Shooting the Messenger
31 - The Poisoned Affidavit
(The Tangled Web in the print edition)
Oh what a tangled web we weave,
When first we practice to deceive!
Sir Walter Scott
Dear Mr. Payeur
Re: Bernard Payeur v. Her majesty the Queen in Right of Canada.
“I would appreciate it if you would arrange for your solicitor to contact me to discuss [Evelyne Henry’s Affidavit] … “
Yours very truly,
Andrew J. Raven
Andrew J. Raven was a lawyer with Soloway, Wright, Houston, Greenberg, O’Grady and Morin. Evelyne would have access to some of the best legal advice my union dues could buy to prepare for her Affidavit about her tête-à-tête with Thomas W. Brown.
Andrew Raven was obviously unaware that I was on my own. I had asked a lawyer neighbour, Peter Annis, how much it would cost to get a lawyer to take over. A minimum retainer of $ 10, 000 (at least twice that in today’s dollars) and, if the government decided to use its exhaustive powers (unlimited dollars, unlimited time), the sky was the limit.
I did not have the money, so I crossed my fingers and hoped for the best.
During her deposition, Evelyne’s lawyer would be joined by the renowned John E. McCormick, LL.D. Esq. on behalf of Thomas W. Brown and the Public Service Staff Relations Board; next, Robert Cousineau Q.C. who signed in as the Solicitor For The Attorney General of Canada; last, but not least, Mylène Bourzigon LL.D. of Treasury Board who was the designated cross-examiner of Evelyne.
I was told to sit down and keep quiet while this formidable legal assembly, none of which were there to look after my interest, went about their business.
Pertinent Extracts of the
Statutory Declaration of Evelyne Henry
(My comments are not offset)
I, Evelyne Henry, of the City of Ottawa in the Province of Ontario, solemnly declare that:
… (More formalities.)
3. At the conclusion of the third day of hearing, after all evidence had been introduced, Adjudicator Brown asked if he could speak with me for a moment. In the course of the ensuing discussion, which lasted approximately five minutes, Mr. Brown inquired as to whether or not settlement discussions had taken place between the parties. I indicated that there had been no such discussions.
I won’t quibble about her estimate of five minutes.
4. Mr. Brown indicated to me that, in his view, the introduction into evidence of the letter from the Rt. Honourable Joe Clark, Secretary of State for External Affairs, of May 5, 1985, was such that Mr. Payeur's case and the Adjudication Decision might attract considerable media attention. Mr. Brown expressed the view that, in the event that he should find that the grievance should be dismissed, media attention to Mr. Payeur's case might operate to the disadvantage of Mr. Payeur in terms of obtaining new employment.
If the above is true, then Evelyne was being deceived by the adjudicator. If it’s not true, then we are being deceived by Evelyne.
Thomas W. Brown was troubled about the decision he was about to make, and I don’t believe it was because the media might take notice of the firing of an anonymous public servant and an adjudicator upholding that firing?
The media might notice, however, if he ruled against Foreign Affairs, against Joe Clark as lawyers for Foreign Affairs insisted he would be doing if he correctly found the former Prime Minister’s official’s guilty of gross abuse of power and privilege. This is the type of publicity that Foreign Affairs did not want; the type of publicity that could have had an adverse impact on Thomas W. Brown’s career.
Thomas W. Brown’s outrage towards me after he had bought into Foreign Affairs’ lie that I was responsible and continued to be responsible for the loss of millions of dollars long after my firing, suggests that his concern about my employment prospects were less than genuine.
And there was, of course, the Appraisal From Hell, the biggest obstacle to my finding another job, about which Thomas W. Brown has no opinion.
In her conversation with me, Evelyne was adamant that Thomas W. Brown would rule against me because he was not about to "call Joe Clark a liar."
It's Evelyne's word against mine, but that is not as important as her admitting she knew, minutes after the hearing before Thomas W. Brown ended, that Thomas W. Brown was going to rule against her client and did nothing.
Before the Federal Court will hear your appeal, you have to provide it with your arguments in writing; it's called A Memorandum of Points of Arguments. The same is required of the Respondent, in this instance, Treasury Board (Foreign Affairs).
In their Memorandum of Points of Arguments prepared by Bouzigon, Treasury Board hazards that Joe Clark’s letter probably influenced Thomas W. Brown’s decision but that the point is moot since neither my representative or myself asked the adjudicator to disqualify himself after he admitted to being concerned about the impact of the letter.
10. The applicant was immediately informed of the content of this conversation and at no subsequent time did the applicant or his representative request that the Adjudicator consequently disqualify himself from the case.
Cross-Examination of Evelyne Henry, Transcript added to the case by Order of the Court dated December 12, 1986.
I was not aware that this was an option, but surely Evelyne was. If she knew this was an option and did not exercise it, even after the adjudicator told her he was ruling against her client, then her ethical lapse is doubly inexcusable.
Of not minor importance, by including the argument that we could have asked Thomas W. Brown to recuse himself as part of their memorandum to the Federal Court, lawyers for Treasury Board are admitting that they pulled a fast one when they dropped Clark's letter on Thomas W. Brown's lap and expected the Court to take them to task for doing so.
Evelyne and Thomas W. Brown might have been willing to compromise their ethics but I wasn’t, and for this, in her affidavit, Evelyn takes me to task for not seeking a compromise with people for whom I had lost all respect.
6. At the conclusion of this brief conversation with Mr. Brown, I agreed I would attempt to discuss Mr. Payeur's grievance with Mr. Payeur. In subsequent discussions with Mr. Payeur, he said he was unwilling to compromise ….
If I was guilty of insubordination, as the adjudicator ruled, then I should not be entitled to any settlement, so why would Thomas W. Brown even make such a suggestion unless he knew I was not guilty of anything.
Maybe his conscience was troubling him!
To a question from Bouzigon of Treasury Board, as to what were her “impressions of this conversation,” (as a professional she had to know or at least anticipated what Evelyne’s response to her question was going to be) Evelyne replied:
My impression is that Mr. Brown wanted the parties to get together and work out a settlement, and thus the matter would be resolved without him having to make a decision. And I think he was trying to help both parties resolve this matter.
Cross-examination of Evelyne Henry on her Statutory Declaration in the matter of Bernard Payeur and HER MAJESTY THE QUEEN IN RIGHT OF CANADA, page7.
Evelyne’s recollection of Thomas W. Brown admitting to her that he did not want to render a decision is again obviously accurate. As to the why?
You know why!
Evelyne going out of her way to flatter and praise her adjudicator meant that her declaration, for the purpose of an appeal of Thomas W. Brown’s decision to the Federal Court of Appeal, was less than useless, but I did not know that.
Evelyne had access to excellent legal advice. She knew exactly what she was doing.
In her Affidavit, Evelyne clearly indicated where her loyalties lay. She sacrificed a client to save a friend.
Evelyne could be as diplomatic as she wanted; the conclusion would always be the same.