TEHBENCE ITSULLIVAN. Direct: 416 598 3556 raateo Lu' in assets on sense SCOTT ream; ma Gawain I ram 5 - July 26, 2013 GLERN Via Email The Honorable Gerald J. Corneau Chair of the Committee on Internal Economy, Budgets and Administration Ottawa, ON K1A OA4 Dear Senator Comeau: Re: Senator Pamela Wailin As you may know, we are counsel to Senator Wallin in respect of the ongoing investigation into her travel expenses now for the period 2009-2012. i write to you in respect of matters of profound concern to Senator Wallin and to us in your new capacity as Chair of the Committee. The first point concerns what we apprehend to be the intention of the Committee, as disclosed to us by the auditors, to, inter alia, treat the 2012 amendments to the Senate Travel Policy as being more clarifications of existing policy and not representing new policy. We do not know whether the then existing Committee came to this conclusion on its own or whether it represents legal advice- received. In either event, in our opinion, this approach is entirely inappropriate and misplaced both. as a matter of law and as a matter of procedural fairness and natural justice. There is nothing in the terms of the 2012 Travel Policy which says that the policy' applies retroactively. At law, there, is an overarching presumption that any statutory or regulatory enactment does not operate retroactively except when expressed in the clearest and most unequivocal language -- and sometimes not even then. As you know, Senator Mac Herb has commenced an application for judicial review in respect of the determination by the Senate and its Standing on Internal Economy that was made in respect of his residence expense claims. A key coinerstone of that judicial review application (which has been commenced in the Divisional Court of the Superior Court of Justice for the Province of Ontario) is whether it was "unfair, arbitrary and contrary to the principles of fundamental justice" to retroactivelyapply the 2012 en.actme11t to Senator Hath. The issue, then, is squarely before the courts: of this province and it is, with respect, totally Wrong for the Senate Committee or Deloitte, as the auditors charged with investigation Senator Wallirfs expenses claims, to anticipate or -3- presume the result of that judicial review. It is firmly and unequivocally Senator _Wallin's position that the policy does not apply retroactively and like Senator Herb, she will explore all possible legal options if that principle is applied to her in that fashion. The second point we wish to raise and in respect of which we have profound concerns, relates to the analysis of the Senator's expenses against what the auditors may have been told or understand on their own to be "current senate practice" or "senate understanding" as to how travel expenses were to be submitted and reiinbursed. It is obvious that an auditor cannot audit against a standard where there is no demonstrable standard existing. In this case, we have been advised by the auditors that they have only investigated and interviewed Senator Wallin insofar as travel expenses are concerned. In any case involving the contrast of a practice of an individual against What is said to be understood as accepted or common practice within an institution or organization, there must be an established body of fact by which the comparison can be fairly made. In this case, in our opinion, it is beyond contemplation that such an analysis could be made without interviewing other senators, reviewing some of their expense claims during the period of time 2009-2012 or reviewing those through the auspices of the Senate Finance Department in order to determine what was the "common practice" for expense reimbursement among Senators for the time under review. To do otherwise, is profoundly unfair to the Senator and a breach of natural justice to say nothing of rendering any conclusions based thereon totally speculative. We are pleased to meet with you and expand upon any of these concerns should you wish to do so. Yours truly", Terrence O'Sullivan. e?eoee in senate an eehmrraal Economy, Budgets and Administration RECORD OF DECISIONS From 1990 to 2012 The Senators' Travel Policy came into force on June 5, 2012. The policy now includes the Senators' Living Expenses in the National Capital Region Guidelines. Senators' Travel Policy The Chair informed the Committee that at its meeting of May 3rd, 2012, all but one section of the draft Senators' Travel Policy had been adopted. The Committee had agreed that the Steering Committee would review Section 2.4.2 dealing with -travel within 100 kins of a senator's primary residence and bring back a revised proposal for the Committee's consideration. The Committee reviewed the revised Section 2.4.2. of the proposed Senators' Travel Policy and agreed to the following wording. 2.4 Travel Status 2. Travellers shall be considered to be on travel status when they are undertaking Senate~ related travel that takes them at least 100 km away from their prirnary residence. In such cases, travel expenses are charged to the o'4~point travel system. 2. 4.2 Senators who attend parliamentary functions within 100 km (one way) of their primary residence may claim reimbursement of related transportation. In such case, expenses are charged to their research and office expense budget. 2.4.3 The responsibility to provide transportation to or from their residences in the National Capital Region applies to all persons in the Senate workplace, including senators and their staff consequently, there is no provision for reimbursement of such expenses. The Chair informed the Committee this completed the review of the Senators' Travel Policy and recommended that the proposed Senators' Travel Policy be adopted by this Committee and that it come into force at the date of the adoption of the Committee's report in the Senate. Once effective, the new point system Guidelines and the Senators Living Expenses in the National ZL"aptiE;7 Region Guidelines. It is further recommended that Chapter 4:03 of the Senate Adininistrative Rules be amended such that the detailed travel provisions be removed and that authority be given to the Internal Economy Committee to deal with the Travel Policy in the future. It is recommended that the Senators' Resource Guide as well as any other authoritative or reference document be amended to reflect the provisions of the new policy. Senators' vel Policy will re lace the Senators Travel Guidelines, Senators' International Travel 64 g, The question being put on the motion, it was Resolved in the affmnative. AP - Agenda and Procedure SSF - Senators' Services and Facilities . eat some fifi QC 5" - FiieNo:12339 A ITSULLEVAN LAX CPSULLIVAN scan uses up Suite 145 King Street West 1'orcnto0N MSH U8 Canada Tel: 416 598 H44 Fax: 416 598 3130 July 22, 2013 Via Email Mr. Alan Stewart Deioitte 33 Yonge Street, Suite 210 Toronto. ON MSE I04 Dear Mr. Stewart: Re: Senator Pamela Wallin I write in connection with the recent interview which you conducted with both Renee and Senator Waihn concerning, inter alia, the caiendar that was created for the purpose of assisting Deioitte durfi_ri?_g. its current. irwestigation of Senator travei expenses. Both Senator Wailin and Ms Montpeilier were extrerneiy concerned that you appeared to suggest that the calendar which was created for the purpose of assisting you was somehow created for the purpose of misleading the Deloitte team. Nothing could be further from the truth. The catendar spreadsheets that were created for Deloitte were prepared for two purposes: 1. To ensure that Deioitte had all retevant Senate reiated information with respect to Senator WaIiin'"s travei and expenses; and 2. To ensure that those with the legitimate expectation of privacy with respect to their dealings with Senator Wailin had those privacy protected. The latter point was particulariy important to Senator having regard to the unprecedented nature of the ieaks which has accompanied any document given to or passed through the hands ofthe Audit Subcommittee. Very eariy on in the process. the Senator's Office met with Senator David Tak.chuk_._ then Chair of the internai Economy Committee, whose advice concerning" the preparation of materials for Deioitte was to keep things as focused. organized and as clear as possible and from that discussion the decision to create the calendar spreadsheets for Deloitte was made. These spreadsheets took an enormous amount of time and effort and our firm was invoived in not only the decision to create them (which we thought was appropriate for ah the reasons) but in reviewing them before they were sent. Under no circumstances was there any attempt to hide the purpose of the Senator's business trips but rather to provide Deioitte with as much day-to-day information as was required for your purposes. Matters such as private dinners, doctors appointments, board meetings and attendances at the University of Guelph were not supplied in the spreadsheets (although they remained on the Outlook calendar) for the reasons noted. Even then, entities like Gluskin Slieft', Porter Airlines and the University of Guelph were subjected to unnecessary and unwanted attention with respect to events that had nothing to do with them. As is obvious and was acknowledged in all meetings with representatives of Deloitte, the Senator often had private or personal meetings while travelling on Senate related matters. It was not unusual for her nor for any other senator to have that experience. Oniy where the trip involved appropriately related Senate business were the expenses cliarged to the Senate, although, as we have acknowledged, administrative errors were made and when discovered reimbursement was made. Your report will certainly inipact upon the Senator's reputation, her standing within the Senate and perhaps even her to continue to sit in the Senate. It will aiso be the subject of carefui review by the RCMP, as we have seen from the Senator Duffy situation. If there is any concern on the part of Deloitte that what was done was a deliberate attempt to conceal or obfuscate in any way, my client and all associated with the preparation of the spreadsheets are prepared to provide affidavit evidence or a statutory declarations indicating why this was done and the fact that it was intended to assist Deloitte. We iook forward to hearing from you. Yours truly, Terrence O'Suilivan ei eifiw 2 2 - a -'fi SE3 15% Rte Ween .2 an .1 auu-aw ran em>> o.-er ea rename Lsu Qf i 6 . ks-3 a we no mun 0. mEpU.3..i.{ File ND: l2339 LAX mu U888 11.? - Suite 2?50. 145 King Street was: mmnmore Mei we {ianada I ialz 4lfi 593 1744 Fax: 438 538 3?38 May 24, 2013 via Email Seneter.' David Tkeehuk Chair of the Senate Committee on Internal Economy, Budgets and Adznixiistratioii Ottawa, KJA CA4 Dear Senator Tkaehuk: Re: Senator Famela 'Wallin As yeu are aware, we are Seneier Wallis: and are Writing this letter at her request". As yet: are 3130 aware, ever ihe last several weeks, there have been at number' of news steriee including these in the 'l'ei'ente- Star, the Hill Times and en CW, which make more than ebvious that information relating t0 the inv'estiga.'ziezi of my elienfs travel. expenses has been systematically and purpesely leaked tethe media. It is also ebvieus that these l.eak.s have to heave eeme from either a memberor members of the Committee or these asseeiated with members of the Cemmittee since no one else has lied access t0 the i.iifeimat.i0n. Pursuant ti} Appendix 4 of the Rules of the Senate of Canada, Senator Wellin hereby dereende that the Committee investigate the circumstances surrounding these leaks and advise the Senator and Chamber of the House as to its results. ihirsuant to Subparagraph of Appendix 4, we expect the Committee will immediately report he the Chamber that it is eemmencing such an inquiry. C'enti.1iui.ng deliberaie leaks of confi.denti.e.l inforrnetien associated with thie Committee imperils not only the reputation of my client but the operation {if the Senate and the ietegity of the Cemmiitee itself. Nething can be mere fundamental is the operation of gevemrnent, including the Senate, than inquiries which are undertaken with a premise of confidentiality being maintained in een.fidenti.ai.i.ty. The matter is an e:sitremely serious one and we expect year immediate response. We have eepied this letter Speaker and Miciiei Patrice, Bepuiy Law Clerk and Parliamentary Cfeunsel. We await your reply. Terrenca O'Su11ivar: Senator Kinsella, Speaker ofthe Senate Michel Patrice, Deputy Law Clerk and f'a1'liamentaI'y Senatm' Pamela Waliin to Senate eta S-ease? QEPUTY CKERK EVIDENCE OF LEAKS The following are just some of the leaks that have occurred since the investigation into Senator Wallirfs expenses began. In each and every situation it is clear that the source cited has had access to information from the Senate Committee on Internal Economy, Budgets and Administration and, in particular, the Audit Subcommittee thereof: 42.2.: Leaks Comment "The Senate is auditing Senator Pamela Wallin for hundreds of thousands of dollars in travel expenses over the past three years, CTV News has learned". CTV News, February 12, 2013. Source told z.'l1.alabouI 70percen? cf Wollin 'sfl1'ghrs were to Toronto, where she also owns a home. Sources say a former broadcaster, oflered topay some oftlte money back after she was questioned by a Senate com.m17ttee. But insider': say the committee refused and hired accounting firm Deloitre to irivestigete her expenses". - Clearly, the source had to be a member(s) or ex-officio 1nen'1ber(s) of the Senate Committee or its Audit or Steering Subcommittees, or an employee of the Senate Finance Directorate. "Senator Wallin repaid some expenses before audit" CTV News, Feb 25, 201.3. "Conservative Sen. Pamela Wollin paid back a 'substantial amount of money she claimed in expenses before meeting with auditors to discuss her travel spending, has learned. source that about 70 per cent of Wallin 'sflz'glits were to Toronto, where she also owns a home. "But an insider told Fife that Wollin struck a deal to pay back some money in expenses before auditors were called in. This irifomiation was only avai.labl.e to the Committee, the Audit and Steering Subcommittees and Senate Finance. It is clear that Fife is referring to people who had direct access to that information. "Pamela Wallin forced out of Tory caucus over prelimioary audit results", CTV News, May 17, 2013. "Prime Minister Stephen Harper forced Senator Pamela Wollin our oftlze Conservative caucus after learning the prelimin::ojyfindz'ngs of an audit looking into her travel expenses, has told CT I/News. Wollin z's-Sued a statement Friday evening saying she has recusea? herself from the caucus as she awaits the results ofrlie external audit. But a source told Ottawa 1, along with Senator Wallio, was a party to the conversations with the PMO and Senator LeBreto11 which led to Senator Wallirfs "recusa from the caucus. It was clear that Mr. Novel: of the PMO had been informed by Senator LeBretor1 and possibly by others associated with the Committee or Subcom1'ni.ttees of the developments in the investigation. into Senator Leaks Comment Bureau Chief Robert Fife that the audit has already raised serious questions about Waliirt 's spending, which bivalves hundreds ofthoasands of dollars. "Insiders told ife that Walla: repaid $25,000 before the forensic audit began. She has since returned about $15, 000 more to taxpayers, but sources say she wi 11 iikeiy have to give more money back. Wallin's ease to that point. Although there was an agreement arrived at with Mr. Novak and Senator LeBreton as to the wording of the stateznent_that Senator Wallin had reeused herself from the Senate (and, in fact, the headline and article was translated into French by the PMO), Senator LeBreton, not more than 10 minutes later, issued her own press release saying that Senator Wallin had resigned from the caucus not true -- thereby demonstrating as an ex-offioio member of the Committee her animus towards Senator Wallin. "Sen. Pamela Wallin, target of expense audit, latest to leave Conservative cameras", Canadian Press, May 17, 2013. source teiis he Canadian Press that Waliin was told by Prime Minister Stephen Harper that she could not stay in caucus. "Sources, who spoke on condition of artorzvmitv because they were not authorized to sgeait say the external auditor has decided to extend its exam.irIation of Wailirfs expenses, going back to her appointment to 2009. The only way the PMO or anyone else outside the Committee or its Subcommittees could have been informed of any developments involving Senator Wellin and the Deloitte investigation was from members of the Committee, its and/or Senator LeBretoz1 who communicated that information to them. "Probe into Wa11in's expenses widens", Joanna Smith, Tonda MacCharles, Toronto Star, 24 May 2013. he Senate asked exterrtaf auditors examining the travel expenses of Sen. Pamela Wallirz to broaden their irtvestigatiorz over concerns she was claiming refimdsfor activity unrelated to Senate business, the Star has learned. "Senators on the subcommittee believed what they heardfrom the auditors about Wailin was incortciasive, but the travel? expenses dispiayed or pattern they found concerning enough to recommend lengthening the iimeframe by one year. "Those irtitiaifindings suggested 'a pattern ofolazming Senate expenses on persona! or other business unrelated to the Senate, The "Senate" referred to in this article is clearly the Audit Subcommittee. A member of the Subcomaiittee is, in effect, quoted in this matter as no details were put on the record by the Subcommittee or its Chair. The "source" to the Toronto Star is clearly a member of the Subcommittee and/or a staff member acting on. a Subcommittee memher's instruetioris. Leaks '2 Comment including boards Wallin sits on, 'said one source who spoke on the condition ofanonymitv in the absence ofaathorization to discuss the Wallin matter. Senate expense scandal: Committee to question Deloitte auditors, Joanna Smith, Toronto Star, June 6, 2013. source confirmed Wallin has reimbursed the federal government $38,000 so far, but Wallin has not responded to recent questions about the contents of the external review of her expenses or the reports of repayment, explaining she will comment only after the report is released. This i.nforn1at1'on is to the same reporter as in the previous Undoubtedly, the source is the same person. "Pamela Wellin could pay back another $20,000 in expense claims", CTV News, June 6, 2013. "The Saskatchewan senator has already repaid $38,000 in travel expenses she claimed over the last 19 months, as CTV's Ottawa Bureau Chief reported in May. Just last month alone, the embattled senator reimbursed taxpayers almost 000 for a personal trip that she had improperly billed the Senate. According to sources a Senate committee was told Thursday that Wallin may have to pay up to $20, 000 more. "Insiders told Fife that Wallin repaid about $25, 000 before the forensic audit' even began. In this example, the sources refer to a Senate committee meeting that had. just happened, which would be the Internal Economy Committee meeting on June 6th. It is clear that Mr. Fife's sources were then and have continued to be members or those associated with members of the Committee, its Subcommittees or employees ofthe Senate Finance Directorate. Senate repayment amounts from Herb, Wellin could rise, Kim Maokrael, Globe and Mail, June 8, 2013. "Ms. Walliri 's audit is not expected to be complete until the middle of the summer. But a source familiar with the review of her claims said she is likely to owe at least another $20, 000 in expenses, in addition to the money she has repaid so far. Sources said she is co--operating with the auditors. "Bat auditors looking at her expenses raised questions about some of Ms. Wallin claims for trips between Toronto and Ottawa, including some that appeared to have no connecting trip to Saskatchewan, the source said. This is to the same effect as the other examples which precede it and shows a continuing pattern of conduct. Investigator dismisses Toronto homo", Jordan Press, Ottawa Citizen, June 8, 2012. "glccordirgg The '.'Sonate source" here is again someone who is familiar with the Leaks Comment to a ?erzate soaroejamiliar with the review of her travel, auditors have focassed on a high percentage of her travel between Ottawa and Toronto. That travel pattern wasflagged and tracked by Seaatefiaarzce stay?" for about one year before a formal audit into her three-<> Post-media News, suggests that without looking at expense claims and receipts from third parties, the auditors couZdzt't sayfor certain whether any doable-J3iZlz'ng had taken piaee. 'Detoitte had to obtain and review information fiom third parties regarding other possible Source-.5' some of which is still outstanding and has been indicated by third pat'tie.s that the irtformatt'on shozdd be provided by the end ofifmte 2013, the auditors wrote. 'As such, reporting without this information would not be appropriate. 16. "Pamela Wellin says she doesn't have 3 health card", Kim Mackrael, Globe and Mail, June 26, 2013. "Senator Pamela could not provide a copy ofher heaith card to the Senate because she was denied coverage in both Ontario and Saskatchewan, according to a letter the seat to Serzate administrators. The letter, sent in response to a Senate request for updated information on Ms. Waliitt is residettces, also notes that the Saskatchewan senator did not vote in the last federal, provincial or muaicipai elections because of her schedule. A date stamp on the document irtdicates that it was processed by the Senate at the begitming ofMay. This letter referred to herein was sent to the C1er1<'s Office. Circulation was Very limited The recipients of that letter include the source or sources of the leak and members of the Subconunittee. Maureen Costello From: Terrence O'Sullivan Sent: May-18-13 10:10 AM To: . Subject: Statements As you know I am Senator Wailin's lawyer. in 40 years of practice I have dealt with some of the most senior business and government leaders in North America>>! am unaccustomed to being deceived and do not intend to start now. You both agreed to the wording of Senator Wa||in's statement, the headline and the french translation in an email chain which have kept--not 10 minutes later Senator LeBreton issues a statement putting the lie to our carefully crafted statement. 3 raised this issue with you yesterday afternoon but have not hadthe courtesy of a reply. Before i do anything I am prepared to hear from you if you reply in a timely way. Sent from my B|ackBerry Wireless Device eet game new new EUR113, Maureen Costello Terrence O'Sul!ivan - 3 5:1 enema !N:3"Ja1k7 gay' 1 PM Subject: RE: Statement Why does Senator LeBreton's statement say Senator Waliin has resigned from the caucus when we agreed not 10 minutes ago to use the word recuse? Terrence Partner 1 Mediator Arbitrator oirect: (416) Scott Lisus LLP Suite 2750, 145 King Street West Toronto ON M5!-l 118 Canada 415 598 H44 416 598 3330 This email message is confidentiat, may be privileged and is intended for the exciusive use ofthe addressee. Any other person is strictiy prohibited from disclosing, distributing or reproducing it. if the addressee cannot be reached or is unknown to you, please inform us immediately by telephone at 416 S98 1744 at our expense and deiete this email message and destroy all copies. Thank you. From: Novak, -Ray Sent: May-17-13 5:47 PM To: Terrence Vali?e, Cari Subject: Re: Statement Has this been sent to the foil Senate email tist also? Original Message From: Novak, Ray Sent: Friday, May 17, 2013 05:32 PM Eastern Standard Time To: Vall?e, Carl Subject: Re: Statement Can be emailed to: guiElt@pari.gc.ca lafraco @133 rl.gc.ca Original Message From: Novak, Ray Sent: Friday, May 17, 2013 05:29 PM Eastern Standard Time - To: Vali?e, Carl Subject: Re: Statement Please issue english now with note french to follow. Adding Carl vallee here to comment on 'retired. Original Message From: Montpellier, Renee Sent: Friday, May 2013 05:26 PM Eastern Standard Time To: Novak, Ray; LeBreton, Marjory 'Terrence toronto.com> - Subject: RE: Statement Upon review -- the translation provided uses the word retirer which translated in English is "to remove" we would like the word recuse used From: Novak, Ray Sent: Friday, May 17, 2013 5:18 PM To: Montpellier, Renee; Lelareton, Marjory; Subject: Re: Statement Here is French: 3e pa rticipe au processus d'audit exteme depuis d?cembre 2012 etfeii collabor? entierement et de plain gr? aver: les v?rificateurs. J'ai rencontr? les v?rificateurs, r?pondu a toutes leurs questions et fourni tous les documents demand?s. Je nfattendais ce que le processus d'audit soit maintenant termin?, mais ?tant donn? qu"il se poursuit, j"ai d?cid? de me retirer do caucus conservateur et de m'a bstenir do formuler tout autre commenteirejusqu'e ce que ie processus d'audit soit termin?. Original Message From: Novak, Ray - Sent: Friday, May 17, 2013 05:08 PM Eastern Standard Time To: Subject: Re: Statement Yes, we will send french back shortly so you can issue at 5:30. Thanks you Original Message From: Montpellier, Renee Sent: Friday, May 17, 2013 05:08 PM Eastern Standard Time To: Lefilreton, Marjory Noyak, Ray; 'Terrence 0'Sulliyan' toronto.com> - Subject: RE: Statement Can you please send us a copy so we have a transiated version. Thank you. From: LeBreton, Marjory Sent: Friday, May 17, 2013 5:06 PM To: Renee Subject: RE: Statement We will do it. Thanks Marjory From: Montpellier, Renee Sent: Friday, May 17, 2013 5:06 PM To: Leflreton, Marjory; 'Terrence O'Sulliyan' Subject: RE: Statement No -- we have no translation available at this hour. From: Lefireton, Marjory Sent: Friday, May 17, 2013 5:04 PM To: Montpeilier, Renee Subject: RE: Statement What about translation? We can do it here if you have not done so. From: Renee Sent: Friday, May 17, 2013 5:02 PM To: !.eBreton, Marjory; 'Terrence Subject: Statement On behaif of Senator Waliin have been ?rwol\/ed in the external audit process since December 2012 and ihaye been cooperating fully and willingly with the Auditors. I have met with the auditors, answered all the questions and provided a?l requested documentation. I had anticipated that the audit process would be complete by now, but given that it continues, I have decided to recuse myself from the Conservative Caucus and I will have no further comment until the audit process is complete. Renee Montoeliier Executive Assistant Office of the Honourable Pamela D. Waliin, DC, SUM Senate of Canada Room 521, Victoria Building 3 140 Weilirzgton Street Ottawa, Ontario KIA OA4 T: (613) 947-4097 F: (613) 947-4091 M: (613) 213~937(1 E-mail: