Judge denies request for delay in former IWK CEO's fraud trial

The start of the fraud trial for former IWK Health Centre CEO Tracy Kitch will only be slightly delayed from when it was scheduled to begin next month in Nova Scotia provincial court.

Kitch's lawyers were in court Tuesday seeking an adjournment to give them more time to get contact information for and speak to some of the former board members of the Halifax children's hospital. They argued delays getting that information presented challenges for their case.

But on Wednesday, Judge Elizabeth Buckle ruled against the defence.

"The defence has had the bulk of the information it needs since June 2nd or 3rd, five months before the start of the trial," she said in an oral decision.

"In my view, that was sufficient time to incorporate that information into its trial strategy and prepare to cross-examine Crown witnesses using that information."

Challenges getting board member contacts

Kitch is charged with breach of trust and fraud over $5,000 stemming from an investigation into her expenses while she was at the helm of the IWK. An internal report ordered by the board in 2017 found about $47,000 in expenses deemed personal were charged to the hospital. Kitch repaid all the money within months of stepping down that summer.

Although the Crown has indicated it's likely to call four former board members as witnesses and their statements were provided to the defence through disclosure, Kitch's lawyers argued that the time it's taken them to get names and contact information for the other 16 people on the board during her tenure necessitated the delay.

But in her decision, Buckle noted that documents released to the defence through disclosure, as well as information released voluntarily by the office of Nova Scotia's auditor general, included some or all of the names and contact information.

In June 2020, lawyers for Kitch and Stephen D'Arcy, the hospital's former CFO who is also facing charges, filed an application to gain further access to records from the auditor general's office in relation to an audit it did of the IWK's financial controls.

Other ways to get information

Although the remaining names were eventually released to the defence by the court, Buckle ruled that the application for that information could have been started sooner, or that other efforts to find the names and contact information of former board members could have happened in the meantime.

"The names of all IWK board members were essentially public information and could have been obtained through reasonable diligence," said Buckle.

The judge said the defence could have contacted the Crown and or lawyers for the IWK, used information provided by the office of the auditor general or "conducted basic internet searches" sooner in an attempt to get the remaining information they required.

"For other reasons, this trial has already been adjourned a number of times," said Buckle.

"The public has a right to expeditious determinations in criminal proceedings and Ms. Kitch has a right to a trial within a reasonable period of time. Adjourning this trial at this stage, given its length — four to five weeks — would result in substantial delay."

The judge said she doesn't have that amount of time available in her calendar again until next summer or fall. She said she believes there remains sufficient time before the trial begins and the defence mounts its case, for remaining board members to be contacted and interviewed, but that can be revisited at a later date if necessary.

In an attempt to provide a bit of a cushion for those efforts, the trial will now begin Nov. 8.