Canadian judge dismisses Brown, Burgess lawsuit against civil servant

  • Permanent Secretary Robert Horton  holds up one of the bogues cheques during a press conference in February 2009.

    Permanent Secretary Robert Horton holds up one of the bogues cheques during a press conference in February 2009.


A $2 million lawsuit brought against a civil servant by former Premier Ewart Brown and former Deputy Premier Derrick Burgess has been dismissed by a judge in Ontario.

The two politicians sued Lawrence Brady for conspiracy and defamation, claiming he and a Canadian architect hatched a plot to implicate them in a “kickback” scheme involving the construction of the new police and court building.

Mr Brady, the Government’s Chief Architect when the action was launched, strenuously denied the allegation and applied to the Ontario Superior Court of Justice to have the lawsuit against him dismissed.

Judge Stephen Firestone agreed on Friday, finding that Ontario lacked jurisdiction in the matter.

Mr Brady’s lawyer Aaron Dantowitz said yesterday: “Mr Brady is pleased and gratified that the court has agreed with the position taken by his lawyers that the plaintiffs’ action against him should be dismissed.

“The court’s decision confirms his belief that the action against him was not properly before the courts of Ontario.”

Dr Brown told The Royal Gazette in a statement that he was disappointed but not surprised. “We will move on,” he added.

Dr Brown and Mr Burgess launched their civil action against Mr Brady and fellow architect Sam Spagnuolo in January 2011.

The case related to allegations dating back to December 2008, when copies of two cheques, purportedly made out to the two Progressive Labour Party politicians by contractors working on the police and court building, came to light at the Ministry of Works and Engineering.

Bermuda Police launched an investigation into the “false cheques” and arrested Mr Brady ­— husband of The Royal Gazette’s business reporter Rebecca Zuill and brother-in-law of former editor Bill Zuill — but he was released without charge.

A further police probe in collaboration with the Royal Canadian Mounted Police into the possible involvement of Carruthers Shaw and Partners (CS&P), the Canadian firm of architects for whom Mr Spagnuolo worked, also resulted in no one being charged with a criminal offence.

According to a special report released by the Auditor General last year, the investigation did not reveal any wrongdoing by the firm.

The statement of claim filed by Dr Brown and Mr Burgess alleged that Mr Brady and Mr Spagnuolo, a resident of Toronto, Ontario, conspired to plant the false cheques to defame them.

Mr Spagnuolo, who also strenuously denies the allegation, claimed in his statement of defence that the construction company picked to build the police and court building, Landmark Lisgar, was selected against his company’s recommendations and prompted serious concerns over its handling of the job.

CS&P had its contract with the Bermuda Government terminated in early December 2008, after it began to refuse to approve payments submitted by Landmark Lisgar.

The civil suit against Mr Brady and Mr Spagnuolo came under scrutiny by Auditor General Heather Jacobs Matthews after it came to her attention that more than $30,000 of public funds were used to pay the initial legal costs of Dr Brown and Mr Burgess, who were Premier and Works Minister, respectively, when the cheques came to light.

She wrote in her special report last year: “Public funds were used to initiate a private legal action, which is inappropriate and a direct violation of [government] financial

instructions.

“I cannot comprehend how a personal legal matter could be justified by the Government and its legal adviser [the Attorney General] as a legitimate government matter to be funded out of the public purse.

“In my opinion, this entire situation is deplorable and represents a blatant disregard for the public purse and a lack of transparency and accountability at the most senior levels of Government.”

Government ceased paying for the action but former Premier Paula Cox insisted last year it had been a “legitimate action in the public interest,” the funding of which was “justified as being for a government purpose”.

In his judgement on Friday, Judge Firestone agreed with Mr Brady’s lawyer Mr Dantowitz that the action against Mr Brady “lacks a real and substantial connection with Ontario” and dismissed it. He said if the parties could not agree on costs he would hear submissions.

Dr Brown, who complained to the Foreign and Commonwealth Office about former Governor Sir Richard Gozney’s handling of the cheques affair, said in his e-mailed statement to this newspaper: “Someone — we do not know who — attempted to frame a sitting Premier and a sitting Minister.

“This can only be viewed as a malicious attempt to derail a democratically elected government.

“In many countries, this would be considered treasonous, and would be met by the Government with force, intensive investigation, pursuit and ultimate prosecution.

“This did not happen in Bermuda. Our then Governor did not aggressively pursue the criminals behind this egregious act.

“I suppose we cannot expect Canada to do any more than Bermuda — indeed, England — has done.

“Thus, my disappointment in the decision of the Canadian courts pales in comparison to my disappointment in Bermuda and England’s failure to protect and defend the office of the Premier and a member of Bermuda’s Cabinet. We will move on.”

Mr Burgess could not be reached for comment. A Works Ministry spokesman said he could not comment on employee matters.

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