Court Transcript Part 6 Pages 56 to 65
56
1 Q Okay.
2 A -- that was us or not.
3 Q I think it --. I think I can take you further --
4 A I think it was probably Stanley at that point,
5 but I'm not certain.
6 Q Yes. See, that's April 9th, and that says "a
7 local engineering firm." And if you go to tab
8 2, --
9 A It could be.
10 Q -- which is very shortly thereafter, it deals
11 with, in the middle of the first paragraph, "The
12 company is in the process of contracting with an
13 engineering company based in Toronto for a
14 turnkey plant."
15 A Right.
16 Q Okay. So that would be Stanley, wouldn't it?
17 A No. Stanley is not in Toronto. I think there
18 was another firm they were working with in
19 Toronto, as well, and I honestly don't remember
20 the name of it. It was a --. I think they were
21 primarily a contractor, but they did engineering
22 work, as well.
23 Q Okay.
24 A And I honestly don't remember the name of the
25 firm.
26 Q Well, fine.
27 Tab 3, if you just go to the next page. And
28 I'm going to take you to the fourth paragraph.
29 The last sentence in the fourth paragraph, it
30 states, "Local waste trucking companies have been
31 contracted to deliver certain biodegradable waste
32 to the plant and the company has contracted with
33 a local consulting firm, Stothert Engineering
34 Ltd., who will provide the engineering for a
35 turnkey plant."
36 Do you see that?
37 A Yeah.
38 Q Did you provide the engineering for a turnkey
39 plant?
40 A We didn't in the end. I think that we were -- we
41 were going to do it, and as I recall, there were
42 some delays in getting started. We had done a
43 number of site studies. I think that's right.
44 It could have been us. There was a number of
45 site studies, and then when the -- when they
46 actually wanted to do the engineering, we were
47 too busy. We didn't --. We couldn't -- couldn't
48 fit it into our schedule.
57
1 Q Somebody did it, though?
2 A Yeah. I think Stanley --. As far as I know,
3 Stanley ended up doing the first -- first one.
4 Q Okay. Now, this -- these references I've made
5 are all to around about April 1990.
6 A Yes.
7 Q Now, -- but you'd done the design criteria manual
8 before that?
9 A We'd done the design criteria manual, and we had
10 prepared a preliminary engineering design for the
11 plant, and that would have given them an outline
12 drawing showing the equipment arrangement, you
13 know, basic process diagrams, et cetera.
14 Q Now, is that the design criteria manual, or is
15 that something else?
16 A That's something else.
17 Q Okay. Paragraph --. Tab 4, just to bring you in
18 again, this is July 199O, where it deals with
19 Sandwell Inc. In the middle paragraph, "Sandwell
20 Inc. will provide the engineering for a turnkey
21 plant."
22 A Um-hum.
23 Q Is that the Toronto firm; do you think?
24 A That could be. I know they have -- they had an
25 office in Toronto at that time. I don't know if
26 they still do. I honestly don't remember. There
27 was -- they went through a number of different
28 people there at that time.
29 Q Let's take you to tab 6. This is rushing right
30 ahead to November 9th, 1992.
31 A Okay.
32 Q And it indicates in the fourth paragraph,
33 starting "Stothert Engineering Ltd.", "Stothert
34 Engineering is the company's independent
35 engineering consultants. Stothert has developed
36 complete engineering specifications for the
37 construction of plants utilizing the company's
38 technology and guarantees the plants will operate
39 as claimed."
40 That's something different from the design
41 criteria manual, isn't it?
42 A Where are you reading here? I'm --
43 Q I'm at the fourth paragraph on --
44 A Okay.
45 Q -- the first page of tab 6, starting "Stothert
46 Engineering." I think --
47 A Where am I looking here? I don't see it.
48 Q Maybe I've lost you.
58
1 A Where are you at?
2 Q Tab 6.
3 A Oh, tab 6. That's why I can't see it.
4 Q Did you develop complete engineering
5 specifications?
6 A That would have been --. That would have been
7 this book here. We had some specifications for
8 equipment that we'd developed, sort of on a
9 preliminary basis, that was the only thing.
10 Q And did you guarantee that the plants will
11 operate as claimed?
12 A Did we guarantee? Not as far as I know.
13 Q Just quickly to tab 7, last page, and this is a
14 reference to Stanley Engineering, at page 4, at
15 the foot of the page: "Stanley Engineering is in
16 the process of completing all necessary
17 engineering drawings --"
18 A Okay. That's the --
19 Q Have we got there?
20 A Yeah. Yeah.
21 Q "-- for a 125-ton-per-day plant."
22 A Yeah.
23 Q Now, if those were all necessary engineering
24 drawings for a 125-ton-per-day plant, one could
25 not build a 125-ton-per-day plant without the
26 necessary engineering drawings; is that correct?
27 A Stanley actually completed construction drawings.
28 Q All right. Including the necessary engineering
29 drawings?
30 A Well, drawings for construction, yes.
31 Q All right. So they would be reasonably necessary
32 to construct plants, right?
33 A Yes. You can't construct plants without
34 construction drawings.
35 Q Right. And that's the same reference as at tab
36 10 under Plant Construction, where it indicates
37 that Stanley Engineering had completed all
38 necessary plans and equipment specifications to
39 construct 125-ton-per-day plants in Corinth, New
40 York; Edmonton, Alberta; Brampton, Ontario;
41 Burlington, Ontario and Hamilton, Ontario?
42 A Um-hum.
43 Q In fact, the plants that were up and running
44 eventually were Corinth, Brampton and Hamilton;
45 is that correct?
46 A As far as --. Yeah, that -- as far as I know.
47 MR. LUNNY: My lord, might this booklet be marked as
48 the next exhibit.
59
1 THE REGISTRAR: Exhibit number 2.
2
3 EXHIBIT 2: Booklet of Documents of Plaintiffs
4
5 MR. LUNNY:
6 Q As of 1993, all these plants -- and I've just
7 referred you to tab 10 there, --
8 A Yes.
9 Q -- and it's also in tab 8 -- they're all being
10 referred to as Thermo Master TM plants. Are you
11 aware of that?
12 A No. I just knew them as a Thermo Tech plant. As
13 far as I knew, the Thermo Master TM was the
14 control system relating to the plant.
15 Q Was that the process or --
16 A Yeah. Well, it's the -- it was a Thermo Master
17 TM control that regulated the process, regulated
18 the digestion process.
19 Q Now, I think you've indicated already -- and I
20 may be treading -- this is probably my last
21 question -- the improvements that you
22 incorporated to cover off improvements were those
23 that were -- you were advised of by Thermo Tech;
24 is that correct?
25 A That's correct.
26 Q Okay.
27 MR. LUNNY: Those are my questions, my lord.
28 THE COURT: Thank you.
29 MR. BOWES: Here's your book.
30
31 RE-EXAMINATION BY MR. BOWES:
32
33 Q Mr. Lewis, if I can just pick up where my friend
34 left off a moment ago, the improvements that you
35 included in the revision to the design criteria
36 manual were those that you were advised of by
37 Thermo Tech?
38 A That's correct.
39 Q Now, you were aware of the Dick Engineering
40 drawings at the time you prepared this second
41 volume?
42 A That's right. We had sets of the drawings and
43 specifications from Dick in our office.
44 Q Now, were there any improvements in those
45 drawings that you left out?
46 A As far as I knew, it was a different technology,
47 so they were -- we were not really looking at
48 them. We did -- I mean, obviously we had to pay
60
1 attention to the digestion part, because that's
2 really the core of it.
3 Q Different technology, can you explain that?
4 A Well, my understanding was that Thermo Tech had
5 applied for a patent for the -- this new plant,
6 and it was Mark II, or whatever they called it,
7 for the new plant design.
8 Q You looked at the drawings?
9 A Yes.
10 Q What about the Stanley drawings? Had you had an
11 opportunity at some point to look at those before
12 you prepared this new revision?
13 A Many, many years ago.
14 Q Okay.
15 A I looked at those probably -- you know, when
16 Stanley was doing the design, probably in
17 their -- sort of halfway through their design
18 process, I looked at them. Gave them some
19 comments.
20 Q I guess what I'm getting at, sir, is when you
21 were advised of improvements by Thermo Tech, did
22 you just take what they said, or did you ask them
23 questions?
24 A Well, I asked questions, obviously. Because, you
25 know, they're not just going to give us the
26 information. I had to ask some questions
27 regarding the technology.
28 Q And you were aware of the Corinth plant and the
29 Brampton plant and the Hamilton plant?
30 A Yes.
31 Q And as a professional, you asked questions to
32 satisfy yourself that you had all of the
33 improvements?
34 A That's right. You know, I went back to Thermo
35 Tech on some sections and asked specific
36 questions. You know, some was to Dan Cumming,
37 particularly on the control, because after -- you
38 know, after our discussions with Kathy Koellner,
39 she hadn't, you know, mentioned any revisions in
40 the control philosophy, and I knew that, you
41 know, from the operations, there would be some
42 changes. So I went back to Dan Cumming
43 specifically and asked him for, you know, changes
44 in the control -- control of the plant, and so he
45 gave me some -- some marked-up sections from
46 the --
47 Q Yes.
48 A Revision 1.
61
1 Q Now, sir, my friend asked you early on in his
2 cross-examination of your affidavit about the
3 Dick Engineering drawings, and my note was that
4 you said these drawings were for construction of
5 thermophilic plants, and then my friend and you
6 got into some discussion concerning the
7 difference between design drawings and
8 construction drawings. Can you help us further
9 in that -- in that area?
10 A Well, the construction -- basically, design
11 drawings can relate to the design of equipment,
12 to sections of a plant. Construction drawings
13 are the drawings that a contractor would require
14 in order to build a plant. These include
15 foundation drawings, that's concrete, reinforcing
16 steel, anchor bolt locations. It relates to
17 building structures, building finishing details.
18 It relates to, you know, arrangement of equipment
19 in the plant, how it's organized, details of
20 piping between the equipment, electrical systems,
21 configurations of the controls. There's a lot
22 more information that goes into it.
23 Q For example, would you need to know where the
24 plant was going to be built before you could have
25 construction drawings?
26 A Oh, absolutely. Because the -- you know, the --
27 all of the -- all of the design is predicated
28 upon building codes, electrical codes, plumbing
29 codes, that sort of thing. Environmental
30 regulations.
31 Q So that could vary from province to province?
32 A Absolutely.
33 Q Or from country to country?
34 A No question.
35 Q Now, my friend also took you to the first
36 revision of the design criteria manual and had
37 marked as Exhibit 1 a letter that he referred you
38 to.
39 Now, if I can take you to your affidavit of
40 March the 11th, sir, and I think it's in the
41 chambers record. Do you still have that before
42 you, sir?
43 A I don't know whether I have. What book is it
44 going to be in? I don't think it's in either of
45 these two.
46 Q Well, let me just --
47 A Okay.
48 Q Let me give you a copy of your affidavit.
62
1 A Okay.
2 Q Now, attached to the back of that affidavit as
3 Exhibit -- is it A or 1?
4 Exhibit A.
5 A Yes.
6 Q -- is a letter that you prepared to accompany the
7 latest revision of these -- of the design
8 criteria manual, if I can call it that.
9 A That's right.
10 Q And that was a letter that was -- was attached to
11 the manual?
12 A Yes.
13 Q For transmission with the manual?
14 A As far as I know, yes.
15 Q Yes. And so certainly, you have certified what
16 has now been provided to the -- to the plaintiffs
17 in the terms set out in Exhibit A to your
18 affidavit?
19 A Yes.
20 Q Now, while we're on your affidavit, sir, let me
21 take you to paragraph 4 on the body in the
22 affidavit. I'll just read that: "To my
23 knowledge, there are no other standard certified
24 engineering specifications or drawings regarding
25 thermophilic plants in the possession or control
26 of Thermo Tech Technologies and Thermo Tech Waste
27 Systems Inc. that are referred to in the order of
28 Mr. Justice Cohen."
29 Do you still stand by that statement, sir?
30 A I do, given the exemptions that the judge made
31 regarding the specifications for sourcing of
32 equipment and the construction.
33 Q And again, before making that statement, you made
34 enquiries to cover off that period of time that
35 you weren't working on a day-by-day basis --
36 A That's right, --
37 Q -- with Thermo Tech?
38 A -- yes.
39 Q Let me take you to paragraph 5, sir: "I have
40 reviewed an entered copy of the order of Mr.
41 Justice Cohen granted January 20th, 1998 in this
42 proceeding, and I verily believe the
43 documentation which I have delivered to O'Neill &
44 Company, for delivery to the solicitors for the
45 plaintiff herein, fully complies with the order
46 of Mr. Justice Cohen in every aspect."
47 Do you still stand by that statement?
48 A I do.
63
1 Q And in paragraph 7, that "I hereby certify that
2 the standard certified engineering specifications
3 now delivered fully satisfy what is reasonably
4 necessary to enable a licensee to utilize the
5 thermophilic aerobic digestion process, defined
6 as 'process' in the Eastern European Licence
7 Agreement of October 19th, 1992, and to construct
8 plants as defined in the said Eastern European
9 Licence Agreement."
10 Do you still stand by that, sir?
11 A I do.
12 Q So all that has been provided to these plaintiffs
13 at this point is sufficient to reasonably enable
14 them --
15 MR. LUNNY: Well, this is a leading question --
16 MR. BOWES: Well, it's --
17 MR. LUNNY: -- of incredible grasp. He's not supposed
18 to lead his question. I mean, the re-examination
19 is improper to date, anyway, but I haven't
20 objected to that. But a leading question is just
21 beyond the pale.
22 MR. BOWES: I'll leave that, my lord. I have what I
23 need.
24 Q Now, Mr. Lewis, my friend also took you to the
25 various patents. You will recall his questions
26 about the Coulthard patent?
27 A Yes.
28 Q And his point involving no provision for heating
29 in the Coulthard patent?
30 A Um-hum.
31 Q There were other patents that Thermo Tech had at
32 that time?
33 A They may have. I was only familiar with the --
34 with the one, the original Coulthard patent.
35 Q You're aware that there are four patents referred
36 to in the Eastern European Licence Agreement?
37 A Not specifically, no.
38 Q Okay. Well, I'll leave that, then.
39 Now, sir, my friend also asked you some
40 questions from the affidavit of Mr. Hole and from
41 the statement of defence. Are you familiar with
42 the memorandum of understanding that was
43 apparently entered into between Lockerbie Thermo
44 Tech and Trooper?
45 A No.
46 Q So anything arising out of that -- you're not
47 familiar with any part of that understanding?
48 A Not at all.
64
1 Q Were you aware that negotiations were ongoing to
2 have Lockerbie & Hole build plants for --
3 A Yes.
4 Q -- Trooper?
5 A Yes. Oh, not for Trooper. I know they were --
6 there were negotiations going on for Lockerbie &
7 Hole to build plants. I didn't know who they
8 were for.
9 Q Didn't know who they were for.
10 In 1992, had Thermo Tech got any plants up
11 and running?
12 A 1992? To be honest, my -- I don't really -- I
13 don't -- I couldn't date that. You know, I know
14 that they started up Corinth in, what was it,
15 ninety -- I would think '93, '94, something like
16 that.
17 Q Yes. Well, in fact, if I can take you to tab
18 2 -- or sorry -- Exhibit 2, tab 10, the book my
19 friend had just left with you, there's a news
20 release apparently dated September 13th, 1993,
21 setting out various stages of progress for
22 various of these companies. Do you have that
23 tab, sir?
24 A Yes. Yes, I've got that.
25 Q Reviewing this, can you now say that -- whether
26 or not there were any plants in operation by
27 September 13th, 1993?
28 A Well, no. Because it appears that Corinth said
29 they'll be in full operation by January 1994.
30 Q Yes.
31 MR. BOWES: Thank you, my lord. Those are my
32 questions.
33 MR. LUNNY: My lord, I had forgotten to mark the buff
34 book that was presented to the first witness as
35 an exhibit, and I've got a copy now for your
36 lordship.
37 MR. BOWES: Well, my lord, I take strong objection to
38 that book, as it is -- as it is bound, going
39 before your lordship. There are other materials
40 that have not been referred to there that I find
41 particularly offensive.
42 MR. LUNNY: That --. I'm not going to --. I accept
43 that, that there shouldn't -- it shouldn't be
44 admitted as evidence any tabs that weren't
45 referred to to the witness.
46 THE COURT: Sorry, just which booklet are you talking
47 about? This one?
48 MR. LUNNY: It's this one. Remember, I didn't have a
65
1 copy for your lordship.
2 THE COURT: Oh. Well, we'll mark it now for
3 identification purposes, and then you and your
4 friend can discuss what tabs, if any, ought to be
5 excised.
6 MR. LUNNY: Yes. That would be acceptable. Exhibit A
7 for identification, my lord?
8 THE REGISTRAR: A, yes. Thank you.
9
10 EXHIBIT A FOR IDENTIFICATION: Buff Binder of
11 Documents
12
13 MR. LUNNY: My lord, that's the cross-examinations on
14 behalf of the plaintiff.
15 THE COURT: Thank you.
16 A There's your two books.
17 MR. LUNNY: Thank you very much.
18 A Did you have that copy of the letter?
19 MR. LUNNY: That's an exhibit, I'm afraid.
20 A Oh, so that has to stay here?
21 MR. LUNNY: For the time being.
22 A Okay. That's fine.
23 MR. BOWES: I have another copy that --
24 A Okay. That's fine.
25 MR. BOWES: -- I can give back to you for your files.
26 A So I can take all this stuff away with me now?
27 MR. LUNNY: Yes.
28
29 (WITNESS EXCUSED)
30
31 MR. BOWES: My lord, before commencing the
32 cross-examination of Mr. Lis, the affidavit of
33 Mr. Liebowitz I don't think has been filed yet,
34 and I do certainly wish to have that filed.
35 MR. LUNNY: I'm objecting to the admissibility of this
36 affidavit, my lord. |
