The Hamm government’s decision to appeal a Nova Scotia Supreme Court judgment awarding former gambling boss Ralph Fiske $300,000 plus costs and interest for wrongful dismissal illustrates a problem that has too long evaded serious attention by provincial governments of all political stripes.
It is a problem dating back at least as far as the Buchanan government, but it equally beset the regimes of Roger Bacon, Donald Cameron, John Savage, and Russell MacLellan.
It has cost taxpayers millions upon millions of dollars, delayed all manner of legislative and administrative reforms and, most seriously, forestalled or thwarted individual citizens in their quest for redress of legitimate grievances against the provincial government.
The problem is the legal services division of the Department of Justice, which acts as a law unto itself, bereft of effective checks on its decisions to pursue litigation, no matter how wrongheaded, perverse, immoral, or legally dubious its position may be.
From all outward appearances, the lowliest lawyer in the department can begin an action — or file a defence against an action by an aggrieved citizen. Once commenced, the action becomes an unstoppable legal juggernaut that rolls relentlessly forward through pre-trial motions and discoveries, interlocutory hearings, trial, and appeals ad infinitum, oblivious to cost, to likely outcome, or to the rights and wrongs of the issue.
Whether the opponent be single fathers on welfare seeking the same treatment as single mothers, or worker’s compensation widows seeking the same treatment as their unmarried counterparts, the division appears congenitally incapable of bringing sober second thought to bear on its scorched earth tactics. If there exists a legal strategy by which to parry an opponent, it must be used. If an avenue of appeal remains, it must be taken.
The latest victim of the legal services division is Ralph Fiske, conscientious former chairman of the Gaming Corporation, whose attempt to enforce the province’s contract with ITT-Sheraton Corporation ran smack up against Nova Scotia Liberal Party politics.
ITT-Sheraton won the right to run Nova Scotia’s two casinos on the strength of two promises: a guaranteed $25-million per year for the first four years of the contract, and a massive campaign to market the casinos to out-of-province high rollers.
The company never implemented any massive marketing campaign, in Fiske’s opinion, and it quickly began begging for release from its promise to build a $100-million free-standing casino. The temporary casino had restored profitability to the money-losing Halifax Sheraton hotel in which it was located. Why move it elsewhere?
Fiske’s determination to take the dispute to arbitration had the province’s full support until an annual meeting of the Liberal party attended by Bernie Boudreau and Larry Hayes, a Sheraton lawyer who had recently signed on as official agent for Boudreau’s leadership campaign.
The following day, Bob MacKay, deputy minister of the Premier’s office, summoned Fiske to a meeting where Savage pressured him to avoid arbitration and settle the dispute.
That began a relentless campaign by a cadre of Liberal operatives to thwart the Gaming Corporation’s statutory oversight of the gambling industry — a campaign that eventually forced Fiske’s resignation.
When Fiske told his story to the Public Accounts Committee, a dozen of those Liberal worthies, most of them lawyers, appeared to deny — in vague, non-specific generalities — any untoward political interference. But reams of documents told a different story. Again and again, they backed Fiske’s account.
In Fiske’s wrongful dismissal trial last year, eighteen stalwarts of Nova Scotia’s political, bureaucratic, and legal establishment — former premiers and cabinet ministers, deputy ministers and senior officials of the Gaming Corporation, and a clutch of Liberal lawyers from the province’s best connected law firms — lined up to vilify him.
Justice David Gruchy heard forty-six days of testimony, reviewed 500 documentary exhibits, and digested more than 2,000 pages of legal submissions before concluding that Fiske told the truth and the rest dissembled. He awarded Fiske the salary he would have earned for the balance of his contract and a fraction of his legal costs.
Now the province will appeal on the grounds that it had the legal right to interfere with its arms-length gambling agency in pursuit of the partisan interests of the Liberal Party.
What a disgusting display of political cowardice. What a stunning contrast to the integrity Fiske has displayed.
Will no one rein in this legal monster?
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