Williams vs Reullocke - Plan B

Not since the Peckford/Trudeau oil wars in the 80s has the province been so severely rebuked by the courts on a matter of public policy close to the Premier's heart. At that time Peckford went all the way to the Supreme Court of Canada, insisting every step of the way that the province had jurisdiction over the offshore. And at every legal step of the way, the province was told that it had no such jurisdiction ever in the past, present or future.

Peckford's response was to call for a provincial day of mourning, complete with black armbands - and then he got on with the work of the province, culminating in the successful negotiation of the Atlantic Accord.

Those judgments, as definitive as they were for their time, were couched in language only a constitutional lawyer (and constitutional geeks like me) could love.

That puts the Halley judgment on the CNLOPB/Max Ruelokke case in a class by itself. In the end, Halley held that:

"Max Ruelokke has been the de facto Chair and CEO of the Board since the tribunal made its selection on December 5, 2005 and the Respondent is bound by the Panel's decision. The conduct of the Respondent was 'reprehensible', therefore it shall pay the Applicant his solicitor-client costs."

Bad enough that the government's actions are described as reprehensible, but then Halley goes on to itemize eight distinct reasons why the province has acted in a manner he deems reprehensible. These were:

1. The Respondent (government) had an opportunity to argue for the 'splitting' of the positions of Chair and CEO of the Board before the Panel was constituted but failed to do so.
2. Upon receipt of the decision of the Panel the Respondent immediately took the position that it was not bound by the decision.
3. The Respondent was aware that the issue of 'splitting' the positions of Chair and CEO of the Board was outside the mandate of the Panel, yet it seized on that non-binding advice as a reason for rejecting the Panel's selection of the Applicant.
4. Prior to the commencement of this litigation, the Respondent refused to give the Applicant a rational explanation for its refusal to recognize him as the Chair and CEO of the Board.
5. As a result of the conduct of the Respondent, the Applicant has been unemployed since March 24, 2006 and cannot obtain other employment in the petroleum industry because of the possibility of 'conflict of interest'.
6. It may have been a mistake for the Respondent to promote an unqualified candidate for the position of Chair and CEO of the Board prior to the Panel's selection of the Applicant, but it was mischievous for the Respondent to continue to 'push' for his appointment after the Panel had made its decision.
7. In this case, the Respondent's actions were meant 'to defer, delay and deflect' the selection decision of the Panel.
8. On the whole, the Respondent has treated the Applicant with contempt and disrespect.
   

One thing about Peckford's wars was that his fights avoided producing roadkill out of innocent bystanders. This particular war maligned the motives and professional integrity of Max Ruelokke through the Premier's public musing about his being in the pockets of the oil producers and suggesting that Mr. Ruelokke would therefore represent their interests over those of the people of the province.

And just when you thought things were as bad as they could get, Halley cheerfully noted that:

"The federal government took the position that it wanted the Panel to choose 'the most capable candidate'. However, the Respondent chose to support one person and urged the Panel to select its candidate who was a long-term local politician. The Respondent's campaign to promote its candidate was 'doomed to failure' because he had neither the professional background nor the industry experience to be qualified to act as the Chair and CEO of the Board."

For that unnamed unqualified candidate read Mayor Andrew Wells, the Premier's favorite for the job.

Now Williams has placed himself on the horns of a dilemma: he can either accept Ruelokke as Chair (thus tacitly accepting and admitting the harsh rebukes launched at him and his government by Justice Halley) or he can continue the fight with ultimately unsuccessful appeals to higher courts (thus delaying the issue even further and taking criticism in the process for being driven by ego rather than sound public policy).

So far thegovernment response has been an eerie silence, notwithstanding a cursory "we are studying the judgment" statement and reports of journalists being bounced back and forth between the office of the Premier and the Natural Resources minister.

So what choice of action does Williams have now? Here's my suggestion to him and this is how I would advise him if I worked up there:

"Mr. Premier, it's time to cut your losses. Your misplaced determination to install Andy Wells as Chair has caused you and this government severe legal and political embarrassment. The public perceives that this has become an issue of stubbornness on your part and wants you to move forward.

As you previously promised, don't appeal this decision.

Instead immediately issue a press release appointing Mayor Wells to the vacant seat on the CNLOPB, and be sure to include all the usual accolades about how he will fight for the interests of all Newfoundlanders and Labradorians etc, etc, etc.

At the end include a paragraph accepting the judgement of Justice Halley and wishing Ruelokke well in his position as Chair and CEO of the CNLOPB.

Then I would run away as fast as I could to avoid personal harm in the explosion of temper that would inevitably follow.