The provincial government paid $6-million to cover the legal fees of Dave Basi and Bobby Virk, but it can't provide the bills to the Auditor-General of British Columbia – because it doesn't have them, court records show.
Legal documents filed in an unusual action, in which the Auditor-General is taking the Attorney-General to court to gain access to government records related to the BC Rail case, say that invoices for Mr. Basi and Mr. Virk are held by private legal counsel hired to oversee the payments.
"The Auditor General was given access to all documents and information sought regarding the defence costs in the possession of the Legal Services Branch. However ... detailed billing information concerning the Basi/Virk indemnities was not in the possession of the Ministry of Attorney General and therefore the Auditor General did not obtain access to that information," states a petition the Auditor-General has filed with the Supreme Court of B.C.
The Auditor-General, who is investigating the government's indemnity policy, is seeking an order from the courts that would require both the province and private legal counsel to provide all billing information related to Mr. Basi and Mr. Virk.
Attorney-General Shirley Bond said Thursday her government is co-operating fully with the audit, and she indicated the legal dispute between her ministry and the Auditor-General is finished.
"In fact it has been [resolved] There was a petition filed in the courts ... I made contact with the Auditor-General immediately after that and pledged that we would work to release everything that was within our ability to release. As recently as last Friday I was assured by the Auditor-General that everything that wasn't protected by solicitor-client privilege had been released," she said.
"I should also say he did make several new requests and I directed staff immediately to begin to gather that information for him. … We have done everything we could," Ms. Bond said.
But Colleen Rose, a spokesperson for the Auditor-General, said the matter is still being pursued through the courts. She declined to discuss the case, but agreed it is an unusual one.
"This is certainly the first time that I'm aware of that our office has ever, you know, gone to court looking for information in order to complete our work, so it gives you a sense for the rarity of this," Ms. Rose said.
Documents before the court state that Mr. Basi and Mr. Virk were granted an indemnity in 2005, during the early stages of the case. The two men entered surprise guilty pleas in 2010 to breach of trust charges, and it was later revealed the government had agreed to pay all their legal fees.
The Auditor-General's office began to investigate the case last year, but in court documents the auditors claim they have had problems gaining access to key records, some of which are not held by the government.
"While most of the information and documents required by the Auditor General for the indemnities performance audit are in the possession of the government, the Auditor General has identified certain information and documents relating to specific special indemnities in the possession of others," the petition says.
The document states that when a special indemnity is granted by the government, invoices for the indemnified legal work are usually provided directly to the government for payment.
"However, in some circumstances, the government has retained independent reviewers from outside government ... [and]where outside reviewers are retained, the government does not receive details of the billings," the petition says. "Therefore, unlike the usual situation where a special indemnity is granted, the Ministry of the Attorney General and government do not have possession of records containing the details of the legal expenses made pursuant to the indemnities related to Basi/Virk criminal proceedings."
The case is expected to be heard in June, at which time the Auditor-General will be arguing for the authority to examine all relevant material held either by the government or by independent counsel hired by the government to oversee the payments.