A trial like no other

"We thought it was going to take about a year, which is a long time in my business to be away. So it was all 'I don't know' and reservations, etc., but everyone I spoke with who had acted as counsel said it was quite the experience," he told Law Times in an exclusive interview.

The inquiry took almost three years to conclude, heard 156 witnesses, and saw 124,000 pages of documents at a cost of $19.2 million to probe into the dealings of MFP Financial Services and the City of Toronto.

"It's so entirely different from anything you've ever done as a counsel because the judge and counsel actually set up the organizational structure of the inquiry including looking at space for the inquiry, hiring all manner of people from communications people to technical people," Manes said from his downtown Toronto office at Torkin Manes LLP.

"From soup to nuts, you're setting up an entire organization. . . . Fortunately, Justice Bellamy has a considerable background in government service and had a real appreciation of the challenges we had to face in terms of setting up the mechanics."

Once those mechanics were in place, which took about four months, how did Manes prepare for the inquiry itself?

"I'd like to tell you that it was just like how you go about a trial, but it really wasn't because the context is different. Here commission counsel are investigators and that investigation is conducted in private and it's conducted in public at the hearing portion. So that is completely different than a typical barrister position where the investigations are done, if you're defence, by the adjusters, you pick up the brief, and go prepare some witnesses. It's not like that. You are an investigator."

Because public inquiries are watched through the media by the public, Manes says commission counsel were instructed to speak with the media as often as possible about issues they could comment on. They welcomed the coverage and tried to make the process as easy and transparent as possible.

"Working in that almost transparent atmosphere added a very new dimension. I had been involved in a number of trials that attracted media attention but never something that attracted such continual and knowledgeable attention by the media. The media was well familiar with these issues, especially the Toronto media."

The length of any inquiry can be hard to predict, but Manes says when you investigate one issue it may lead to another or even to matters not within the inquiry's jurisdiction. The commission also discovered information that required an adjournment for a criminal investigation.

"None of those things could ever be foreseen and those considerably extended the commission. In addition, during the course of this we had an employee of the city who felt that she had been threatened by the city for her possible participation," he says. "There's nothing in your terms of reference about such things but we had to fully investigate that over a couple of weeks and we spent a week on that at the hearing.

"Those are the kind of turns and twists that you just cannot predict."

Manes says because Bellamy and her counsel worked so closely together and for such a long period of time, it was important that they got along. Manes got to know Bellamy when the two sat as Law Society of Upper Canada benchers together, and says that relationship helped them work through various challenges.

"There are dark days. There are very dark days especially in the glare of public scrutiny. And there are a lot of tests to those relationships. The relationship not only has to be able to deal with those but there is a constant need for communication and, you know as well as I do, communication is never perfect but as much as you can we talked day and night. And when I say days, we're talking about sometimes those days would begin at 5 a.m. and sometimes those nights would go on to very late," he says.

"It is very, very complicated and you can see as I go along why the stress level must be so great. You are communicating with so many people and there are so many agendas and so many different concerns and so many different interests, let alone your own most altruistic interest in the public interest that I found that the stress far exceeded anything that I've ever did in the private sector."

Manes says the challenge to his physical condition caused by the stress of the inquiry was enormous. He wasn't eating well, he wasn't sleeping well, and the long hours were taking their toll on him.

"One day, after a day in the hearing room, the commissioner said to me 'You know Ron, you look like hell' and this was after a particularly hard round of examinations. . . . and it was true.

"She convinced me to start working out and basically she said it's the only way to keep your mind clear, to energize your body and your mind, and keep balanced. So I did, at least three times a week or more. And of all the advice that I got from anybody, that was really the best advice."

He says the inquiry took short breaks here and there, but says the experience was, in essence, a three-year trial. In fact, Manes says the only real "break" he took during the inquiry was to do a pro bono case, which eventually led to the province waiving court fees in civil, small claims, and family proceedings for low-income individuals.

"I just felt it was so important to access to justice and access to the courts and the case had been with me for awhile that I asked the commissioner for some time to prepare and argue this case."

While Manes didn't want to comment on specific findings of the 1,123-page, four-volume report with its hundreds of recommendations released earlier this month, he says it reads well, it's a real page-turner, and the public can understand it. He says a well-told story is the best way to communicate the findings and recommendations of a commission.

"Then you can say 'you know what? We succeeded in investigating as best as we possibly could and we succeeded in communicating the results of that investigation as best as we possibly could.'

"That second component is equally important as the first component and it's that second component that often gets lost, not only in a commission of this kind but in trials, etc., because that is the end product of everything you've done behind closed doors and in the hearing room. If you can't communicate what you've done then it will not have the effect it should. It will not be everything it should be."

The decision to leave his practice for what he thought would be a year was no easy choice, but Manes says he's finding himself busy with clients again and is happy not to have to wear a suit day in and day out.

"I took the position with my eyes wide open. I knew that there would be a real impact on my practice but at this stage I felt that the opportunity was unique and important enough to take those risks," he says.

"Because the inquiry is so consumptive of time and attention, anyone who thinks they can carry on their practice on the side, especially a litigation practice, can't do it. You simply cannot do it, and should not do it. What I ultimately found, now that I'm back, after a little while I got very busy again so while you do lose clients, your relationships continue and ultimately they provide some sustenance after it's all said and done."

Would Manes participate in a commission like this again, knowing what he knows now?

 "I don't think anybody would — if they knew that it was going to be the most arduous and taxing process that would take them away from their practice and, in fact, threaten their practice and livelihood — easily say 'yes, I would do it again.'

"But from this experience there are things that come along in your life that are important enough that you do make sacrifices, whether it's pro bono work or commission work, sometimes your public interest is more predominant in your thinking than your private interest.

"So would I ever do it again? I would do it again where I had that same sense. Even knowing as much as I know now the answer is 'yes.'"