Smolik 4 2010 rapidshare

Smolik's first interview, the Office requested from the Commission and Cargill all relevant documents and communications relating to this examination.

Many of the documents received from Cargill were either authored by Mr. Smolik or addressed to him directly, yet Mr. Smolik had not provided many of these documents to the Office in spite of the very general nature of the request. When asked why those documents had not been disclosed, Mr. Smolik testified that a change in the software program at Cargill had caused other employees to lose information and emails; however, he was not sure if he had lost any, and stated that he had submitted what he had found.

While Mr. Smolik first testified that he only learned of the Sarnia terminal's dust issue on February 23, , the documentary evidence produced by Cargill showed that Mr. Smolik became involved in the matter as early as mid-December , after receiving an email from a Cargill staff member who reported directly to him. In an email dated December 14, , the staff member asked Mr. Smolik, in respect of the Sarnia terminal's dust issue, whether there had been any discussions at the Commission about taking measures to reduce dust emissions by applying mineral oil to the grain considering the prohibition to do so in the Canada Grain Act.

Smolik replied later that day that he knew that a group from the Commission had visited grain terminals in the Pacific Northwest to discuss what was being done in terms of the application of mineral oil to grain as a means of dust suppression.

He wrote that he knew the issue for the Commission was twofold: first, whether any oil or water additives would impact the end-use quality or functionality of the grain and, second, whether anything put on the grain could change its official weight.

Smolik admitted that he knew what the issues were by having worked at the Commission. Smolik also recalled that prior to January , he discussed the dust issues that Cargill was facing with the former Commissioner of the Commission who, at that time, had given him notes of his discussions with grain companies.

The documentary evidence submitted by Cargill showed that Mr. Smolik continued to be involved in the Sarnia terminal's dust issue in January by providing advice to Cargill's Senior Lawyer on how to go about raising the matter with the Commission. In an email dated January 9, , Mr. Smolik informed Cargill's Senior Lawyer to contact the Commission's Chief Grain Inspector, noting that he was "in a bit of a tough spot" to do so himself from his work computer as he and Cargill had agreed to a six-month ban on anything relating to the Commission.

Smolik wrote that he had met socially with the Chief Grain Inspector earlier that week and had informed him that he may expect an email from Cargill's Senior Lawyer to discuss the Sarnia terminal's dust issue. Smolik suggested that Cargill's Senior Lawyer communicate with the Chief Grain Inspector quickly as the latter had resigned and would be leaving the Commission in February In the same email, Mr.

Smolik also mentioned that the Chief Grain Inspector would likely include the Commission's Local Operations Supervisor of the Western Region in the discussion as this individual was the lead on the dust issue when Mr. Smolik was at the Commission. Smolik stated that he knew who the Commission's lead on the dust issue was as early as January 9, , and certainly not as late as February 23, , as he had originally testified.

The documentary evidence showed that Cargill's Senior Lawyer, following Mr. Smolik's advice, contacted the Commission's Chief Grain Inspector from January 12, , until late February , concerning the Sarnia terminal's dust issue and the application of mineral oil to grain. The correspondence also showed that, according to the Commission, the Canada Food Inspection Agency CFIA played a role relating to the application of mineral oil to grain.

Smolik, who doubted the necessity to involve the CFIA. On March 1, , Mr. Smolik telephoned the Commission's lead on the dust issue to discuss the current steps being undertaken by the Commission to evaluate the application of mineral oil to grain as a means of dust suppression.

Smolik testified that he had decided on his own to contact this individual. On the same day, Mr. Smolik emailed Cargill's Senior Lawyer in respect of his discussion with the Commission's lead and wrote that hopefully it wouldn't be too long before the Commission had the results of their evaluation on the application of mineral oil to grain. In early April , during an Ontario Agri Business Association meeting, Commission officials informed grain companies that the Commission was on target to complete its evaluation of the application of white mineral oil to grain as a means of dust suppression.

This information was shared with Mr. Smolik on April 6, On May 16, , Mr. Smolik sent an email to the Director of Industry Services at the Commission and wrote that it had been nice to see him socially. Smolik asked for an update and a timeline on a decision relating to the application of mineral oil to grain.

He wrote that Cargill was facing severe penalties due to dust emissions, and the company's mitigation measures were limited by what was permitted under the Canada Grain Act. Smolik also asked whether the Commission would grant an industry-wide exemption should the organization be permitted to apply mineral oil to grain or if individual requests for exemptions would be required.

The Director of Industry Services replied that the matter was still being evaluated. Smolik testified that he knew to reach out to the Director of Industry Services as the latter would be more in the know concerning the results of the evaluation of the application of mineral oil to grain as a means of dust suppression at the Commission.

Smolik also testified that he reached out to the Director of Industry Services because the resolution of the matter was becoming time sensitive for Cargill, as applying mineral oil to grain would require the purchasing and installation of specialized equipment before the fall harvest. On May 21, , Mr. Smolik forwarded the Commission's Director of Industry Services' response to Cargill's Senior Lawyer and indicated that he "will continue to push a little harder now on in. Smolik attended, he asked a Commission representative, who was also in attendance, for an update regarding the Commission's decision on the application of white mineral oil to grain as a means of dust suppression.

The Commission's representative informed participants that more testing was required. Smolik and other staff that Mr. Smolik had been following up with the Commission on its decision regarding the application of mineral oil to grain, and according to him, the Commission had stalled on rendering a decision. The Senior Lawyer wrote that, as a result of the delay, Mr.

Smolik suggested that Cargill "push" the issue forward by making a formal application to the Commission to request an exemption under the Canada Grain Act to permit the application of white mineral oil to grain at the Sarnia terminal. The Senior Lawyer wrote that he believed this was a good idea. During his first interview, Mr. Smolik testified that he was not aware of how Cargill came to know that it could request an exemption to apply white mineral oil to grain, but that under the Canada Grain Act , exemptions can be requested.

Smolik testified that he couldn't recall if it was "simply" him who suggested the application, but that in any event, requesting an exemption is common knowledge in the grain industry. Smolik acknowledged that, while he was at the Commission, no grain terminal had requested an exemption under the Canada Grain Act for the application of mineral oil to grain. Smolik, a draft application addressed to the Commission's Chief Grain Inspector for an exemption under section of the Canada Grain Act.

The Senior Lawyer requested comments on the content and included questions relating to whom the application should be addressed, who should sign the application on Cargill's behalf, and the type of information that should be included.

Smolik testified that he had not drafted the letter, but had simply signed it on behalf of Cargill. However, documentary evidence showed that Mr. Smolik had an active role in the drafting of the application. In an email dated June 23, , Mr. Smolik responded to various questions addressed to him in relation to the application. Smolik wrote that the letter should be addressed to the Chief Commissioner of the Commission with a copy sent to the Chief Grain Inspector as it was the Chief Commissioner who had the authority to sign off on the order.

Smolik also made comments as to the way commissioners would be viewing the information contained in the submission and identified which information would play into their decision. He also commented on the fact that he was not aware of any precedent. Cargill's Senior Lawyer asked who should sign the letter. A Cargill senior official wrote that Mr. Smolik should sign the letter as he had the closest relationship with the Commission.

Smolik replied that he was fine to sign the letter if it was the correct protocol. Smolik as an application for approval to permit the application of white mineral oil to grain as a means of dust suppression at the Sarnia terminal. In the letter, Mr.

Smolik asked the Chief Commissioner to contact him directly for any additional information regarding the application. The request was accompanied by regulatory documentation on the application of white mineral oil to grain as a means of dust suppression in the United States. Smolik sent an email to his former Executive Assistant at the Commission. Smolik told her that he had a letter to deliver to the Chief Commissioner and provided the name of the person who would hand-deliver it; he also asked her to meet that person on the ground floor of the building.

In an email, Mr. Smolik's former Executive Assistant confirmed receipt of the letter and assured its delivery to the Chief Commissioner. Smolik testified that the purpose of the letter was to document Cargill's request so that it could be introduced as evidence that Cargill was doing its due diligence to mitigate the dust emissions issue in its proceeding before the Ontario Court of Justice.

In an August 10, email, Cargill's President informed Mr. Smolik that the Commission's Chief Commissioner had raised concerns relating to a potential conflict of interest in respect of his July 20, application, and that consequently, she would be addressing her response directly to the President.

Smolik replied to Cargill's President that he had not been imposed any post-employment restrictions by the Office, except on active files that he may have dealt with while employed at the Commission.

He wrote that prior to working at Cargill, he spoke with members of Cargill's Human Resources and that he voluntarily agreed that he would not contact the Commission for six months, which, according to Mr. Smolik, he had complied with. He also wrote that Cargill had been fined for dust emissions, a matter that was currently before the courts, and stated that Cargill's Senior Lawyer had required evidence demonstrating that Cargill was restricted by law by a federal government agency to suppress dust.

In an August 11, , email to Mr. Smolik and other Cargill staff, Cargill's President forwarded the Chief Commissioner's letter in response to Cargill's July 20, application for exemption. In the letter, the Commission's Chief Commissioner wrote that prior to making any definitive decisions on the application of mineral oil to grain as a dust suppressant, the Commission needed to complete its evaluation.

In the same August 11, email, Cargill's President also informed staff of a telephone discussion he had with the Chief Commissioner, who advised him that any decision on the application of mineral oil to grain was contingent on the CFIA's approval.

In follow-up emails, Cargill staff questioned the validity of the Commission's Chief Commissioner's assertion that the hold-up on the approval for the application of mineral oil to grain was in fact due to the CFIA as the grain in question would not be produced for human consumption, and that the issue appeared to be of a political nature rather than a regulatory one.

In response to the concerns raised, Mr. Smolik replied to Cargill's President that the Commission was protecting itself given that the Chief Grain Inspector and the Director of Industry Services had knowledge of the matter having visited grain terminals in the Pacific Northwest. Smolik wrote that the Chief Grain Inspector would have done something but was now retired and that the Director of Industry Services would not make a decision.

Smolik stated that he would look through his contacts to find someone at the CFIA. Between August 20 and August 23, , Mr. Smolik emailed the CFIA to request a ruling on the application of mineral oil to grain at the Sarnia terminal. On November 20, , Cargill received the Commission's approval for the application of white mineral oil to grain at its Sarnia terminal.

Smolik's position is that he did not contravene section 33 and subsection 35 2 of the Conflict of Interest Act Act. In support of Mr. Smolik's position, his counsel provided submissions addressing each of the alleged contraventions.

In relation to section 33, counsel's position is that for there to be a contravention, there must be evidence that Mr. Smolik improperly took advantage of his previous public office. If there is no advantage available from a previous office, then section 33 cannot be contravened.

Counsel's position is that the evidence does not demonstrate that any improper advantage was taken. Counsel submits that Mr. Smolik could only be disadvantaged by his previous position of public office given that he was the appointee of a defeated government, and that even prior to , there had been long-standing tension between some of the employees of the Commission and the appointed commissioners. Counsel also submits that Mr. Smolik never misused confidential information he obtained while in public office.

In support of this position, counsel's view of Mr. Smolik's evidence was that he provided Cargill with his assumptions about how the Commission would view the issue of applying mineral oil to grain, which were based on public information as well as general knowledge about agricultural policy issues accumulated over a long career in the industry.

According to counsel, the evidence showed that Mr. Smolik never shared classified Commission information with Cargill and while the oiling of grain as a dust suppressant was a well-known policy issue, even while Mr. Smolik held public office at the Commission, there was no policy "file" on the issue. With respect to Mr. Smolik's knowledge of Commission operations and personnel as well as his recommendations to Cargill in that regard, counsel submits that the recommendations were not based on special knowledge as anyone with access to the internet or a telephone could have drawn the same conclusions.

Information regarding the roles of Commission employees are available on the Commission's website, employee business cards, and on the Government Electronic Directory Services website. Since the Commission serves the public, the responsibilities of Commission staff are matters of public interest. Smolik's social interactions with Commission staff, counsel submits that the evidence showed that Mr.

Smolik had worked at the Commission for many years and that his former colleagues are his friends and community with whom he discusses personal matters and shares interests. Counsel submitted that Mr. Smolik had not leveraged, and would not leverage, these relationships to further any professional interest.

In relation to subsection 35 2 of the Act, counsel's position is that while Mr. Smolik did have communications with the Commission and did sign an application for an exemption order, none of these communications amounted to making a representation.

According to counsel's submission, the individual's intention is relevant to whether a former reporting public office holder is making representations and requires an attempt to influence. Smolik had written that he will "push" the issue and force Commission staff to make a decision on permitting the application of mineral oil as a dust suppressant, his statement must be read with an understanding of Mr.

Smolik's personality, his frustration, and his lack of influence or authority to force the Commission to make decisions. Counsel's position is that Mr. Smolik's efforts to obtain information from Commission staff of the Commission did not amount to making representations because he merely inquired about the status of the dust suppression file.

The Commission's evaluation of the application of mineral oil to grain was a matter involving a scientific analysis which could not be influenced in the same way as someone trying to influence public policy, legislation or the awarding of a contract. Counsel's position is that since scientific analysis cannot be influenced in the way that a policy decision may be, any communications regarding laboratory tests and other analyses cannot be the subject of representations.

With respect to the July 20, application that Mr. Smolik signed and submitted, counsel submits that Mr. Smolik's letter was a bare application that contained no representations. The goal was to put on the record the application for approval but not to make any representations in support of it, which therefore cannot constitute the making of representations. Finally, with respect to any factual discrepancy that may have occurred between Mr.

Smolik's November 7, letter to the Office and other evidence, counsel submits that these were errors of memory that were inadvertent and made in good faith.

I must determine whether Mr. Smolik, a former Assistant Chief Commissioner and Acting Chief Commissioner of the Canadian Grain Commission Commission , contravened his post-employment obligations, namely section 33 and subsection 35 2 of the Conflict of Interest Act Act , in relation to post-employment activities he carried out on behalf of his employer, Cargill Limited Cargill.

Section 33 of the Act prohibits former public office holders from acting in such a manner as to take improper advantage of their previous public office. The prohibition applies for an indefinite period after leaving public office and reads as follows:. No former public office holder shall act in such a manner as to take improper advantage of his or her previous public office.

The general prohibition set out in section 33 of the Act is very broad in scope. It stands in contrast to some of the other post-employment provisions that deal with specific activities, such as the prohibitions on switching sides and on contracting. Whether a former public office holder has acted in such a manner as to take improper advantage of his or her previous public office is a question of fact and depends on the circumstances of each case.

In conducting my examination, I found Mr. Smolik's version of events to be inconsistent with the information contained in the documentation submitted by both Cargill and the Commission.

In fact, many of the relevant documents which were either authored by Mr. Smolik or addressed to him directly showed a level of involvement in the Sarnia terminal's dust issue that was far greater than Mr. Smolik had initially led me to believe. I also found Mr. Smolik to be less than forthcoming with his answers to questions relating to these documents during his second interview, including why he had not produced the documents himself.

The documentary evidence shows that the Commission's evaluation of the application of mineral oil to grain as a means of dust suppression commenced prior to Mr. Smolik's departure from the Commission and was in response to a broader industry request for the Commission's position on the issue.

It is also clear from the evidence submitted by Cargill that during the times relevant to this examination, Cargill was facing important fines for dust emissions at its Sarnia terminal and urgently needed a decision from the Commission to be able to reduce dust emissions through the application of mineral oil to grain at their terminal elevators. The evidence shows that Mr. Smolik, within a few weeks of leaving public office, engaged in a series of actions on behalf of Cargill, aimed at assisting Cargill in resolving the dust emissions issue at its Sarnia terminal.

Cargill often consulted Mr. Smolik for guidance and assistance in addressing this issue with the Commission. Smolik was more than willing to assist his employer in any manner despite the post-employment advice he had received from this Office and the "six-month ban on anything relating to the Commission" that he and Cargill had agreed upon.

The evidence also shows that Cargill relied on Mr. Smolik's insight, guidance and assistance as a former Commissioner of the Commission, to navigate through Commission processes to obtain a timely and favourable result in respect of its dust issue. Smolik took improper advantage of the relationships he had established while at the Commission as well as the knowledge and expertise he had acquired while in public office. Smolik exploited the relationships he had previously established with Commission staff and the level of authority he once had while in public office when he:.

Smolik also exploited his level of knowledge and expertise gained as a former Commissioner of the Commission when he:. Smolik could not have provided such advice if not for his experience as a former Commissioner. I find that in so doing, Mr. Smolik acted in a manner that clearly took improper advantage of his previous position of public office.

For the reasons set out above, I have determined that Mr. Smolik contravened section 33 of the Act. Subsection 35 2 of the Act prohibits former reporting public office holders from making representations for or on behalf of another person or entity to entities with which they had direct and significant official dealings during their last year in public office.

The prohibition applies during a post-employment cooling-off period, which in the case of Mr. Smolik was of one year: November to November As a former Commissioner of the Commission, there is no doubt that Mr. Smolik had direct and significant official dealings with the Commission during his last year in public office. The evidence also shows that upon leaving his position of public office to join Cargill, Mr. Smolik was given specific advice by the Office to not make representations to the Commission during his one-year cooling-off period.

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