Witness issues create challenges for lawyers in IWK court matter

Lawyers for two former IWK Health Centre executives are still trying to get the most appropriate witnesses on the stand as part of an effort to obtain documents from the office of Nova Scotia's auditor general.

Defence counsel for Stephen D'Arcy and Tracy Kitch questioned witnesses in Nova Scotia provincial court on Thursday and Friday but ended those days with little to show for their efforts.

On Thursday, acting auditor general Terry Spicer was on the stand for several hours when it became apparent he couldn't answer any detailed questions related to the performance audit of the children's hospital his office completed in 2018. That's because Spicer, who was deputy auditor general at the time, recused himself from the work because his wife worked at the health centre.

The revelation and lack of progress that day prompted Judge Elizabeth Buckle to question why Spicer was put forward as a witness in the first place. None of the lawyers were aware he'd recused himself from the work until Thursday.

On Friday, Michael Pickup, the province's former auditor general, appeared for two hours via video link from British Columbia, where he now works as that province's auditor general.

Although Jacqueline King, Kitch's lawyer, spent the time mainly cross-examining Pickup about the process of how and when audits are performed, how the topics are selected and record keeping for audit work, Pickup, like Spicer, had little direct involvement with the performance audit work.

King and Christie Hunter, D'Arcy's lawyer, are hoping to get one or two people who were active in conducting the audit on the stand for upcoming dates in December.

Kitch, the former CEO of the children's hospital, is facing charges of fraud over $5,000 and breach of trust. D'Arcy, the hospital's former chief financial officer, is charged with breach of trust, unauthorized use of a computer and mischief to data.

Both resigned from their posts in 2017 following an audit by Grant Thornton that showed Kitch billed about $47,000 in personal expenses to corporate accounts. She eventually repaid the money.

Meanwhile, D'Arcy repaid $17,000 in expenses to the hospital just before resigning.

Reporting by CBC first raised questions about Kitch's expenses and D'Arcy's involvement. At the time, both attributed the findings to unintended errors.

Documents being sought

The hospital's board then ordered the audit by Grant Thornton. The board chair at the time, Karen Hutt, then called in the auditor general and Halifax Regional Police.

The application for access to records from the auditor general was made in June. It's not clear from court testimony so far what information defence lawyers are seeking, although a May 2020 letter from Crown attorney Peter Dostal to the auditor general provides possible insight.

"I recently received a request from defence counsel for Mr. D'Arcy to inquire for communications and meeting notes in your possession or control that relate to contact between your office and Karen Hutt and/or employees within the IWK concerning the review of the IWK CEO expenses of Tracy Kitch between 2014 and 2017 and any related involvement of Stephen D'Arcy," reads a portion of the letter, which was included as part of an affidavit by Spicer filed in court on Thursday.

Part of what's at issue is whether the defence request trumps the privacy practices the office of the auditor general applies to its work. The office is not subject to the Freedom of Information and Protection of Privacy Act.

Trial date could be in jeopardy

With Pickup scheduled to return to the stand on Dec. 3, and the defence still trying to secure other witnesses, there are also questions about whether the effort will affect the start of Kitch's trial.

The trial is scheduled to begin on Jan. 4.

But with only two dates remaining before then, concerns were voiced Friday that if Buckle rules in favour of disclosing documents to the defence, there might not be enough time for lawyers to get those documents and prepare before the start of the trial.

The issue would be moot, however, if Buckle rules against the defence.

D'Arcy's trial is scheduled to begin next June.

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