VANCOUVER – Metro Vancouver is taking international construction company Acciona to court over the alleged leak of a classified legal report.
On January 20, 2022, Metro Vancouver terminated a contract with Acciona to build the North Shore Wastewater Treatment Plant, a decision which prompted Acciona to file a lawsuit against the organization.
On December 16, Metro Van filed a notice of application in B.C’s Supreme Court against Acciona, alleging documents containing legal advice pertaining to the decision to remove the company from the project were illegally provided to Acciona by Anika Calder, who at the time was an employee or affiliate of the construction giant.
Calder is the daughter of Coquitlam city manager Peter Steblin. The filing alleges Steblin used City of Coquitlam mayor Richard Stewart’s ID to log into a protected server and access the report and that Calder took photos of the report.
In a statement sent to the JOC, an Acciona spokesperson said the company took prompt action when the leaked documents were discovered.
“The company immediately launched an in-depth internal investigation and took the appropriate corrective steps, including the dismissal of that ACCIONA employee,” the spokesperson said.
“Once the internal investigation was fully completed and verified, it was ACCIONA who brought the incident to Metro Vancouver’s attention, advising it to launch an investigation of its own. Seven months later, Metro Vancouver has not shared information about how municipal policies govern management of confidential information, whether those policies were followed and what kind of corrective steps have been taken to address disclosure by civil servants,” the spokesperson said.
Stewart had access to the documents as he was on the Metro Vancouver board, states Jerry Dobrovolny, chief administrator for the Greater Vancouver Sewerage and Drainage District, in a sworn affidavit.
In the court filing, Metro Van’s lawyer Beth Allard of Norton Rose Fulbright Canada writes that Steblin said he had no knowledge of Calder taking the photos and that he was not in the room when she accessed his computer.
Metro Vancouver is asking the court to make Acciona reveal the names of all recipients of the leaked report, to turn over all electronic devices the report may have been on, to prevent any further dissemination of the report and to appoint a forensic expert to inspect all electronics relating to the report and to determine whether there was any further breach of security, among other requests.
On May 16, 2022, Acciona notified Metro Vancouver it had acquired portions of the report, roughly four months after allegedly obtaining them in January, said Drobovolny.
“I am concerned about the harm and prejudice to the GVS&DD that the disclosure of the Confidential Closed Meeting Report, and other confidential information Ms. Calder may have disclosed to Acciona, creates,” states Dobrovolny in the affidavit.
“My concern is all the more acute because we know Acciona had this particularly sensitive confidential information for months prior to filing their Notice of Civil Claim in this action on March 31, 2022 and only disclosed that fact after commencing the action.”
Metro Vancouver declined a request for interview on the case while it is before the court.
The spokesperson said Acciona did not use the leaked documents in preparing its legal case.
“The confidential information had no bearing on ACCIONA’s planned course of legal action and no links with ACCIONA’s claim, which is based on Metro Vancouver’s failures in administration of the North Shore Wastewater Treatment Plant project,” the spokesperson said.
“ACCIONA operates under strict code of conduct and compliance rules that are enforced rigorously in all the countries in which the company operates, as demonstrated by the prompt internal action to resolve the matter and notify the third party impacted by this incident.”
Acciona previously filed a lawsuit against Metro Vancouver for $250 million, alleging it was wrongfully dismissed from the North Shore Wastewater Treatment Plant project. Metro Van fired the company claiming the project was delayed and the cost had ballooned from $500 million to roughly $1 billion.
In July, Metro Vancouver filed a countersuit against the company alleging the breach of contract would cost it roughly $500 million.
In the new filing, Metro Van writes the lack of transparency from Acciona means more classified information could have been leaked.
“The extent of the breach is unknown and potentially wide given the access Ms. Calder had, indirectly, to materials distributed for multiple GVS&DD closed meetings in the face of an escalating dispute between Acciona and the GVS&DD,” reads the filing.
On June 24, 2022, Metro Vancouver hired Nicole Byers, a lawyer with Southern Butler Price LLP, to perform a third-party investigation into the matter to determine the extent of the breach. Metro Vancouver asked Acciona to provide notes from its own internal investigation into the matter for the investigator to review.
“Acciona ultimately refused to engage a joint forensic expert or provide the GVS&DD with its interview notes,” said Dobrovolny.
In an email exchange on September 14 between Acciona’s lawyer Craig Dennis of McEwan Cooper Dennis LLP and Allard, Dennis said that Acciona will not move forward with a joint independent investigator until there had been a demonstrable investigation into the City of Coquitlam’s policies, Steblin’s level of compliance with those and the use of his computer “in what appears to be inappropriate handling at the municipal level.”
Metro Vancouver states there is no feasible way to assess the damage Acciona has done to the organization in monetary value.
A court hearing has been scheduled for January 17, 2023, 9:45 a.m. at the Vancouver courthouse on Smithe Street.