Defence can question former West Nipissing public works manager in fraud lawsuit, judge rules
The defence can question a former public works manager in West Nipissing, a judge hearing a $450,000 lawsuit connected to fraudulent invoices has ruled. (File)
SUDBURY -- The defence can question a former public works manager in West Nipissing, a judge hearing a $450,000 lawsuit connected to fraudulent invoices has ruled.
The suit, launched in 2016, is the civil end of a case in which criminal charges were laid and town staffers fired in connection with fraudulent invoices submitted by MX Constructors Ltd., a local construction company.
While the criminal cases have wrapped up, the civil suit is slowly making its way through the court system.
West Nipissing alleges:
- That MX submitted two invoices in the amount of $12,964.13 each in connection with unrelated projects to obtain payment of $25,928.26 in connection with a Dura Patcher machine that the plaintiff had previously refused to pay.
- That MX billed for more winter sand than it supplied.
- That MX billed for more granular material than it supplied on four road projects, namely Michel Road, Bear Lake Road, Promenade du Lac, and North Shore Road.
- That MX only completed 50 per cent of the work for which it billed on the Cache Bay sidewalk replacement project.
As part of its defence, lawyers for MX want to cross-examine Marc Gagnon, one of two senior public works employees with the town who were fired when the scandal emerged and later faced fraud charges.
"In November 2017, after this action was commenced, Steven Morrison, the directing mind of MX, pleaded guilty to charges of fraud and uttering a forged document," the court transcript of the suit said. "During the hearing, he admitted that Mr. Gagnon was involved in those crimes."
But lawyers for West Nipissing argued that the defence has failed to show Gagnon has relevant evidence, or that they can't get evidence from him without examining him.
"Counsel for the plaintiff also submits that, because the defendants have failed to establish the relevance of Mr. Gagnon’s evidence, the defendants also cannot establish that it would be unfair to require them to proceed to trial without it," the transcript said.
Dura Patcher pothole repair But the defence argues that it was Gagnon who directed MX to bill the town for the Dura Patcher pothole repair machine.
Dura Patcher pothole repair
"The defendants have pleaded that MX was directed to render the two invoices in question and the evidence indicates that, if true, it would have been Mr. Gagnon who so directed them," the transcript said.
"Although the defendant, Steven Morrison, pleaded guilty as the directing mind of MX to criminal charges in relation to these invoices, counsel agree that the defendants are not precluded from defending the civil action on the basis that MX was directed by Mr. Gagnon to do what it did."
While there's no evidence Gagnon has knowledge about the remaining three allegations, the judge ruled the defence should have the opportunity to ask.
"Like any witness who has evidence to give regarding one issue, the defendants should be free to examine Mr. Gagnon regarding the other issues to determine whether he has relevant evidence to give on those issues, as well," the judge ruled.
The judge also ruled that Gagnon should be questioned, under oath, before the trial begins.
"In my view, given the central role Mr. Gagnon played in the facts of this case and his status as a witness who might be adverse in interest, or even hostile, to both sides of the dispute, this is one of those extraordinary cases in which his evidence should be taken prior to trial," the transcript said.
"It would be unfair to the defendants to have to call him or face him as a witness for the plaintiff without knowing what he is going to say."
None of the allegations has yet to be proven in civil court. Read the full transcript here.