April 28, 2010

No More Mr Nice Guy

By Melvin J Howard

I had to laugh watching an online news story the other day focussed on the terrible conditions patients had to endure in the British Columbian hospitals, waiting long hours, sleeping in the halls, and receiving subpar medical treatment. After the initial laughter of the story subsided, I was saddened and one may say even angry over the situation. This does not need to be the fate of health care in British Columbia. Furthermore, the government agrees with me. In fact, less than one year ago, Kevin Falcon, the British Columbian Health Minister, is quoted in the National Post saying, “I think choice is a good thing and reducing it is not a good thing." (To read more: http://www.nationalpost.com/news/canada/story.html?id=1731220#ixzz0mQUN4pxG)

If choice is such a good thing, then why did the government stop me from building my hospital? From the very beginning I have had numerous of issues with the Province of British Columbia and the federal Government of Canada in trying to build my hospital, but the lies and corruption are really coming to light during the legal proceedings that have followed. Allow me to draw your attention to some of the issues I have encountered while trying to legally challenge the Government’s actions in the NAFTA Chapter 11 process.

In business, before any negotiations takes place, there is a tone to be set. The Government of Canada set a tone showing me how little respect I was being given and how low on the priority level I sat.

On January 22, 2009, I received a letter from the Government of Canada, requesting I meet with their representatives in Ottawa to try to settle the claim through negotiations and consultations. Under NAFTA Article 1118, this is protocol. I had received a similar request prior to this and denied it due to a belief that it would be a waste of time. However, on this particular occasion, I decided that it would be only fair to hear what they had to say and I agreed to meet with them.

The date, time and location were set, by the Government of Canada’s representatives. I cleared my schedule, flew to Ottawa, and was there, ready to meet with them. The only hitch in this plan was I was the only one who showed up. Yes, that is right, they stood me up. Ok, that is not exactly how it happened. Representatives of the Government showed up, but the lawyer acting on behalf of the Government of Canada, Ms. Sylvie Tabet, Deputy Director Trade Law Bureau, did not. Apparently, it is acceptable to expect me to drop everything and fly thousands of miles to meet them, but the key players in the case cannot be bothered to walk across the hall to meet with me. Needless to say, I was not impressed.

But wait, there’s more…

Ms Meg Kinnear was the original lawyer representing the Government of Canada in the proceedings between my companies and the Government of Canada. Over the course of these proceedings, she was granted the position of the Secretary General of the International Centre for Settlement of Investment Disputes (“ICSID”). Ironically enough, in this position she is the appointing authority of these particular NAFTA proceedings. That means she decides who the arbitrators for my case, if there is a challenge.

To say I was not impressed with how the situation with Ms Kinnear was handled would be an understatement, but wait, there’s more…

Of the appointed arbitrators for the case, one was Mr Henri Alvarez. Mr Alvarez works for a very large and successful law firm, Fasken Martineau. It is a firm that has been known to take on high profile cases in a number of different fields. Prior to accepting his appointment, Mr Alvarez did a conflict of interest search on the parties involved in the case to ensure there was none. After performing the search, he claimed there was not conflict of interest.

One thing he forgot to mention was that his law firm was involved a lawsuit between Canadian Independent Medical Clinics Association, Cambie Surgeries Corporation, Delbrook Surgical Centre Inc., False Creek Surgical Centre Inc., Okanagan Health Surgical Centre Inc., and Ultima Medical Services Inc. as the Plaintiffs and Medical Services Commission of British Columbia, Minister of Health Services of British Columbia and Attorney General of British Columbia as the Defendants. It is true, Fasken Martineau is a large law firm, and it has offices all across Canada and in other countries in the world. It is reasonable to assume that if Mr Alvarez was from the Paris law office, perhaps he was unaware of this case within his firm. However, that is not the case in this instance. He works out of the Vancouver law office, the very same office that this case was represented from. I would like to see the results of a lie detector test when Mr Alvarez claimed he had no knowledge of such a case being tried from his office.

But wait there’s more…

After I was informed by one of my colleagues of this conflict of interest Mr Alvarez did not claim, I challenged his objectiveness to the case. In order to challenge his appointment, I was required to send a letter and $10,000 to the Secretary General of the ISCID, yes, Ms Kinnear. On the same day of receiving my challenge, not 24 hours later, Ms Tabet, writes a letter to Ms Kinnear, where she states “in order to avoid potentially unnecessary costs, Canada requests the Secretary General confirm receipt of the challenge and the required fee before establishing a schedule to receive submissions on what Canada believes to be a frivolous challenge to Mr Alvarez.”

Now, is it just me, or do you find it a bit unprofessional to write a letter to your previous boss (yes, before she was elected to Secretary General of the ISCID, she was Ms Tabet’s boss), suggesting how she handle a case that she used to be involved in, and providing judgement on how the challenge should be handled. To state that my claim is frivolous is not for her to determine, nor suggest to the person who is supposed to be determining the decision, whom you have a past professional relationship with.

Oh what a tangled web we weave.

This should give you a little insight into the frustrations that I have had to deal with in this ‘judicial’ process. If you would like to follow up with any of this, official letters of correspondence can found at https://vip.soonr.com/share/Groupboss/Melvin-J.-Howard%2C-Centurion-Health-Corp.%2C-%26-Howard-Family-Trust-v.-Governmen

To end this post, I will leave you with a cartoon: