A case involving low-tech espionage, a North Vancouver wastewater treatment plant and the mayor of Coquitlam took a small step forward recently as a B.C. Supreme Court justice approved the cross-examination of a Metro Vancouver commissioner.
International company Acciona Wastewater Solutions applied for an order requiring Metro Vancouver Commissioner Jerry Dobrovolny to be cross-examined before a court reporter regarding a 2022 data breach.
The cross-examination would show the extent of the measures taken by Metro Vancouver to “guard the secrecy of the information,” as well as “the ease or difficulty” that information could be acquired by others, according to Acciona.
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Metro Vancouver opposed the cross-examination, arguing it would not yield relevant evidence or serve a useful purpose.
Background
Metro Vancouver, the regional authority responsible for dealing with sewage and drainage throughout the region, contracted Acciona to build a wastewater treatment plant in North Vancouver in 2017.
Metro terminated the deal in 2022, alleging Acciona had breached the agreement.
Multiple claims have been filed since then, with Acciona claiming damages exceeding $250 million and Metro Vancouver claiming damages, costs and expenses exceeding $500 million.
The breach
Three days before terminating the deal, Metro Vancouver’s directors held a closed meeting, in part, to discuss possible litigation, according to a notice of application filed in B.C. Supreme Court.
In May, Acciona revealed the company had confidential Metro Vancouver documents.
Anika Calder, who worked for Acciona, took cellphone pictures of the documents and sent the photos, directly or indirectly, to at least four people, according to the notice.
Calder’s father is Peter Steblin, who was working as Coquitlam’s city manager at the time. Steblin has since retired.
Steblin accessed the confidential closed meeting report by using former Metro Vancouver director and current Coquitlam Mayor Richard Stewart’s ID and password, according to an affidavit provided by Metro Vancouver commissioner Jerry Dobrovolny.
Dobrovolny has stated meeting materials for Metro Vancouver board meetings are confidential and only disclosed to directors, certain Metro employees and other consultants on a need-to-know basis.
Sharing access
In January, Stewart wrote a letter to Acciona and Metro Vancouver’s respective counsels to address the notice of application, stating: “the materials do not accurately set out certain key events.”
Stewart contended Metro Vancouver was fully aware his log-in had been shared with city staff. Coquitlam’s mayor also explained that – based on written comments from various Metro Vancouver staffers including Dobrovolny – Metro Vancouver was well aware of a longstanding practice of Metro directors sharing their log-in passwords with their own staff members.
In 2018, Metro Vancouver helped City of Coquitlam administrative staff when they had trouble accessing the web portal using Stewart’s log-in, according to Stewart.
In response, Dobrovolny stated materials from closed meetings were: “nevertheless to be treated as confidential at all times.”
To the cross-examination
Acciona contended that on several key issues, “Dobrovolny’s evidence conflicts with the letter from Mayor Stewart.”
Metro Vancouver withheld from Acciona and the court, “most of the information” Stewart provided, according to Acciona.
The cross-examination would: “determine the extent that [Metro Vancouver] may have placed misleading affidavit evidence before the court” when it relied on Dobrovolny’s affidavit. That evidence could have a bearing on whether or not Metro Vancouver is “entitled to equitable relief because of the doctrine of unclean hands,” according to Acciona’s application.
The doctrine of unclean hands allows a court to refuse relief to a party that relied on improper conduct to make their claim.
The cross-examination would not result in unreasonable delay or expense, according to Acciona.
Given the pending claim for more than $250 million, two days spent in chambers for cross examination is a: “reasonable, proportionate expense,” according to Acciona.
Decision
Justice Terry Vos agreed, deciding the cross-examination wouldn’t “produce unreasonable delay or generate unreasonable expense,” compared to the claim and counterclaim.
Justice Vos also noted Dobrovolny took steps to prepare a second affidavit, which suggests the evidence in his first affidavit is: “uncertain or incomplete.”
Dobrovolny is required to attend cross-examination.
A trial date has not yet been set.
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