
APPENDIX C - REFUSALS CHART
OUTSTANDING REFUSALS GIVEN ON THE CROSS-EXAMINATION OF FRANK D’ONOFRIO ON
JANUARY 31, FEBRUARY 1 & 2 and JUNE 6, 2005
Issue & relationship to pleadings or affidavit
Ques.
No.
Page No.
Specific Question
Answer or precise
basis for refusal
Disposition by the Court
1
482
What error rate does the Registrar say that the company should be aiming for to satisfy the Registrar?
The Registrar answered this question on the record at P.105, L.22 (Q. 483). His response was:
“Must (sic - Much) less than 4, or 3 or 2 percent. As close to zero as possible.”
Already answered.
2
520
Confirm that, as far as the Registrar knows, the vehicle plate character recognition system used by the company is the very same one that was used by the Province when it operated the highway?
The previous vehicle plate character recognition system is irrelevant to the 407 ETR’s obligations under the Highway 407 Act and the plate denial requests at issue.
To be answered.
3
636
Advise whether Mr. D’Onofrio is familiar with the Provincial Auditors’ Report on the Road Safety User Program?
Mr. D’Onofrio’s familiarity with the Provincial Auditors’ Report on the Road Safety Used Program is irrelevant to the issues in the application.
Not fully answered: to be completed.
4
636
To answer any question about the Provincial Audit, including questions about the number of applicants who wait to take a road test; and the extent of the backlog in dealing with persons referred to the Registrar for suspension for medical grounds?
The Provincial Audit, including the number of applicants who wait to take a road test and the extent of any backlog in dealing with persons referred to the Registrar for suspension for medical grounds, are irrelevant to the issues in the application.
Not ordered answered.
5
666
Advise whether the Direction in relation to the 407 plate denial process is similar to the plate denial process that is in place for the City of Toronto or other municipalities in relation to parking tickets?
The Highway 407 Act does not apply to the City of Toronto or other municipalities, so it is not relevant what plate denial process is in place for those other situations.
Not a required production – may have some relevance but based on time + cost, need not be answered but no new material on this issue to be produced by respondents.
6
991-3
Advise whether RIN information is provided to the City of Toronto, or has been made available to anyone else who has access to the licence plate denial scheme besides the City of Toronto?
This is the same question as #1662. Not relevant because the RIN data for the plate that was on the highway is provided to the company, as set out in response to question 1656. In any event, data provided under any different statutory or regulatory scheme or agreement is not relevant to the statutory or regulatory scheme and agreement at issue.
Not ordered answered.
7
1009
Advise whether, in the Registrar’s review of the forms of Notice being delivered by the OTCC to its customers under the CIPA scheme, he also reached the conclusion that the forms did not comply with requirements of the CIPA’s requirements?
The legislation under which the OTCC operated (before 1999) and the 407 ETR operate is different, so whether the forms delivered by the OTCC to its customers were in compliance with CIPA is irrelevant and has no bearing on the 407 ETR’s obligations under the Highway 407 Act.
Not a required production – may have some relevance but based on time + cost, need not be answered but no new material on this issue to be produced by respondents.
8
1012
Under the CIPA, advise whether there was a requirement that OTCC provide a further Notice to the person of the failure to pay the toll, related fee and interest, and certain other requirements. In this regard confirm that OTCC did not comply with the then existing legislation and that the history of problems that the Registrar describes arising from 407’s business practices at the time it took over the concession represented a similar set or problems as experienced by the OTCC?
The legislation under which the OTCC and the 407 ETR operate is different, so whether there was a requirement that the OTCC provide a further notice to the person of the failure to pay the toll, related fee and interest, and certain other requirements is irrelevant. Compliance by the OTCC with previous, different, legislation (CIPA) and any problems that may be have been experienced by the OTCC are also irrelevant with respect to the 407 ETR’s obligations under the Highway 407 Act and the plate denial requests at issue.
Not a required production – may have some relevance but based on time + cost, need not be answered but no new material on this issue to be produced by respondents.
9
1017
Advise whether the business principles dated October 7, 1996 contemplate that there would be no resolution of customer service issues and instead that the customer would be directed to the tolling operator, OTCC?
The legislation under which the OTCC and the 407 ETR operate is different, so the business principles dated October 7, 1996, are irrelevant and have no bearing on the 407 ETR’s obligations under the Highway 407 Act.
Not a required production – may have some relevance but based on time + cost, need not be answered but no new material on this issue to be produced by respondents.
10
1337
Confirm that there was no manual verification process implemented by OTCC when it operated the toll highway?
The legislation under which the OTCC and the 407 ETR operate is different, so the issue of whether or not there was a manual verification process implemented by OTCC is irrelevant and has no bearing on the 407 ETR’s obligations under the Highway 407 Act.
Not a required production – may have some relevance but based on time + cost, need not be answered but no new material on this issue to be produced by respondents.
1625
To advise whether Mr. D’Onofrio or anyone on his behalf made any kind of an analysis of the audit information described by Mr. Baker.
The question asks about other cross‑examination information and is irrelevant and improper. Also, the question is overly broad. The court has ordered that the issues in this application go up to and including February 2, 2005 and the information from Mr. Baker was given on his examinations of February 24 and 25, 2005.
Refused to answer.
Not a required production – may have some relevance but based on time + cost, need not be answered but no new material on this issue to be produced by respondents.
1628
To advise whether Mr. D’Onofrio made an analysis of the information Mr. Baker provided about the license plates that were up for denial prior to February 2, 2005.
The question asks about other cross‑examination information and is irrelevant and improper and post dates the relevant period.
Not a required production – may have some relevance but based on time + cost, need not be answered but no new material on this issue to be produced by respondents.
1643
To advise whether Mr. D’Onofrio is performing his statutory function under the Highway Traffic Act of suspension of licences.
This is a legal question dealing with statutory duties. Moreover, whether or not the Registrar is suspending licences in other contexts has no bearing on the 407 ETR’s obligations, or the Registrar’s obligations, under the Highway 407 Act.
Not a required production: may have some relevance but based on time + cost, need not be answered but no new material on this issue to be produced by respondents.
1656
To explain why the RIN data has not been provided to the company.
Answered.
Already answered.
1657
To advise whether having the RIN data would minimize the number of individuals misidentified on the highway.
Answered.
Already answered.
1662
To advise whether RIN is for sale by the Ministry of Transportation to other persons, or otherwise available on the MTO website.
Not relevant because the RIN data for the plate that was on the highway is provided to the company, as set out in my response to question #1656. In any event, data provided under any different statutory or regulatory scheme or agreement is not relevant to the statutory or regulatory scheme and agreement at issue.
Already answered.
APPENDIX D: OUTSTANDING UNDERTAKINGS GIVEN ON THE CROSS-EXAMINATION
OF FRANK D’ONOFRIO ON JANUARY 31, 2005 and FEBRUARY 1 & 2, 2005
Question
No.
Specific Undertaking
Date answered or precise
Reason for not doing so.
Disposition by the Court
193
Advise, upon a review of his records and by making inquiries of the auditors, whether, after receiving the Notices in August 2003, Mr. D’Onofrio either met with the public service auditors assigned to the Ministry of Transportation or obtained advice from them by telephone, and what that advice was?
This is not an undertaking. Mr. D’Onofrio gave his response on the record at questions 193-211 and elaborated on Feb. 16, 2005.
Answered
211
Advise as to the date, with whom and the substance of any conversations Mr. D’Onofrio had concerning any advice received from accountants or lawyers. Advise whether Mr. D’Onofrio, Mr. Burns or any other participants in such discussions have notes of same.
The undertaking is not as described, The only undertaking at question 211 is as follows: If the information is available as to exact dates of the Registrar’s ongoing discussions with persons in all the different areas, other than legal advice, to advise of those exact dates of discussions.
Answered
551
Advise whether there is any written request, from internal audit services or otherwise, for the working papers of Gary Baker, either when he was at the Anderson or Deloitte & Touche.
Answered
662
Produce a copy of the last Direction that was given to the Vehicle Licensing Issuing Offices with respect to license plate denial.
Answer being provided.
665
Produce any previous versions of the Direction.
Answer being provided.
731
Make inquiries and advise whether anyone with responsibility for plate denial, including Mr. Burns, Mr. Forbes, or others in the Registrar’s Office, received or were informed about the Minister’s letter stating that he was prepared to see reinstatement of plate denial effective November 1, 2003 (Tab 101 of Mr. Luyk’s Affidavit)?
Answered
783-5
Produce all communications between the Registrar and the Minister’s Office, the Premier’s Office, with the Finance Minister’s Office, or others in the Ministry of Transportation who are assigned the responsibilities of the litigation or disputes between the company and the Province, concerning the dispute between the Province and 407 ETR, up to the date this litigation commenced, whether such correspondence is with the Registrar directly or others representing the Registrar.
Question 783 is not an undertaking.
The applicants are not alleging bias. The Registrar has previously advised that he is independent in his capacity as Registrar. Any discussion between the Registrar’s office, the Minister’s office, the Premier’s office, or the Ministry of Finance is irrelevant to the issues in the application. Any discussions with respect to litigation are privileged.
Questions 784, 785 are answered.
790-7
Make inquiries and advise as to the dates and substance of any discussions between the Registrar and Mr. Bruce McCuaig between October 2, 2003 to January 2004, and produce copies of any notes of discussions or communications including e-mails.
This was not an undertaking. It was an agreement to make inquiries and advise of our position. It was an under advisement. The transcript shows an agreement only make inquiries about dates of discussions and the substance of discussions between the Registrar and others including Bruce McCuaig but excluding counsel, about issues related to the Registrar’s area of interest. There was no undertaking to produce the information, as counsel would first make inquiries and then, upon receipt of the documentation or information, advise of the Registrar’s position. There was also no request for production of documents.
Refused.
797
Make inquiries and advise of the dates and the substance of any discussions between the Registrar’s Office and any other people within Mr. McCuaig’s division or within the Ministry of Transportation, concerning the dispute between the 407 ETR company and the Province as it relates to the Registrar’s area of interest. Advise as to the participants in any such discussions.
Same response as to Q790-7
Refused.
850
Review the Registrar’s records and advise of anything received in writing, including a copy of the document at Tab 8 of Mr. Luyk’s Supplementary Affidavit, and any other form of communication received, concerning the Powerpoint presentation and meeting with 407 ETR on May 28, 2004, and advise if such communications will be produced.
This is not an undertaking. It is an under-advisement, an agreement to make inquiries and advise of our position.
Answer being provided.
873
Make inquiries of the Registrar’s representatives present at the May 2004 meeting and advise whether anyone asked the company any questions about the disputes that were rejected without appeal.
This is not an undertaking. It is an under advisement.
Answered
942-3
Advise who in the Operational Policy Office prepared the document at Tab 91 of Mr. D’Onofrio’s Affidavit.
Answered
987
To inquire whether the Registrar’s Office reviews and tests the return rate on vehicle renewal validation forms sent out to the public, and advise whether the results of such tests will be produced.
This is not an undertaking. This was taken under advisement.
Refused. Irrelevant.
To be answered.
1015
Advise and produce a copy of any subsequent versions of the Business Principles.
This is not an undertaking. It is an under advisement.
Answered.
1030
Concerning 407 ETR’s Special Letter Campaign, advise as to the existence of any documents generated in the Registrar’s Office or on behalf of the Registrar about this information, and if it will be produced.
This is not an undertaking. It is an under advisement.
Answered
1046
Make inquiries and confirm that the Ministry provided a specific database of addresses for the 80,000 individuals that received additional notice as part of the Special Letter Campaign.
This undertaking to only to make inquiries. It is an under advisement.
Answered
1067
Review and advise whether the letter from Mr. Breeze, Assistant Deputy Minister, dated June 26, 2000 describing the Special Letter Campaign and its results, is part of the Registrar’s or his group’s files.
Answered
1081
To review the Registrar’s files, and produce any handwritten notes about the issues surrounding license plate denial.
This is not an undertaking. It is an under advisement.
See 1082 (same question)
1082
Review and advise whether the Registrar has any documentation, in the form of notes of meetings, notes of directions given; any information received about license plate denial; and, in particular, any notes or records concerning what the Registrar describes as “legislative preconditions” to the reinstatement of plate denial.
This is not an undertaking. It is an under advisement.
Refused.
The request is unreasonably broad and oppressive. The record contains the Registrar’s position on legislative preconditions of plate denial. The concern has always been the ability of the 407 ETR to meet the legislative pre-conditions.
In accordance with agreement between counsel, additional notes not ordered produced.
1129
Review the Registrar’s records and advise when Allan Tait and Charles Brown first advised him that the statement about an agreement on audit methodology was overstated, and the agreement only extended to the design of the proposed pre and post go live audits. Produce any documents containing such advice.
The questions are found at 1131 and 1132.
This is not an undertaking. This is an under advisement.
Answered
To be answered.
1185
Review the Registrar’s files, including the notes of anyone who would have been with him at such a meeting, and advise whether there is anything in writing concerning the Registrar’s request of Mr. McCuaig or his people to conduct an audit of 407 ETR, and advise if such documentation will be produced.
This is not an undertaking. The Registrar answered the question on the record. In any event, answered.
1191
Review and advise whether the Registrar has reference in his diary as to when the telephone call with Bruce McCuaig occurred concerning the audit request.
Advise who else was present in the Registrar’s Office, if anyone. Make inquiries about the existence of any notes and records of the discussion that preceded that request, which may well have been generated by someone working with the Registrar and who had day to day responsibilities for these issues, and advise if these will be produced.
This is not an undertaking. This is an under advisement.
Refused.
The Registrar has not handwritten notes. The request for any notes and records of anyone working for the Registrar in relation to discussions preceding the request is unreasonably broad and oppressive. The request is also irrelevant in that it has no bearing on whether or not the Registrar is obliged to consider whether the legislative preconditions have been met and the 407 ETR’s responsibilities under the 407 Act. This is the subject of another proceeding.
1205
Advise from which offices and from which people the strategy or decision to have the Registrar request that Mr. McCuaig invoke an audit right derived (insofar as these people were not inside or outside counsel).
This is not an undertaking.
1283
Make inquiries and advise:
(a) When Mr. Tait delivered the e-mail to Mr. Wiseman as referred to in Exhibit 66 of the Registrar’s Affidavit;
(b) When someone communicated after that date with Messrs. Tait or Brown about the actual audit that had been provided to the Registar in August 2003, and the subsequent audit report; and
Whether Messrs. Tait or Brown in the IAS Group learned that a 100% audit of the Section 22 Notices had been conducted and that no errors were found.
These are not undertakings. Parts are under advisements. They are answered.
To be answered.
1284
Review and advise whether there are any written communications or otherwise between the Registrar and Messrs. Tait or Brown or any other person about the nature of the audit reports that were provided by the independent auditor in August 2003.
This is not an undertaking. This is an under advisement. Partially answered at 1283.
Balance refused.
The request for any communications between the Registrar and Mr. Tait, or Mr. Brown or “any other person” about the nature of the audit reports that were provided by the auditor is oppressive.
To be answered.
See #1082 above.
1286
Confirm in respect of the Exhibit 66 e-mail, that no one from the Internal Audit Services made a request of the independent auditor to find out any information at all about the nature of the work that was represented in those audit reports or made a request for working papers or the like up through to the date that the approval of the independent auditor was revoked.
This is not an undertaking. It is an under advisement.
Answered.
1297-99
Advise when the document at Exhibit 75 of the Registrar’s Affidavit first came into being, and whether there are any previous or subsequent versions of it, and whether they will be produced.
The undertaking is not as stated. The undertaking given was to advise if there were other versions of exhibit 75. There was a refusal to produce drafts.
Answered.
1131-2
Advise when the site visit involving Registrar staff occurred and produced any minutes of the meeting, and any documents or information that emerged from that site visit.
This is not an undertaking. This is an under advisement. Answered
1413
Review and advise whether there is any record of Mr. D’Onofrio conveying in writing to Mr. McCuaig the Registrar’s concerns about the quality of Audit Reports, audit methodology, discussions involving internal audit services and so forth.
This is not an undertaking.
To be answered unless privileged.
1418
Make inquiries and confirm whether a copy of Mr. D’Onofrio’s letter dated December 15, 2003 was sent to Mr. McCuaig.
Answered.
1427
Review and advise whether between August 2003 through to the end of January 2004 there are any other documents or if the Registrar is aware of any other meetings at which Mr. McCuaig was present to understand what concerns the Registrar had about the Deloitte & Touche independent audit.
This is not an undertaking. The Registrar provided his answer on the record.
1585
Produce copies of any print media, television media, or transcripts of such media received by the Registrar about Mr. Colles’ investigation of customer complaints at 407 from the time it was launched on November 12, 2004.
This is not an undertaking. This is an under advisement.
Refused.
The applicant is not alleging bias. The Registrar has stated that he acts independently in carrying out his responsibilities as Registrar. The fact that the Registrar may, or may not, receive copies of media reports is irrelevant to the issues in the application and the 407 ETR’s responsibilities under the Highway 407 Act.
Not a required production – may have some relevance but based on time + cost, need not be answered but no new material on this issue to be produced by respondents.
APPENDIX E: OUTSTANDING REFUSALS GIVEN
ON THE EXAMINATION OF BRUCE McCUAIG ON JUNE 10, 2005
Issue and Relationship to the pleading or affidavit
Question
Page No.
Specific Question
Answer or precise basis for refusal
Disposition by the Court
48
14
To advise whether he, as Assistant Deputy Minister, has any role to play in regards to the function of the Registrar described in Section 22.
The witness answered this at questions 27-35.
In any event, the scope of the examination of Mr. McCuaig is limited by court order to questions and correspondence dealing with the billing and audit processes undertaken by the 407.
No further answer required.
67-70
19-22
To advise whether he has any factual basis to dispute the information contained in the May 2004 presentation.
The question was answered at questions 67 and 68.
No further answer required.
146-147
48-50
To confirm that the Ministry had approved the form of the Deloitte & Touche Audit Report.
The question was answered at question 146.
To be answered.
346
107
To advise whether he was aware of the fact that licence plate denial had operated under the OTCC and for a period after privatization.
The scope of the examination of Mr. McCuaig is limited by court order to questions and correspondence dealing with the billing and audit processes undertaken by the 407. Whether or not Mr. McCuaig is aware of whether or not licence plate denial operated under the OTCC and for a period after privatization is outside the scope of the examination.
The legislation under which the OTCC operated (before 1999) and the 407 ETR operates is different, so whether licence plate denial operated under the OTCC and for a period after privatization is irrelevant and has no bearing on the 407 ETR’s obligations under the Highway 407 Act.
346
107
To advise what he learned from briefings when he became Assistant Deputy Minister with respect to the history of the operation of licence plate denial under the OTCC.
The scope of the examination of Mr. McCuaig is limited by court order to questions and correspondence dealing with the billing and audit processes undertaken by the 407. Whether or not Mr. McCuaig is aware of whether or not licence plate denial operated under the OTCC and for a period after privatization is outside the scope of the examination.
The legislation under which the OTCC operated (before 1999) and the 407 ETR operates is different, so anything Mr. McCuaig may have learned with respect to any history with respect to licence plate denial under the OTCC is irrelevant and has no bearing on the 407 ETR’s obligations under the Highway 407 Act.
[^1] Counsel submits this would include 16, 17, 115, 119, 120, 122, 241, 249, 252, 273, 302 of original affidavit; and 13, 33-38, 40-43, 46-49 of the Supplemental.
[^2] Paragraphs that the Registrar submits are applicable are 16, 17, 199, 124, 143, 165, 202, 209, 244 and 263.