Order No. P.930324
IN THE MATTER of the Island Regulatory and Appeals Commission Act, Stats. P.E.I. 1991 Chapter 18; and the Petroleum Products Act, R.S.P.E.I. 1988, Cap. P-5.1;
- and -
IN THE MATTER of an application by Helen Kenny for an initial petroleum products license in respect of a proposed self-serve motor fuels outlet to be located at GREEN MEADOWS, P.E.I.
Wednesday, the 24th day of March, A.D., 1993
BEFORE
Linda Webber, Chairman
John Blakney, Vice-Chairman
Michael Ryan, Commissioner
Decision and Order
Appearances and Witnesses
Participants in the hearing on 12 January 1993 and the parties for whom they appeared were as follows:
FOR HELEN KENNY, APPLICANT:
Witness:
(Mrs.) Helen KennyObserver:
Daughter of Mrs. Kenny
FOR DOUGLAS DAVEY, INTERVENER:
Witness:
Mr. Douglas Davey
FOR THE COMMISSION:
(Mrs.) H. Doris Pursey, Director - Petroleum Division
Mr. Harry MacDonald (Witness) - Assistant to Director - Petroleum Division
Mr. Douglas R. Drysdale - Counsel
RECORDING SECRETARY:
(Mrs.) Faye Weeks
Decision and Order
By application dated 25 June 1992 and received by the Commission on 17 August 1992, Helen Kenny applied to the Commission for a petroleum products license in respect of a proposed self-serve motor fuels outlet to be located at Green Meadows, P. E. I.
The Applicant completed her application on 19 October 1992, and it was publicly advertised by "Notice of Application" dated 20 October 1992, with a closing date for the filing of interventions being fixed at 16 November 1992. Following this date, there having been no interventions either in support of or in opposition to the application filed, the Commission reviewed the application and determined that there was insufficient information upon which to base a decision, and requested that a public hearing be scheduled for 12 January 1993 at 9:00 a.m. Said hearing was publicly advertised by "Notice of Hearing" dated 11 December 1992. This hearing commenced as scheduled. The only witness for the Applicant was the Applicant herself, Helen Kenny. Harry MacDonald gave evidence for the Commission and Douglas Davey, owner and operator of the motor fuels outlet known as Baldwin's Road Grocery appeared as an intervener and gave evidence on his own behalf.
A total of fourteen documents were entered as Exhibits in this Hearing. Exhibit No. 13 was filed in support of the application by Mrs. Kenny. This document consisted of four pages of signatures with a card attached indicating that the persons who signed on the attached pages were in support of the application. Mrs. Kenny testified as follows with respect to Exhibit No. 13:
"I brought with me today several names of the people in the area who support my efforts in getting this business going, and as the Commission has asked for some response from the public to support my endeavor, I can present them to you. I might add that this took a great deal of time because knowing most of the people in the country, a short visit is unheard of, when I was getting these signatures."
In response to questioning by the Chairman, a portion of the record reads as follows:
"CHAIRMAN: So there are four pages here that have signatures on them and did you get them alone, or did you and your family members both go out and get them?
KENNY: Mrs. Webber, I got these with my husband on more than one occasion.
CHAIRMAN: Did anybody take them out without you being present?
KENNY: No.
CHAIRMAN: Okay, you were always there to see the signatures?
KENNY: Yes."
In response to questioning by Commission Counsel, the following questions and answers are obtainable from the record:
"DRYSDALE: Now, you've already testified about this petition that you have brought to the Commission this morning. So, I just want to get a little background information about that document. Can you tell me what time period was involved in creating this petition? When did you start getting signatures on the paper?
KENNY: Well, initially we began getting signatures during the summer, and later on in the early fall we continued to get petitions. It's a difficult thing to get that many petitions in a short period of time, so it did take a long period of time.
DRYSDALE: Sure. It was an ongoing thing from the summer.....
KENNY: Yes, it was.
DRYSDALE: ....until just before you came in here today, or did you have a cut off point?
KENNY: No, we finished about two weeks.....three weeks ago.
DRYSDALE: Do you happen to know how many names are on that petition?
KENNY: Possibly 170."
.......
"DRYSDALE: Now did you actually go to these people's houses or were they visitors at your house?
KENNY: No, I was at their houses.
DRYSDALE: So you actually went on a campaign knocking on the door for the specific purpose of asking them about what they felt about your application?
KENNY: Yes I did, and it's a lengthy process."
Several other references were made during the testimony of Mrs. Kenny which indicated to the Commission that Mrs. Kenny had personally obtained all the signatures. Following the conclusion of the hearing on 12 January 1993, the Petroleum Division Director was contacted on 13 January 1993 by George MacInnis, who indicated that he had been advised that his name was on the above-noted Exhibit as a supporter of the application, and he assured the Director that he had not signed the above-noted document. On 14 January 1993, the Petroleum Division Director was contacted by the Intervener, Douglas Davey, who advised that there were several people in the area who had reviewed a copy of Exhibit No. 13 and indicated to him that they had not signed this document. On 19 January 1993, a document was filed with the Commission by Mr. Davey which was headed as follows:
"We, the undersigned, do hereby give notice that we have never signed any such document or list of names for Helen or Roy Kenny. This list was handed in by Helen to the Island Regulatory and Appeals Commission during her hearing."
This document contained the signatures of eleven persons whose names appeared on Exhibit No. 13. As a result, this matter was handed to Counsel to the Commission in this matter for further investigation. Counsel advised that during his investigation he had spoken with nine people whose names appeared on Exhibit No. 13, and that all but two of these people had denied having signed their names to the document. Of the remaining two, one indicated that he might have signed a document years ago in relation to an application for a service station license, and one person couldn't recall whether or not he had signed a document for Helen Kenny, but he knew that he had not done so within the last half year or year. Counsel further informed the Commission that affidavits had been obtained from three of the people contacted, and that these affidavits contradicted the evidence Helen Kenny gave in response to questions about Exhibit No. 13. The Commission has reviewed these affidavits and considered the other information which has come to light, and is satisfied that Mrs. Kenny perjured herself during the hearing, and tendered a false or forged document for the purpose of misleading the Commission.
Given these exceptional circumstances, the Commission considered reconvening the hearing to have Mrs. Kenny offer an explanation. However, such an exercise would be pointless and unnecessarily expensive, in our view, because what Mrs. Kenny said in her testimony is irreconcilable with the information we have subsequently received.
The Commission is very disturbed by the facts which came to light about the so-called petition used by Mrs. Kenny to support her application. Petitions are often brought to us in support of or against certain issues. They are relied upon in good faith once the person who presents them testifies under oath as to their validity. The Commission understands that it is very difficult for many members of the public to personally attend our hearings. Petitions are a means by which the opinions of such people may be heard.
The falsification of petitions is therefore a very serious matter. Such falsification undermines the whole process, and may ultimately deprive the general public of an important means of expression of support for or opposition to a matter. If the Commission cannot trust that petitions are valid, i.e. signed by the people whose names appear on them, then they may have to be banned altogether from our proceedings.
By her actions, Mrs. Kenny has not only destroyed her credibility before this Commission, she has rendered the question of the merits of her application unanswerable because we cannot accept her evidence, and she has cast doubt on the acceptability of petitions by the Commission in the future. This latter action could have serious consequences far beyond this hearing.
Since the Commission has determined that the evidence given by the sole witness for the Applicant cannot be relied upon; the application of Helen Kenny for a petroleum products license for self-serve gasoline dispensing in conjunction with a proposed convenience store in the Green Meadows area is hereby dismissed in accordance with the Order appended to this Decision.
Order
THE COMMISSION HEREBY ORDERS:
1. THAT the application of Helen Kenny dated 25 June 1992 for an initial petroleum products dealer's license with respect to a proposed self-serve motor fuels outlet to be located in Green Meadows be dismissed.
DATED at CHARLOTTETOWN this 24th day of MARCH, A.D., 1993.
BY THE COMMISSION:
Chairman
Vice-Chairman
Commissioner