Supreme Court justice chastises auditor general's office for trying to quash subponeas

·3 min read
Thursday's ruling means lawyers for two former IWK executives will be able to subpoena two more people from the Office of the Auditor General of Nova Scotia.
Thursday's ruling means lawyers for two former IWK executives will be able to subpoena two more people from the Office of the Auditor General of Nova Scotia.

(Robert Short/CBC - image credit)

A Nova Scotia Supreme Court judge took the auditor general's office to task Thursday for putting financial concerns ahead of the trial rights of two former IWK Health Centre executives.

Justice Mona Lynch said she had "grave concerns" about the position taken by the auditor general and dismissed the office's application to quash provincial court subpoenas for two members of its staff.

Lawyers for former IWK CEO Tracy Kitch and former chief financial officer Stephen D'Arcy want the employees to testify as part of a third-party records application. A lawyer for the auditor general argued they had already put forward witnesses and thousands of pages of documents and the only information being held back was subject to privacy concerns.

To ask for anything more amounted to "a fishing expedition" that would create unnecessary work for the office, said lawyer Jamie MacNeil.

Rights trump concerns

Lynch didn't see it that way.

"The time, effort and expense concerns raised by the Office of the Auditor General pale in comparison to constitutionally-protected rights of the accused," she said in delivering her decision.

"The Office of the Auditor General could have voluntarily put forward 100 witnesses, but if they weren't the appropriate witnesses it is not useful to the proceedings."

The former executives' lawyers wanted the additional witnesses following hearings late last year in an attempt to get more information as they prepare for trial. Of particular interest is who the office interviewed for its performance audit of the health centre.

The two days of hearings went nowhere after the only witness put forward, acting Auditor General Terry Spicer, said he had no information about the work conducted because he recused himself on account of his wife working at the IWK.

'Disingenuous' complaints

Former auditor general Michael Pickup testified at the request of Kitch's lawyer, Jacqueline King, but he was also not directly involved in the performance audit.

Lynch noted in her ruling that on multiple occasions the judge in the matter, Elizabeth Buckle, commented that they didn't seem to have the appropriate witnesses and that even MacNeil agreed and indicated someone more appropriate could be made available.

It was "quite surprising," then, that the auditor general's office decided to fight the subpoenas, said Lynch.

"Now to complain that the witnesses they put forward were enough, I find disingenuous," she said.

Application process to resume

If there are privacy concerns about the information in the documents yet to be disclosed, that's a decision for Buckle — not the auditor general — to make as she weighs whether to release them to D'Arcy and Kitch's lawyers, said Lynch.

In dismissing the application, Lynch awarded costs of $1,575 and $1,642.43 in expenses to D'Arcy's lawyer and costs of $1,000 to Kitch's lawyer. The ruling means the third-party records application is expected to resume next month.

Kitch is charged with theft over $5,000 and breach of trust. D'Arcy is charged with breach of trust, unauthorized use of a computer and mischief to data.

The two resigned from their posts in 2017 following an investigation into the personal use of corporate credit cards.

A report by Grant Thornton showed Kitch charged the hospital $47,000 in personal expenses, all of which she paid back. In December in court, King referred to production orders by police that say their investigation focused on about $13,000 of those expenses.

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