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Remains of the gas-fired power plant in Mississauga, Ont., which had its construction cancelled prior to the provincial election in 2011.Chris Young/The Canadian Press

Ontario's former top bureaucrat says he tried but failed to persuade former premier Dalton McGuinty's chief of staff that the government had a legal obligation to disclose documents related to the controversial cancellation of two gas-fired power plants.

Peter Wallace, secretary of cabinet at the time, testified in court at Toronto's Old City Hall on Monday about the "tense conversation" he had with David Livingston during a meeting in August, 2012, where Mr. Wallace told Mr. Livingston he is "acutely worried" that the Premier's Office has not complied with a legally binding order to hand over documents in connection with the power plants.

"I don't think he found the conversation particularly useful," Mr. Wallace testified. He said Mr. Livingston dismissed his concerns as "political bullshit."

Mr. Wallace, who is now City Manager of Toronto, described how the government decision to pull the plug on the two power plants had left the minority Liberals embroiled in an escalating controversy during the summer of 2012 – just months before Mr. McGuinty announced his resignation and prorogued the legislature.

The government cancelled the power plants in Oakville and Mississauga before the 2011 provincial election. By the summer of 2012, a committee of the legislature was calling on the Speaker to find Chris Bentley, energy minister at the time, in contempt of Parliament if he did not reveal all costs associated with the decision to cancel the two power plants west of Toronto.

Bureaucrats in the Ministry of Energy and a government agency responsible for overseeing energy projects had provided the committee with a massive amount of disclosure, Mr. Wallace testified under questioning from prosecution lawyer Tom Lemon. However, he said, there was no disclosure from the "political actors." The Minister of Energy's office said it had no documents related to the power plants, Mr. Wallace said, a response the opposition did not find "particularly credible."

Mr. Wallace said he met regularly with Mr. Livingston to help implement decisions made by cabinet ministers and said the two got along "very well." He asked to meet with Mr. Livingston in August, 2012, he said, because of his concern that people in the Premier's Office did not understand their obligation to disclose records. Before the meeting, he said, he sought extensive legal advice all of which concluded the same thing: The government had to disclose records related to the gas plants as well as to establish rules around the retention of government documents.

At the time, he said, "I am acutely worried that the Office of the Premier is not in compliance with a legally binding order."

Mr. Livingston and former deputy chief of staff Laura Miller are facing criminal breach of trust and mischief charges in connection with the destruction of e-mails and other government records related to the cancellation of the two power plants. Each has pleaded not guilty.

The charges stem from police accusations that Mr. Livingston hired a non-government IT expert, Ms. Miller's spouse, Peter Faist, to "wipe clean" computer hard drives in the Premier's Office just days before Mr. McGuinty stepped down in February, 2013.

The two are accused of compiling a list of senior Liberal staffers whose computer records were to be deleted, all of whom police allege were involved in discussions around the decision to scrap the power plants, which the provincial auditor has said cost $1-billion.

Mr. McGuinty is not under investigation and has co-operated with the probe.

Earlier this month, the trial was told that Mr. Livingston was notified in writing to preserve government records. Ontario's corporate chief information officer, David Nicholl, testified that he wrote a memo informing Mr. Livingston of his obligation to comply with the province's archive act.

The memo, dated Jan. 31, 2013, was written during Mr. McGuinty's final days in office and was essentially dictated to Mr. Nicholl by a lawyer in Mr. Wallace's office. One week later, prosecutors allege, Mr. Livingston instructed staff to "double delete" e-mails to ensure that nothing was turned over to the legislative committee probing the cancellation of the two gas plants.

Under questioning on Monday from Brian Gover, a lawyer for Mr. Livingston, Mr. Nicholl agreed that Mr. Livingston did not receive any training on record keeping when he became chief of staff in May, 2012.

The trial continues on Tuesday.

Ontario is aiming to create safe zones around abortion clinics and the homes of staff who provide the service. Attorney General Yasir Naqvi said Wednesday the move will ensure women have 'free access' to the clinics.

The Canadian Press

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