Eduard Hiebert

Eduard Hiebert

Please note this address will change without notice.

The Transcripts

1	Q	File No. CI01-02-28357
2		IN COURT OF QUEEN'S BENCH (CIVIL DIVISION)
3		WINNIPEG CENTRE
4
5		IN THE MATTER OF: The Corporations Act
6
7		BETWEEN
8
9		EDUARD HIEBERT
10		Applicant,
11		- and -
12		MANITOBA CANOLA GROWERS ASSOCIATION INC.
13		Respondent.
14
15
16
17		CROSS-EXAMINATION OF: ERNEST SIRSKI
18		CROSS-EXAMINATION BY: MR. G. ZAZELENCHUK
19		CROSS-EXAMINATION DATE: THURSDAY, JULY 4, 2002
20
21
22
23		ROSE GINGELL GILL REPORTING
24		215 - 153 Lombard Avenue, Winnipeg, Manitoba
25		(204) 943-0196

1		This is a Cross-Examination on an Affidavit
2		sworn June 6, 2002, of ERNEST SIRSKI, a representative
3		of the named Respondent, viva voce, on oath, had and
4		taken by ROB ROSE, an Official Examiner in this
5		Honourable Court, at the Law Offices of McCarthy &
6		Brown, 71 Main Street, in the Town of Carman, Province
7		of Manitoba, on Thursday, the 4th day of July, A.D.
8		2002, at the hour of 9:27 a.m.
9
10
11
12
13
14
15
16
17		APPEARANCES:
18		For the Applicant: MR. G. ZAZELENCHUK
19		BY: MR. G. ZAZELENCHUK 506 - 428 Portage Avenue
20		Winnipeg, Manitoba
21		For the Respondent: McCARTHY & BROWN
22		BY: MS. S.L. McCARTHY 71 Main Street
23		Carmen, Manitoba
24
25		ROB ROSE, Official Examiner, Q.B.

1		INDEX
2	EXHIBIT		PAGE
3	1	TWO PAGES OF MEMBERSHIP LIST	15
4	2	LETTER, MR. SIRSKI TO MR. BARBER, DATED JUNE 17, 2002	18
5	3	EXCERPT FROM MANITOBA CO-OPERATOR, DATED	20
6		JANUARY 10, 2002
7	4	PREPARATORY MATERIAL PROVIDED FOR BOARD MEETING	22
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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1			THURSDAY, JULY 4, 2002, 9:27 A.M.
2
3			ERNEST SIRSKI, BEING FIRST DULY
4			SWORN, TESTIFIED AS FOLLOWS:
5
6			CROSS-EXAMINATION
7
8			BY MR. ZAZELENCHUK:
9	1	Q	You are Ernest Sirski?
10		A	Yes, sir.
11	2	Q	You are the Ernest Sirski who swore an
12			Affidavit on the 6th of June this year?
13		A	That's correct.
14	3	Q	You have a copy of the body of that Affidavit
15			with you for reference?
16		A	I do, sir.
17	4	Q	Mr. Sirski, you are the president of the
18			respondent corporation?
19		A	Yeah, Yes, sir.
20	5	Q	You don't have to call me sir everytime. Yes
21			will do.
22			How long have you held that position?
23		A	Since January of - this is the end of my
24			third year, so it would be January of '99, I guess
25			it is. I think that worlds out. January of 2000.

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1	6	Q	January of 2000, if you're finishing your
2			third year.
3		A	I am finishing the end of my third year.
4	7	Q	So you have been two and a half years as
5			president of the respondent corporation?
6		A	That's right.
7	8	Q	Now, Exhibit "E" to your Affidavit is itself
8			a copy of an Affidavit, but it appears to be
9			unsworn, correct?
10		A	But that's an Affidavit from - that's not my
11			Affidavit.
12	9	Q	I know. It's an Affidavit of Mr. Hiebert.
13			And it appears to be unsworn, correct?
14		A	It does say here, Sworn before me, sir.
15	10	Q	No, that's the exhibit sign.
16			MS. McCARTHY: There is no signature in the
17			usual spot on this Affidavit, that's correct.
18
19			BY MR. ZAZELENCHUK:
20	11	Q	The only reason I bring that up is, is there
21			any issue about the respondent corporation having
22			received a signed copy of what is Exhibit "E" to
23			your Affidavit?
24			MS. McCARTHY: No.
25			THE WITNESS: No.

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1			MS. McCARTHY: That's not an issue.
2
3			BY MR. ZAZELENCHUK:
4	12	Q	I just wanted to get that out of the way so
5			that we could move on to something more important.
6			Prior to the letter which the corproation
7			received from me on March 21st, which is Exhibit
8			"D" to your Affidavit, and the enclosure, which is
9			Exhibit "E" to your Affidavit, had Mr. Hiebert
10			asked of the respondent corporation for a
11			membership list?
12		A	I've got to refer back to this as to the
13			timing of it. This is post his first Affidavit,
14			right?
15	13	Q	No, pre. In the latter part of March of this
16			year you received - you, meaning the
17			corporation -
18		A	Yes.
19	14	Q	- received a letter from me dated March
20			21st, 2002?
21		A	Um-hum.
22	15	Q	That's Exhibit "D" -
23		A	Okay.
24	16	Q	- to your Affidavit. And closed with that
25			letter was an Affidavit executed by Mr. Hiebert.

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1			That's Exhibit "E."
2		A	Um-hum
3	17	Q	The thrust of that letter was that I asked on
4			behalf of my client for a membership list?
5		A	Yes.
6	18	Q	My question to you, sir, is prior to March
7			of 2002, are you aware if Mr. Hiebert made any
8			requests for a membership list?
9		A	Yes.
10	19	Q	He did?
11		A	Yes, he did.
12	20	Q	In fact, had he not been making requests for
13			a membership list since about December of the year
14			2000?
15		A	I'm not sure on the exact dates, but he had
16			made previous requests.
17	21	Q	Was he ever given a membership list?
18		A	No, sir.
19	22	Q	Why was that?
20		A	It's been the policy of our organization to
21			keep our membership list confidential.
22	23	Q	But he is a director?
23		A	Yes.
24	24	Q	So it's been your policy to keep it
25			confidential from your directors?

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1		A	Yes, sir.
2	25	Q	And from your members?
3		A	Yes.
4	26	Q	Who don't you keep it confidential from?
5		A	Staff are the only ones - staff and the
6			chairman or the president of the organization.
7	27	Q	So you and the staff are the only people who
8			have access - it was your policy that you and the
9			staff were the only people to have access to the
10			membership list?
11		A	Yes.
12	28	Q	How many staff does the organization have?
13		A	Two - three. Two of which have access to
14			the list.
15	29	Q	When did this become the policy?
16		A	It's been there ever since - I've been a
17			director since 1994, and it's been the policy of the
18			organization since before we even had a check-off,
19			which started in 1996.
20	30	Q	Okay. Can you tell me any reason for this?
21		A	To protect the confidentiality of our
22			members.
23	31	Q	Okay. Let me refer to paragraph 8 of your
24			Affidavit. I don't understand the last phrase of
25			that paragraph.

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1			There appears to be no statutory provision
2			that requires confidentiality of the membership
3			list - okay, I understand that, you're stating
4			that there appears to be no statute that says you
5			have got to keep the membership list
6			confidential - to protect those farmers who have
7			requested return of their check-off fees.
8			I don't understand that. If you ask for the
9			return of your check-off fees, aren't you taken
10			of the membership list?
11		A	Yes, sir.
12	32	Q	So -
13			MS. McCARTHY: I'm not sure if you - not
14			under our current system. If I can just answer for my
15			client and ask him to indicate whether this is accurate.
16			Under the current system if you have
17			check-off once in the past, you remain a member even if
18			you later ask for your fees back, is that not correct?
19			THE WITNESS: If you have applied for a full
20			refund, you are no longer on the membership list.
21			MS. McCARTHY: And you get removed from the
22			existing list?
23			THE WITNESS: Yes.
24			MS. McCARTHY: Okay.
25

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1			BY MR. ZAZELENCHUK:
2	33	Q	So what I don't understand is, if you're
3			removed from the membership list, how can giving
4			out a membership list impair your privacy when
5			you're not on the list?
6		A	I'm sorry. I don't understand your question.
7	34	Q	I don't understand it either. The last
8			phrase in paragraph 8 says, To protect those
9			farmers who have requested return of their
10			check-off fees.
11		A	Okay. Because if this list is handed out an
12			let's assume that - and, for the record, I have
13			never seen the list - I look and see that my
14			neighbour is not on this list, that tells me that
15			he has requested a refund and he is not member of
16			our organization.
17	35	Q	Okay. So you're telling me that the
18			rationale there is, you know your neighbour grows
19			canola, you have a copy of the membership list, he
20			is not on it, therefore, you know he has requested
21			that he gets his check-off back?
22		A	Yes, sir.
23	36	Q	And that's what you're protecting by keeping
24			the list confidential?
25		A	That's part of it.

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1	37	Q	What else are you protecting?
2		A	We also wanted to ensure that our members
3			were never - that our list was never sold to a
4			corporation for commercial use.
5	38	Q	Okay. Fair enough. Can't that be
6			accomplished by getting the director to sign an
7			undertaking that he won't sell it to a corporation
8			for commercial use?
9		A	It's possible.
10	39	Q	Was that ever considered?
11		A	No.
12	40	Q	Is there any other reason for keeping this
13			list confidential?
14		A	We also felt we had to protect the integrity
15			of the people that collect their check-off, that
16			being the grain companies.
17	41	Q	You lost me there. How does that work?
18		A	We receive all of our information from grain
19			companies.
20	42	Q	Okay. So?
21		A	That being the case, if someone were to -
22			and not having seen the list - it's possible that
23			someone could spend some time and at some point in
24			time figure out what the percentage of sales of
25			canola are from each individual company. I am

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1			assuming that could be done.
2	43	Q	So -
3		A	We felt we had to protect that.
4	44	Q	So you had to protect the integrity of the
5			people who buy canola? That's people like
6			Paterson, and Manitoba Co-op, if it still exists,
7			and people like that, right?
8		A	Yes, sir.
9	45	Q	That was the third reason why the list was
10			kept confidential?
11		A	Yes.
12	46	Q	Was there a fourth?
13		A	Not to my knowledge.
14	47	Q	Now, let's move to paragraph 16. You say
15			that for the purpose of the last election, in
16			anticipation that the by-laws would have been
17			passed, a shorter membership list was used based
18			on a proposed new definition of the member under
19			the new by-laws.
20			Before we get into that question, do you
21			have a complete copy of Exhibit "C" to your
22			Affidavit?
23		A	That would be the membership list?
24	48	Q	Yes.
25		A	I do not have it. I believe Shauna has it.

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1			MS. McCARTHY: We have it in our file.
2
3			BY MR. ZAZELENCHUK:
4	49	Q	I make no reproach. I am not suggesting you
5			did anything wrong here. I just have page one and
6			that's fair enough. But there is about 60 names
7			on the page, aren't there?
8		A	I don't know. I never counted them, sir.
9	50	Q	Do you want to take a quick scan?
10		A	I believe there's about 97 on that list.
11	51	Q	All right. In fact, your list appears to be
12			printed differently from the list that you
13			furnished us, in that the list you furnished
14			us appears - they both are on eight and a half by
15			eleven paper, but the one that is appended to your
16			Affidavit appears to be down the eleven inches and
17			the one that was furnished to us appears to be
18			down the eight inches?
19		A	Yes.
20	52	Q	Which explains why there is about 90 names on
21			this one, because it's a larger page. But let's
22			move along. Our list, which has 60 names per
23			page, has about 500 pages. My question to you,
24			sir, is, you will agree with me there is about
25			30,000 names on this list?

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1		A	That's my understanding. I haven't counted
2			it.
3	53	Q	No. And I am not asking for an exact figure.
4			I am asking for an approximate figure. So there
5			is approximately 30,000 names on this list?
6		A	(Witness nods head.)
7			MR. ZAZELENCHUK: Is this the original of
8			Exhibit "C" from his Affidavit?
9			MS. McCARTHY: I am not sure that's the
10			original. It's our copy.
11			MR. ZAZELENCHUK: All right.
12			MS. McCARTHY: We probably just did one
13			original. It went to the court.
14
15			BY MR. ZAZELENCHUK:
16	54	Q	The list appears to be sort of alphabetical.
17			Are you aware of that, sir?
18		A	No, sir.
19	55	Q	You're not. I am showing you a page from the
20			list that we were provided. I note that your name
21			appears on it twice?
22		A	It appears to be that way, sir.
23	56	Q	The address is the same?
24		A	Yes, sir.
25	57	Q	I am showing you another page from the list

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1			we were provided. There is a blue line by the
2			entry Ernest.
3		A	Um-hum.
4	58	Q	Now, there is probably more than one Ernest
5			in this province, but I note that if we follow
6			across on that, we come up with your post office
7			box?
8		A	Um-hum.
9	59	Q	Although there is no town or municipality, is
10			that correct?
11		A	Yes.
12			MR. ZAZELENCHUK: Perhaps these two could be
13			marked as Exhibit 1.
14
15			(EXHIBIT NO. 1: TWO PAGES OF
16			MEMBERSHIP LIST)
17
18			BY MR. ZAZELENCHUK:
19	60	Q	Now, you say in paragraph 16 that for the
20			purposes of the last election a shorter list was
21			used. Do you know, approximately, how many
22			members were on the shorter list that was used
23			for the purposes of last year's election?
24		A	Approximately 10,000 ballots were sent out.
25	61	Q	How was the list culled down?

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1		A	By check-off revenue over the last two
2			previous years.
3	62	Q	How about by eliminating duplications?
4		A	No, sir.
5	63	Q	That wasn't done?
6		A	I don't believe so.
7	64	Q	So did you receive two ballots for the last
8			election?
9		A	I believe I did.
10	65	Q	Did you vote twice?
11		A	No, sir.
12	66	Q	As president, did it give you any concern
13			that you received two ballots?
14			MS. McCARTHY: I just want to object at this
15			point. We are going to confine our answers to the
16			existing list, whether or not we'll provide the list and
17			whether or not we are required to provide the list. We
18			don't want to get into the questions about last time's
19			election, because I don't think that's a matter before
20			the court.
21			MR. ZAZELENCHUK: Okay. We have your
22			objection on the record.
23
24			BY MR. ZAZELENCHUK:
25	67	Q	What's the problem with giving Mr. Hiebert a

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1			copy of the list that was used for last year's
2			election?
3		A	We do not believe it's a complete list.
4	68	Q	It was complete enough to use for an
5			election. What's the problem with giving it to
6			Mr. Hiebert?
7		A	According to our constitution, it is not a
8			membership list.
9	69	Q	That's your objection to giving it to
10			Mr. Hiebert?
11		A	Yes.
12	70	Q	Is there any other objection?
13		A	No.
14	71	Q	No. Okay.
15		A	Other than the confidentiality that I already
16			spoke of.
17	72	Q	Yes, we have talked about the
18			confidentiality.
19			I am showing you a three-page document. It's
20			a photocopy. It's a letter under date June 17th,
21			2002. That appears to be your signature?
22		A	Yes, sir.
23	73	Q	It's a letter to Alan Barber at Industry
24			Trade?
25		A	Um-hum.

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1	74	Q	Yes?
2		A	Yes.
3	75	Q	You carboned the Premier and the Minister of
4			Agriculture?
5		A	Yes, sir.
6	76	Q	You recall writing that letter?
7		A	Yes, sir.
8	77	Q	You recall sending it?
9		A	Yes, sir.
10			MS. McCARTHY: Can I just have a look at the
11			letter before we do any questions?
12			MR. ZAZELENCHUK: Sure.
13			Exhibit 2, please.
14
15			(EXHIBIT NO. 2: LETTER, MR. SIRSKI
16			TO MR. BARBER, DATED JUNE 17, 2002)
17
18			BY MR. ZAZELENCHUK:
19	78	Q	In the third paragraph you say the MCGA
20			represents 10,956 canola growers. Do you see
21			that?
22		A	Yes, sir.
23	79	Q	Where did that number come from?
24		A	That would be the - and again, not having
25			seen the list, I would presume that that would be

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1			the people that have received - or, we have
2			received check-off revenue over the last two
3			years.
4	80	Q	You didn't make that number up?
5		A	No, sir.
6	81	Q	What is the problem with furnishing
7			Mr. Hiebert with a list of the 10,956 canola
8			growers that you tell the Premier of this province
9			your organization represents.
10			MS. McCARTHY: Mr. Sirski has already
11			answered that question. In legal proceedings we are
12			going to stick with what the constitution requires of
13			the organization on our advice.
14
15			BY MR. ZAZELENCHUK:
16	82	Q	You're adopting the answer of your counsel?
17		A	Yes, sir.
18	83	Q	Are you familiar with a newspaper called the
19			Manitoba Co-operator?
20		A	Yes, sir.
21	84	Q	I am showing you page 7 of that newspaper
22			from January 10th of this year. In the bottom,
23			lefthand corner there appears to be a Letter to
24			the Editor from a chap called Ernest Sirski?
25		A	Yes, sir.

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1	85	Q	Did you write that letter?
2		A	Yes, sir.
3	86	Q	Is that an accurate representation of it?
4		A	I'm sorry. Of the letter?
5	87	Q	Yes.
6		A	It's the letter I wrote.
7			MS. McCARTHY: Again, I think you can ask
8			your question, if you like, but I think your questions
9			are, again, into the issue of whether or not the last
10			election - there was any concerns with respect to the
11			last election, and we are not going to -
12			MR. ZAZELENCHUK: Exhibit 3, please.
13			MS. McCARTHY: I think that -
14			MR. ZAZELENCHUK: I'd like it marked as an
15			exhibit. Then I will ask the question. You can tell me
16			you're not going to answer it. We'll have a record an
17			we'll go on our way.
18			MS. McCARTHY: Fine.
19
20			(EXHIBIT NO. 3: EXCERPT FROM MANITOBA
21			CO-OPERATOR, DATED JANUARY 10, 2002)
22
23			BY MR. ZAZELENCHUK:
24	88	Q	The first sentence in the fourth paragraph
25			says, MCGA does not give out its voters' list,

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1			which is our membership list as well, to
2			candidates. You wrote that, didn't you?
3		A	Yes.
4	89	Q	When the Board of Directors has its regular
5			meetings, the directors are given packages
6			preparatory for the meeting?
7		A	Yes, sir.
8	90	Q	Who supervises the package that goes out?
9		A	Our executive manager.
10	91	Q	Do you get a package as well?
11		A	Yes, sir.
12	92	Q	I am showing you a document. Have you seen a
13			copy of that document before?
14		A	Yes, sir.
15	93	Q	That was a document that came as part of the
16			package preparatory for the July 3rd Board
17			meeting, is that correct?
18		A	I'm failing to see where this is going, but,
19			yes.
20	94	Q	Thank you.
21			Off the record.
22
23			(OFF THE RECORD DISCUSSION)
24
25			MS. McCARTHY: This was your recent -

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1			THE WITNESS: That's the meeting we had
2			yesterday.
3			MS. McCARTHY: Yesterday.
4			MR. ZAZELENCHUK: Exhibit 4, please.
5
6			(EXHIBIT NO. 4: PREPARATORY MATERIAL
7			PROVIDED FOR BOARD MEETING)
8
9			BY MR. ZAZELENCHUK:
10	95	Q	The Digest is a journal that is published by
11			the Association for its members, isn't that
12			correct?
13		A	It's published with a consortium of members.
14	96	Q	But it's for the purpose of your members?
15		A	And members in Alberta, Saskatchewan, British
16			Columbia, and Ontario.
17	97	Q	Right. How is the figure at 10,000 copies
18			arrived at?
19		A	The Board of Directors made a decision in, I
20			believe it was, sometime this past April that they
21			would only mail copies of The Canola Digest to
22			members that have contributed more than $10.00
23			within - of check-of revenue within the last two
24			years, other than the issue that relates directly
25			to the election, which be the September

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1			issue, which will go to all members.
2	98	Q	What's the problem with giving Mr. Hiebert
3			that list?
4		A	I do not believe that's a full and complete
5			membership list.
6	99	Q	That's the reason we can't have it?
7		A	I believe I have answered that.
8	100	Q	Okay. Let's go on to paragraph 19. You say
9			the MCGA is a voluntary, nonprofit organization;
10			is that correct?
11		A	That is correct.
12	101	Q	It had revenue last year in excess of
13			$600,000.00; didn't it?
14		A	Our budget was close to $750,000.00
15			MR. ZAZELENCHUK: Thank you. Those are my
16			questions.
17
18			(CROSS-EXAMINATION CLOSED)
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Maintained by Eduard Hiebert