R. v. Dunn | Jan 14, 2013

CITATION: R. v. Dunn, 2013 ONSC 137

COURT FILE NO.: 10-00145

DATE: 20130114

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

)

HER MAJESTY THE QUEEN

– and –

) Robert Hubbard, Amanda Rubaszek &

) David Friesen, for the Crown

)

FRANK A. DUNN, DOUGLAS C. ) David M. Porter, John Dent, Sarit Batner,

BEATTY AND MICHAEL J. GOLLOGLY ) Harry Underwood & Andrew Matheson, for

) the Defendant, Frank A. Dunn,

Defendants )

) Gregory Lafontaine &, Lori Anne Thomas,

) for the Defendant, Douglas C. Beatty

)

) Sharon Lavine & Robin McKechney, for the

) Defendant, Michael J. Gollogly

)

) HEARD: January 12, 16, 17, 18, 19, 20, 30,

) 31, February 1, 2, 3, 6, 7, 8, 9, 13, 14, 15, 16,

) 17, 21, 22, 27, 28, 29, March 5, 6, 26, 27, 28,

) April 2, 3, 4, 5, 10, 11, 17, 18, 30, May 1, 2,

) 3, 10, 14, 22, 23, 24, 28, 29, June 4, 5, 12,

) 13, 14, 19, 20, 21, 22, 25 & 26, September

27, 28, October 2, 3, 2012

Contents

Nortel’s Circumstances during the time-frame of this indictment.................................................. 6

The law of fraud as it applies to the allegations against the accused in this case ........................... 9

Materiality..................................................................................................................................... 11

SAB 99 and Mr. Dunn, Mr. Beatty and Mr. Gollogly .......................................................... 13

The presumption of innocence, reasonable doubt, R. v. W.(D.), [1991] 1 S.C.R. 742 ................ 13

Business Records .......................................................................................................................... 14

Should the evidence of some of the Nortel and Deloitte’s employees be viewed with caution? . 14

2

A few basic accounting principles ................................................................................................ 18

More generally ...................................................................................................................... 20

Considerations concerning the set-up and use of accrued expenses/liabilities..................... 21

Nortel specific circumstances ....................................................................................................... 21

Deloitte’s historical relationship with Nortel........................................................................ 21

Target setting and Nortel’s culture........................................................................................ 22

The employment of Mr. Dunn, Mr. Beatty and Mr. Gollogly at Nortel............................... 23

Mr. Frank Dunn..................................................................................................................... 23

Mr. Douglas Beatty............................................................................................................... 24

Mr. Michael Gollogly ........................................................................................................... 24

Mr. Dunn, Mr. Beatty and Mr. Gollogly............................................................................... 25

Nortel was a complex corporate organization....................................................................... 25

The Financial Results of Nortel Networks Corporation ............................................................... 26

Nortel’s Consolidation Close Process................................................................................... 27

Excess accrued liabilities & Nortel’s policy of Conservatism.............................................. 29

The accused knew there were excess liabilities on the balance sheet................................... 32

Unsupported and excessive accrued liabilities on the balance sheet .................................... 33

Nortel’s Pro Forma earnings calculations............................................................................. 33

Pro Forma earnings and Bonus Thresholds .......................................................................... 34

Nortel’s Re-statement of previously-published financial statements ........................................... 35

The First restatement............................................................................................................. 36

A short chronology................................................................................................................ 36

Who was Responsible ........................................................................................................... 37

Nortel Restatements are complex ......................................................................................... 37

How the Restatements came about ....................................................................................... 37

3

The Comprehensive Balance Sheet Review ......................................................................... 39

Was the Comprehensive Balance Sheet Review Comprehensive?....................................... 41

The results of the second restatement ................................................................................... 43

Inferences concerning Nortel’s restated financial results for Q1 03 and Q2 03 ................... 47

Q4 02-the 4^thquarter of 2002........................................................................................................ 48

The participation of Mr. Dunn and Mr. Beatty..................................................................... 51

The specific late entry accrued expenses/liabilities solicited by Mr. Harrison..................... 52

The solicitation of late entries from Karen Sledge ............................................................... 52

Late entry Fringe and Vacation accrued liability balances ................................................... 52

Fringe Benefit Accrued Liability Balances........................................................................... 52

Vacation Expenses ................................................................................................................ 53

Soliciting accrued expenses in Asia...................................................................................... 54

The solicitation of additional accruals from Ken Crosson.................................................... 56

Excess and obsolete inventory.............................................................................................. 56

Use of Mr. Crosson’s $30 million as an offset ..................................................................... 58

The JDS Uniphase Corporation transactions ........................................................................ 58

Perot Systems........................................................................................................................ 61

The solicitation of additional accruals from Jim Kinney for the period Q4 02 .................... 62

Mr. Gollogly’s knowledge generally .................................................................................... 64

360 Networks ........................................................................................................................ 65

The manipulation of Nortel’s pro forma earnings before taxes to get a bonus..................... 66

Did the late entry accrual expenses/liabilities misrepresent Nortel’s US GAAP financial

results for Q4 02?.................................................................................................................. 66

Susan Shaw’s 2002 Summary of Accrued Liabilities............................................................... 67

Corporate....................................................................................................................................... 70

Non-Op.......................................................................................................................................... 71

4

Q4 2002 Conclusion ............................................................................................................. 72

Q1 03 & Q2 03.............................................................................................................................. 74

The release of $361 million in Q1 03 and $372 million in Q2 03 ........................................ 74

The Crown’s Chart – “operations” Ex. 42E.......................................................................... 75

The PWC release – $19 million-originally released Q1 03 .................................................. 76

The Genuity release – $23 million originally released Q1 03 .............................................. 77

The Optical Warranty release – $8 million released in Q2 03.............................................. 78

Conclusion ............................................................................................................................ 79

The release of $80 million in Non-op accrued liability balances and the entitlement to a

bonus ..................................................................................................................................... 79

The effect of the $80 million on earnings............................................................................. 85

Conclusion concerning the Bonus Payments & earnings ..................................................... 85

The materiality of the release of $80 million of Non-op accrued liability balances............. 86

Conclusion ............................................................................................................................ 89

Susan Shaw’s list of $189 million Non-op accrued liabilities.............................................. 89

Should the $189 million have been dealt with in Q4 02? ..................................................... 93

The knowledge of Mr. Dunn, Mr. Beatty and Mr. Gollogly ................................................ 94

The accrued liability balance for the Degree of Difficulty bonus – $25 million.................. 95

The accrued liability balance for the General Provision $10 million................................... 96

The $142 million in accrued liabilities which Nortel wished to release in Q2 03................ 98

Conclusion ............................................................................................................................ 99

The use of Outlooks and Roadmaps in 2003 ...................................................................... 100

The Arris Proposal .............................................................................................................. 105

Deloitte’s interest in forecasting ......................................................................................... 105

The 2003 Outlooks and Roadmaps tracked proposed releases ........................................... 107

The February 19, 2003 teleconference................................................................................ 107

5

The June 6, 2003 Outlook and the surrounding events....................................................... 111

The release of the $4 million Siemens accrued liability balance ........................................ 113

The Restricted Stock Unit Bonus Plan................................................................................ 115

Conclusion .......................................................................................................................... 116

The draft letters Mr. Gollogly prepared for the Board of Directors and the Audit Committee

in July 2003......................................................................................................................... 117

Mr. Gollogly’s draft letter to the Chairman of the Board of Directors, the Chairman of the

Audit Committee and the Chairman of the Joint Leadership Resources Committee ......... 120

Conclusion .......................................................................................................................... 121

Mr. Gollogly’s draft letter to Mr. Beatty ............................................................................ 121

The “now infamous intercompany out of balance provision” ............................................ 122

Mr. Gollogly’s reference to the unsupported accrued liability balances ............................ 123

Mr. Gollogly’s reference to the forecasted Q3 03 loss ....................................................... 125

Mr. Gollogly’s concern about Nortel’s internal controls .................................................... 125

Conclusion .......................................................................................................................... 125

The language in the 2003 press releases and the notes to the first restatement .................. 126

The Crown’s criticism of the Q3 03 financial results ................................................................. 129

Preservation of the integrity of the Q3 03 General Ledger................................................. 131

Conclusion .......................................................................................................................... 132

Conclusion .................................................................................................................................. 132

The excess and unsupported accrued liabilities .................................................................. 132

Q4 2002(Q4 02).................................................................................................................. 133

The $80 million in Non-op Accrued liability balances released to the Q1 03 profit and loss

statement ............................................................................................................................. 134

The Return to Profitability Bonus....................................................................................... 134

The Restricted Stock Unit Bonus........................................................................................ 134

6

The $80 million generally................................................................................................... 135

The attempt to release the $142 Million ............................................................................. 136

Nortel’s published financial results for Q3 03 .................................................................... 136

The Comprehensive Balance Sheet Review ....................................................................... 136

The Q1 & Q2 03 accrued liability balance releases............................................................ 138

Verdict......................................................................................................................................... 139

MARROCCO J.:

[1]

[2]

The defendants are charged with two counts of fraud.

The first count alleges that, between January 1, 2000 and April 28, 2004, the three

accused did, by deceit falsehood or other fraudulent means, defraud the public by deliberately

misrepresenting the financial results of Nortel Networks Corporation.

[3]

The second alleges that, between January 1, 2000 and April 28, 2004, the three accused

did, by deceit falsehood or other fraudulent means, defraud Nortel Networks Corporation by

deliberately misrepresenting the financial results of Nortel Networks Corporation.

[4]

[5]

In both counts, it is alleged that the extent of the fraud exceeded $5,000.

For the sake of completeness, I make two observations: first, the events captured by this

indictment concern matters which occurred between 2000 and 2004. Nortel did not commence

Companies Creditors Arrangement Act proceedings until January 14, 2009. The evidence in this

proceeding did not describe events linked to the commencement of those proceedings. Second,

Nortel Networks Corporation’s shares traded publicly on the New York and Toronto Stock

Exchanges. It ceased trading publicly on January 14, 2009.

NORTEL’S CIRCUMSTANCES DURING THE TIME-FRAME OF THIS INDICTMENT

[6]

All allegations of criminal conduct are made within a factual fabric or context. A true

appreciation of the nature of the alleged criminal conduct is impossible without a description of

that fabric or context.

[7]

Part of the factual context for this matter is set out in Exhibit 251D. Exhibit 251D was

received in evidence as a business record of Deloitte & Touche.

[8]

Nortel Networks Corporation (“Nortel”) was in the business of providing data, wireless

and optical networking products and services to telecommunications carriers and enterprise

customers around the world. Between 1998 and 2001, Nortel Networks Corporation and its

7

predecessor, Nortel Networks Limited, undertook a total of twenty-two acquisitions for an

aggregate purchase price of $29 billion. These acquisitions were undertaken during a period of

both strong economic growth in 1999 and 2000 and rapid infrastructure build-out by the

telecommunications industry.

[9]

By 2001, the telecommunications industry began to experience a slowdown attributed to

excess capacity created as a result of the build-out, the consolidation of service providers within

the industry and lower capital spending by industry participants. As a result, there was a dramatic

and significant reduction in the demand for Nortel’s products and services.

[10] In response to the industry and economic downturn in 2001, Nortel attempted to

streamline its operations. Nortel reduced its overall workforce from approximately 94,002 to

approximately 52,000 and incurred severance and termination charges in excess of $3.3 billion.

Nortel discontinued aspects of its operations and divested itself of investments. Nortel recorded a

write down of $12.4 billion for goodwill and other intangible assets in the quarter ending June

30, 2001.

[11] In 2002, Nortel reduced its workforce to 37,000 as at December 31, 2002. Nortel

experienced a write down of its goodwill in its Optical business of approximately $595 million

and, on December 13, 2002, Nortel pledged substantially all of its assets in favor of certain

lenders.

[12] Nortel experienced net income losses of $197 million in 1999, $2.9 billion in 2000, $27.4

billion in 2001 and $3.6 billion in 2002.

[13] The equity of Nortel’s shareholders shrank from $28.7 billion in 2000 to $1.9 billion in

2002.

[14] The circumstances had become so dire at Nortel that, when a quarterly result was

announced, the auditors had to take a view of the next twelve months from the date of the

quarterly report and opine on the likelihood of Nortel continuing as a going concern.

[15] Nortel Networks was publicly-traded on the New York Stock Exchange. The New York

Stock Exchange ran on Nortel equipment. Nortel’s decline was so severe that the closing share

price for the company’s common shares in September 2002 fell below the minimum for

continual listing on the New York Stock Exchange. The Chairman of Nortel’s Board was

advised that Nortel might be de-listed although, in fact, this did not occur.

[16] The compelling but rather sterile economic reality described above was put into more

human terms by Mr. Bruce Richmond, who testified as a Crown witness. During the time-frame

of the indictment, Mr. Richmond was the Vice-Chair and Deputy Chief Executive of Deloitte &

Touche LLP (Canada). He is a chartered accountant; he is a Fellow of the Institute of Chartered

Accountants since 1997, a designation conferred on approximately 2% of the Institute’s

members.

[17] During the time-frame set out in the indictment, Mr. Richmond was responsible for

overall management of Deloitte’s clients across the entire Deloitte organization, which

comprised sixty-seven offices with $1.4 billion in revenues.

8

[18] Mr. Richmond was professionally associated with Nortel through Deloitte & Touche

from the late 1970’s.

[19] Through the time-frame described in the indictment, Mr. Richmond served as the Deloitte

& Touche Senior Advisory Partner to Nortel. Specifically, Mr. Richmond had been the Senior

Advisory Partner at Nortel since 1992. In addition to Nortel, Mr. Richmond also served as the

Advisory Partner to approximately a dozen of Canada’s major corporations.

[20] I accept Mr. Richmond’s entire evidence in this matter without qualification.

[21] As Advisory Partner, Mr. Richmond had two primary responsibilities; first, to interface

with the directors, particularly members of the Audit Committee, as well as the CEO and the

CFO; second, to be a sounding board for the Deloitte partners conducting Nortel audits and

reviews.

[22] Mr. Richmond attended virtually all Audit Committee meetings.

[23] Mr. Richmond described Nortel as a major client in the same category as Canadian banks

and other major Canadian corporations. Mr. Richmond indicated that approximately twenty

companies in Canada would be described as major clients.

[24] Mr. Richmond described Nortel’s situation during the time period set out in the

indictment as follows: “Nortel was descending down a very slippery path at a very fast rate…

The notion of where the bottom was going to be was not understood at that point in time by

anybody… One day a client existed the next day it was out of business… The team was clearly

on red alert in terms of what they were facing… ….endeavoring to the best of our collective

ability, and I’m talking Nortel folk and I’m talking Deloitte folk, to put your arms around a

situation that frankly, having had 20 years in the profession and having been the lead client guy

and the senior client service guy for the largest firms in the country, this was a situation that we

had never seen before”.

[25] Later on in his evidence, Mr. Richmond said: “in the years 2001, 2002, the company was

fighting for its very survival…”

[26] Mr. Richmond indicated that the free-fall that Nortel was experiencing resulted in a

situation where Nortel could be comfortable with the value of an asset on one day and next day

be convinced that the asset was severely diminished in value.

[27] As a result of that situation, Nortel’s Audit Committee and Board of Directors were in

Mr. Richmond’s words: “focused like a laser beam in terms of ensuring from their perspective in

the discharge of their responsibilities that the Corporation was doing whatever was required to

ensure that they had identified and appropriately quantified provisioning in connection with any

exposure of the Corporation”.

[28] Nortel’s Audit Committee and Board of Directors had succeeded in communicating this

concern about providing for every risk to senior management and the field.

9

[29] Nortel’s first re-statement re-stated more than $900 million in excess accrued liabilities

into previously-published Nortel financial statements. I am satisfied that one of the underlying

reasons for the presence of these excess accrued liability balances was the determination of

Nortel’s Audit Committee, auditors, senior management and field staff to provide for every risk

and, thereby, avoid unpleasant surprises.

THE LAW OF FRAUD AS IT APPLIES TO THE ALLEGATIONS AGAINST THE

ACCUSED IN THIS CASE

[30] It is the Crown’s position that the accused told lies and that the lies put investors at risk of

economic deprivation. It is also the Crown’s position that the accused told lies which put Nortel

itself at risk of economic deprivation. The lies, according to the indictment, are found in the

deliberate misrepresentation of Nortel Networks Corporation`s financial results.

[31] The offence of fraud is set out in the Criminal Code, RSC 1985, C. C-46 s. 380 in the

following terms:

380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether

or not it is a false pretense within the meaning of this Act, defrauds the public or

any person, whether ascertained or not, of any property, money or valuable

security or any service,

(a) is guilty of an indictable offence and liable to a term of imprisonment

not exceeding 10 years, where the subject matter of the offence is a

testamentary instrument or the value of the subject matter of the offence

exceeds $5000.

[32] At the outset of the trial, the Crown provided the court with a factum setting out the

general principles of the law of fraud, as well as helpful references to s. 397(1)(a) of the

Criminal Code. That factum was quite helpful and I have attempted to apply those principles in

this case.

[33] In R. v. Zlatic (1993), 79 C.C.C. (3d) 466 (S.C.C.) at para. 26, the court stated that the

actus reus of fraud will be established by proof of: (i) the prohibited act, be it an act of deceit, a

falsehood or some other fraudulent means; and (ii) deprivation caused by the prohibited act,

which may consist in actual loss or the placing of the victim’s pecuniary interests at risk.

[34] The court, in R. v. Zlatic, at para. 26, held that the mens rea for fraud was established by

proof of: (i) subjective knowledge of the prohibited act; and, (ii) subjective knowledge that the

prohibited act could have as a consequence the deprivation of another (which deprivation may

consist in knowledge that the victim’s pecuniary interests are put at risk).

[35] Finally, the court stated that, where proof of these two elements was established, the

accused was guilty if he or she actually intended the prohibited consequence or was reckless

concerning the consequences (see: R. v. Zlatic (supra), at para. 27).

10

[36] In R. v. Eizenga 2011 ONCA 113 [2011] O.J. No. 524, at para. 81, the Court of Appeal

emphasized that a subjective intent to mislead was not an essential element of fraud.

[37] In R. v. Theroux (1993), 79 C.C.C. (3d) 449, at paras. 16-17 (S.C.C.), McLachlin J. [as

she then was] defined the actus reus for the offence of fraud as requiring two elements: a

dishonest act and deprivation.

[38] McLachlin J. indicated that deprivation was established if it was proven that the dishonest

act caused detriment, prejudice or risk of prejudice to the economic interests of the victim.

[39] In R. v. Theroux, McLachlin J. [as she then was] defined the mens rea requirement for the

offence of fraud.

[40] McLachlin J. stated that the mens rea of fraud was established by proof of subjective

awareness that one was undertaking the prohibited act, i.e. the deceit, falsehood or other

dishonest act, and that the prohibited act could cause deprivation in the sense of depriving the

proposed victim of property or putting the proposed victim’s property at risk.

[41] McLachlin J. also stated that the fact that an accused person may have hoped that the

deprivation would not take place or may have felt that there was nothing wrong with what he or

she was doing was not a defence (see: R v Theroux, at para. 22).

[42] Later on, McLachlin J. stated, at para. 29: “the accused must have subjective awareness at

the very least that his or her conduct will put the property or economic expectations of others at

risk”.

[43] This case deals with false financial results. Where the omission or misstatement

complained of is not material to those financial results, it stands to reason that it will be difficult

to prove that there was any risk of prejudice to the economic interests of the public.

[44] The public are not defined in the indictment in count one. Obviously, the public can be

divided into different groups or segments. I am satisfied that a fair interpretation of the public in

this case is the investing public.

[45] In count two, the victim is defined; namely, Nortel Networks Corporation.

[46] As indicated earlier, the Crown advances the proposition that, in this fraud case, the

accused told lies. McLachlin J. specifically commented in R. v. Theroux, at para.29: “But in

cases like the present one, where the accused tells a lie knowing that others will act on it and

thereby puts their property at risk, the inference of subjective knowledge that the property of

another would be at risk is clear”.

[47] In R. v. Drabinsky, 2011 ONCA 582 [2011] O.J. No. 4022, one of the charges in the

indictment was that the accused in that case had provided false financial information to persons

who invested in an IPO. In that case, at para. 80, the Ontario Court of Appeal stated: “the Crown

had to prove the appellants knew that the financial statements contained misrepresentations and

that they were material to the decision to invest in the IPO”.

11

[48] The matter before me is different; there is no IPO. In this case, the defendants are, in

count one, facing a charge of defrauding the public by deliberately misrepresenting the financial

results of Nortel Networks Corporation. Accordingly, if one applies the same conclusion that the

Court of Appeal expressed in R. v. Drabinsky, supra, the conclusion in this case must be that the

Crown has to prove that the accused knew that Nortel’s financial statements contained

misrepresentations that were material to the decision of a member of the investing public to buy,

hold or sell Nortel publicly-traded securities.

[49] With respect to count two, the essence of the matter seems to be that the

misrepresentation of Nortel’s financial results created the economic risk that Nortel Networks

Corporation would pay money to the defendants that ought not to be paid to them.

MATERIALITY

[50] In R. v. Drabinsky, at para. 83, the Court of Appeal commented on the notion of

materiality. The court said that materiality in the context of that case was a fair inference from

the nature of the misrepresentations, the documents in which they appeared and the context in

which those documents were used.

[51] At paras. 81 & 82, the Court of Appeal, in R. v. Drabinsky, upheld the trial judge’s

decision that the misrepresentations in the financial statement relied on in support of the IPO

were material to the decision to purchase shares through the IPO.

[52] The materiality of a misstatement or omission is, therefore, important. In its opening, as

part of a Glossary of Terms, the Crown provided a definition of materiality. In the context of

financial statements, an omission or misstatement is material according to this glossary if “the

judgment of a reasonable person relying on the statements would have been changed or

influenced by the inclusion or correction of the item”.

[53] The Crown offered expert evidence on various aspects of the accounting issues of

concern in this proceeding. This evidence was received on consent in the form of a written report

from Asset Risk Advisory Inc. The Asset Risk Advisory Inc. Report was prepared by Mr. Robert

Chambers, who is a lawyer, a chartered accountant, a certified fraud Examiner and a Fellow of

the Institute of Chartered Accountants of Ontario.

[54] At paragraph 31 of his report, which was appended to his affidavit, Mr. Chambers made

the following observation about materiality: “According to FASB, materiality is the quality of

being important. The omission or misstatement of an item in a financial report is material if, in

the light of surrounding circumstances, the magnitude of the item is such that it is probable that

the judgment of a reasonable person relying upon the report would have been changed or

influenced by the inclusion or correction of the item.”

[55] Mr. Chambers referred the reader of his report to SEC Staff Accounting Bulletin 99

(“SAB 99”) for guidance in determining materiality. SAB 99 was published in 1999 – the same

year that Nortel’s world began to unravel.

[56] In SAB 99, SEC made it clear that exclusive reliance on dollar thresholds cannot be used

as a substitute for a full analysis of all relevant considerations when determining materiality.

12

[57] SAB 99 states that, among the considerations that may render material a quantitatively

small misstatement of a financial statement item, are:



Whether the misstatement arises from an item capable of precise

measurement or whether it arises from an estimate and, if so, the degree of

imprecision inherent in the estimate;



Whether the misstatement masks a change in earnings or other trends;

Whether the misstatement hides a failure to meet analysts' consensus

expectations for the enterprise;



Whether the misstatement changes a loss into income or vice versa;

Whether the misstatement concerns a segment or other portion of the

registrant's business that has been identified as playing a significant role

in the registrant's operations or profitability;



Whether the misstatement affects the registrant's compliance with

regulatory requirements;

Whether the misstatement affects the registrant's compliance with loan

covenants or other contractual requirements;

Whether the misstatement has the effect of increasing management's

compensation – for example, by satisfying requirements for the award of

bonuses or other forms of incentive compensation; and,



Whether the misstatement involves concealment of an unlawful

transaction.

[58] Apart from Mr. Chambers’ general statements, no expert evidence concerning materiality

was offered in this case. Representatives of Deloitte performed a materiality analysis, which was

admitted as a business record and to which reference will be made.

[59] Count number one alleges a fraud upon the public. Nortel was publicly-traded. I am

satisfied that the public in this case includes the investing public. Persons who own publicly-

traded Nortel securities are included in the term “public”. Persons who are thinking of

purchasing publicly-traded Nortel securities are included in the term “public”. I accept and

intend to apply the notion of materiality that is described in Mr. Chambers’ report.

A

misrepresented financial result is material if, in light of the surrounding circumstances, the

magnitude of the item is such that it is probable that the judgment of a reasonable member of the

investing public would have been changed or influenced by the correction of the item. The

omission of a financial result is material if, in light of the surrounding circumstances, the

magnitude of the item is such that it is probable that the judgment of a reasonable member of the

investing public would have been changed or influenced by the disclosure of the item.

13

SAB 99 and Mr. Dunn, Mr. Beatty and Mr. Gollogly

[60] Mr. Gollogly was aware of SAB 99. Mr. Gollogly sent a memo to selected Nortel

employees dealing with SAB 99 on March 3, 2003. His memo attached SAB 99 itself. Mr.

Gollogly made a presentation to Nortel’s Audit Committee on April 23, 2003, in which he

explained the concept of materiality. Mr. Beatty and Mr. Dunn were normally in attendance at

Audit Committee meetings.

[61] I am satisfied that Mr. Dunn and Mr. Beatty were present when Mr. Gollogly made this

presentation to the Audit Committee.

[62] Mr. Beatty was aware of SAB 99. On April 19, 2003, Mr. Beatty sent an e-mail to Mr.

Gollogly which stated: “would you please email me the charts (if possible) for SAB 99 that

speak to the need to disclose, particularly if management comp’n is achieved etc. – probably

useful to have the SAB 99 text as well for Monday a.m.”

[63] Mr. Dunn was Nortel’s CEO during the time with which we are concerned. Prior to that,

he was Nortel’s CFO and, prior to that, he was Nortel’s Corporate Controller.

[64] Mr. Dunn, Mr. Beatty and Mr. Gollogly were senior officers of a corporation publicly-

traded on the New York Stock Exchange with annual revenues of approximately $10 billion per

year during the time frame of the indictment.

[65] I am satisfied that Mr. Dunn, Mr. Beatty and Mr. Gollogly were aware of the specifics of

SAB 99, the importance of determining whether items of financial information were materially

important and, finally, the importance of making the appropriate disclosure to the public.

THE PRESUMPTION OF INNOCENCE, REASONABLE DOUBT, R. V. W.(D.), [1991] 1

S.C.R. 742

[66] I have instructed myself on the presumption of innocence, the burden of proof and

reasonable doubt. In a criminal case, the accused is presumed to be innocent unless and until the

Crown has proved his/her guilt beyond a reasonable doubt. It is not the responsibility of any

accused under our law to establish or to demonstrate or to prove his innocence. If the Crown

should fail to prove guilt in respect of a particular crime beyond a reasonable doubt, then the

accused is not guilty of that crime. To put the matter somewhat differently, in order to find an

accused guilty of a particular offence, the Crown must prove each and every one of the essential

elements of that offence beyond a reasonable doubt. If I should entertain a reasonable doubt

about the proof of one or more of those essential elements, then I must find the accused not

guilty of that offence.

[67] A reasonable doubt is not a far-fetched or frivolous doubt. It is not some fanciful doubt.

It is not a doubt based upon sympathy or prejudice. Rather, it is an honest and fair doubt based

on reason and common sense. It is doubt that logically arises from the evidence or lack of

evidence. It is not enough that I believe that Mr. Dunn, Mr. Beatty or Mr. Gollogly is probably

or likely guilty of count one or count two of this indictment. In those circumstances, I must find

any or all of them not guilty because Crown counsel has failed to satisfy me of guilt beyond a

reasonable doubt. Proof of probable guilt or likely guilt is not proof of guilt beyond a reasonable

14

doubt. I should also remember, however, that it is virtually impossible to prove anything with

absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of

proof that is impossibly high.

[68] If, based on all the evidence, I am sure that Mr. Dunn, Mr. Beatty or Mr. Gollogly

committed the offence described in either count one or count two in the indictment, I should find

Mr. Dunn, Mr. Beatty or Mr. Gollogly guilty of such offence since I would have been satisfied of

guilt beyond a reasonable doubt. If, at the end of the case based on all the evidence, I am not sure

that Mr. Dunn, Mr. Beatty or Mr. Gollogly committed either count one or count two in this

indictment, I should find Mr. Dunn, Mr. Beatty or Mr. Gollogly not guilty of such offence. If,

after a full consideration of all the evidence admissible against any one of defendants, there

remains in my mind a reasonable doubt concerning the guilt of such defendant, then the Crown

has failed to meet the standard of proof which the law requires, the presumption of innocence

prevails and it is my duty to acquit. On the other hand, if, after a full and careful consideration of

all the evidence, I am left with no reasonable doubt concerning the guilt of Mr. Dunn or Mr.

Beatty or Mr. Gollogly on either or both counts in the indictment, the presumption of innocence

has been displaced and it is my duty to convict.

[69] Reasonable doubt applies to issues of credibility. I am not required to firmly believe or

disbelieve any witness or set of witnesses. I must ask myself whether, on the basis of the

evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the

guilt of one or more of the accused )see: R. v. W.(D.), [1991] 1 S.C.R. 742, at para. 28).

BUSINESS RECORDS

[70] During the course of this trial, the Crown and the defence tendered hundreds of

documents. These documents were received as business records. As such, they are capable of

proving the facts contained within them. However, I am not bound to accept the business records

as proof of facts contained within them.

SHOULD THE EVIDENCE OF SOME OF THE NORTEL AND DELOITTE’S

EMPLOYEES BE VIEWED WITH CAUTION?

[71] The Crown indicated that several of the witnesses listed in the Appendix to its

submissions were accomplices. The Crown indicated that these witnesses sought to minimize

their involvement or distance themselves from wrongdoing and that this took the form of

acquiescing quickly with defence suggestions on cross-examination.

[72] Leading questions were asked on cross-examination and it is correct that, on many

occasions, witnesses accepted the suggestions contained in those questions.

[73] At the same time, the Crown submits that there was strong confirmatory evidence of

aspects of the testimony of these witnesses in the documents which were tendered. The

witnesses in respect of whom the Crown urges caution played a role, according to the Crown, in

the planning, analysis and use of accrued liability balances to meet earnings targets. Without the

co-operation of these witnesses, the Crown submits the three accused would not have been able

15

to shift Nortel from a profit to a loss in Q4 02 (the fourth quarter of 2002) and engineer profits in

Q1 03, Q2 03 and Q3 03 (the first quarter of 2003 etc.).

[74] This is perhaps an appropriate place to observe that there is nothing about the background

of any of these witnesses which makes them inherently “unsavory”. The evidence has disclosed

that regulatory proceedings against the defendants are in abeyance pending the outcome of this

matter. The evidence has not disclosed that any of the witnesses listed in the Crown’s Appendix

are facing criminal charges themselves. There is no suggestion in the evidence that any of these

witnesses are the subject of outstanding regulatory proceedings.

[75] The Crown submits that there was a long-standing culture of Conservatism at Nortel and

many of the witnesses who are chartered accountants or certified management accountants had to

know that accrued liability balances therefore existed and were being used to meet earnings

targets. The Crown submits that compliant employees assisted the accused in misrepresenting the

financial results of Nortel Networks Corporation.

[76] I am satisfied that, during the time-frame of the indictment, there was at Nortel a culture

of Conservatism, in the accounting sense of that term. I am satisfied that this culture existed for

in excess of twenty years. It has to be remembered, however, that, until 1999, the SEC and the

Ontario Securities Commission had not prohibited the practice of releasing accrued liability

balances to bridge the gap between a company’s actual performance and a previously announced

financial target. Coincidentally, it was in the same year, 1999, that Nortel began experiencing

significant losses.

[77] Finally, one has to remember that Nortel’s culture concerning the recording of accrued

liability balances was slow to change because for fiscal 2000, 2001 2002 Nortel reported losses

in the billions and, as a result, the Board of Directors, Nortel’s auditors and its senior

management were preoccupied with survival.

[78]

The accused called no defence. All of the witnesses who testified were called by the

Crown.

[79] The ten witnesses listed in the Crown’s Appendix gave evidence which was capable of

both inculpating and exculpating the accused. As well, this is not a case in which it is relatively

straightforward to delineate evidence which implicates any one or all of the accused in either of

the offences set out in the indictment.

[80] With respect to those portions of the evidence which, in my view, are exculpatory, the

question is whether such evidence alone or in combination with other evidence leaves me with a

reasonable doubt (see: R. v. Rowe, 2011 ONCA 753, 2011 OJ No. 5382 (Ont. CA), at para. 42).

[81] With respect to those portions of the evidence which implicate the accused, I have to

decide whether the credit of these witnesses is such that I should caution myself about accepting,

in the absence of confirmatory evidence, testimony from them which implicates any one or more

of the three accused.

16

[82] As indicated earlier, the Crown suggested that these witnesses were accomplices and that

their evidence implicating the accused should be viewed with caution in the absence of

confirmatory evidence.

[83] I propose now to consider a few highlights of the testimony of the witnesses named by

the Crown.

[84] Mr. Brian Harrison was, during the time-frame of the indictment, the Vice-President of

Performance Management and, later, when the position of Vice-President Performance

Management was eliminated, Nortel’s Director of Financial Planning and Analysis. Mr. Harrison

was directly involved in the process of soliciting accruals during Q4 02. It is the Crown’s view

that he actively assisted in changing a Q4 02 pro forma gain before taxes into a loss before taxes.

Mr. Harrison was a CMA or certified management accountant during the time-frame of the

indictment. He no longer has that designation for reasons which were not disclosed. He was

interviewed many times by different police forces and regulatory authorities. At one point, he

was told that he was a target of the investigation into the matters described in this indictment.

Prior to actually testifying, he was told by the police and the Crown that he was no longer

considered a target of the investigation into these matters.

[85] In my view, I should exercise some caution before accepting unconfirmed evidence from

Mr. Harrison which I think implicates any of the accused in this matter

[86] Linda Mezon, Nortel’s Assistant Corporate Controller for a portion of the time-frame

described in this indictment, indicated she was not aware of the fact that there was a point in time

in Q4 02 when Mr. Harrison’s Outlook (forecast) suggested positive pro forma earnings before

taxes of $73 million. Ms. Mezon also played a central role in the JDS offset in the fourth quarter

of 2002 (Q4 02). While I will discuss this in more detail later, it is sufficient to say that the JDS

offset resulted in expenses being reduced to reflect a reduction in revenue at a late point in

Nortel’s close of the books for Q4 02.

[87] Even if I were to disbelieve Ms. Mezon concerning what she knew about Nortel’s

preliminary pro forma earnings before taxes during the early part of the Q4 02 close, this would

not make her a witness, whose testimony implicating any or all of the accused, should be viewed

with caution in the absence of confirmatory evidence. It simply means that she knew something

which she claimed not to know. While this could affect her credibility, it does not make her a

Vetrovec witness (see: R. v. Winmill (1999), 131 C.C.C. (3d) 380 (Ont. C.A.), at para. 113).

Similarly, her participation in the JDS offset does not make her a witness whose evidence

implicating the accused ought to be viewed with caution unless confirmed by other evidence. It

simply means that, with the knowledge and consent of her superiors and Nortel’s auditors, she

accepted an entry to offset the loss of revenue caused by the accounting for the JDS transaction.

This conduct does not make her a witness whose evidence implicating the accused I should be

cautious about accepting in the absence of confirmatory evidence.

[88] Helen Verity was the Director of Consolidations for Nortel from 2001 – 2003. She

received Outlooks or forecasts during the Q4 02 close process. Her handwriting is on some of

them. Ms. Verity testified that she was not aware of the skepticism which greeted Mr. Harrison’s

assertion that Nortel’s pro forma earnings before taxes were positive in Q4 02. While this may be

17

a credibility issue as far as Ms. Verity’s concerned, it does not make her a Vetrovec witness (see:

R. v. Winmill, supra, at para. 113).

[89] Mr. Crosson was a long-standing Nortel employee who, during the material time, was the

Vice-President of Global Operations. Mr. Ken Crosson, despite the fact that he was satisfied with

the original financial results he submitted to Nortel headquarters in Brampton during the Q4 02

close, came up with additional accrued liability balances upon request. These additional balances

resulted in increases in expenses and a corresponding decrease in earnings. This clearly assisted

Mr. Harrison, who was canvassing for accrued liability expenses/liabilities which, by definition,

would decrease earnings.

[90] Mr. Crosson, in my view, was responding to requests from his superiors, but I am not

satisfied that he responded in an inappropriate way. He indicated in his estimation there was

some flexibility concerning excess and obsolete accrued liability balances relating to inventory.

While his responses arguably were not entirely consistent with United States Generally Accepted

Accounting Principles (“US GAAP”) and while that may be a concern for securities regulators,

the accrual balances which he agreed to increase could be changed without distorting Nortel’s

underlying financial reality.

[91] I am not satisfied that Mr. Crosson’s conduct changes his character as a witness such that

I ought to be cautious, in the absence of confirmatory evidence, about accepting inculpatory

evidence from him.

[92] Mr. Glenn Morita was the Director of Finance for the Europe Middle East Asia Region

during the time-frame of the indictment. Mr. Morita was also satisfied with his original financial

results submitted to Nortel headquarters in Brampton during the Q4 02 close but, nevertheless,

located additional accrued liability balances upon request from Mr. Harrison. The fact that Mr.

Morita provided additional accrued liability balances which he thought were genuine does not

change Mr. Morita’s character as a witness such that, in the absence of confirmatory evidence,

caution should be exercised before accepting evidence from him implicating any or all of the

accused.

[93] Mr. Jim Kinney was, during the time-frame in the indictment, Vice-President Finance of

Wireless, which was a business unit within Nortel. Mr. Kinney and his group worked very hard

to meet their Q4 02 target. Despite this, Mr. Kinney submitted additional accrued liability

balances that moved him off target in Q4 02. He testified that he was not concerned because he

had been requested by his superiors to find additional accruals and that is what he did.

[94] I do not find that Mr. Kinney’s behavior in this regard changes his character as a witness

and that I should, therefore, be cautious in the absence of confirmatory evidence about accepting

evidence from him implicating any or all of the accused.

[95] Ms. Karen Sledge was the U.S. Controller during the Q4 02 close. She became Assistant

Corporate Controller in 2003 where she remained until 2005. When she was Assistant Corporate

Controller Ms. Sledge reported to Mr. Gollogly until he was suspended in March 2004. Ms.

Sledge changed the Fringe accrued liability balance as a result of repeated calls from Mr.

Gollogly and others. Ms. Sledge was not comfortable with making this change and mentioned it

18

to the representatives of the Wilmer Cutler Pickering law firm. Wilmer Cutler Pickering, about

one year later, were conducting, at the request of Nortel’s Audit Committee, an independent

review of the circumstances leading to Nortel’s re-statement of previously-published financial

results. Her conduct does not change her character as a witness such that I should, in the absence

of confirmatory evidence, exercise caution before accepting inculpatory evidence from her.

A FEW BASIC ACCOUNTING PRINCIPLES

[96] Mr. Robert Chambers, the Crown’s expert, provided some basic accounting principles in

his report.

[97] A general principle underlying US GAAP is that expenses are to be matched with

revenues as long as it is reasonable to do so. When work or a product makes its contribution to

revenue, expenses associated with that work or product are recognized even if those expenses

cannot be known with precision. This matching principle is applied through accrual accounting.

In such a situation, the accrued expenses are estimated.

[98] An accrued expense is an expense that has been incurred but not yet paid. An accrued

liability is an obligation disclosed on the balance sheet that is not yet payable.

[99] Recording an accrued expense reduces income on the profit and loss statement and,

simultaneously, results in the recording of an accrued liability on the balance sheet.

[100] Once the accrued liability is recorded on the balance sheet of a publicly-traded

corporation like Nortel, the corporation is required to assess that accrued liability balance at the

end of each financial quarter to determine whether something has occurred within that quarter

which requires a change (i.e., an increase or decrease) in the estimate of the liability.

[101] If an event has occurred within that quarter which requires a change in the estimate of the

accrued liability balance, then the accrued liability balance should be either increased or

decreased in that quarter. This is sometimes referred to as a “change in estimate”.

[102] If an accrued liability balance is increased as a result of the change in estimate, earnings

are negatively affected.

[103] If an accrued liability balance is decreased as a result of a change in estimate, earnings

are positively affected.

[104] In Nortel speak, the event which required a change in the estimate of the accrued liability

balance was called a triggering event or a trigger. Put simply, trigger was a word used to denote

an event or some other situation that drove a change in an accrued liability balance.

[105] When the accrued expense becomes certain and is paid, the earnings of the corporation

can be favorably affected. The following example, borrowed and slightly-amended from the

Crown’s expert evidence, illustrates this.

[106] Assume that, as a result of a contract into which it has entered, a publicly-traded

corporation is involved in litigation at the close of its fiscal year ending December 31, 2002 and

19

assume that an unfavorable outcome is probable. Management does not know the exact amount it

will have to pay, but its reasonable estimate is that the judgment against it will be for not less

than $3 million and not more than $9 million. If no amount within that range appears to be a

better estimate than any other, Financial Accounting Standards No. 5 (“FAS 5”) requires that an

expense of $3 million be recorded at December 31, 2002, i.e., the expense estimate at the lowest

end of the estimated range of appropriate exposures.

[107] Recording this expense on the profit and loss statement will have a $3 million negative

impact on earnings for the period ending December 31, 2002. Recording this accrued expense

also results in an accrued liability of $3 million being recorded on the balance sheet.

[108] In the example above, if the company thought that $4 million was the best estimate of its

liability, then it would record $4 million as an expense/liability despite the fact that it was not at

the lowest end of the range of appropriate liabilities. It is only when no amount within the

acceptable range is a better estimate than any other that the lowest amount in the range must be

chosen.

[109] Assume, for simplicity’s sake, that the company settles the litigation for $2 million in the

third quarter of 2003 and pays the plaintiff in that quarter. At the end of the third quarter of 2003,

the company should eliminate the accrued liability of $3 million. $2 million of the liability was

used to pay the plaintiff so the remaining balance is $1 million. This remaining $1 million excess

is removed from the balance sheet and $1 million is recorded on the profit and loss statement as a

positive impact on earnings. This is sometimes referred to as a “releasing” the accrued liability

balance to the profit and loss statement or “releasing the accrual” or a “releasing the $1million”.

Sometimes it is referred to as “reversing the accrual”.

[110] In some of the documentation received in evidence, accrued liabilities were referred to as

“provisions”. Setting up accrued expense/liability was sometimes referred to as “provisioning”.

[111] There is a timing issue in the example. US GAAP, specifically SEC Bulletin 14, requires

the elimination of the accrued liability and the recording of the $1 million positive impact on

earnings in the quarter when the event precipitating the conversion of the liability occurred. In

this example, it is the third quarter of 2003 because the precipitating event is the settlement of the

litigation.

[112] In the example, if the accrued liability balance was not adjusted in the third quarter of

2003, then an “error” has occurred. In the third quarter 2003, accrued liability balances would be

$3 million greater than they should be and earnings would be $1 million lower than they should

be.

[113] An accrued liability can be falsely stated on the balance sheet if any one of three things

happens:

 first, if, contrary to US GAAP, the liability is fictitious;

 second, if, contrary to US GAAP, an artificially-high number is used to estimate the

liability when it is first set up;

20

 third, if an event occurs within a quarter which calls for a change (i.e., an increase or

decrease) in the estimate of the accrued liability and, contrary to US GAAP, a change in

estimate does not occur. From that point on, accrued liabilities will be either overstated or

understated on the balance sheet.

[114] When there are excess accrued liability balances on the balance sheet, an opportunity is

created to tailor earnings by arbitrarily “releasing the accrual” to positively impact earnings in

the quarter where you want to increase earnings. The motive for tailoring earnings is often to

meet a previously-publicized financial target. Such behavior is contrary to US GAAP. The

financial results in the tailored quarter are misrepresented. Whether the misrepresentation is

material is a separate consideration.

[115] Returning to the example, if the corporation did not release the $1 million in Q3 02 but,

instead, left it on the balance sheet for a rainy day, the corporation would be said to have a

“cookie jar” of $1 million on its balance sheet.

[116] A corporation can also tailor earnings by lowering them if, contrary to US GAAP, it

creates an accrued expense/liability which is completely false or artificially high. The false or

artificially-high expense negatively affects earnings and results in earnings being misrepresented

on the corporation’s profit and loss statement. Recording the false or artificially-high expense

automatically results in the recording of a false or artificially-high accrued liability. When this

happens, the corporation’s financial results are misrepresented. Whether the misrepresentation is

material is a separate consideration.

[117] Finally, a corporation has to account for impairment of its assets even if there is

uncertainty concerning the recognition of revenue or the incurring of an expense and uncertainty

concerning how much money is involved.

[118] The Financial Accounting Standards Board issued the Statement of Financial Accounting

Standards No. 5 (“FAS 5”) in March 1975 to assist in accounting for uncertainties related to the

occurrence of future events, commonly known as accounting for contingencies.

[119] Nortel was required to record an expense related to a material contingency if information

available prior to the issuance of its financial statements indicated that it was probable that an

asset had been impaired or a liability had been incurred at the date of the financial statements and

the amount of the impairment or loss could be reasonably estimated. The evidence established

that, during Nortel’s decline, assets thought secure became impaired overnight. The evidence

established that great uncertainty existed in 2001 and 2002 concerning the extent to which

Nortel’s assets had become impaired.

More generally

[120] First, when estimating and recording accrued expenses/liabilities, considerable discretion

is accorded to management and, correspondingly, considerable judgment is required.

[121] Second, Mr. Richmond testified that, while the basic concepts of accrual accounting were

straightforward, their application could be quite complex. He testified that, between 2000 and

21

2005, the operating mechanics of accrual accounting did not change, the regulatory environment

changed. To this, I would add sometimes reasonable differ; sometimes interpretations and

applications of basic principles change.

Considerations concerning the set-up and use of accrued expenses/liabilities

[122] Mr. Richmond explained that there are two considerations. The first is ensuring that your

provisioning for expenses is appropriate at any point in time; that is, that you had identified

every risk for which you should provide. The second consideration requires, if necessary,

reducing accrued liability balances should they turn out, at any point in time, to be overstated.

[123] It was Mr. Richmond’s view that there had been a practice in corporate Canada and

corporate America in the late 1990s to prepare financial statements in a professional, thorough

and comprehensive way, but also in a way that made sure there was flexibility in the accrued

liability levels of the corporation so that, at the end of a quarter if a CEO found himself slightly

short of the market’s expectations of profitability, he or she might release accrued liabilities from

the balance sheet and, thereby, positively impact earnings in order to meet the corporation’s

publicly-stated targets.

[124] Mr. Richmond commented that this practice was ended by the SEC and the Ontario

Securities Commission in 1999. The result of the change, according to Mr. Richmond, was that it

was still permitted to provision in a prudent way, but not appropriate after the results of the

corporation had been determined to go in and use “magic” to change numbers arbitrarily to

comply with previously-publicized targets.

[125] Mr. Richmond described this change in 1999 as “a huge deal”. Mr. Richmond gave

examples of corporations such as Microsoft, which had experienced difficulty with regulators

because they failed to appreciate this change in the environment.

NORTEL SPECIFIC CIRCUMSTANCES

Deloitte’s historical relationship with Nortel

[126] The scope of Deloitte’s involvement with Nortel is an important part of the context of

this matter. It is difficult to get a full appreciation of the total number of Deloitte & Touche

partners and associates who worked on the Nortel file. Mr. Richmond indicated that younger

partners, managers and senior accountants worked on the Nortel file full-time. In terms of

billings, Nortel was a major client of Deloitte.

[127] Evidence in this proceeding indicated that external auditing fees for 2003 were approved

by the Nortel Audit Committee in the amount of $19 million.

[128] Some Deloitte’s auditors including the lead audit partner had their offices in Brampton at

Nortel headquarters.

[129] Deloitte had been Nortel’s auditors for approximately one hundred years.

22

[130] I am satisfied that Nortel was a significant Deloitte & Touche client. I am satisfied that

Deloitte & Touche were embedded in one form or another in all aspects of Nortel’s operations.

The evidence is replete with communications between Nortel staff and Deloitte staff. Many of

the witnesses testified that, when Deloitte asked for information, it was provided. This assertion

is amply borne out by the documentary record.

Target setting and Nortel’s culture

[131] Mr. Peter Dans testified in this matter. Mr. Dans worked at Nortel from 1990 to 2007.

Mr. Dans served in a strategic planning role from 2001 to 2003. Specifically, Mr. Dans was

assigned to the Global Planning and Reporting Group.

[132] Mr. Dans has a degree in engineering. He has an MBA; he is also a CMA – that is, a

certified management accountant.

[133] Mr. Dans described the setting of targets. He testified that Nortel, whose fiscal year was

the calendar year, started working on its budget in August. In August 2003, Mr. Dans prepared

budgets and potential targets for each of the business units for fiscal 2004. The initial targets

came from the Global Planning and Reporting Group. They produced a target for revenue and

profitability which was essentially in the form of a profit and loss statement. Mr. Dans then

reviewed these initial targets with the accused Douglas Beatty and it was Mr. Dans’

understanding that Mr. Beatty reviewed the target with the accused Frank Dunn.

[134] The targets were sent to the Presidents and financial Vice-Presidents of the various

business units so that they could provide their view on achieving their proposed target.

[135] Mr. Dunn and the Presidents of the business units would hold a final meeting and set the

budget targets for the year.

[136] Mr. Dans further testified that there were times during the year when targets were

updated. Mr. Dans indicated that Mr. Dunn and Mr. Beatty set what were called “stretch targets”.

This was a target that would be harder to achieve. It might be as much as 5% better than the

budget. While Mr. Dans only had direct knowledge of this process for the fiscal year 2003, it was

his impression that the target setting process employed in 2003 had not changed from earlier

years.

[137] Hitting the target was an important part of Nortel’s culture. Mr. Kinney offered the

observation that one negotiated targets which allowed one to succeed rather than fail.

[138] Mr. Gollogly described the attitude at Nortel in an e-mail, dated July 31, 2003: “...

General approach is to sandbag good news and close hard to the forecast”.

[139] E-mails were received as business records in this trial.

[140] Mr. Glenn Morita is a chartered accountant. He was the Director of Finance for the

Europe Middle East Asia Region. Mr. Morita similarly expressed himself in an e-mail to a

colleague, dated January 8, 2004. Mr. Morita testified and confirmed the implication in his e-

mail.

23

[141] The inference I draw is that the Nortel business units made a very determined effort to

meet their targets.

The employment of Mr. Dunn, Mr. Beatty and Mr. Gollogly at Nortel

[142] Mr. Richmond and other witnesses were able to provide some history and context to the

employment at Nortel of all three accused. This evidence could not be elicited from the accused

because they did not testify.

Mr. Frank Dunn

[143] Specifically, Mr. Richmond testified that Mr. Dunn, a certified management accountant

by training, joined Nortel out of university. Mr. Richmond, although aware of Mr. Dunn, only

began to deal with him when Mr. Dunn became Corporate Controller (1992-1993). When Mr.

Dunn was Nortel’s Controller, Mr. Richmond met with him both individually and at Audit

Committee meetings.

[144] Mr. Richmond indicated that, after Mr. Dunn became Nortel’s CFO, their dealings

became more frequent. Mr. Richmond was present at Audit Committee meetings when Mr.

Dunn, as CFO, made presentations and commented on issues.

[145] Mr. Richmond pointed out that, when Mr. Dunn was the CFO of Nortel, he was the CFO

of a corporation with the largest capitalization value of any corporation in Canada.

[146] Mr. Dunn became the CEO of Nortel in the fall of 2001. Mr. Richmond continued to deal

with Mr. Dunn after that time.

[147] Mr. Richmond testified that Mr. Dunn was technically competent as far as accounting

skills were concerned. Mr. Brian Harrison indicated that Mr. Dunn was knowledgeable

concerning accounting principles. Mr. Harrison also testified that Mr. Dunn was very interested

in details; he described him as detail-oriented. In a similar vein, Ms. Helen Verity, a chartered

accountant herself, testified that she worked with Mr. Dunn and Mr. Beatty at different times

during her career at Nortel. Ms. Verity described Mr. Dunn as “a very smart man” with a good

grasp of accounting principles. Mr. Ken Crosson testified that he had known Mr. Dunn for

twenty-five years at Nortel and offered the opinion that Mr. Dunn was “very familiar with

numbers, very efficient with numbers. Understood – – he – – he understood numbers”. Mr.

Crosson also indicated that, on the occasions when he and Mr. Dunn discussed accounting

issues, Mr. Dunn was able to “understand it completely”.

[148] I accept the assessments of Mr. Dunn offered by Mr. Richmond, Mr. Harrison, Ms.

Verity and Mr. Crosson. They had years to observe Mr. Dunn and their evidence in this regard

did not appear to be contentious.

[149] Mr. Lynton R. Wilson also testified. Mr. Wilson was the Chairman, President and CEO

of BCE Inc. and, as a result, joined the Board of Nortel in 1991. Mr. Wilson was a member of

the Board of Directors throughout the period described in the indictment. He was the Chair of the

Board of Directors of Nortel for most of the period set out in the indictment. Mr. Wilson was,

therefore, personally familiar with the period described in the indictment.

24

[150] Mr. Wilson is an Officer of the Order of Canada and a Companion of the Order of the

Business Hall Of Fame. During his career, Mr. Wilson served as CEO and as a director of a

number of major Canadian corporations.

[151] I accept Mr. Wilson’s evidence without qualification.

[152] Mr. Wilson became the Chair of Nortel’s Board in 2001. He testified that Mr. Dunn was

asked to take on the role of CEO at Nortel in the fall of 2001 at a difficult time. At that time with

reference to Nortel, Mr. Wilson stated, “the ship was listing pretty badly…”

[153] It was Mr. Wilson’s opinion that it was a credit to Mr. Dunn’s leadership that he was able

“to keep the ship afloat” after he became CEO in 2001.

Mr. Douglas Beatty

[154] The evidence established that Mr. Beatty was a C.A., who became the CFO of Nortel on

July 17, 2002. Thus, Mr. Beatty’s first quarter as CFO was Q3 2002. Prior to being CFO, Mr.

Beatty was the Corporate Controller. Mr. Beatty succeeded Mr. Dunn as Corporate Controller.

[155] Mr. Richmond testified that he felt it was part of his responsibility to assess Mr. Beatty’s

ability to be CFO. Mr. Richmond indicated that it never occurred to him to suggest to the Chair

of the Board or the Chair of the Audit Committee that Mr. Beatty did not possess the technical

and other expertise to carry out his responsibilities. To the contrary, Mr. Richmond testified that

he recommended Mr. Beatty to the Board for the position of CFO.

[156] Mr. Brian Harrison testified and I accept his evidence that Mr. Beatty was knowledgeable

concerning accounting principles. Ms. Helen Verity also confirmed that Mr. Beatty was “a good

accountant”. Mr. Ken Crosson testified that he was in contact with Mr. Beatty on at least a

weekly basis. He testified that Mr. Beatty was a very knowledgeable and efficient accountant.

[157] I accept the evidence of Mr. Richmond, Mr. Harrison, Ms. Verity and Mr. Crosson

concerning Mr. Beatty’s background and accounting acumen.

Mr. Michael Gollogly

[158] The evidence established that Mr. Gollogly is a C.A., who became Nortel’s Corporate

Controller on July 25, 2002, eight days after Mr. Beatty became CFO. July 25 was in the third

quarter of 2002. The fourth quarter of 2002 (October 1-December 31) figured quite prominently

in the evidence in this case.

[159] At an earlier point in his career, Mr. Gollogly had been Nortel’s Assistant Controller (the

late 1990s). He moved from Assistant Controller to senior executive positions with Nortel in

France, Asia and England and then returned to the Brampton head office in July 2002 as

Controller.

[160] Quite significantly, immediately upon assuming his position, Mr. Gollogly made a better

understanding of Nortel’s Balance Sheet a priority for him and his staff.

25

[161] Exhibit 42 TT demonstrates that, in January 2003, Mr. Gollogly began Balance Sheet

Reviews for all units and statutory entities within Nortel.

[162] Mr. Richmond was of the view that Mr. Gollogly was technically competent as far as his

accounting skills were concerned. Mr. Harrison and Ms. Verity both indicated that Mr. Gollogly

was knowledgeable concerning accounting principles.

[163] In addition, Mr. Gollogly prepared draft letters and made presentations to the Audit

Committee of Nortel staff which demonstrated that he was quite knowledgeable concerning

accounting principles of interest in this proceeding.

[164] I accept Mr. Richmond’s, and Ms. Verity’s assessment of Mr. Gollogly’s accounting

ability.

Mr. Dunn, Mr. Beatty and Mr. Gollogly

[165] The three defendants were, from Q3 02 (the 3^rdquarter of 2002), the three senior

managers of the Corporation.

[166] I am satisfied that all three of the defendants were knowledgeable and experienced

accountants who had the principal responsibility for Nortel’s financial statements and records.

[167] I am satisfied that they were, by reason of their training, their access to forecasts and their

long association with Nortel, interested in and well-acquainted with all aspects of Nortel’s

financial affairs.

[168] I am satisfied that all three accused were aware of financial information which materially

affected Nortel’s financial results.

Nortel was a complex corporate organization

[169] Nortel, itself, is part of the fabric in context of this case. Because we are dealing with the

consolidated financial statements, there is a tendency to think of Nortel as a single entity. This is

not precise.

[170] Mr. Richmond testified that Nortel operated in at least sixty countries in the world. He

stated that the organizational chart included dozens of separate entities operating in geographies

all over the world. He pointed out that, every time you had a subsidiary Nortel Corporation,

generally speaking, you had to conduct an audit.

[171] Mr. Richmond described Nortel as a large, complex organization with a large and

complex audit-processing team. He estimated that there were hundreds of people involved in

Nortel auditing.

[172] This fact is important because it means that the financial information which the Regions

were forwarding to corporate headquarters each quarter was financial information which had

been produced by entities which, themselves, had been audited.

26

[173] Mr. Donald Hathway was Deloitte’s Lead Audit Partner on the Nortel audit commencing

in the spring of 2003. He was the DeLoitte person in charge of the conduct of the actual audit.

Mr. Hathway stated that Nortel had a matrix organization. He said that responsibility for

particular General Ledger accounts was divided between geographic entities and line of business

entities. He said that responsibility for particular accounts was not always clear because of the

complicated nature of the organization. Mr. Hathway testified that there were financial decisions

made at the business level which were not controlled by Regional Controllers and for which

Regional Controllers would have no responsibility.

[174] Mr. James Kinney testified. Mr. Kinney is a Certified Management Accountant. He

started at Nortel in 1980 and continued there until 2004. From August 2002, he was the Vice-

President Finance for the Wireless Business Group. Mr. Kinney indicated that, from a business

perspective, Nortel was divided by both Business Lines and Regions. Mr. Kinney also indicated

that the Business Lines, in turn, were divided by technologies and products. The products were

also divided by Regions. Each Line of Business had a President; each Region had a President.

Each Line of Business had Vice-President Finance and each Region had Vice-President Finance.

[175] Mr. Kinney testified that the Regions were also responsible for the contractual liabilities

that went with the customer. Contractual liabilities were 40% of Nortel’s total liabilities.

Contracts would be understood by the responsible person in the Regional organization and would

have been set-up through the Regional organization. Knowledge about the documentation of the

contract and knowledge concerning the customer resided with individuals within the Regional

organization.

[176] Finally, it was Mr. Kinney’s view that ownership of the balance sheet resided in many

sections of Nortel but, primarily, in the Regions. This aspect of Mr. Kinney’s evidence was not

contentious and I accept it.

[177] I am satisfied that Nortel’s business organization worldwide was composed of dozens of

separate corporations operating in geographies everywhere and that it was internally a complex

entity.

THE FINANCIAL RESULTS OF NORTEL NETWORKS CORPORATION

[178] Because the essence of these charges is that the defendants deliberately misrepresented

the financial results of Nortel Networks Corporation, it is necessary to make some comments

about Nortel’s financial results and Nortel’s decisions to re-state some of those results.

[179] Nortel’s fiscal year ended on December 31. Nortel reported its financial results in

accordance with US GAAP and Canadian Generally Accepted Accounting Principles (“Canadian

GAAP”). The primary financial statements were prepared in accordance with US GAAP.

[180] Mr. Robert Chambers, the Crown’s expert on accounting matters, stated that US GAAP is

the common set of United States accounting principles, standards and procedures that companies

use to compile their financial statements. It is a combination of standards set by the Financial

Accounting Standards Board Statements of Financial Accounting Standards, the Accounting

Principles Board Opinions and Accounting Research Bulletins, the American Institute of

27

Certified Public Accountants Statement of Position, the Financial Accounting Standards Board

Emerging Issue Task Force, SEC Staff Accounting Bulletins, as well as other rules of the SEC.

[181] Mr. Chambers indicated that there were thousands of standards set by these various

standards-setting agencies.

[182] The evidence in the trial concerned compliance with US GAAP; compliance with

Canadian GAAP was not an issue.

Nortel’s Consolidation Close Process

[183] Nortel had an accelerated closing process, which meant that financial results had to be

reported publicly within less than four weeks. It is the General Ledger which is being closed.

Nortel reported quarterly so the closing process occurred quarterly. Nortel reported annual

results so the General Ledger was closed annually.

[184] Ms. Helen Verity, the Director of Consolidations, indicated that the Consolidation Close

meant that Nortel consolidated its results.

[185] Ms. Verity indicated that there were stages of consolidation. Each business unit closed its

General Ledger. Ms. Verity referred to the Regional General Ledger as a sub-ledger. Sometimes,

the sub-ledger was referred to as Advance 2. Each business unit may have had more than one

entity for which it was responsible so each business unit had to consolidate those entries before it

could close its sub-ledger. Mr. Morita testified that the sub-ledgers (Advance 2) had to close

within three to five days of the end of the fiscal quarter.

[186] Backup for sub-ledger entries remained in the Regions. The Regions had their own

management sign-off and they had their own auditors. The same was true for entries coming

from Corporate Services.

[187] After Day 4, late entries that were not material would not be considered. Despite this rule,

if one of Ms. Verity’s counterparts from the Regions called and wanted to book a late entry,

there would be a discussion about the entry. If the entry was a re-classification between the

business units, she would refuse to book the entry. If an entry was significant, Ms. Verity would

tell Ms. Mezon, who approved late entries, to expect it.

[188] Mr. Dans testified that an Outlook was prepared every time a consolidation took place

and Mr. Dans pointed out that consolidations took place every day and sometimes more than

once a day during the first days of a close as results came into corporate headquarters in

Brampton Ontario. The Outlook prepared by Mr. Dans during the closing of the books was a

snapshot of Nortel’s financial results at that moment. The word “Outlook” denoted more than

one document. One type of Outlook was a forecast. Forecasts were prepared throughout the

quarter.

[189] After the sub-ledgers were closed, draft financial statements were produced according to

the number of adjustments and entries which occurred. Mr. Dans indicated that the draft financial

statements were available to the Controller and the CFO upon request.

28

[190] The corporate headquarters General Ledger was referred to as Advance 1. When the last

entry was made into that General Ledger, numbers were final.

[191] Ms. Verity testified that management wanted to have a line of sight to the results earlier

than waiting for the consolidated results and so, on Day 4 of the close, a draft of the results

would be run. It is important to remember that the close process contemplates repeated drafts

being produced after the sub-ledgers had been closed. Draft results can change due to entries

from corporate headquarters. Mr. McMillan, Nortel’s Director of Consolidations, indicated that,

by Day Four or Day Five of the close process, corporate in Brampton would get their first

complete view of the regional financial information. At this point, according to Mr. McMillan,

they did not have a complete view from a corporate perspective.

[192] The evidence established that there were up to twenty draft financial statements produced

over the close. Each draft statement was numbered.

[193] Results can change due to entries to the General Ledger from corporate headquarters or

late entries from the Regions. Corporate headquarters was not subject to the same deadlines as

the Regions.

[194] There were two headquarters units which submitted entries to the General Ledger. These

units were called Corporate and Non-op. Corporate was a consolidation of the various corporate

functions such as real estate, human resources etc.; Non-op was a catchall – a collection of

everything that was left over.

[195] Releases of accrued liability balances to the profit and loss statement from Corporate and

Non-op could be entered in the General Ledger after the Regions had closed their sub-ledgers.

[196] The Assistant Corporate Controller, Linda Mezon, advised whether an entry from the

Regions was appropriate for the General Ledger. Ms. Mezon would advise Helen Verity that an

entry was appropriate and Ms. Verity would sign the entry so that it could be recorded in the

General Ledger.

[197] Ms. Verity testified that she was responsible for managing the time-lines associated with

the close process. Ms. Verity testified that there was a well-established close schedule. It was

distributed by e-mail prior to the close and one of her responsibilities was to hold people

accountable to that schedule. It was her responsibility to work with Nortel people to resolve

timing issues.

[198] Ms. Verity was responsible for resolving posting issues that arose during the close

process; she reviewed profit and loss statements and balance sheets; she prepared binders and

provided information to the Investor Relations Group within Nortel.

[199] Ms. Verity indicated that an entry was significant if it was significant to the profit and

loss statement or the balance sheet. An entry was significant if it was not a “net to zero” or a re-

classification entry. This distinction was made because dealing with such items would slow

down the close process. At the same time, management cared about trying to get things right and

so the compromise was that after Day 4 of the close, entries that changed the consolidated results

29

for external reporting purposes or changed the profit and loss statement would be processed. Ms.

Mezon said even small items which met those criteria could be processed.

[200] Ms. Verity indicated that Fringe was the last entry of the close because, if you made

another entry to the General Ledger, it might affect the Fringe. Typically, when all entries had

been finalized, the business units released any Fringe accrued liabilities to the profit and loss

statement.

[201] The binders for which Ms. Verity was responsible contained a consolidation package

which was an XL-based profit and loss statement and balance sheet.

[202] The consolidation package was available to everyone at head office in her group; it was

available to the auditors and it was available to Linda Mezon, the Assistant Corporate Controller.

[203] There was a Frank Dunn binder which was prepared for the purpose of giving Mr. Dunn

a summary of the close. Douglas Beatty and Michael Gollogly and the Assistant Controller and

several others received copies of this binder.

[204] Mr. McMillan indicated that the executive package binder included financial statements

prepared by Corporate Consolidations and detailed schedules.

[205] The external auditors, according to Ms. Verity, had access to all of the close process

material, including the Frank Dunn binder. Mr. Dans indicated that Deloitte & Touche had

special access to and a special binder for late entries. The Late Journal Entry Binder contained a

copy of the late entries and a copy of the backup for those entries. Deloitte and Touche received

regular profit and loss statement updates during the close process.

[206] Ms. Verity indicated that there were regularly-scheduled update meetings during the

close; there was also a Controller’s meeting and a CFO meeting. At the Controller’s meeting,

there would be a discussion of entries outside the close process which remained outstanding. At

the CFO meeting, the results were discussed with the CFO.

Excess accrued liabilities & Nortel’s policy of Conservatism

[207] Nortel had a long-standing corporate policy concerning estimates of liabilities. Nortel

Corporate Policy 300.33 provided that any anticipated decline in the value of Nortel assets and

any anticipated liabilities must be provided for in accordance with the accounting concept of

Conservatism.

[208] On February 27, 2003, following a review of Nortel’s accounting policies including

Corporate Policy 300.33, Deloitte & Touche reported to the Audit Committee that they

considered Policy 300.33 to be an appropriate accounting policy.

[209] Mr. Chambers discussed Conservatism.

[210] The accounting concept of Conservatism is a characteristic of financial accounting. It is

referenced in paragraph 17 of Accounting Principles Board Statement No. 4, as follows:

“Conservatism. Frequently assets and liabilities are measured in the context of significant

30

uncertainties historically; managers, investors, and accountants have generally preferred that

possible errors in measurement be in the direction of understatement rather than overstatement of

net income and net assets. This has led to the convention of Conservatism…”

[211] It is also referenced in paragraph 35 of Accounting Principles Board Statement No. 4, as

follows: “Conservatism. The uncertainties that surround the preparation of financial statements

are reflected in a general tendency toward early recognition of unfavorable events and

minimization of the amount of net assets and net income”.

[212] As indicated earlier, the Financial Accounting Standards Board issued Financial

Accounting Standard 5 ( FAS 5), which provides that where there is a range of accrued liabilities

and no estimate within the range is better than any other, the lowest estimate in the range must be

used. Significantly, paragraph 84 of provides that FAS 5 is not inconsistent with the accounting

concept of Conservatism.

[213] Mr. Richmond testified that Nortel had, for twenty years prior to the events described in

the indictment, a Conservative accounting culture within the context of the rules.

[214] Mr. Richmond stated that because of the precipitous descent that Nortel went through,

those in the field took it upon themselves to identify as many risks as they could and to put an

estimate of those risks at the conservative end of the range.

[215] Mr. Richmond elaborated that, when an organization is experiencing the “free fall” that

Nortel was experiencing, a customer that one day might appear sound may very well be in

financial peril the next day. As a result, Mr. Richmond stated that it was his experience at Nortel

that, in preparing Nortel’s financial statements, there was an overarching desire by the directors

and the executive management team to ensure that they did the best job possible to prepare the

financial statements to adequately account for risks.

[216] Mr. Richmond testified that Nortel was operating in an atmosphere of doubt about the

value of its assets and the operative principle was “if in doubt provide for it”.

[217] It struck Mr. Richmond as reasonable and unsurprising that Nortel employees and

Deloitte professional staff defaulted to a position that was at the conservative end of the range

when recording an accrued expense and liability estimating a particular risk. Mr. Richmond

testified that this was something he personally embraced and that it was appropriate in Nortel’s

set of circumstances “to provide at the reasonably hard end of that conservative range”. He also

testified that the identification of the range involved considerable judgment.

[218] More generally, Mr. Richmond said that the essential concern was whether Nortel would

stabilize before it hit the ground.

[219] Mr. Richmond indicated that the critical issue, during the time period described in the

indictment, was “making sure that you have the cash to operate the enterprise”. Mr. Richmond

indicated that cash was a critical issue in terms of everything Nortel did. I infer from this that

Nortel’s cash position was material to its financial results.

31

[220] There was no suggestion in the evidence that Nortel’s financial results misrepresented its

cash reserves, its cash flow generally or its cash flow in its various business units.

[221] Mr. Richmond stated that the data, upon which risk management decisions were made,

changed very rapidly and, therefore, management’s estimates quantifying risk went up and

down.

[222] Mr. Richmond indicated that the Audit Committee’s preference was for Nortel to be at

the conservative end of the acceptable range of risk. He described making sure that adequate

provisions had been taken against the risk that assets had lost their value as an overarching

paramount focus of Deloitte and Nortel in 2001 and 2002. According to Mr. Richmond,

management and Deloitte’s were both told by the Audit Committee concerning the corporation’s

exposure to risks to “make sure there are no surprises”.

[223] Mr. Wilson, the Chair of the Board of Nortel, gave similar evidence. He referred

specifically to a briefing the Board received in January 2003 concerning an accrued

expense/liability of $50 million taken in respect of a claim by a company known as 360

Networks. Mr. Wilson did not recall the details of the briefing concerning the taking of the

provision, but he recalled that Mr. Cleghorn, the Chair of the Audit Committee during the time

period of the indictment, asked at the Board meeting if $50 million was sufficient because the

claim against Nortel was for $100 million.

[224] Similar evidence was provided by Mr. Cleghorn. Prior to serving as Chair of the Nortel

Audit Committee, Mr. Cleghorn was the Chairman and CEO and a Director of the Royal Bank of

Canada. He was also Chairman of the Board of the Canadian Pacific Railway until 2012. He, like

Mr. Richmond, is a Fellow of the Institute of Chartered Accountants of Ontario.

[225] I accept Mr. Cleghorn’s evidence without qualification.

[226] Mr. Cleghorn described participating at the Audit Committee meeting in 2001 where

Nortel management advised that it was necessary to write off $19 billion. Mr. Cleghorn testified

that his first thought when he heard this was “did they get it all?” Mr. Cleghorn testified that,

during the period described in the indictment, the auditors were regularly asked if they were

satisfied with management’s estimates of liabilities.

[227] Mr. Gollogly expressed a somewhat similar view in an e-mail, dated October 13, 2003. In

this e-mail, Mr. Gollogly proposed a draft for the Note to the Financial Statements explaining

why it was necessary for Nortel to re-state earlier financial statements. While Mr. Gollogly’s

proposed draft was not used, I note that he attributed the overstatement of accruals and the

failure to draw down accruals in the correct fiscal period to “the high level of Conservatism used

to identify Nortel Networks financial exposure during our period of realignment and our

significant workforce reductions…”

[228] A more extreme view was articulated by Mr. Michael McMillan in his evidence. Mr.

McMillan joined Nortel in 1997. Mr. McMillan had an M.B.A. from the University of Manitoba.

During the timeframe of the indictment Mr. McMillan was Nortel’s Director of Consolidations.

It was Mr. McMillan’s evidence that accrued liabilities were booked on a worst-case scenario

32

basis rather than a best estimate basis. Mr. Peter Dans, to whom reference will be made later,

testified that he was aware of accruals being booked on a conservative basis “which may have

been the worst-case scenario sometimes”.

[229] During the time period described in the indictment, Nortel lost billions. I do not find it

unusual that sensible people confronted with that reality would think that the worst-case scenario

was the best estimate of the risks to Nortel’s assets. I also do not find it unusual that sensible

people confronted with Nortel’s reality would be slow to decrease accrued liabilities already on

the balance sheet.

[230] I am satisfied that throughout the time period described in the indictment accrued

liabilities at Nortel were estimated at the high-end of the range of estimates and sometimes on a

worst-case scenario basis. According to the evidence a risk can be provided for on a worst-case

scenario basis provided that it is the judgment of the person estimating the risk that the worst-

case scenario is the best estimate of that risk.

[231] One of the risks created by Nortel’s situation was that excess accrued liability balances

would find their way onto Nortel’s balance sheet. This reality created a possibility of using

accrued liability balances to meet financial targets. Exhibit 5, tab 242 provides an example of

how ingrained this problem was by 2004. This document is an e-mail string. Mr. Glenn Morita,

one of the authors of some of the e-mails in the string, in an e-mail, dated January 8, 2004,

wrote: “sounds like you Aussies are like squirrels (not sure if you have them Down Under)

secretly storing your nuts for a rainy day”. Mr. Morita testified that he was frustrated when he

sent the e-mail because his Australian counterpart was covering an expense with the release of an

accrued liability balance. Mr. Morita said he was frustrated because Nortel had just gone through

a Comprehensive Balance Sheet Review and his Region, which included Australia, thought that

it had cleaned up the problem, but it turned out that they had not. There are other references in

emails to digging up “opportunities” and having “flexibility”.

[232] Nortel’s Conservatism concerning the recording of accrued liabilities and expenses was

likely in effect for twenty years. It was ingrained in Nortel’s culture.

[233] This policy of Conservatism was memorialized in Nortel Corporate Policy number

300.33. This policy had been reviewed by Deloitte in 2003 and found to be an appropriate

corporate accounting policy. This policy, which had become a Nortel cultural norm, resulted in

the excess accrued liability balances found on Nortel’s consolidated balance sheet during the

Comprehensive Balance Sheet Review in 2003.

The accused knew there were excess liabilities on the balance sheet

[234] I am satisfied beyond a reasonable doubt that all three accused, by virtue of their long

experience with Nortel and their positions of responsibility, well-understood how the men and

women in the field were implementing Nortel’s policy of Conservatism.

[235] I am satisfied, based on the evidence adduced at this trial, that none of the accused

initiated this policy.

33

[236] I am satisfied beyond a reasonable doubt that they knew that the policy of Conservatism

had created excess accrued liabilities and, therefore, they knew that these excess liabilities could

be released to assist in meeting financial targets.

[237] I also find that the enormous losses suffered by Nortel in these years created a situation in

which senior management, Nortel’s Board of directors and Nortel’s auditors were quite

reasonably concentrating on doing all things necessary to make sure that Nortel had sufficient

cash reserves to survive and continue in business. I am satisfied that non cash impacting excess

accrued liabilities on the balance sheet were not a priority.

[238] I am satisfied, on the evidence, that Mr. Gollogly, virtually from the time he took over as

Corporate Controller, turned his attention to Nortel’s balance sheet. I am also satisfied, on the

evidence, that neither Mr. Dunn nor Mr. Beatty, his immediate superiors, did anything to impede

his efforts.

Unsupported and excessive accrued liabilities on the balance sheet

[239] The evidence persuades me that accruals were present on Nortel’s consolidated balance

sheet which could not be supported by documentation. However, I decline to draw the inference

that these accruals never existed. It seems more logical to me that the downsizing of Nortel,

which involved the closing of offices, the selling of real estate and, undoubtedly, the storage of

documents, created a situation in which supporting documentation for some of Nortel’s accrued

liability balances could not be located. Further, the loss of employees (two out of every three

worldwide) created a situation in which the institutional memory concerning the unsupported

accruals no longer existed within the company. I am satisfied that these were the reasons why

unsupported accrued liabilities were present on Nortel’s consolidated balance sheet.

[240] Also, the evidence does establish and, I so find, that excessive accrued liabilities existed

because accrued liabilities were not released when they should have been and because accrued

liabilities were not adjusted when they should have been.

[241] Mr. Dunn and Mr. Beatty took part in the analyst calls which generated a 2002 Accrued

Liability Report by Ms. Susan Shaw. Ms. Shaw, a chartered accountant in Nortel’s Corporate

Consolidations Group, reported to Mr. Gollogly. Ms. Shaw advised both Mr. Gollogly and Mr.

Harrison that there were unsupported liabilities on Nortel’s balance sheet.

[242] I am satisfied that all three accused knew that there were unsupported and excessive

accrued liabilities on Nortel’s balance sheet.

Nortel’s Pro Forma earnings calculations

[243] The evidence disclosed that securities regulators encouraged Nortel and other publicly-

listed companies to refrain from reporting non-GAAP measures commencing Q1 2003 (Q1 03).

Prior to Q1 2003, Nortel had reported “pro forma” financial results.

[244] As a result of this regulatory change in attitude, as of fiscal 2003, pro forma earnings

calculations at Nortel became an internal measure only. This meant that, commencing in Q1 03,

Nortel no longer published pro forma financial results.

34

[245] Pro forma financial results were calculated using a formula generated internally at Nortel.

This formula changed from year-to-year. The 2002 pro forma formula was not the same as the

formula used in 2003.

[246] Despite this change, certain Nortel bonus plans, which are important for our purposes,

continued to be triggered by Nortel’s 2002 formula for calculating pro forma earnings.

[247] The pro forma calculation of earnings differed from the calculation of earnings according

to US GAAP. The pro forma formula for calculating earnings excluded items, including

significant cost items, which were included in US GAAP earnings calculations. The items

excluded were non-operational in nature. For example, pro forma earnings calculations excluded

gains from buying back bonds. According to Mr. Harrison, the items included in pro forma

earnings calculations were, themselves, calculated in accordance with US GAAP. Mr. Harrison’s

evidence in this regard was not questioned and I accept this aspect of his evidence.

[248] For the sake of completeness, the method of calculating pro forma earnings that was used

in 2002 excluded charges which were included in the 2003 method of calculating pro forma

earnings. In other words, the 2002 formula resulted in higher pro forma earnings.

[249] The difference between pro forma earnings calculations and US GAAP earnings

calculations was also referenced in a glossary of terms filed in this proceeding which contained a

definition of “pro forma”. The definition provided, in part, that pro forma financial statements

consisted of information which Nortel management believed was meaningful to investors.

[250] Nortel published Q4 02 pro forma financial results in its January 24, 2003 press release

announcing financial results for Q4 02. Nortel did not publish pro forma financial statements for

Q4 02.

[251] In 2003, Nortel did not publish pro forma earnings calculations at all.

Pro Forma earnings and Bonus Thresholds

[252] Mr. Cleghorn testified that, in the summer of 2002, Nortel employees were being

approached by the competition. By this time, many employees at Nortel had been laid off or

fired, sales were declining and the auditors considered Nortel to be a high-risk audit. Employees

with stock options found that the options were worthless. In an effort to prevent valuable

employees from leaving the company, Mr. Cleghorn testified that the Board adopted a Return to

Profitability Bonus Plan.

[253] The Return to Profitability Bonus Plan was announced in November 2002. It provided

eligible employees with a special bonus if Nortel achieved profitability for any quarter in the

period from Q4 2002 through to and including Q4 2003.

[254] Profitability for the purpose of this bonus plan was based on pro forma earnings from

continuing operations; it also included an accrual for the cost of the bonus in such period. In

other words, there had to be sufficient pro forma earnings before taxes from operations to pay for

the bonus. Senior executives would be paid in three tranches.

35

[255] Pro forma earnings (loss) before taxes was an internal Nortel calculation and metric. This

meant that Nortel could change the calculation and this happened in 2003. The Board of

Directors, however, in a minute from the 2:50 p.m. Board meeting of April 24, 2003, decided

that, for greater certainty concerning the bonus calculations, Nortel’s 2002 formula for

calculating pro forma earnings before taxes would continue to be used for the purpose of

calculating whether the Return to Profitability Bonus and the Restricted Stock Unit Bonus were

earned. This is significant because it meant that, although Nortel changed the way in which it

calculated pro forma earnings in 2003, this change did not affect the pro forma calculation of

earnings for the purpose of determining whether Restricted Stock Unit and Return to Profitability

Bonus targets had been met.

[256] Entitlement to bonuses is an issue in this trial. The bonus payment issue was not made

simpler by the fact that Mr. Dans, who did the bonus calculations, erroneously used Nortel’s

2003 pro forma income formula in some of his calculations. Mr. Dans agreed that profitability

was more easily achieved under the 2002 formula than the 2003 formula.

NORTEL’S

RE-STATEMENT

OF

PREVIOUSLY-PUBLISHED

FINANCIAL

STATEMENTS

[257] The evidence established that Nortel, on two occasions, restated financial statements

which it had previously published.

[258] Neither restatement affected Nortel’s cash position. Nortel’s cash position was critical to

its survival.

[259] Mr. Chambers, the Crown’s expert, explained in his report when a restatement of

previously-published financial information is necessary. Mr. Chambers indicated that, if a

misstatement has occurred in a publicly-traded corporation’s published financial results, a

restatement of the prior year’s financial statements is required if the misstatement is material in

the prior year or if a correction in the current year, i.e., when the misstatement is discovered,

materially overstates or understates earnings in the current year.

[260] Mr. Chambers also offered expert evidence on the reasons why financial statements are

restated. Mr. Chambers stated in his report that Restatements occur because the earlier financial

statements contain errors:



due to the misapplication of US GAAP;

mathematical mistakes;

incorrect facts;

fraud due to the manipulation of accounting records, misrepresentation, or

the intentional misapplication of US GAAP;



changes in accounting principles; and,

36



stock splits.

[261] Mr. Chambers stated that the majority of Restatements are attributable to internal

company errors.

[262] Mr. Hathway, the lead auditor for Deloitte on the Nortel file in 2003, explained when it is

necessary to restate prior published financial results so that accrued liability balances can be re-

profiled to the appropriate financial periods when they should have been released to the profit

and loss statement.

[263] Mr. Hathway testified that, where there is an error in the financial statements due to an

overstatement of accrued liabilities, there are two choices:

 if the overstatement of an accrued liability balance is not material to either

the balance sheet or the profit and loss statement in the current quarter or

the quarter in which it should have been released, then it can be, with the

appropriate disclosure, released to the profit and loss statement in the

quarter in which the error is discovered; and,

 if the overstatement is material to the results in the quarter in which the

error is discovered or to the results in the quarter in which it should have

been released to the profit and loss statement, then there must be a

Restatement of the earlier financial statements to push the excess accrued

liability balance back to the period when it should have been released.

[264] Mr. Richmond testified that Restatements in both Canada and the United States are

infrequent. He said that for an organization to restate a previously-published financial result is

not something that is well-embraced by the organization. Mr. Richmond’s evidence is consistent

with evidence heard in the trial to the effect that Mr. Beatty told Mr. Cleghorn that a restatement

was never a good idea.

The First restatement

A short chronology

[265] Nortel’s first decision to restate financial statements for 2000, 2001, 2002, Q1 2003 and

Q2 2003 was announced on October 23, 2003.

[266] This restatement essentially restated excessive accrued balances on Nortel’s balance sheet

back to the quarters when they should have been released to the profit and loss statement.

[267] The restated financial statements resulting from the first Restatement were released to the

public on December 23, 2003 approximately two months after the announcement of the first

Restatement.

37

Who was Responsible

[268] Ms. Sledge, indicated that she personally dealt with both Douglas Beatty and Michael

Gollogly in connection with the first Restatement and that, from her perspective, both Douglas

Beatty and Michael Gollogly were in charge of the first Restatement. Ms. Sledge’s evidence in

this regard is consistent with the positions held by Douglas Beatty and Michael Gollogly during

the first Restatement; namely CFO and Controller. I accept this portion of Ms. Sledge’s

evidence; although I am satisfied Ms. Sledge, a certified public accountant and Nortel’s Assistant

Corporate Controller from 2003-2005, also had a major role in the first restatement.

Nortel Restatements are complex

[269] Mr. Michael McMillan testified that, due to the significant number of corporate entities

involved worldwide, the restatement process was complex. I accept Mr. McMillan’s evidence

that the restatement process for Nortel was a complex one.

How the Restatements came about

[270] Mr. Richmond described the situation at Nortel when consideration was being given for

the first time to restating financial statements from earlier periods. The immediate cause of this

discussion was the release to the profit and loss statement in Q2 03 (the second quarter of 2003)

of approximately $142 million in accrued liabilities which could no longer be supported. The

release of this $142 million would have had a positive effect on earnings. These balances had

been released during preparation of one of the preliminary drafts of Nortel’s Q2 03 financial

statements during the Q2 03 close process described earlier.

[271] Mr. Gollogly made Mr. Hathaway, Deloitte’s lead Nortel audit partner, specifically aware

of the $142 million and asked Mr. Hathway for Deloitte’s view. Mr. Hathway objected to the

release of these balances, with the result that the release of these balances was reversed in the

next preliminary draft of the financial statements and the $142 million in accrued liability

balances was returned to Nortel’s balance sheet where they always been.

[272] No profit and loss statement containing the $142 million was ever published.

[273] It was Mr. Richmond’s evidence that Mr. Dunn maintained that the $142 million was the

total number of unsupported liabilities on Nortel’s consolidated balance sheet. It was Mr. Dunn’s

view that the $142 million should remain released to the profit and loss statement of Q2 03 and

that there should be appropriate disclosure of this fact in the press release publishing Nortel’s Q2

03 financial results. Mr. Dunn maintained that his view should be respected because not only

was he the CEO, but he had been, prior to that, Nortel’s CFO and Corporate Controller.

[274] This is perhaps an appropriate time to observe the obvious. Mr. Dunn was spectacularly

wrong; the first restatement identified in excess of $900 million of accrued liabilities that could

no longer remain on Nortel’s consolidated balance sheet.

[275] Mr. Richmond indicated that Mr. Dunn also resisted the idea of a comprehensive balance

sheet review due to the workload demands it would place on a group of busy people. This

38

observation attributed to Mr. Dunn seems reasonable to me because, by this time in 2003,

Nortel’s employees had been reduced by two-thirds.

[276] Mr. Richmond indicated that, if Mr. Dunn had been correct, the restatement might have

been a simple as booking the $142 million back into 2002 because, in 2002, Nortel suffered total

losses of $3.7 billion. Thus, the effect of restating the $142 million into 2002 would only have

been to reduce that loss to $3.5 billion approximately, which would have been an immaterial

change to Nortel’s financial statements for 2002.

[277] Mr. Richmond indicated that it was Deloitte’s position that Nortel had to

comprehensively review its balance sheet so that the true extent of the accrued liability problem

would be known and that, only when that had occurred, could consideration be given to the

correct accounting treatment of the $142 million in unsupported accrued liability balances that

everyone already knew was on Nortel’s consolidated balance sheet.

[278] Mr. Richmond indicated that it was Deloitte’s view that it was appropriate to “park” the

$142 million on the balance sheet until the comprehensive review of the balance sheet was

completed. It was Mr. Richmond’s view and Deloitte’s view that leaving the $142 million on

Nortel’s balance sheet did not misrepresent Nortel’s financial results. Mr. Richmond explained

that Nortel had more than $5 billion in liabilities on its balance sheet in Q2 03 and that, in

Deloitte’s view, the $142 million was not material to that total. Mr. Chambers, the Crown’s

expert, offered no opinion to the contrary.

[279] I accept Mr. Richmond’s evidence in this regard and I agree with his conclusion.

[280] Mr. Richmond further explained that Nortel’s profit and loss statement for Q2 03

revealed that it was, at long last, at break-even and that, therefore, the release of the $142 million

to the profit and loss statement in Q2 03 would have been material to that statement and,

therefore, could not be permitted.

[281] I agree with this conclusion as well.

[282] Finally, Mr. Richmond pointed out that Deloitte’s was not satisfied that the $142 million

represented the entire extent of the problem.

[283] Mr. Richmond indicated that this discussion between Deloitte and Mr. Dunn went on for

a period of time.

[284] Nortel’s second-quarter concluded on June 30, 2003. Mr. Richmond indicated that,

sometime in the first two weeks of July 2003, he had a meeting with Mr. Dunn which resolved

the matter as follows:

 The $142 million in accrued liabilities, released to the profit and loss

statement in Q2 03 and returned to Nortel’s balance sheet after Deloitte’s

objected, would remain on Nortel’s balance sheet;

 Nortel would comprehensively review its balance sheet;

39

 The fact that a comprehensive balance sheet review was taking place would

be disclosed in Nortel’s public financial filings for Q2 03. Mr. Richmond did

not suggest that this aspect of the discussion was contentious.

The Comprehensive Balance Sheet Review

[285] Ms. Karen Sledge testified that she participated in the Comprehensive Balance Sheet

Review which began at the end of July 2003. During this process, she was part of the team

reviewing all of the different accounts from the different regions and business units. She said, as

the balance sheet review proceeded, it became clear that that there was more and more on the

balance sheet that needed to be corrected. She said that the numbers were increasing every time

they looked at the accounts.

[286] It was Ms. Sledge’s evidence that, at some point during the Balance Sheet Review

process, those involved realized that there would need to be a restatement of prior years’

financial results. Her evidence in this regard is also consistent with Mr. Richmond’s evidence

that, as the Comprehensive Balance Sheet Review progressed, the quantum of excess accrued

liabilities increased. Mr. Richmond indicated that, as a practical matter, the error with respect to

accrued liabilities was so large that a Restatement was inevitable.

[287] I accept this aspect of Ms. Sledge’s evidence.

[288] Mr. McMillan testified that there was a timing sensitivity associated with the first

Restatement. Specifically, he said that all of the people involved in the restatement wanted to

make sure that it was completed within the normal reporting lines so that the appropriate filings

with the SEC and the Ontario Securities Commission would not be delayed. Mr. McMillan said

that the need to report in a timely manner made the first Restatement a demanding exercise.

[289] It was Mr. McMillan’s view that “at the end of it I felt that we had done a good job of it

and we had managed it within the timeframe”. Mr. McMillan also indicated that he was quite

surprised that it was necessary to restate Nortel’s earlier financial results a second time. I accept

Mr. McMillan’s evidence concerning timeliness.

[290] Mr. Richmond also testified that there was pressure to complete the Comprehensive

Balance Sheet Review in a timely manner. Mr. Richmond indicated that there was an agreement

among the Board, senior management and Deloitte to complete the review “as rapidly as was

humanly possible”.

[291] It was Mr. McMillan’s view that the Comprehensive Balance Sheet Review and first

Restatement was driven by Karen Sledge and Michael Gollogly. He said that these were the two

people to whom he regularly reported. McMillan’s evidence is not contentious and I accept it.

Ms. Sledge work was obviously satisfactory; she remained in Nortel’s employ until 2010.

[292] Mr. Peter Dans testified that there was a “focus on getting the Restatement correct and

there was, you know, high level of review that was going to be associated with that to try and

ensure that the Restatement was done correctly”.

40

[293] Mr. Richmond said that it was his observation, as the balance sheet review progressed,

that “there were some really tired folk, both at Nortel and our firm in terms of trying to make that

happen”.

[294] Mr. Richmond indicated that the Comprehensive Balance Sheet Review exercise was so

intense that, at one point, he spoke to the Chairman of the Audit Committee and suggested that

Nortel should provide an opportunity for those Nortel and Deloitte employees and partners

involved in the Comprehensive Balance Sheet Review to enjoy a long weekend.

[295] The time pressure was so intense that Mr. Gollogly wrote in his diary “get it done versus

get it right” which was a play on the theme for the restatement which was “do it once and do it

right”.

[296] Mr. Hathway recounted being present when Mr. Gollogly suggested to Mr. Dunn that the

restatement might not be finished in time for Nortel’s next public filing; Mr. Hathway indicated

that Mr. Dunn was adamant that a delay was unacceptable.

[297] Mr. Richmond indicated that, in his view, the Deloitte Nortel engagement team, led by

Don Hathway and John Cawthorne, was as close to workaholics as he had ever seen; he said

their behaviour was matched by the individuals working for Mr. Gollogly.

[298] Ms. Karen Sledge testified that she remembered one evening where she, Mr. Hathway

and Mr. Gollogly were up the entire night resolving balance sheet review issues affecting

Nortel’s operations in Asia.

[299] Mr. Hathway was interviewed by the R.C.M.P. in connection with this matter on

November 14, 2005. By this time, he was well-aware of the results of the Wilmer Cutler

Pickering independent inquiry on behalf of the Audit Committee concerning the causes of the

need to restate Nortel’s previously-published financial statements. By this time, Mr. Dunn, Mr.

Beatty and Mr. Gollogly had been accused of wrongdoing in that report and, as a result, fired for

cause.

[300] During the course of that interview, Mr. Hathway was asked by Sgt. Bone if he felt a

conscientious effort had been made during the first balance sheet review. Mr. Hathway said he

thought the Nortel side had done a conscientious job. When asked why he thought that, he said

“the extent of the work they did, the amount of documentation they tried to go back and find,

they did, seemed to me they made a real effort to get behind these items and find out what the

real story was, when we asked questions about it, if we were not satisfied with what they gave us

initially we would tell them to follow up and it seemed to me they were making a real concerted

effort to get you know to respond to our questions and to get the answers…”

[301] Mr. Hathway confirmed that his answers in the R.C.M.P. interview reflected his thinking,

not only at the time of the Comprehensive Balance Sheet Review, but also at the time of his

RCMP interview in November 2005.

[302] During the course of the R.C.M.P. interview, Mr. Hathway recounted a conversation with

Mr. Gollogly at the time when it became clear that there would be a restatement. Apparently, Mr.

Gollogly asked Mr. Hathway if he, that is Mr. Gollogly, should resign. Mr. Gollogly thought he

41

should resign because he was the Corporate Controller and should accept responsibility for the

fact that the Audit Committee found it necessary to restate previously-published financial results.

Mr. Hathway told Mr. Gollogly that he did not think he should resign. When asked during the

R.C.M.P. interview why he gave Mr. Gollogly that advice, Mr. Hathway said, “my view was

Mike was trying to get the numbers right…” Mr. Hathway was asked during his interview if his

opinion had changed and he said, “I am not sure my opinion’s changed”.

Was the Comprehensive Balance Sheet Review Comprehensive?

[303] The Crown suggested all three accused misinformed the public by saying that the first

restatement represented a comprehensive review engaged in for the purpose of correcting past

accounting errors.

[304] The Crown maintains that the first restatement was not comprehensive. The Crown

suggested that the scope of the first restatement was too narrow.

[305] The Crown suggested that, because Nortel and Deloitte staff worked so hard, the first

restatement was under-resourced.

[306] The Crown submits that the first restatement understated the extent of the errors on the

balance sheet and argues this is demonstrated by the fact that there was a second restatement.

[307] Mr. Wilson, whose evidence I accept, testified that the impact of the restatement of $900

million in accrued liability balances identified during the Comprehensive Balance Sheet Review

was favorable to shareholders. The $900 million represented expenses on the balance sheet that

did not have to be recognized. Shareholders’ equity was increased by $900 million.

[308] Mr. Wilson described the first restatement as a restatement of over-providing; amounts

were brought back which added to the shareholders investment in the company.

[309] The Crown has never suggested that the $900 million in accrued liability balances ought

not to have been restated.

[310] I accept the evidence of Mr. Richmond, Ms. Sledge, Mr. McMillan and others attesting to

the effort that went into the first restatement. No witness testified or suggested that Mr. Beatty or

Mr. Gollogly interfered with the first restatement. Mr. Hathway remained convinced, after the

release of the Wilmer Cutler Pickering Review and after the investigation into this matter had

begun, that “Mike was trying to get the numbers right”.

[311] I propose to separately consider why there was a second restatement and the inferences to

be drawn from that restatement.

[312] I am satisfied the Comprehensive Balance Sheet Review was, in a word, comprehensive.

[313] I am not satisfied that the scope of the first Comprehensive Balance Sheet Review (a

review of all accrued liability balances in excess of $100,000 and a review of all accrued liability

balances released to the profit and loss statement equal to or in excess of $2 million) was too

narrow in scope.

42

[314] It became apparent in the late summer that a restatement would likely be necessary. The

scope of the Comprehensive Balance Sheet Review was approved by Nortel’s auditors and

Nortel’s Audit Committee. Nortel’s Audit Committee and auditors knew that the decision to

restate earlier published financial statements would attract regulatory interest. It was to satisfy

regulators that Nortel’s Audit Committee hired Wilmer Cutler Pickering to conduct an

independent review of the circumstances leading to the decision to restate. I am satisfied that,

without the benefit of hindsight, Nortel’s auditors and Nortel’s Audit Committee thought that

these parameters were reasonable.

[315] I am not satisfied that the first restatement was under-resourced. Deloitte was free to add

staff as they saw fit. Mr. Richmond did not hesitate to recommend that Nortel staff and Deloitte

staff be compelled to take a long weekend. I have no doubt he would have recommended that

Nortel find additional staff for the Comprehensive Balance Sheet Review if it had come to his

attention that the project, which he had insisted upon, was being compromised because it was

under-resourced on the Nortel side. The Comprehensive Balance Sheet Review did, in fact,

reveal that approximately $900 million in accrued liability balances needed to be restated.

[316] I am not satisfied that the original balance sheet review was too narrow in scope

[317] I am satisfied that there was intense pressure to complete the Comprehensive Balance

Sheet Review as quickly as possible. I do not attribute this imperative to the accused alone. I

accept the evidence of Mr. Richmond that there was an agreement among the Board, senior

management and Deloitte that the Comprehensive Balance Sheet Review should be completed

“as rapidly as was humanly possible”. I am satisfied that this imperative existed because Nortel

wanted to put the balance sheet review and a restatement, if there was indeed going to be one,

behind them as quickly as possible and because the accused and Nortel’s Audit Committee

wanted to make their appropriate filings with the SEC and the Ontario Securities Commission

within normal reporting lines.

[318] I am not satisfied, on the evidence, including the evidence specifically referred to, that

the first restatement was not comprehensive because timelines were short.

[319] I am not persuaded that any or all of the three accused insisted upon an unreasonably

short timeline in an effort to make certain that the first restatement failed to uncover the true

extent of the accrued liability problem on Nortel’s balance sheet.

[320] I attach no importance to the fact that Mr. Beatty told Mr. Cleghorn, the chair of the

Audit Committee, that he, that is Mr. Beatty, viewed a restatement as a last resort or that a

restatement was a last resort. Mr. Beatty’s statement proves that his attitude toward a restatement

was consistent with what Mr. Richmond described as the attitude of corporations generally.

[321] The restatement of these accrued liability balances had no cash impact on Nortel’s cash

reserves. Maintaining sufficient cash reserves to keep Nortel functioning was the most pressing

responsibility of Nortel senior management, Audit Committee and Board of Directors. In fact,

neither the first restatement nor the second restatement had an effect on Nortel’s critically

important cash reserves.

43

[322] Mr. Richmond testified that Nortel lost $3.5 billion in 2000, $27 billion in 2001 and $3.7

billion in 2002. It was his view that the $900 million in excess accrued liability balances was not

material to Nortel’s financial statements in those years. Mr. Chambers did not offer a contrary

opinion.

[323] Mr. Chambers did not offer any opinion concerning the comprehensive balance sheet

review or the first restatement.

[324] I am not satisfied beyond a reasonable doubt that Nortel’s original financial statements

for 2000, 2001, 2002, Q1 03 and Q2 03 were materially misstated. I am not satisfied that

Nortel’s original financial statements for those fiscal years materially misrepresented Nortel’s

financial results. I am not satisfied beyond a reasonable doubt that Nortel’s financial statements

published after the first restatement materially misrepresented Nortel’s financial results.

[325] I am satisfied that Nortel’s original financial statements for the years 2000, 2001, 2002,

Q1 03 and Q2 03 properly reflected Nortel’s financial reality.

The results of the second restatement

[326] The Crown relied upon the fact of and results from the second restatement as proof that

the first restatement was not comprehensive.

[327] Mr. Richmond indicated that, when it became clear in October 1993 that there were $900

million in excess accrued liability balances to be restated, he suggested that the directors retain

independent attorneys to review the circumstances which led to both the recording of excess

accrued liability balances on Nortel’s consolidated balance sheet and the decision to restate

previously-published financial statements for fiscal 2000, 2001, 2002, Q1 2003 and Q2 2003.

[328] The independent attorneys chosen were from the U.S. firm of Wilmer Cutler Pickering.

[329] The Summary of Findings and Recommended Measures resulting from the WCP Review

(“WCP Summary”) was received in evidence for contextual purposes and not as proof of the

facts or conclusions contained within it.

[330] The WCP Summary is contextual in the sense that it affected conduct which was the

subject of evidence in these proceedings. For example, it precipitated the decision by the Board

of Directors to restate for a second time. It also precipitated the decision by the Board of

Directors to terminate all three defendants for cause. Finally, Mr. Hathway repeatedly asserted

during his testimony that Deloitte’s attitude toward Nortel would have been different had

Deloitte known about the matters disclosed in the WCP Summary.

[331] The WCP Summary recorded the conclusion that the defendants and other persons

employed in the former finance management of Nortel carried out accounting practices relating

to the recording and release of provisions that were not in compliance with US GAAP in at least

Q3 2002 and Q4 2002 and Q1 2003 and Q2 2003.

[332] The WCP Summary concluded that the dollar value of the individual provisions recorded

and released was relatively small and that the aggregate value of the provisions made the

44

difference between a profit and a reported loss on a pro forma basis in Q4 2002 and the

difference between a loss and a reported profit on a pro forma basis in Q1 2003 and Q2 2003.

[333] Nortel did not publish pro forma results in Q1 03 or Q2 03.

[334] The WCP Summary concluded that these practices were undertaken to meet internally

imposed pro forma earnings targets.

[335] The WCP Summary concluded that the conduct in question caused Nortel to pay bonuses

to all employees and senior management under bonus plans tied to pro forma profitability.

[336] The WCP Summary recorded that the work of Nortel’s external auditor, Deloitte &

Touche LLP, was not examined, although several current and former audit partners were

interviewed.

[337] With respect to the Q3 2003 and Q4 2003, the WCP Summary concluded that no

evidence emerged to suggest an attempt to release provisions strategically in those quarters.

However, given the significant volume of accrued liability balance releases in those quarters, it

recommended a review of releases down to a low threshold.

[338] In addition, the WCP Summary recorded a series of recommendations intended to

prevent a recurrence of the conduct uncovered by the WCP Review.

[339] I do not wish to imply that I disagree with the Wilmer Cutler Pickering conclusions. I

have no opinion about their conclusions. Forming an opinion about their conclusions would

confuse my task with theirs, fail to take into account differences in the evidence we considered

and fail to take into account my standard of proof and whatever standard they used. Wilmer

Cutler Pickering was answering a question: what were the facts and circumstances leading to the

need to restate Nortel’s previously-published financial statements for the relevant periods (i.e.,

2000, 2001, 2002, Q1 03 & Q2 03)? I am trying to determine beyond a reasonable doubt whether

Nortel’s financial results were deliberately misrepresented during the time-frame of the

indictment.

[340] Mr. Richmond stated that, on or about March 5, 2004, he found out that Wilmer Cutler

Pickering intended to recommend that Nortel restate its prior financial results yet again. Mr.

Richmond briefed the Chairman of the Board and the Chairman of the Audit Committee. Mr.

Richmond’s briefing led to a March 10, 2004 Board meeting attended by representatives of the

Wilmer Cutler Pickering firm and, following the Board meeting, a press release, dated March 10,

2004.

[341] The March 10, 2004 press release announced that Nortel Networks would delay filing its

2003 annual reports. The press release indicated that Nortel was re-examining the establishment,

timing of, support for and release to income of certain accrued liabilities in prior periods. The

press release indicated that Nortel suspected that it would have to revise both its previously

announced consolidated results for the fiscal year ending December 31, 2003 and its

consolidated results for one or more earlier quarterly periods.

45

[342] Mr. Richmond testified that, when Nortel publicly-stated that it was going from the first

Restatement to a Second Restatement, the level of interest in its affairs was intense. He stated

that everyone from the Ontario Securities Commission to the SEC was looking over the

collective shoulder of Nortel and Deloitte. He said that there was a mandate to get the Second

Restatement right in an environment where there was significant litigation going on in the

marketplace. He described it as a “high-stakes game”.

[343] Mr. Hathway indicated that the parameters for the second restatement were chosen as a

result of the findings of the Wilmer Cutler Pickering independent review. He testified that the

Wilmer Cutler Pickering Review revealed information which suggested that aspects of the prior

accounting were not correct and raised the potential of earnings management. It was Mr.

Hathway’s view that these findings eroded confidence in senior management and resulted in a

second restatement.

[344] Mr. Hathway accepted the Wilmer Cutler Pickering conclusions and, based on those

conclusions, testified that the first restatement was not comprehensive. As indicated earlier, I do

not accept Mr. Hathway’s conclusion.

[345] I am satisfied that, once the Audit Committee received the Wilmer Cutler Pickering

Review, it was necessary in response to that information to restate for a second time.

[346] The evidence established that this second review of Nortel’s previously-published

financial results considered issues related to revenue recognition, as well as the release of

accrued liability balances. Thus, it not only dealt directly with Nortel’s consolidated balance

sheets, but also directly with the revenue side of its consolidated profit and loss statements.

[347] The thresholds for the first and second restatement were not the same. The first

restatement reviewed all accrued liability balances in excess of $100,000; the second restatement

reviewed all accrued liability balances in excess of $10,000. The first restatement reviewed all

releases of accrued liability balances to income in excess of $2 million; the second restatement

reviewed all releases of accrued liability balances to income in excess of $100,000.

[348] The Second Restatement of Nortel’s previously-published financial results was released

January 11, 2005.

[349] A press release, dated January 11, 2005, announced the restatement of Nortel’s

consolidated financial results for the fiscal years ended December 31, 2001 and 2002. It also

released a revision of Nortel’s previously-announced results for the 2003 fiscal year.

[350] The various press releases were admitted into evidence as business records. The press

releases were also attached to Nortel’s filings with the SEC. SEC filings were received as

business records.

[351] The January 11, 2005 press release announced that the restated financial results reflected

substantial revenue adjustments. The adjustments in revenue, according to the press release, had

to be made because there had been accounting errors in Nortel’s previously-released

consolidated financial results related to revenue recognition. The press release announced that

46

Wilmer Cutler Pickering would be conducting a further independent review of the circumstances

that led to the erroneous recognition of revenue.

[352] The causes of the substantial revenue recognition adjustments reflected in the Second

Restatement were not developed in the evidence offered in this case.

[353] This aspect of the January 11, 2005 press release is consistent with the evidence of Ms.

Karen Sledge, whose evidence in this regard I accept, that the first Restatement focused

primarily on the accrued liabilities on the balance sheet, while the Second Restatement had a

much broader scope.

[354] The Crown’s expert, Mr. Chambers, indicated that, as a general rule, expenses are to be

matched with revenues as long as it is reasonable to do so. Accordingly, the logical inference is

that, if revenues are re-profiled or restated from one financial quarter to another, the expenses

associated with earning those revenues will be similarly re-profiled or restated.

[355] The first restatement was published December 23, 2003; the second restatement was

announced March 10, 2004. The reason for the proximity of these two announcements was

disclosed in the evidence.

[356] Mr. Richmond recommended to the Board that it not file the restated financial statements

until Wilmer Cutler Pickering had completed their independent review. Mr. Richmond testified

that there was no legal or regulatory requirement to file the restated financial statements on or

about December 23, 2003. It was Mr. Richmond’s view that, now that the first restatement was

completed, the restated financial statements could be put to one side until Wilmer Cutler

Pickering provided their advice, which was expected by mid-February 2004.

[357] The Board, for its own reasons, decided to publish the restated financial statements

without waiting. Mr. Richmond conferred with the Wilmer Cutler Pickering firm, who advised

that, at that point in December 2003, they knew of no reason why the restated financial

statements could not be published. Accordingly, the statements were published.

[358] A short time later, Wilmer Cutler Pickering advised, among other things, that the accused

had engaged in earnings management and that there should be a review of Nortel’s previously-

published financial results.

[359] Neither the first or second restatement affected Nortel’s critically-important cash

reserves. The Wilmer Cutler Pickering review did not suggest that Nortel’s cash reserves had

been misrepresented in Nortel’s original financial statements or in the first restatement of those

financial statements.

[360] The first restatement of previously published financial results differed from the 2^nd

restatement because the thresholds for the 2^ndrestatement were lower and because the 2^nd

restatement considered errors in revenue recognition as well as accrued liabilities.

47

Inferences concerning Nortel’s restated financial results for Q1 03 and Q2 03

[361] During Q1 03, Nortel’s financial results were affected by the release of $361 million in

accrued liability balances to income. These releases affected Nortel’s balance sheet and profit

and loss statement for Q1 03. The first restatement restated $111 million of these balances. The

second restatement restated a further $106 million of these balances.

[362] During Q2 03, Nortel’s financial results were affected by the release of $372 million in

accrued liability balances to income. These releases affected Nortel’s balance sheet and profit

and loss statement for Q2 03. The first restatement restated $105 million of these balances. The

second restatement restated a further $105 million of these balances.

[363] The Crown submits that this indicates that the original Q1 03 and Q2 03 releases were not

in the “normal course” and that, therefore, Nortel’s financial results were misrepresented in the

original financial statements and the first restatement of those financial statements. The Crown

argued that the effect of the two restatements was to demonstrate that approximately 2/3 of the

accrued liability balances released during Q1 03 and Q2 03 were wrongly released in those

periods. The Crown submits that this supports its argument that the Comprehensive Balance

Sheet Review was misrepresented as comprehensive and that the resulting financial statements

misrepresented Nortel’s financial results.

[364] In my view, this is an incomplete interpretation of the restatement process. The

restatement process had the effect of restating releases of accrued liability balances in two

directions:

 releases of accrued liability balances to income came out of the profit and loss

statements for Q1 03 and Q2 03 into which they had erroneously been

released. These releases were restated to the profit and loss statements for the

quarters into which they should have been released;

 releases of accrued liability balances came into the profit and loss statements

for Q1 03 and Q2 03, if those quarters were the quarters into which those

balances should have been released.

[365] The Crown’s interpretation only takes into account the accrued liability balances

removed from income and, as a result, is incomplete.

[366] One of the late entry accruals provided by Mr. Morita, the PRC securitization release,

was restated from Q4 02 to Q1 03. Although a small amount, $1.8 million, it is an example of a

release that was restated into Q1 03. The fact that this release into Q1 03 was randomly reflected

in the evidence illustrates that it is reasonable to conclude that other releases were restated into

Q1 03. The evidence does not permit an analysis of the net effect on a quarter-by-quarter basis of

the restating of accrued liability balances.

[367] Mr. Chambers did not offer the opinion that this “one way analysis” was valid.

[368] The reason for releasing specific balances undermines the suggestion that the 3 accused

are responsible for the Q1 03 and Q2 03 balances that were restated.

48

[369] The evidence demonstrated that at least one release was restated out of Q1 03 because

Deloitte disagreed with itself. An example of this seemingly odd conclusion is the Genuity

release ($23 million) which is discussed elsewhere in these reasons.

[370] The PWC accrued liability release ($19 million), also discussed elsewhere, was restated

out of Q1 03 on the basis of the legal opinion which was produced in April 2004 after the

accused had been dismissed from their positions.

[371] The fact that the results of the first restatement were tested undermines that portion of the

argument which suggests that the first restatement misrepresented Nortel’s financial results.

[372] Mr. Dans testified that he was involved with Deloitte when they performed a trending

analysis to validate the results of the first restatement. He stated that each of the leadership

categories presented to Deloitte & Touche the results of the restatement and explained the trends

that resulted from the restatement to validate those trends from a business perspective. He

described it as a “validation exercise.”

[373] No evidence suggested that this trending analysis indicated that the results of the first

restatement could not be validated from a business perspective. No evidence suggested Mr Dans

was mistaken about the validation exercise. The trending analysis was not produced. I accept this

aspect of Mr. Dans’ evidence.

[374] The restatement of individual accrued liability balances occurred for a variety of reasons.

It is not safe to generalize. The specifics of each restated balance have to be looked at in order to

see what inferences they support. The first restatement was validated. No expert offered an

opinion concerning the Comprehensive Balance Sheet Review and the first restatement.

[375] As indicated earlier, I am satisfied that the first restatement of previously published

financial results differed from the 2^ndrestatement because the thresholds for the 2^ndrestatement

were lower and because the 2^ndrestatement considered errors in revenue recognition as well as

accrued liabilities.

[376] I am not satisfied, by the evidence, that the first restatement of accrued liability balances

released in Q1 03 and Q2 03 demonstrates that the 3 accused misrepresented Nortel’s original

financial results. I am not satisfied, by the evidence, that the 2^ndrestatement of accrued liability

balances demonstrates that the 3 accused misrepresented Nortel’s financial results as first

restated.

Q4 02-THE 4^THQUARTER OF 2002

[377] Q4 02 was the subject of considerable evidence. The Crown argued that the accused

attempted to manage earnings in Q4 02 and, in so doing, deliberately turned a pro forma profit

into a pro forma loss.

[378] The Crown submitted that the solicitation of late accrued expenses/liabilities wrongly

converted a pro forma gain before taxes into a pro forma loss before taxes in Q4 02.

49

[379] Mr. Harrison described how his solicitation of late entry accrued expenses and liabilities

for fiscal Q4 02 came about.

[380] As indicated earlier, after the business unit sub-ledgers had been closed and the business

unit financial results submitted to corporate headquarters, Mr. Harrison frequently prepared an

Outlook document to give management a hint of the consolidated financial results. This Outlook

document was a snapshot of the results from the general ledger.

[381] At a daily status update meeting, Mr. Harrison shared his latest Outlook snapshot. Mr.

Harrison also commented on what entries were still to be made.

[382] Typically, the Assistant Corporate Controller, Linda Mezon, the Controller, Michael

Gollogly, Mr. Harrison and someone from his staff would be in attendance.

[383] Mr. Harrison identified one of these snapshots, dated January 6, 2003, which indicated

that Nortel’s pro forma gain before taxes was $73 million. Mr. Harrison testified that, when he

announced this result at the January 6 status meeting, there was surprise. He testified that

showing a profit in Q4 02 seemed out of context. He described the feeling at the meeting was

that the result did not make sense.

[384] Skepticism concerning Mr. Harrison’s calculation of a pro forma gain before taxes of $73

million was justified. Nortel’s pro forma income calculations excluded gains on the buyback of

bonds. Mr. Harrison erroneously included $59 million in gains from one such bond transaction in

his January 6 Outlook calculations. Mr. Harrison had overstated Nortel’s pro forma net gain

before taxes by this amount.

[385] Mr. Harrison corrected his error two days later. By this time, Mr. Harrison had solicited

the late entry accrued expenses/liabilities of which the Crown now complains.

[386] Mr. Harrison testified that, as a result of the skepticism concerning his calculation, he

agreed to make calls to senior finance individuals in each of the business units and the Regions

to see if they had accrued expenses/liabilities which they had failed to record.

[387] Mr. Harrison had no clear recollection of any particular person asking him to make these

calls; he said the idea that he would do that came from the meeting. Mr. Harrison testified he had

never before made a call of this nature.

[388] Mr. Harrison testified that he made these phone calls and told each of the individuals to

whom he spoke that Nortel’s results were very favorable and asked each of the individuals if

they had any accrued expenses they needed to cover.

[389] Mr. Harrison’s calls resulted in the various business units booking approximately $176

million worth of accrued expenses/liabilities.

[390] Mr. Harrison created a list of the individual accrued expenses which he had solicited and

testified that $137 million of this total came from Non-op which Mr. Harrison stated was under

the “purview of the Controller”. Mr. Harrison, elsewhere on the same list, indicated that $126

50

million in additional accrued expenses came from Non-op. The reason for this discrepancy is not

clear.

[391] Two days later, January 8, 2003, Mr. Harrison’s Outlook, or snapshot at the daily status

meeting, suggested that Nortel was going to have a pro forma loss before taxes of $73 million,

rather than a pro forma gain of $73 million.

[392] Mr. Harrison indicated that, if he had not made the calls, the $176 million in accrued

expenses would not have been booked and that Nortel’s pro forma and US GAAP results would

have not reflected the $176 million in negative impacts represented by the late entry accrued

expenses/liabilities.

[393] Mr. Harrison confirmed that if, the Q4 2002 results had reflected a pro forma gain before

taxes, most of Nortel’s employees would have been entitled to all or part of a Return to

Profitability Bonus.

[394] The payment of this bonus in Q4 2002 was awkward from Nortel’s point of view

because, in Q4 2002, Nortel experienced a loss calculated according to US GAAP of $248

million. This result had to be publicly reported. Bonus payments were payable if net pro forma

income was positive after allowing for the cost of the bonus. The bonus was payable regardless

of the fact that that there was a US GAAP loss.

[395] The awkwardness, to which I refer results from the fact that Nortel would have publicly

reported a US GAAP loss and, at the same time, publicly reported that it was paying its

employees a bonus. The evidence disclosed that it was well-known that other publicly-traded

corporations had been criticized for precisely this behavior.

[396] The three accused representing Nortel senior management were motivated to avoid such a

situation.

[397] Additional accrued expenses/liabilities which were all that Mr. Harrison was soliciting

would have a negative impact on pro forma earnings. Sufficient additional accrued expenses

/liabilities could, therefore, turn a pro forma gain before taxes into a pro forma loss before taxes.

If Nortel reported a pro forma loss before taxes in its press release announcing Q4 02 financial

results, then no bonus would be payable.

[398] Reporting a pro forma loss before taxes in Q4 02 was expected. Mr. Dunn had publicly

predicted pro forma gains before taxes in Q2 03 or the second quarter of 2003.

[399] Mr. Beatty had expressed himself to Mr. Harrison on a related issue. In a conversation in

Q3 02 or the third quarter of 2002, according to Mr. Harrison, Mr. Beatty stated that “The Street”

would not reward Nortel for only one quarter of positive earnings. Mr. Harrison said that he

understood the objective was constant positive results.

[400] It is not contrary to the criminal law to attempt to manage the affairs of a corporation to

achieve a financial target. The question is whether, in attempting to achieve the targeted result,

those responsible for preparation of the corporation’s financial results cause the financial

statements to misrepresent the corporation’s financial results.

51

[401] Accordingly, the question becomes did the late entry accrued expenses/liabilities cause a

misrepresentation of Nortel’s financial results?

[402] Before considering the additional accrued liability balances which resulted from Mr.

Harrison’s solicitation, I propose to discuss the participation of Mr. Dunn, Mr. Beatty and Mr.

Gollogly in the solicitation of additional accrued expenses.

The participation of Mr. Dunn and Mr. Beatty

[403] Nortel was a multibillion-dollar year business, international in scope and publicly- traded.

It was also financially at risk. When Nortel announced a quarterly result, the auditors had to take

a view of the next twelve months from the date of the quarterly report and opine on whether

Nortel would be able to continue in business as a going concern.

[404] It is not logical and I decline to draw the inference that matters affecting Nortel’s pro

forma and US GAAP earnings escaped the attention of Nortel’s CFO and CEO. Both Mr. Dunn

and Mr. Beatty were accomplished accountants. Mr. Dunn, in particular, was described as very

intelligent with a mind for detail. The evidence disclosed that on a trip to China, as one would

expect, he made arrangements to be kept informed of the final 2002 financial results. Mr Dunn

told Mr. Wilson that Nortel was profitable on operations in Q4 02 but the quarter was going to be

negative due to accruals including 360 Networks.

[405] Exhibit 1, tab 30 was received as a business record. It is, therefore, capable of proving the

facts contained in it. One of the facts contained in the business record is that Mr. Beatty

discussed with Mr. Dunn the $30 million increase in Optical’s excess and obsolete inventory

accrued liability balance. The increase in this balance came about as a result of Mr. Harrison’s

solicitation of additional accrued expenses. Thus, the evidence is that Mr. Dunn was informed by

Mr. Beatty of Optical’s response to Mr. Harrison’s communication.

[406] Nortel’s Board of Directors decided to pay a Return to Profitability Bonus based on

Nortel’s 2002 formula for calculating pro forma gains (losses) before taxes. The bonus was

created, in part, at Mr. Dunn suggestion because Nortel’s competitors were attempting to hire

away Nortel employees. It stands to reason that conclusions concerning whether the bonus was

payable or not would be brought to Mr. Dunn’s attention.

[407] Mr. Beatty, as Nortel’s CFO, would obviously be preoccupied with Nortel’s financial

results.

[408] Mr. Gollogly was Nortel’s Controller. Mr. Gollogly was at the meeting on January 6,

2003 when Mr. Harrison announced that his calculations indicated that Nortel was pro forma

positive by $73 million at that point in time. It was at the same meeting that it was decided that

Mr. Harrison would call around and solicit late entries.

[409] I am satisfied that all three accused knew that Mr. Harrison was soliciting additional late

entry accrued expenses/liabilities for fiscal Q4 02.

52

The specific late entry accrued expenses/liabilities solicited by Mr. Harrison

The solicitation of late entries from Karen Sledge

Late entry Fringe and Vacation accrued liability balances

[410] Karen Sledge offered some testimony concerning the solicitation of additional accrued

expenses in connection with Fringe and Vacation benefits during the close of the books for Q4

02.

[411] Ms. Sledge is a CPA, which is the American designation which corresponds to our C.A.

In Q4 2002, Ms. Sledge was responsible for accrued liability balances for vacations, holidays

and termination benefits. Ms. Sledge indicated that she took on this responsibility in 2002, which

was also the first year that she had U.S. Controller responsibilities.

Fringe Benefit Accrued Liability Balances

[412] In September or October 2002, Ms. Sledge and her team made a forecast that they did not

have enough expenses accrued to cover medical costs in the U.S. throughout the fourth quarter of

2002.

[413] Ms. Sledge indicated that an additional $13 million should be added to the Fringe accrued

liability balance. This was done in October 2002. This increase in the accrued liability balance

negatively affected Nortel’s Q4 02 results by $13 million.

[414] This conclusion was based on a review of medical costs associated with recently-

terminated employees which demonstrated that recently-terminated employees took greater

advantage of medical benefits than active employees. Apparently, terminated employees in 2002

spent approximately 141% of active employees’ expenditures. Terminations in 2002 were 6%

higher than originally estimated. Medical costs rose between 18 and 20% in 2002, resulting in

significantly higher prescription drug costs.

[415] On December 20, 2002, only two months after the original forecast, Ms. Sledge’s staff

indicated that they had overestimated this accrued liability balance by $7.3 million. This meant

that, on December 20, 2002, Ms. Sledge and her team thought that a release to the profit and loss

statement in the amount of $7.3 million would reduce the Fringe accrued liability balance to the

appropriate level. This meant that the $7.3 million would positively affect Nortel’s Q4 02 results

by $7.3 million.

[416] On January 3, 2003, two weeks later, Ms. Sledge advanced a new position, namely that

the Fringe accrued liability balance should be reduced by $37 million. This meant that the Fringe

accrued liability balance had been overestimated by $37 million. This meant that Q4 02 results

would be positively affected by $37 million. A journal entry recording this $37 million reduction

was made on January 4, 2003.

[417] Ms. Sledge received two or three telephone calls from Mr. Gollogly on January 5 or 6,

2003, as well as a call from Mary Cross, her immediate supervisor, expressing concern about the

$37 million release.

53

[418] According to Ms. Sledge, Mr. Gollogly asked her to take a look at her decision to release

this $37 million and Ms. Sledge initially responded that she thought the decision to release the

accrued liability was correct. Ms. Sledge indicated that Mr. Gollogly became more emphatic

about the need for her to reconsider the release with each call.

[419] Ms. Sledge said that she then increased the Fringe accrued liability balance by $11

million. A journal entry recording this $11 million increase was made on January 13, 2003. This,

in effect, reduced the $37 million positive impact on earnings by $11 million. Ms. Sledge

testified that, without these calls, she would not have increased the Fringe accrued liability

balance.

[420] Ms. Sledge based her decision to increase the Fringe accrued liability balance by $11

million on invoices that had been incurred but not yet received from medical institutions. A

trending analysis was done on these invoices and this analysis indicated the invoices would

ultimately come in higher than expected.

[421] Ms. Sledge said that she asked her own team to consider whether the $11 million increase

was justified. Their verification of the increase was communicated to Ms. Sledge on January 13,

2003. Accordingly, the Fringe accrued liability balance was adjusted upwards by $11 million at

that time.

[422] Ms. Sledge indicated that she then asked her staff to determine why their initial forecast

had suggested a $13 million increase in the Fringe accrued liability balance was necessary and

then their subsequent forecast recommended a $37 million reduction in the accrued liability

balance. Ms. Sledge’s staff discovered a $19 million double counting error was, in part,

responsible. In addition, Ms. Sledge’s staff discovered that four months of employee severance

notifications and their corresponding medical expenses had been overlooked in their original

calculations.

[423] It is clear from Exhibit 58A, tab 8 that Deloitte & Touche audited Ms. Sledge’s decision

to increase the Fringe accrual by $11 million. It appears that Deloitte did this on January 17,

2003. Deloitte concluded that the Fringe accrued liability balance should be increased, but only

by $8.7 million and a downward adjustment of $2.3 million, representing the difference between

$11 million and $8.7 million, was made in Q1 03.

[424] Nortel published its Q4 02 results on January 23, 2003.

[425] Ms. Sledge testified that the accrual increase was restated during the Second Restatement.

Deloitte restated the $11 million increase because the increase was “not based on sufficient

and/or appropriate evidence to support the accrual”.

Vacation Expenses

[426] Ms. Sledge testified that she was also responsible for accrued liability balances for

vacation expenses. She said that, after she had submitted her figures, she was asked by her

supervisor, Mary Cross, and by Mr. Gollogly if she had any other accrued expenses/liabilities to

record in Q4 02.

54

[427] Ms. Sledge knew that there had been a $9 million release of vacation accrued liability

balances to the profit and loss statement. Ms. Sledge reversed the release of this $9 million to the

profit and loss statement. She did so by increasing the percentage factor that Nortel used in

establishing vacation liability. Specifically, she increased the percentage factor from 75% to

85%.

[428] Ms. Sledge’s increase in the percentage factor used in establishing vacation liability and

the supporting documentation were specifically brought to the attention of Deloitte & Touche.

[429] In an e-mail to Deloitte explaining the decision, Ms. Sledge that prior to 1998, the U.S.

had used 100% as a vacation factor and Canada 75%. In September 1998, after a survey of North

American employers to determine the average vacation days on hand, a decision was made to use

75% as a factor across North America. Due to unusual circumstances at Nortel in 2002, which

Ms. Sledge partially identified as layoffs, management churn and employees not taking time off

out of fear that they would be laid off, the consensus was reached that Nortel North American

employees had not taken vacation and, therefore, a factor of 85% factor was more appropriate

than 75%.

[430] Ms. Sledge indicated in her e-mail that a North American survey and analysis was

scheduled for June-July 2003 and that further adjustments could be made upon receipt of the

survey results and analysis.

[431] The North American survey was conducted in May 2003, which suggested a range of

percentages varying from 77% to 89%.

[432] The $9 million increase in the vacation accrued liability balance was restated in the

second restatement. The reason given for restating this $9 million increase was that the results of

the survey were not available at the end of Q4 02.

[433] The restatement set the appropriate percentage at 85% for Q2 03 and Q3 03, which was

the period when the study was available. The restatement set the appropriate percentage factor at

77% for Q4 03.

Soliciting accrued expenses in Asia

[434] Glenn Morita joined Nortel in 1997 and became a chartered accountant in 1998.

Commencing in 2000, he was stationed in what Nortel termed the Asia Region. His title was

Director of Finance.

[435] Asia Region was very large; it included China, India, Pakistan, Australia, New Zealand,

Taiwan and Japan.

[436] When Mr. Morita first arrived in Asia Region, he reported to Mr. Gollogly. Mr. Morita

knew Mr. Gollogly prior to being stationed in Asia because both of them were stationed in

Brampton for a time.

55

[437] While in Asia Region, Mr. Morita was responsible for end of year, budgeting, forecasting

and financial reporting. Mr. Morita said that he was also responsible for passing information

along to the Corporate Consolidation Group in Brampton headed by Mr. Harrison.

[438] Mr. Morita indicated that, during the quarterly close of the general ledger, it was his

responsibility to make sure that partial almost complete deals were properly documented so that

Asia Region could book the revenues and the appropriate expenses associated with those

revenues. Mr. Morita also indicated that, sometimes, it was possible to proceed more quickly

with part of a project and, thereby, trigger a release of an accrued liability balance to income.

[439] During the course of his cross-examination, Mr. Morita indicated that accrued expenses

booked in Asia were not readily visible in North America, with the result that Corporate in

Brampton depended upon Asia Region to tell them about potential accrued liability releases to

the profit and loss statement.

[440] Mr. Morita indicated that he had received a request to look for potential accrued

expenses/liabilities that had been missed at the original close of the Asia Region sub-ledger. Mr.

Morita said the request came from Mr. Gollogly and his team. He recalled the request

specifically as being one to survey the Region and all the Regional Financial Primes for risk

areas that they might want to cover off.

[441] Mr. Morita said that he spent the day making calls around the Region asking if there were

accrued expenses/liabilities which people wanted to book to the general ledger.

[442] Mr. Morita pointed out that, at the time he was making these calls in January, the books

in Asia Region had already been closed and Asia Region had already submitted its final Q4 02

figures to corporate headquarters in Brampton.

[443] Mr. Morita booked three additional items totaling $4.8 million. He said that these were

not large items; they were not material at the corporate consolidations level. Mr. Morita indicated

that because he was sending these three items so late in the process, he thought the entries would

be refused because they were not material to the results. Mr. Morita testified that he sent the

information along to demonstrate that he had cooperated with the request from Mr. Gollogly and

his team. He indicated that he had no backup for these accruals when he sent them along. Back

up was obtained later.

[444] The $4.8 million in accrued expenses was, in fact, booked to the General Ledger on

January 8, 2003. Mr. Morita agreed on cross-examination with the suggestion that he viewed this

process as an opportunity to make things more accurate; to go back and to double-check for

opportunities to cover off risk.

[445] It appears that one of these items (the PRC securitization release) was restated from the

Q4 02 profit and loss statement to the Q1 2003 profit and loss statement. The reason for this

restatement appears to be that it was part of a Securitization Review.

[446] Mr. Morita indicated that the $4.8 million in additional accrued expenses, which he

submitted, were given to him by his contacts in the various countries. He indicated that the three

accrued expenses which he submitted were genuine and verifiable. Mr. Morita indicated that he

56

went through each expense with the individual submitting the expense. It was his view that, if he

had not booked these accrued expenses in Q4 02, they would have been booked in a subsequent

quarter. Mr. Morita was firm that he would not have engaged in this process if he thought he was

doing something wrong or incorrect.

[447] Mr. Morita indicated that, from his perspective, whether it was proper to set-up an

accrued expense or release an accrued liability balance to the profit and loss statement depended

upon whether the set-up or release could be justified.

[448] Mr. Morita indicated that, from his perspective, while it was not proper to release accrued

expenses to the profit and loss statement to meet targets, the appropriate release of accrued

liabilities to the profit and loss statement could, in fact, assist in meeting targets.

The solicitation of additional accruals from Ken Crosson

Excess and obsolete inventory

[449] Mr. Crosson joined Nortel in 1975 after obtaining an MBA from York University. From

2000 to 2003, he was the Vice-President of Global Operation; he was located in Raleigh, North

Carolina. Mr. Crosson had between twelve and seventeen people reporting to him. Mr. Crosson

reported to the accused Douglas Beatty. He was terminated by Nortel in 2003 for matters

apparently unrelated to this case.

[450] Global Operations was a single supply chain that supplied product to various lines of

business. Mr. Crosson was responsible for the financial management of the supply chain in the

manufacturing of Nortel’s products. Mr. Crosson was responsible for efficiently managing

inventory; this was one of his two prime responsibilities.

[451] Mr. Crosson indicated that gross inventory was valued at $2 billion and that there was an

accrued liability balance for inventory for $1 billion approximately. In Mr. Crosson’s words, half

the inventory “was provided for”. The risk with respect inventory was that it was excess or

obsolete; i.e., not sold within the appropriate period of time or unusable.

[452] Mr. Crosson pointed out that excess inventory on the books of Nortel’s contract

manufacturers was, in many cases, Nortel’s responsibility and had to be provided for. According

to Mr. Crosson, determining who was responsible for what was a contentious matter among

Nortel and its contract manufacturers. Finally, Mr. Crosson indicated that the Optical business

unit had an inventory problem. Specifically, Optical’s exposure on account of excess and

obsolete inventory was more than $500 million or approximately ½ of the total accrued liability

balance on account of excess and obsolete inventory.

[453] The precise amount of the inventory accrued liability balance was determined by an

algorithm or formula. Obsolete inventory was not usable and so the accrued liability for it was

100% of its value on Nortel’s books. Excess inventory was inventory calculated on a percentage

basis based on whether the inventory was six-months-old, nine-months-old or one-year-old. The

algorithm made these calculations.

57

[454] Mr. Crosson testified that determining the level of excess inventory involved judgment

and forecasting. Forecasting is important because, if orders do not come in and revenues are not

as anticipated, then there will be a calculation suggesting that excess inventory is greater than

originally anticipated and the accrued liability balance for excess inventory will have to be

increased. Optical was particularly vulnerable in this regard.

[455] The accrued liability balance for excess and obsolete inventory was also affected by

various attempts to dispose of the inventory. For example, Nortel approached manufacturers of

similar items and offered its excess or obsolete inventory to them at a significant discount. Mr.

Crosson testified that Deloitte & Touche took an active interest in auditing these excess or

obsolete inventory mitigation programs.

[456] Mr. Crosson indicated that the Optical business unit had not reached “the bottom” and so

there was always the risk that the accrued liability balance on account of Optical’s inventory was

not sufficient. Specifically, the possibility was that, when the algorithm was applied to Optical’s

inventory, it would indicate that the accrued liability balance for Optical’s inventory must

increase.

[457] Mr. Crosson indicated that running the algorithm for all of Nortel’s inventory required

time; specifically, it required you to input the age of the inventory and then run the algorithm. It

was not something that could be done instantaneously. Accordingly, a decision was reached in

late 2002 to postpone re-evaluating the inventory and focus on disposing of it.

[458] Mr. Crosson indicated that he submitted his financial information for Q4 02 on time that

is by January 5, 2003. Mr. Crosson indicated that he was satisfied that his financial information

was accurate. Mr. Crosson indicated that, prior to submitting his financial information, he gave

consideration to increasing the accrued liability balance on account of excess and obsolete

inventory by $50 million. His evidence in this regard is confirmed by an Outlook outlining a

potential $50 million increase in the accrued liability balance for excess and obsolete inventory,

dated December 19, 2002.

[459] Mr. Crosson ultimately decided not to make this adjustment to the excess and obsolete

inventory balance in Q4 02.

[460] Mr. Crosson testified that he received a telephone call from Brian Harrison on January 6

or 7, 2003 asking him if he could justify increasing his inventory accrued liability balance.

Specifically, the request was, if required, could Mr. Crosson justify increasing his inventory

accrued liability balance for Optical by $30-$35 million. Mr. Crosson indicated that he had never

before received such a communication. Mr. Crosson indicated to Mr. Harrison that, based on

Optical’s history and the fact that he did not see a bottom for Optical, such an increase could be

justified.

[461] Mr. Crosson would not have increased the accrued liability balance for Optical’s

inventory had he not received Mr. Harrison’s call.

[462] Increasing Optical’s accrued liability balance had the effect of reducing its income

because it meant increasing Optical’s expenses on its profit and loss statement, thereby

58

negatively affecting Optical’s net income. A similar effect would be felt on Nortel’s consolidated

profit and loss statement.

[463] Subsequent to agreeing to this increase, Mr. Crosson testified that he was then asked to

agree to a reduction of this increase from $35 million to $30 million. Mr. Crosson indicated that

he was unconcerned about the reduction.

[464] Mr. Crosson indicated that, after the reduction, the backup documentation was changed to

support a $30 million increase in the excess and obsolete inventory accrued liability balance

rather than a $35 million increase.

[465] Interestingly, one of the business records introduced was an e-mail from Mr. Beatty to

Mr. Gollogly and others indicating that Mr. Dunn did not agree with the $30 million increase in

the accrued liability balance for Optical’s inventory.

Use of Mr. Crosson’s $30 million as an offset

[466] The tale of Mr. Crosson’s $30 million increase in the excess and obsolete inventory

accrued liability balance contained an unexpected twist.

The JDS Uniphase Corporation transactions

[467] Nortel purchased a plant from JDS Uniphase which was located in Switzerland and, as

well, purchased related assets in New York State.

[468] The purchase price ($2.8 billion) had two components – cash and Nortel shares. A

portion of the Nortel shares (500,000 shares) amounted to future consideration for the purchase

of these assets. Specifically, if Nortel purchased 16.9% of its component needs from JDS in the

years 2001, 2002 and 2003, then Nortel would not have to issue 500,000 shares of its stock to

JDS. In other words, this portion of the purchase price was deferred and could potentially

amount to a purchase price discount.

[469] At the time of the transaction in 2001, advice was received from Deloitte & Touche

concerning how this deferral of the purchase price should be treated in the years 2001, 2002 and

2003. Specifically, Deloitte’s advice was that Nortel positively impact net income by

approximately $40 million per quarter. Nortel followed this advice. Each quarter, commencing

immediately after the purchase, $40 million in positive impacts to income was automatically

posted to the General Ledger. Consistent with this decision $40 million in positive impacts had

been posted in Q4 02.

[470] On November 8, 2002, Nortel sold these assets to an arm’s length company.

[471] Deloitte gave Nortel the opinion that the $40 million in positive impacts to Q4 02 net

income had to be reduced by $25 million. Nortel accepted Deloitte’s opinion.

[472] Due to the fact that the resolution of this matter was not straightforward, the decision to

reduce the $40 million positive impact for Q4 02 by $25 million was not made until January 21,

2003. This was two days before Nortel intended to publish its Q4 02 results.

59

[473] Rather than revise Nortel’s financial statements for Q4 02, a decision was made to find a

fully offsetting entry. Specifically, the accrued liability balance for Optical’s excess and obsolete

inventory was reduced by $25 million.

[474] From the Crown’s perspective, the changes in the accrued liability balance for Optical’s

excess and obsolete inventory are suspicious in the extreme. First, Mr. Crosson increases the

accrued liability balance for excess and obsolete inventory by $35 million in response to Mr.

Harrison’s request. The $35 million increase is reduced to $30 million. Then it is reduced to $5

million so that Nortel’s financial statements will not have to be changed two days before they

were to be published.

[475] Ms. Linda Mezon testified in these proceedings. Ms. Mezon joined Nortel in Brampton in

May 2001 as Assistant Corporate Controller. At this point in time, Mr. Beatty was the Controller.

She left Nortel in 2003.

[476] Ms. Mezon is both a CPA (the American equivalent of the Canadian CA) and a C.A. Ms.

Mezon is also an MBA. She was a member for eight years of the Accounting Standards Board,

which is responsible for setting accounting standards in Canada for public companies, private

entities, not-for-profit organizations and government entities.

[477] Ms. Mezon testified that she had a good solid working knowledge of both Canadian and

United States GAAP.

[478] Ms. Mezon indicated that, after the decision was made to reduce Nortel’s revenue by $25

million on January 21, she, Mr. Gollogly and Helen Verity had a conversation about finding an

offset. The reason they were looking for an offset was because it was January 21, 2003 and the

press release describing Nortel’s financial results was due to be released on January 23, 2003.

Finding an offset would mean that the financial statements which already been prepared would

not have to be changed.

[479] Ms. Mezon indicated that it was not her job to find the actual offset and so she went

home. The next morning she found out that the offset was a $25 million reduction of Mr.

Crosson’s $30 million increase in the excess and obsolete inventory accrued liability balance.

Ms. Mezon testified that, as soon as she found out about this, she contacted Mr. Crosson and

confirmed that he was content with the reduction.

[480] Ms. Mezon explained her own thinking which was quite helpful. She thought that the

total accrued liability balance for excessive and obsolete inventory exceeded $1 billion and so

she asked herself whether the $25 million reduction would materially misstate the balance sheet

and she concluded that it would not. Ms. Mezon indicated that she knew that excessive and

obsolete inventory had been discussed many times with Deloitte & Touche. She described

excessive and obsolete inventory as “a very difficult area because in this business, you know the

demand had ramped up very quickly, and the demand had fallen off very quickly, particularly,

for instance, in Optical, which was—it was very difficult the forecast”.

60

[481] She said that she concluded that the $25 million reduction was not material. She said that,

although she talked to Mr. Gollogly about the offset, she felt the decision was really her

responsibility because she was the “GAAP expert”.

[482] Ms. Mezon testified that she made Deloitte & Touche specifically aware of the offset.

[483] Deloitte specifically reviewed the offset and concluded that the $25 million release was a

release associated with inventory classed as a deferred asset which had already been provided

for. Accordingly, there was no impact on the inventory line in Nortel’s consolidated balance

sheet from the $25 million reduction. This conclusion is recorded in Exhibit 156; a Deloitte’s

working paper, at Tickmark I. Deloitte’s working papers were admitted into evidence as business

records. The author of this particular working paper was not called as a witness. No witness,

including the Crown’s expert Mr. Robert Chambers, suggested this conclusion was wrong.

[484] As far as the offsetting entry is concerned, Ms. Mezon understood the transaction

concerning which she was testifying and took responsibility for her decisions. The decision to

reduce the excess and obsolete inventory balance to offset the unexpected revenue decline was

reasonably taken. Mr. Crosson was consulted; it is true, only after the decision was taken.

However, Mr. Crosson was consulted before Nortel’s financial statements for Q4 02 were

finalized. The auditors were made aware of the downward adjustment and signed off on the

financial statements for an “accounting reason” that was not challenged.

[485] There is one other aspect of this matter and that is the difficulty with drawing general

conclusions about an item which has been restated.

[486] The Q4 02 accounting for this transaction was reviewed when Nortel sold these assets to

an arm’s length purchaser. At a meeting of Nortel’s Audit Committee on January 9, 2003,

Deloitte & Touche confirmed that they were of the opinion that the accounting advice which

they gave in 2001 remained appropriate.

[487] During the second restatement, Deloitte changed its opinion concerning the treatment of

the entire transaction.

[488] Deloitte’s new approach calculated that the deferral of the purchase price was worth

approximately $500 million. Accordingly, Deloitte decided that the appropriate accounting

treatment was to reduce the purchase price by $500 million. This reduction in the purchase price

meant that $319 million in positive revenue impacts, which had resulted from the $40 million

revenue entry in each quarter after the sale, had to be eliminated. As a result, revenue in 2001

and 2002 was collectively reduced by $319 million as a result of Deloitte changing its mind. I

infer from Mr. Chambers report that any expenses associated with earning this $319 million

would also have to be restated.

[489] Deloitte gave two opinions endorsing the accounting treatment of this transaction. The

first opinion was given in 2001 and the second confirming opinion was given to the Audit

Committee in 2003. In October 2004, during the second restatement, Deloitte changed its

opinion, resulting in a reduction in Nortel revenues.

61

[490] The Crown argues that the accused, in restating previously-published financial

statements, have admitted that accrued expenses/liabilities should not have been recorded in the

quarters in which they were recorded, that they were not properly released in the quarters when

they should have been released and that, therefore, Nortel’s financial statements are not US

GAAP compliant. The Crown argues that the fact that there was a restatement proves that

Nortel’s financial results were misrepresented from 2000 to May 2003 and the only question is

whether the accused knew this when those results were published.

[491] It would be wrong to conclude in a criminal case such as this that the $319 million

reduction in revenue means that Nortel’s original financial statements misstated its revenue in

2001 in 2002 by $319 million. Describing the original JDS entries as false or wrong inaccurately

characterizes what occurred and could easily lead to the false conclusion that something

inappropriate happened when the original accounting was done. A consideration of the details of

this transaction illustrates why it is impossible to draw the inference which the Crown urges from

the fact that accounting entries are restated. The accounting for this transaction was changed

because Deloitte changed its mind. A consideration of the specifics of this restatement of the JDS

Uniphase transaction makes it clear that it is dangerous to generalize about items that are

restated.

[492] When the facts of this specific restatement are known, it is clear that the accused could

not have known that the original treatment of the $500 million purchase price discount was an

error or wrong or false. Such words are not appropriate when describing the fact that Deloitte

changed its mind.

Perot Systems

[493] Mr. Crosson found a second accrued expense/liability – Perot Systems.

[494] In March 1996, Perot Systems and Nortel Networks Corporation combined to jointly

pursue certain identified business opportunities. In 1997, there were significant performance

defaults by Nortel. Nortel Networks Corporation and Perot Systems settled their dispute over

these defaults in August 1998 upon the following terms:

 Nortel paid $2 million to Perot Systems;

 Nortel agreed to provide Perot Systems with $5 million in product credits;

 Nortel agreed to award Perot Systems a total of $75 million in business over

five years ending August 1, 2003.

[495] From 1998 to the end of December 2002, Nortel had provided Perot Systems with

approximately $48 million worth of business. By the close of Q4 2002, Nortel had identified the

fact that it still had to provide $27 million worth of work by August 2003 to meet its settlement

obligations. Nortel received legal advice in November 2002 to the effect that Perot Systems had

a legal right to invoice them for the $27 million difference.

62

[496] Nortel was looking for an opportunity to establish a more permanent relationship with

Perot Systems. Nortel wanted to continue to do business with Perot Systems and Perot Systems

wanted to continue to do business with Nortel. Nortel did not want to receive an invoice for $27

million. Both sides wanted to avoid litigation.

[497] When Mr. Crosson submitted his Q4 2002 results, he did not provide for or set up an

accrued expense/liability to reflect the risk of unsuccessful litigation with Perot systems. Mr.

Crosson did not believe there was sufficient risk. Mr. Crosson knew that Nortel was struggling

and was not going to create an expense if he did not believe the $27 million risk warranted it.

Mr. Crosson agreed that he knew, on January 2, 2003, about a potential exposure under the Perot

Systems Settlement Agreement.

[498] After Mr. Harrison’s telephone call, there was an accrued liability balance entry made in

the general ledger for Q4 2002 increasing accrued expenses and accrued liabilities by $27

million on account of Perot Systems.

[499] Mr. Crosson indicated that he would not have suggested the $27 million increase unless

he thought it could be justified. Mr. Crosson indicated that any late entry increase in accrued

liability balances would have to be supported to the satisfaction of Deloitte & Touche.

[500] Mr. Crosson said initially when he submitted his financial information, he did not submit

the Excess and Obsolete Inventory accrued liability balance increase and the Perot Systems Perot

systems accrued liability balance increase because the accrued expenses/liabilities which he

submitted were within a range with which he could live. He felt he could also support a higher

number and, therefore, felt that increases of these two accrued liability balances were

supportable. Mr. Crosson also testified that the material that he submitted in support of these

increases was genuine.

The solicitation of additional accruals from Jim Kinney for the period Q4 02

[501] Mr. Kinney was trained as a certified management accountant. He started at Nortel in

1980 and worked there continuously until 2004. Commencing in August 2002, he was the Vice-

President Finance for Wireless, one of Nortel’s business units. He succeeded Michael Gollogly

in that position. As the VP Finance for Wireless, Mr. Kinney reported to the accused, Douglas

Beatty. There were various Financial Primes within Wireless and those persons reported to Mr.

Kinney.

[502] As Vice-President Finance for Wireless, Mr. Kinney was responsible for the

consolidation of its global financial performance, financial planning and analysis, liaison with

the other line organizations, sales proposals and budgeting.

[503] Mr. Kinney indicated that, in October 2002, he had a phone conversation with the

defendant, Michael Gollogly. Mr. Gollogly advised Mr. Kinney that there were issues with the

Wireless balance sheet and acknowledged some responsibility for their existence. Mr. Gollogly

instructed Mr. Kinney to clean up the balance sheet. Mr. Gollogly was not specific about the

items which were problematic. Mr. Kinney said that Mr. Gollogly, as Controller, was instructing

63

him to get a thorough understanding of what was on the balance sheet, why it was there and,

most importantly, whether it should stay on the balance sheet.

[504] Mr. Kinney said that the balance sheet cleanup at Nortel began in earnest in December

2002 with a conference call among himself, people on his staff, Karen Sledge, in her role as U.S.

controller, and Mary Cross, in her role as Controller for North America. It was agreed that

Wireless would review its balance sheet quarter by quarter, region by region and entity by entity.

The purpose of the review, according to Mr. Kenny, was to determine whether accrued liability

balances should remain on the balance sheet.

[505] Mr. Kinney said he had no contact with Douglas Beatty or Frank Dunn about the balance

sheet cleanup that he was undertaking.

[506] Mr. Kinney explained the difficulty he faced trying to clean up the Wireless balance

sheet. Whether liabilities remained on the balance sheet came down to a judgment call based on

the representation of the individual who was responsible for the specific accrued liability

balances on the Wireless balance sheet. The tricky part, according to Mr. Kinney, arose because

many of the liabilities had to do with liquidated damages or potential customer claims. These

items were, therefore, self-determined. Within the sales organization, the decision was dependent

upon internal representation that there was a liability and that the liability needed to remain on

the balance sheet.

[507] Mr. Kinney said that he viewed the passage of time as the failsafe mechanism. The longer

something was on the balance sheet without a claim the more confident he became that it could

be taken off the balance sheet. Mr. Kinney said that, in his judgment, an accrued liability balance

could be released to the profit and loss statement if there was a high degree of certainty, if not

virtual certainty, that the liability no longer existed. Mr. Kinney said he followed the practice of

allowing a cooling-off period when he thought an accrued liability balance could be released to

the profit and loss statement. Specifically, he waited one extra quarter to make sure that an

unexpected exposure did not present itself.

[508] Mr. Kinney also followed the practice of seeking customer representation that the

liability was gone and used receipt of that representation as the event which triggered removal of

the liability balance.

[509] Mr. Kinney testified that, until July 31, 2003, he thought that balance sheet reconciliation

was sufficient justification to remove an accrued liability from the balance sheet. According to

Mr. Kinney, when he heard a presentation by Mr. Gollogly which indicated that this was not a

sufficient justification, it was “a game changer”. The evidence disclosed that Mr. Kinney was not

alone in this misconception.

[510] This is perhaps an appropriate place to remark on the fact that Mr. Beatty is a chartered

accountant like Mr. Gollogly. I am satisfied that he understood when accrued liabilities could be

released to the profit and loss statement. Mr. Kinney recounted that Mr. Beatty explained to him

that a change in estimate was a proper way of releasing an accrued liability to the profit and loss

statement. Mr. Kinney testified that Mr. Beatty provided him with a reference to the section of

64

the accountants’ handbook dealing with the proprietary of accrued liability balance sheet

releases.

[511] Mr. Kinney testified that, for Q4 2002, the Wireless “stretch target” contribution to pro

forma earnings before taxes was $70 million. He agreed that, on January 7, 2003, his submitted

numbers had reached that target. Mr. Kinney testified that he received a telephone call from

either Brian Harrison or Michael Gollogly. Mr. Kinney was not the only one on this telephone

call. He believed there were other Vice Presidents of Finance on the call. They were told that

Nortel had a favorable variance to its anticipated earnings and that, as a result, they were being

asked to go back and make certain that adequate provision had been made.

[512] Mr. Kinney indicated that he would not have attempted to find and book increases to

Nortel’s accrued liability balances without the phone call from Mr. Harrison or Mr. Gollogly.

[513] Mr. Kinney solicited Wireless for possible increases in the accrued liability balances and

received two responses upon which he acted. The first related to an inventory issue involving a

customer in China and the second dealt with an increased risk as a result of Nortel’s relationship

with France Telecom.

[514] The result of Mr. Kinney’s efforts was that he submitted accrued liability balance

increases of $12 million. This $12 million increase in the accrued liability balances for Wireless

was not restated.

[515] Coincidentally, Wireless revenue was reduced by a further $8 million because, during the

closing of the General Ledger, $8.9 million was removed from Mr. Kinney’s revenue

calculations by Nortel corporate headquarters.

[516] As a result of searching for and booking the $12 million in accrued liability balance

increases and the $8.9 million revenue reversal, Wireless missed its stretch target by $19 million.

[517] Mr. Kinney indicated that he was concerned about the reaction of the President of

Wireless because Wireless had missed its target. He also indicated that he was not concerned

about the reaction of senior management because senior management set the target and,

therefore, could dispense with the target.

Mr. Gollogly’s knowledge generally

[518] Because Mr. Kinney took over from Mr. Gollogly and because Mr. Gollogly instructed

Mr. Kinney to clean up the Wireless balance sheet, this is an appropriate place to comment on

Mr. Gollogly’s knowledge concerning Nortel’s financial results.

[519] Mr. Kinney said that, when he took over as VP Finance for Wireless, he recognized that

the balance sheet for Wireless was not well understood within Wireless. After he took over as

VP Finance for Wireless, Mr. Kinney recognized that there were significant excess accrued

liability balances on the Wireless balance sheet. He also thought that there were accrued

expenses/ liabilities which were not well understood. Mr. Kinney testified that he thought that

there were $180 million in excess accrued expenses/liabilities on the Wireless financial

statements at the end of Q2 02.

65

[520] Mr. Kinney also observed that Wireless used the balance sheet as a means by which to

meet its earnings targets. This practice was not peculiar to Wireless. Mr. Gollogly said as much

in an e-mail (Exhibit 3, tab 140), dated July 31, 2003. Specifically, he said in the e-mail: “I think

we need to reinforce the importance of forecasting. It seems like a throwaway comment, but if

we ‘cleanup’ the balance sheet, the LC’s ability to deliver earnings based partly on discretionary

elements pretty much goes away. So they will need an incremental level of precision in their

forecasting. I do not think the company is ready for this since the general approach is to sandbag

good news and close ‘hard’ to the forecast. But if we cannot move the numbers one way or the

other, we may get much more surprised than currently”.

[521] I am satisfied beyond a reasonable doubt that Mr. Gollogly knew that there were excess

accrued liabilities on Nortel’s balance sheet.

[522] I am also satisfied that Mr. Gollogly was determined to do something about this after he

became Corporate Controller. I say this because one of his first acts was to begin balance sheet

reviews. His instruction to Mr. Kinney is telling, not only in terms of his knowledge, but also his

intent to remove these excess accrued liabilities. I am not persuaded that he understood the

extent of the problem.

[523] Although slightly out of context, it is perhaps appropriate to point out here that Mr.

Richmond testified that the $900 million in excess accrued liabilities identified in the

Comprehensive Balance Sheet Review were not material, in his opinion, to Nortel’s financial

results in fiscal 2001 and 2002 due primarily to the $33 billion in losses that Nortel experienced

in those years. Mr. Chambers did not offer a contrary opinion.

360 Networks

[524] The largest late entry accrued expense/liability in Q4 02 was $50 million. This accrual

was in relation to 360 Networks litigation. This entry was reviewed during the second

restatement. Deloitte’s conclusion was “accrual was appropriate based primarily on in-house

legal representation”. Accordingly, this entry was never restated.

[525] Reference has been made elsewhere to Nortel’s preoccupation with providing for every

possible risk. With respect to this accrued expense/liability, Mr. Cleghorn, the Chair of the Audit

Committee, recalled this matter. Specifically, he recalled that, at a January 2003 Audit

Committee meeting, he sought specific assurances $50 million was a sufficient accrued liability

balance for this risk because the 360 Networks claim was for $100 million.

[526] Mr. Cleghorn’s evidence was entirely consistent with other evidence to the effect that it

was part of Nortel’s culture to provide for every possible risk in order to ensure that there were

no surprises.

[527] There is no issue about the appropriateness of this late accrued expense/liability entry

which comprised $50 million of the $176 million in late entries.

[528] I accept the evidence of Ms. Sledge, Mr. Morita, Mr. Crosson, Ms. Mezon and Mr.

Kinney concerning the solicitation of late entry accrued expenses/liabilities.

66

[529] Nortel’s press release of January 23, 2003 also announced a pro forma net loss for Q4 02

of $62 million. This was the only report of a pro forma financial result. Q4 02 was the last time

Nortel ever announced pro forma results. Pro forma financial results for Q4 02 were never

restated. Deloitte published no opinion concerning pro forma results because it was not retained

to do so.

[530] I am satisfied that the negative impacts of the $59 million revenue error which Mr.

Harrison made in his January 6 calculation and $50 million late entry accrued liability for 360

Networks, the appropriateness of which has never been challenged, were more than sufficient to

create a pro forma loss in Q4 02. I am satisfied that it was Mr. Harrison’s snapshot on January 6,

2003 of a pro forma gain before taxes of $73 million which misrepresented Nortel’s pro forma

Q4 02 financial result.

[531] I am not satisfied that the reported pro forma loss of $62 million misrepresented Nortel’s

Q4 02 financial results.

The manipulation of Nortel’s pro forma earnings before taxes to get a bonus

[532] The Crown alleges that the accused manipulated Nortel’s pro forma earnings before taxes

calculation in order to get a bonus. I reject this submission elsewhere in these reasons.

Did the late entry accrual expenses/liabilities misrepresent Nortel’s US GAAP

financial results for Q4 02?

[533] Nortel’s press release, on January 23, 2003, announced its financial results for Q4 02.

Nortel reported a net loss calculated according to US GAAP of $248 million.

[534] Nortel’s Q4 02 financial statements were restated twice.

[535] Exhibit 85B also records that, after the second restatement, Nortel reported a net loss

calculated according to US GAAP of $294 million for Q4 02.

[536] I am not satisfied the difference is a misrepresentation. No witness offered such an

opinion.

[537] In addition, in Q4 02, Nortel originally reported total revenue of approximately $2.5

billion. After the second restatement, Nortel reported total revenue of approximately $2.6 billion.

[538] In Q4 02, Nortel originally reported a gross margin of 39%. The second restatement

reported a gross margin of 42%. Mr. Harrison indicated that it was his experience with Nortel

that it typically reported gross margins in the range of 40%. No witness suggested that the

difference in reported gross margins was important.

[539] Nortel’s press release of January 23, 2003 announced that it was “net cash positive” in

Q4 02. The evidence did not suggest that this assertion was a misrepresentation. This was a

critically- important piece of information for investors because the evidence indicates that

maintaining sufficient cash reserves was a fundamental concern for Nortel’s Board of Directors,

Audit Committee, senior management and Auditors and fundamental for Nortel’s survival.

67

[540] Nortel’s original financial statements for Q4 02 indicated that Nortel had outstanding

approximately 4.3 billion shares. The evidence did not suggest that this assertion was a

misrepresentation.

[541] I am satisfied that the late entry accrued expenses/liabilities did not result in a

misrepresentation of Nortel’s US GAAP financial results for Q4 02.

[542] I am not satisfied that Nortel’s original published US GAAP financial results

misrepresented Nortel’s actual financial results.

Susan Shaw’s 2002 Summary of Accrued Liabilities

[543] Susan Shaw prepared a compilation dealing with accrued liabilities and presented it to

Mr. Gollogly in Q4 02. Her compilation indicated that $303 million in accrued liabilities were no

longer required and available for release.

[544] It is the Crown’s position that, despite knowing that there were millions of dollars in

excess accruals on the balance sheet, none of the accused advised Nortel’s Audit Committee or

Deloitte about this situation.

[545] It is also the Crown’s position that the accused did not initiate a comprehensive review of

Nortel’s balance sheet or initiate a restatement of its previously-published financial information.

[546] Ms. Shaw brought her findings to the attention of her superiors, Helen Verity and Linda

Mezon. Susan Shaw reported her findings to Mr. Gollogly. Ms. Mezon testified that she brought

Ms. Shaw’s report to the attention of Mr. Beatty.

[547] Ms. Shaw’s compilation informed Mr. Gollogly and Mr. Beatty that $303 million in

accrued liability balances were no longer required and available for release. It also told Mr.

Gollogly, who as Corporate Controller was responsible for Non-op, that $66 million of the no

longer required accrued liability balances were Non-op accrued liability balances.

[548] On November 6, 2002, Ms. Shaw sent an e-mail to Mr. Gollogly’s assistant attaching an

XL spreadsheet entitled “Acc Liab Q3 for FD”. I am satisfied that FD refers to the accused Frank

Dunn.

[549] Mr. Dunn was financially trained and described as an intelligent detail-oriented person.

Given Nortel’s precarious position, I am satisfied that financial information of any importance

was brought to his attention. I am satisfied that Ms. Shaw’s compilation would have been

considered important because it had been generated in response to questions from outside

financial analysts.

[550] I am satisfied, therefore, that Mr. Gollogly, Mr. Beatty and Mr. Dunn were aware that

Ms. Shaw believed that there were $303 million in accrued liability balances which were no

longer required and were available for release.

[551] Some context is helpful in assessing the Crown’s position.

68

[552] Susan Shaw is a chartered accountant. She joined Nortel in 1988 and, in 2002; she was

transferred to the Corporate Consolidations Group where she reported to Helen Verity, who was

the Director of that group.

[553] During a call with securities analysts in July 2002, one of the analysts asked Douglas

Beatty about Nortel’s accrued current liabilities. The analyst pointed out that Nortel’s accrued

current liabilities exceeded $5 billion and had been increasing over the last few quarters.

[554] The first problem raised by the question was that if the $5 billion was all cash impacting,

then Nortel would not have enough cash to pay all those liabilities. As indicated many times

these reasons cash was a critical issue in terms of anything and everything Nortel did.

[555] The second problem with the question was that Nortel’s business had been declining in

the previous quarters and yet the liabilities did not seem to be trending downward.

[556] As a result of this question, the Assistant Corporate Controller, Linda Mezon, asked

Helen Verity to look into the matter. Specifically, Linda Mezon wanted to know which

provisions would require payment and, therefore, have an impact on cash. In addition, Ms.

Mezon wanted to know when the accrued liability balances would be cleared to the profit and

loss statement.

[557] Helen Verity asked the various finance vice presidents throughout Nortel, in an e-mail

dated August 2, 2002, to follow up on the question. Ms. Verity assigned the task of compiling

the information provided to Ms. Shaw.

[558] Ms. Shaw described the process she followed in preparing her compilation as iterative.

The various business units were provided with their liability balances at Q2 2002 (June 30, 2002)

and asked whether those liabilities were going to be cash impacting. In addition, they were asked

whether all of the accrued liability balances were correct or whether some were greater than

necessary. The business units were also asked whether those that were required were going to be

utilized within 2002.

[559] There was a template which was provided to the units and Ms. Shaw was in

communication with the various business units about the information provided when they

returned the completed template; she was also in communication with Helen Verity and Linda

Mezon to make sure that she was collecting the information that they wanted.

[560] Ms. Shaw emphasized that, while the business units were being asked for information,

they were not being asked to justify their numbers.

[561] Ms. Shaw also indicated that the information which the units were providing was not

designed to provide the basis for a determination of what accrued liabilities should be released to

income.

[562] Finally, Ms. Shaw indicated that 50% of her work concerned contractual liabilities

because they composed 40% of the total liabilities on Nortel’s consolidated balance sheet. Given

that Nortel’s total liabilities exceeded $5 billion, contractual liabilities exceeded $2 billion.

69

[563] I am satisfied that the primary purpose, from Ms. Shaw’s point of view, was to determine

the cash impact of Nortel’s accrued liabilities as at Q2 2002.

[564] One of the pieces of information which Ms. Shaw uncovered was that, in the opinion of

the various business units, there was a total of $303 million in accrued liabilities which were no

longer required and available for release.

[565] Ms. Shaw’s Summary of Accrued Liabilities was not kept a secret. E-mail evidence was

introduced which indicated that senior accountants of Deloitte & Touche were aware of her

work.

[566] The $303 million in excess accrued liabilities was broken down into categories.

[567] Two thirds of this total is contractual liabilities. A contractual liability was an accrued

liability that arose out of a promise to perform that Nortel had made in agreeing to supply a

product or service. Put simply, when the total revenue which Nortel was to receive from the

contract to supply a product or perform a service was recognized, the cost of providing that

product or service for the life of the contract also had to be estimated and recognized.

[568] Of the remaining one-third of these accrued liabilities, which were no longer required and

available for release (approximately $100 million), $66 million was attributed to Non-op, which

was a non-operating unit under the control of Nortel’s Corporate Controller, Michael Gollogly.

Mr. Gollogly had only recently (July 25, 2002) assumed this position when Ms. Shaw presented

him with her final compilation in October 2002.

[569] To put the $66 million in excess accrued liabilities in context, it should be remembered

that Ms. Shaw’s report also identified the fact that Non-op had, at the end of Q2 2002, total

accrued liabilities of $315 million. In other words, at the end of Q2 2002, $249 million in

accrued liabilities were, according to Ms. Shaw, required by Non-op and $66 million were not

required.

[570] In addition, it should be remembered that Ms. Shaw was consolidating results being

provided to her. She was not determining which specific accrued liability balances were required

and which specific accrued liability balances were no longer required.

[571] On September 16, 2002, Ms. Shaw met with Linda Mezon to explain the results of her

consolidation so that Linda Mezon could meet with Michael Gollogly and provide him with a

progress report.

[572] On October 2, 2002, Mr. Gollogly was formally briefed by Ms. Shaw and others on the

final results of her consolidation. Ms. Shaw indicated that, during the meeting, Mr. Gollogly was

concerned to know the persons who had provided the information contained in her compilation.

It was her impression that Mr. Gollogly was attempting to acquire a level of confidence about the

financial information in her report.

[573] It is important to remember that the numbers in Ms. Shaw’s report were those available

for the period ending Q2 2002, i.e., June 30, 2002. The numbers in this report were never

updated.

70

[574] Mr. Richmond provided some assistance on the implication of Ms. Shaw’s report. Mr.

Richmond was not shown the report and, given his position and responsibilities as Senior

Advisory Partner in the Nortel/ Deloitte’s relationship, there is no reason why he should have

been shown the report. Suffice to say, Deloitte was aware of Ms. Shaw’s report and documentary

evidence suggested that a person within Deloitte was to liaise with Ms. Shaw while she was

preparing her compilation. This person was never identified in the evidence.

[575] Mr. Richmond said his reading of Ms. Shaw’s report suggested to him that she had

performed “some sort of analysis and concluded that there were $303 million of provisions that

were so-called no longer required”. Mr. Richmond stated that there would be a need to review

whether that was an accurate statement. He said it would have to be reviewed carefully with

many different people to find out whether $303 million was the correct number. After that had

been done, consideration would be given to the appropriate way of returning the $303 million to

Nortel’s profit and loss account.

[576] I am satisfied that, while Ms. Shaw’s report would require follow-up, it would not

support, as the Crown suggested, a restatement of Nortel’s previously-published financial

statements. Mr. Richmond testified that restatements are a serious matter. Obviously, an

unverified internal compilation could not provide the basis for the restatement of previously-

published financial results.

[577] Mr. Michael McMillan was asked, in 2004, to follow-up on Ms. Shaw’s report. The

purpose of this project was, in part, to find out what happened to the reserves that had been

identified by Ms. Shaw’s October 2002 report as no longer required and available for release

[578] Prior to preparing his report, Mr. McMillan met with Ms. Shaw, reviewed her original

mandate and located the templates upon which she relied. Mr. McMillan requested the business

units to locate all documentation which they had used to satisfy Linda Mezon’s original e-mail

requesting information.

[579] Mr. McMillan developed a template for the business units to use in determining what

happened to the forecasted balances. Mr. McMillan consolidated the submissions from the

various business units and reviewed his report with Deloitte & Touche.

[580] Mr. McMillan reported on March 26, 2004. Mr. McMillan provided a copy of his report

and an explanation to the law firm of Wilmer Cutler Pickering which, along with Huron

Consulting LLP, was reviewing on behalf of the Audit Committee the reasons why Nortel had to

restate some of its prior published financial statements.

[581] By March 26, 2004, the accused had been virtually suspended. There was no suggestion

that they played any role in the preparation of Mr. McMillan’s report.

[582] As far as Corporate and Non-op were concerned, Mr. McMillan came to the following

conclusions:

Corporate

71

 the forecasted releases were mainly specific and traceable; only $1 million

was unidentified;

 $7 million in forecasted real estate releases were, subsequent to Ms. Shaw’s

Compilation, found to be supportable accrued liability balances and not

released; $1 million of this balance was used.

 $1 million release dealing with a supplier bankruptcy was determined to be

valid and released in Q4 2002;

 $4 million out of $15 million accrued on account of asset shrinkage was

released in Q4 02 and the remainder was reclassified;

 $5 million which had been accrued on account of late terminations was

released in Q1 2003;

 $5 million accrued as a specific Controller’s provision was not released in

2002 or 2003; this accrual was re-profiled during the Second Restatement;

 $1 million accrued on account of annual report printing was released in Q3

2002 and this was found to be a valid release;

 $28 million accrued on account of dispute resolution was released in Q3 02

and this was determined to be a valid release;

Non-Op

 $20 million on account of Intercompany Out Of Balance was released in Q3

2002 and reversed to Q4 2001 in the First Restatement;

 $20 million could not be linked to a specific balance and was, therefore,

categorized as unidentified.

[583] Mr. McMillan indicated that a portion of the forecasted releases in the original study

were not linked to specific provisions and, for that reason, it was necessary to go back to the

business units to determine whether the forecast was in relation to a specific provision or a

basket of provisions.

[584] Mr. McMillan determined that $222 million of the $303 million was released in Q3 2002

and Q4 2002. Specifically, he determined that $146 million in releases occurred in Q3 2002; $76

million in releases occurred in Q4 2002. No witness testified that the release of this $222 million

was material to Nortel’s 2002 financial results.

[585] As originally calculated Nortel lost $1.8 billion in Q3 02 and $250 million in Q4 02.

Nortel lost approximately $3.6 billion in fiscal 2002. These releases to income were not material

to Q3 02, Q4 02 or fiscal 2002 financial results.

72

[586] In addition to carrying out the specific task of preparing this accrued liability analysis,

Ms. Shaw had ongoing responsibilities for reporting on the status of accrued liabilities in

Corporate and Non-op. As a result, she was able to confirm that $20 million of the $66 million

was released in Q3 2002 to Nortel’s profit and loss statement. This $20 million would have

favorably impacted earnings. I attach no significance in terms of the accuracy of Nortel’s

financial statements to the release of these excess provisions in Q3 2002 because Nortel lost $1.8

billion in Q3 2002.

[587] Mr. McMillan determined that $10 million in releases occurred in Q1 2003 and $14

million in releases occurred in Q2 2003. No further evidence was led concerning these releases

and I am unable to determine whether they were released in the normal course of business or

otherwise.

[588] Mr. McMillan concluded that $57 million in releases were either not released or so

vaguely described in Ms. Shaw’s report that they could not be identified.

[589] Ms. Shaw testified that she thought Mr. McMillan’s conclusions concerning her report

were accurate.

[590] The release of this $303 million in accrued liabilities would not be cash impacting but

would favorably impact earnings by $303 million. The entire $303 million would not be material

to Nortel’s 2002 balance sheet or profit and loss statement. In 2002, Nortel had approximately

$5.2 billion in liabilities on its consolidated balance sheet. Nortel’s consolidated profit and loss

statement for 2002 reported losses of $3.6 billion.

Q4 2002 Conclusion

[591] I am satisfied that Mr. Gollogly did not accept Mr. Harrison’s assertion on January 6,

2003 that Nortel’s pro forma gain before taxes on that date was $73 million.

[592] I am satisfied that Mr. Gollogly was quite right to be skeptical about this result because

Mr. Harrison had made a $59 million error on the revenue side in his January 6 calculation.

[593] I am satisfied that Mr. Harrison and Mr. Gollogly, with the knowledge and consent of

Mr. Dunn and Mr. Beatty, were attempting to manage Nortel’s financial results in this quarter for

the following reasons:

 First, the Wireless business unit, for which Mr. Kinney was the Vice-

President Finance, had achieved its stretch target of $70 million. It is not

logical that Mr. Kinney would be asked to go over his results to see if he

had made any errors or if there were risks for which he wanted to

provide unless the intention was to negatively manage the pro forma

gain which Mr. Harrison had reported;

 Second, all of the persons solicited by Mr. Harrison or Mr. Gollogly were

only asked to provide additional accrued expenses/liabilities. They were

not asked if there were any positive impacts to income which they had

erroneously failed to report.

73

[594] However, it is clear that Mr. Harrison erroneously included $59 million in his revenue

calculation. It is also clear that the 360 Networks’ late entry accrued liability expense/liability of

$50 million is unchallenged. These two required adjustments (totaling $109 million) turn Mr.

Harrison’s forecasted earnings before taxes into a loss.

[595] In the same vein, if I consider Mr. Harrison’s erroneously calculated pro forma gain of

$73 million as a starting point and then account for the negative impacts of the $59 million

revenue error and the $176 million in late entries of accrued expenses/liabilities, the pro forma

loss before taxes should have been greater than the $62 million which Nortel reported in its

January 23, 2003 press release. Accordingly, there must have been positive impacts to Nortel’s

pro forma gain (loss) which are not clear from the evidence. In short, there must have been other

changes to Nortel’s pro forma calculations which are not apparent from the evidence.

[596] I am not satisfied Nortel’s pro forma financial results for Q4 02 were correctly reflected

in Mr. Harrison’s January 6 Outlook calculation.

[597] I am not satisfied that Nortel had pro forma earnings before taxes in Q4 02.

[598] The evidence does not establish that Nortel’s published Q4 02 pro forma $62 million loss

misrepresented Nortel’s Q4 02 financial results.

[599] When I consider all the evidence, including the evidence to which I have made specific

reference, I am not satisfied beyond a reasonable doubt that the accruals solicited by Mr.

Harrison and recorded in Q4 02 resulted in a misrepresentation of Nortel’s US GAAP financial

results for Q4 02 or fiscal 2002.

[600] I am not satisfied that Nortel’s financial results for Q4 02 were misrepresented due to the

solicitation of late entry accrued liability expenses/balances.

[601] I am satisfied that $222 million of the $303 million identified by Ms. Shaw in 2002 as

provisions no longer required and available for release were, in fact, released in Q3 02 and Q4

02. I am also satisfied that a portion of the $57 million identified as unreleased was so noted

because it could not be identified and, therefore it cannot be determined whether those

unsupported provisions were released or not in 2002 or 2003.

[602] I am not persuaded that the release of these accrued liability balances in Q3 02 and Q4 02

materially misrepresented Nortel’s financial results in those periods or for the fiscal year 2002.

[603] The circumstances surrounding the $10 million released in Q1 2003 and the $14 million,

released in Q2 2003 were not disclosed in the evidence. I am not satisfied that those releases

misrepresented Nortel’s financial results in Q1 03 or Q2 03.

[604] I am not satisfied beyond a reasonable doubt that the manner in which Nortel dealt with

the $303 million in accrued liability balances identified by Susan Shaw as no longer required and

available for release in her October 2002 compilation misrepresented Nortel’s financial results in

Q4 02, fiscal 2002, Q1 03 or Q2 03.

74

Q1 03 & Q2 03

The release of $361 million in Q1 03 and $372 million in Q2 03

[605] Quantitatively, Nortel released $361 million in accrued liability balances to its profit and

loss statement in Q1 03. The Crown contends that, in its original filings, the accused, on behalf

of Nortel, falsely represented that these accruals were in the normal course.

[606] Included in the $361 million and accrued liability balance releases were $80 million in

accrued liability balance releases relating to Non-op. The Crown contends this $80 million was

improperly released and, further, that the motive for the improper $80 million release was the

desire on the part of the accused to qualify for a bonus and to meet previously-published

financial targets.

[607] Mr. Cleghorn, the Chair of the Audit Committee, testified that he thought that, apart from

the $80 million, the balance of the $361 million in releases was in the normal course.

[608] The first restatement reviewed the release of these accrued liability balances and

determined that $111 million of these balances should be restated. The Crown contends that this

underestimated the extent of the problem because, during the second restatement, an additional

$106 million was identified and re-profiled or restated.

[609] The Crown contends that the combined effect was that $218 million was restated and that

this demonstrates, along with other evidence, that the $361 million was not in the normal course

and that the first restatement was not comprehensive.

[610] Quantitatively, Nortel released $372 million in accrued liability balances to its profit and

loss statement in Q2 03. The Crown contends that, in its original filings, the accused, on behalf

of Nortel, falsely represented that these accruals were in the normal course.

[611] The first restatement reviewed the release of these accrued liability balances and

determined that $105 million of these balances should be restated. The Crown contends that this

underestimated the extent of the problem because, during the second restatement, an additional

$105 million was identified and restated.

[612] The Crown contends that the combined effect was that $210 million was restated and that

this demonstrates, along with other evidence, that the $372 million was not in the normal course

and that the second restatement was not comprehensive.

[613] The Crown’s expert did not express an opinion consistent with the Crown’s contention.

[614] The Crown attempted to demonstrate the financial effect of the $361 million in Q1 03

and the $372 million in Q2 03 by means of a chart which it constructed and which was received

as Exhibit 42E. Mr. Harrison confirmed the entries in the Exhibit reproduced the entries in his

Outlooks. Mr. Chambers expressed no opinion concerning this chart.

75

The Crown’s Chart – “operations” Ex. 42E

[615] It is necessary to make an observation about Exhibit 42E in order to avoid its

misapplication in this trial.

[616] The Crown introduced this chart which it had prepared; the chart was based on Mr.

Harrison’s Outlooks and Roadmaps (forecasts). Mr. Harrison confirmed that the entries in the

Exhibit reproduced entries in his Outlooks.

[617] There is a column in the chart marked “Operations”. I attach no weight to this column.

To the extent that the Operations column was intended to describe positive or negative net

income from the actual operations of the business units, I find it to be unreliable.

[618] Mr. Harrison indicated Operations for him was something that he tracked. It was a

metric he created; it was a metric to show the earnings, excluding the positive impact of the

release of accrued liabilities to the profit and loss statement.

[619] The evidence established that, in order to calculate net income from a business unit’s

operations or its normalized results for a particular quarter, one had to eliminate both the positive

impacts of releasing accrued liability balances to the profit and loss statement in that quarter and

the negative impacts of setting up accrued expenses/ liabilities in that quarter.

[620] An example of this calculation for the Wireless business unit is found in Exhibit 42G.

The analysis starts with the actual results for the period Q4 02; that is $46 million. According to

Exhibit 42G, Wireless set up $196 million worth of accrued expenses/liabilities in Q4 02 which

had a negative impact on its net income of $196 million. According to the Exhibit, Wireless

released $181 million in accrued liabilities in Q4 02 to its profit and loss statement which had a

positive effect on its net income of $181 million. To determine Wireless’ “normalized results”,

both of these impacts must be eliminated. The net effect of this calculation is that net income is

increased by $15 million.

[621] Accordingly, as described in Exhibit 42G, the normalized result for Wireless in Q4 02 is

$60 million approximately.

[622] A comparison with Mr. Harrison’s calculation reveals why this aspect of the Crown’s

chart is unreliable. Mr. Harrison’s calculation only involved eliminating the positive impact of

the release of $181 million. Mr. Harrison confusingly called this metric which he had created

“Operations”. Applying Mr. Harrison’s methodology leads to a net loss in his “Operations”

metric of $135 million.

[623] Confusing Mr. Harrison’s metric with the normalized results for the Wireless business

unit leads to the erroneous conclusion that Wireless lost $135 million on account of its

Operations when, in fact, Wireless enjoyed a $60 million gain on operations.

[624] To the extent that the Operations column in the Crown’s chart was intended to describe

positive or negative net income from actual operations, it is unreliable. I attach no weight to Mr.

Harrison’s Operations metric. Mr. Harrison’s Operations metric does not accurately establish

operational losses at any time during the time-frame of the indictment.

76

[625] The evidence established that, in Q1 03, Nortel’s set-up $1.1 billion in accrued liability

balances and released $361 million in accrued liability balances to the Q1 03 profit and loss

statement.

[626] The evidence established that, in Q2 03, Nortel set up $1.2 billion in accrued liability

balances and released $372 million in accrued liability balances to the Q2 03 profit and loss

statement.

[627] This activity with respect to accrued liability balances was fully-disclosed to Nortel’s

Audit Committee by Mr. Gollogly.

[628] I propose now to comment on certain specific releases which were disclosed in the

evidence.

The PWC release – $19 million-originally released Q1 03

[629] This release was specifically referred to in the Wilmer Cutler Pickering Review. It was

part of a list of fourteen items listed in the review that the authors said required further study.

Each of these items was, according to Mr. Kerr, analyzed from cradle-to-grave. According to Mr.

Kerr, this meant an analysis of the accrued liability balance from the moment it was established.

Any activity in the accrued liability balance was specifically considered.

[630] This accrued liability balance was released to the profit and loss statement in Q1 03.

Accordingly, it is part of the $361 million in accrued liability balances in Q1 03 which the

Crown maintained were not in the normal course. The PWC release was not restated in the first

restatement. It was specifically identified in the Wilmer Cutler Pickering review. It was then

analyzed from cradle-to-grave during the second restatement.

[631] Some context is helpful in considering this accrued liability balance.

[632] In April 2000, Nortel outsourced certain services to PWC. In 2002, Nortel decided to

bring these services in-house. An accrued liability balance in the amount of $19 million was set

up to account for certain disputed invoices between Nortel and PWC.

[633] The repatriation of the services was substantially completed in December 2002. The Final

Close of the Disengagement Agreement between Nortel and PWC occurred on January 17, 2003.

[634] Nortel originally released the $19 million PWC accrued liability balance to its profit and

loss statement in Q1 03, the quarter in which the Disengagement Agreement closed.

[635] On April 13, 2004, Nortel received legal advice from its senior counsel. This advice was

to the effect that closings of the disengagement agreement for all locations, other than those in

France, were completed before December 31, 2002. It was counsel’s opinion that no claims

against Nortel could originate from the French locations, despite the fact that the closing of the

disengagement agreement with respect to locations in France did not take place until January 17,

2003.

77

[636] Upon receiving this legal opinion in April 2004, Deloitte decided that the $19 million

accrued liability balance should be restated from Q1 03 to Q4 02. Deloitte was also of the view

that the legal opinion of April 13, 2004 did not represent new information and, as a result, the

failure to originally release the $19 million accrued liability in Q4 02 was classified as an error.

[637] The $19 million was restated to Nortel’s Q4 02 profit and loss statement.

[638] As can be seen from the details of this release, the original set-up of the release properly

recorded an accrued liability.

[639] I am not satisfied that the release in Q1 03, as opposed to Q4 02, can fairly be classified

as false. I am not persuaded that the failure to restate this accrued liability balance release in the

first restatement demonstrates that the first restatement was not comprehensive or a continuation

of the fraud alleged in this indictment. I am satisfied that the release in Q1 03 is exactly what

Deloitte said it was: namely, an error. Furthermore, it was an error that is understandable once

the facts are known.

[640] Finally, it has not been demonstrated that the accused were, in any sense, responsible for

this error or the failure to consider the error in the first restatement.

The Genuity release – $23 million originally released Q1 03

[641] This is another accrued liability that was originally released in Q1 03. It was part of the

$361 million in total releases for that quarter. It was not restated during the first restatement.

[642] It was also identified by Wilmer Cutler Pickering as a release which should be reviewed

and, as such, was subject to “cradle-to-grave” reconsideration.

[643] Some context is helpful in considering this accrued liability balance.

[644] Nortel had several claims against Genuity, totaling approximately $156 million. Genuity

alleged that Nortel was liable for substantial claims arising out of their business relationship.

Specifically, Genuity alleged that Nortel had supplied defective equipment, had resiled from a

guarantee and, finally, that Nortel was liable to Genuity for contributions to a joint development

and marketing fund.

[645] Genuity filed a petition for re-organization under the US Bankruptcy Code in November

2002. At the same time, Genuity proposed to sell all of its assets free and clear of pre-existing

claims to an arm’s length third-party purchaser.

[646] The arm’s length purchaser received permission to purchase Genuity’s assets in Q1 03

and the $19 million accrued liability balance was released to Nortel’s profit and loss statement.

[647] Nortel’s counsel advised that part of Genuity’s claim was well-founded in its opinion.

Nortel and Genuity reached a settlement at the end of Q2 03. Nortel’s counsel was of the view

that the settlement would not be approved by the Bankruptcy Court because they believed it

would be opposed by others interested in Genuity’s bankruptcy. However, there was no

opposition to the settlement and the Bankruptcy Court approved the settlement in Q3 03.

78

[648] During the second restatement, the release was reviewed. The opinion of the Deloitte

reviewers was that the Q1 03 release was appropriate. However, the U.S. National Office of

Deloitte & Touche overruled the Deloitte reviewers and required that this conclusion be changed.

Deloitte’s U.S. national office required that the $23 million release in Q1 03 be classified as an

error on the basis that the release should have occurred in Q2 03 instead of Q1 03.

[649] This release also undermines the position taken by the Crown with respect to the Q1 03

and Q2 03 releases. The Genuity release reveals that the $23 million released in Q1 03 was

restated into Q2 03. The Crown’s submission is undermined because it only takes into account

releases that were restated out of Q2 03; it ignores the releases that were restated into Q2 03.

This same observation applies to Q1 03. The Crown’s submission does not take into account

those releases restated into Q1 03.

[650] Finally, the specifics of this accrued liability balance indicate that it was restated because

Deloitte, in essence, disagreed with itself.

[651] There is no evidence that would permit me to conclude that any or all of the accused were

responsible for this error or for the failure to restate it in the first restatement.

The Optical Warranty release – $8 million released in Q2 03

[652] In Q1 2001, the Optical Warranty accrued liability balance became underfunded by $21

million. Adjustments were made to the balance in 2001 and 2002. These adjustments reflected

changes in the standard costs for the Optical Network Repair Group. The problem was that

customers were using the warranty at a higher rate than had been used to calculate the accrued

liability balance. In other words, the accrued liability balance on account of the Optical Warranty

was not adequate.

[653] However, during the first half of 2002, it was discovered that the Optical Network Repair

Group’s standard costs, which were used to record warranty usage, were overstated by about

64% in 2001. This problem was corrected in Q2 02. This meant that the accrued liability balance

for Optical Warranty was overfunded; however, the accrued liability balance remained

overfunded because of the Optical Networks management team did not have confidence in its

data.

[654] By Q2 03, there was twelve months’ usage data available. Accordingly, the accrued

liability balance for the Optical Warranty was reduced by $8 million in Q2 03.

[655] The $8 million reduction in the Optical Warranty accrued liability balance was reviewed

and confirmed during the first restatement. It was the opinion of Deloitte during the first

restatement that the $8 million change was due to a change in estimate.

[656] The $8 million with which we are concerned was considered again during the second

restatement because it was specifically mentioned in the Wilmer Cutler Pickering review.

[657] In April 2004 during the second restatement, the decision that the $8 million was released

to income as a result of a change in estimate and, therefore, in accordance with US GAAP. The

release was confirmed again.

79

[658] However, for reasons that are not clear, the matter was reviewed yet again in October

2004. This time it was decided that the Optical Warranty model that was used in arriving at the

decision to release $8 million to the profit and loss statement was, itself, inherently flawed. The

model was inherently flawed because it had not been revised to reflect the significant changes

that had taken place in the Optical business unit’s environment in 2001 and 2002. Accordingly, a

New Warranty Model was developed. This new model was applied retroactively to 1999.

[659] Accordingly, the $8 million Q2 03 release was determined to be an error. In addition, the

new Warranty Model was applied to all changes in the Optical Warranty accrued liability

balance from 1999 to 2003. The changes which had taken place in the Optical Warranty accrued

liability balance from 1999 to 2003, based on the old model, were determined to be errors as

well.

[660] A consideration of the specific details surrounding the restatement of this accrued

liability balance leads to the conclusion that the decision to restate was taken based on a New

Warranty Model which did not exist in Q2 03. The new model did not exist when the accused

were employed at Nortel.

[661] The evidence does not demonstrate that the accused had any role in the decision to

release this accrued liability balance in Q2 03 or any knowledge that the old warranty model was

flawed.

Conclusion

[662] The specific releases to which I have referred demonstrate that the decision to restate on

account of an error can be the same thing as saying that there was a decision to restate on

account of a difference of opinion.. Clearly new information can affect the decision to restate.

Arguably hindsight can be a factor in the decision to restate.

[663] I agree with the Crown that the fact that accrued liability balances were restated is

capable of supporting an inference that financial results were misrepresented, but I am not

persuaded by the evidence which I have heard that I should draw such an inference in this case.

[664] As a result, I cannot give effect to the Crown’s submissions concerning the inferences I

should draw from the fact that original Q1 03 and Q2 03 accrued liability balance releases were

restated.

[665] I am not satisfied beyond a reasonable doubt that the three accused misrepresented

Nortel’s Q1 03 and Q2 03 financial results by releasing to income $361 million and $372 million

respectively in accrued liability balances. Further I am not satisfied that the original release to

income of $361 million and $372 million misrepresented Nortel’s financial results.

The release of $80 million in Non-op accrued liability balances and the entitlement

to a bonus

[666] There was no triggering event in Q1 03 that would have justified the release of this $80

million in accrued liability balances to Nortel’s profit and loss statements for Q1 03. This fact

was well-known to everyone.

80

[667] The Crown alleges that the release of this $80 million in Non-Op accrued liabilities to the

profit and loss statement in Q1 03 had the effect of changing pro forma losses in Q1 into a profit

which resulted in substantial Return to Profitability and Restricted Stock Unit bonuses being paid

to all three defendants in May 2003.

[668] Put differently, it is the Crown’s position that, without the release of this $80 million, the

profit targets required for the payment of these bonuses would not have been met and none of the

accused would have been entitled to a bonus.

[669] It is the Crown’s position that Mr. Hathway was misled when he was informed by either

Mr. Gollogly or Mr. Beatty that the Return to Profitability Bonus would have been paid even

without the release of the $80 million.

[670] The Crown also alleges that the three accused failed to disclose the fact that there was a

direct connection between the $80 million release of accrued liabilities and the payment of these

bonuses. Specifically, the release of the $80 million offset the liability ($73 million) associated

with paying the Return to Profitability Bonus.

[671] The Crown takes the position that the disclosure in the April 24, 2003 release made it

appear as though these two events were unrelated. Specifically, the press release in the Crown’s

view failed to draw a direct connection between the $80 million release and the payment of the

bonuses (i.e., it did not say that the $73 million RTP Bonus was payable because of the release of

the $80 million) nor did the press release mention that the $80 million was related to other excess

accrued liabilities; namely $109 million in unsupported accrued liabilities which remained on

Nortel’s consolidated balance sheet.

[672] It is also the Crown’s position that Nortel’s SEC filings for Q1 03 obfuscated the nature

of the $80 million release.

[673] The Crown also alleges that the release of this $80 million improperly reduced US GAAP

losses.

[674] It is the Crown’s position that the improper release of this $80 million resulted in the

publication of financial statements which misrepresented Nortel’s financial results.

[675] It is the Crown’s position that even if, based on the Second Restatement financial

statements, the bonus milestones would have been met at some point in 2003, the timing of those

payments would have been different in the sense that the payments would have been made in

different quarters of 2003. The Crown maintains Nortel was at risk when the bonuses were paid

based on false results and it does not matter that the bonuses would have been payable later in

2003 based on the restated results for that year.

[676] I have no difficulty in accepting the fact that all three accused knew what targets had to

be hit before they were entitled to the Return to Profitability Bonus and the Restricted Stock Unit

Bonus. I attach no significance to that fact; it is simply rational economic behavior. The

inference is easily drawn from the access that all three accused had access to Outlooks

(forecasts), as well as their positions in the company. The evidence was, for example, that Mr.

Dunn played a role in deciding the milestones for the Return to Profitability Bonus.

81

[677] Releasing the $80 million in accrued liabilities to the profit and loss statement was

specifically considered by Deloitte & Touche in an internal memo, which appears to have been

produced to the Crown on December 23, 2011.

[678] Counsel for Deloitte indicated in the letter producing the memo that it had been

previously produced to “other regulators”. Counsel for Deloitte indicated in the letter producing

the memo that it was a “desk file”, which apparently means it was never finalized and

incorporated into Deloitte’s audit working papers. I infer this information was provided to

explain the late production.

[679] Apparently, after the draft memo was turned over to the unidentified regulators, Deloitte

was asked a series of questions by one or more of these regulators which they answered. The

questions and answers were also turned over to the Crown on December 23, 2011 and produced

in this trial as business records of Deloitte & Touche.

[680] The trial in this matter commenced in January 2012. The authors of the memo, Diana De

Acetis, Peter Chant and Chris Allen, were not called as witnesses.

[681] It is trite that business records are capable of proving the facts contained within them. I

am not required to find that these business records or any other business records prove the facts

contained in them. However, I found this business record to be particularly helpful, despite the

fact that it was a “desk file.”

[682] The draft memo to the Nortel Networks Corporation file of Deloitte & Touche LLP was

primarily written by Diana De Acetis. However, during the course of the drafting of the memo,

Ms. De Acetis received significant content and input from two other Deloitte accountants,

namely, Peter Chant and Chris Allen. Tony Ciciretto assisted by providing information to Ms.

De Acetis, but was not otherwise directly involved in the memo’s preparation. In addition,

according to the memo’s introduction, Don Hathway, John Cawthorne and others reviewed the

memo. It appears from Exhibit 11 tab 42 that Mr. Hathway also provided information to Ms. De

Acetis, Mr. Chant and Mr. Allen prior to the preparation of the memo.

[683] When Ms. De Acetis prepared this memo, she was a senior manager in Deloitte’s

Complex Accounting and Transaction Expertise Group. As a member of that group, Ms. De

Acetis had provided technical assistance and advice to members of the Nortel engagement team

in respect of a number of issues which had arisen during the course of the quarterly reviews in

Q1 and Q2 2003.

[684] Ms. De Acetis reported to Peter Chant. Mr. Chant was a partner and practice group leader

of the Complex Accounting and Transaction Expertise Group. Mr. Chant was not a member of

the engagement team that performed Deloitte’s audits or quarterly reviews at Nortel in Q1 and

Q2 2003. However, like Ms. De Acetis, he provided technical assistance and advice to members

of that engagement team from time to time in respect of a number of issues that arose in

connection with the Q1 and Q2 2003 quarterly reviews.

82

[685] Chris Allen was a partner at Deloitte, who worked on the Nortel engagement during the

Q1 and Q2 2003 reviews. Mr. Allen was a senior member of the Deloitte engagement team for

Nortel.

[686] Tony Ciciretto was, during the Q1 and Q2 2003 reviews, responsible for supervising

Deloitte’s review work in respect of Nortel’s Corporate Analysis and Consolidations Group in

Brampton. Mr. Ciciretto’s name appears on very many e-mails which were received in evidence

as business records. I infer from the documentation that Mr. Ciciretto was a senior member of the

Nortel engagement team. Mr. Ciciretto was not called as a witness.

[687] According to the information provided to the Crown by Deloitte, the memo was created

because, in April 2003 during the course of performing its review work, Deloitte’s engagement

team noted that Nortel had released $80 million in accrued liabilities. Deloitte’s engagement

team identified a number of documentation and support issues with respect to these accrued

liabilities. In late June or early July 2003, Deloitte’s engagement team became aware that Nortel

intended to release in its financial results for Q2 03 a number of additional accrued liability

balances which were no longer required on Nortel’s balance sheet. Once again, the engagement

team identified documentation and support issues. Based on Deloitte’s advice, Nortel did not

release these accrued liabilities to the profit and loss statement.

[688] As a result of these documentation and support issues, Diana De Acetis was asked to

conduct a review of Nortel’s release of the $80 million in accrued liability balances to the profit

and loss statement in Q1 2003 to determine whether these releases were appropriate under US

GAAP. I should add here that, in terms of topic and timing, this is an extremely pertinent

inquiry.

[689] According to the information provided to the Crown, Ms. De Acetis obtained background

information from Mr. Ciciretto and other members of the Deloitte engagement team for Nortel.

Ms. De Acetis prepared an initial draft of the memo in July 2003 and then received comments

from Chris Allen and others. Further drafts were generated during July and August. In

September, Ms. De Acetis received further comments from Peter Chant. By late September or

early October 2003, work on the preparation of the draft memo itself was halted.

[690] The draft memo bears the date of July 15, 2003. At this point according to the evidence, it

was clear to Deloitte that Nortel had unsupported accrued liabilities on its balance sheet and that

a Comprehensive Balance Sheet Review was required.

[691] The draft memo identified six corporate level provisions totaling $80 million, which

Nortel determined in Q1 2003 were no longer required or which could not otherwise be justified

on its balance sheet at their current balances. In addition to itemizing these accrued liability

balances, the memo set out when the accrued liabilities were recorded, the reason for initially

recording them and the reasons and support for their reversal in Q1 2003.

[692] The memo concluded that $6 million worth of releases resulted from a change in estimate

triggered in Q1 2003. Therefore, the release of this $6 million was entirely in accordance with

US GAAP.

83

[693] The memo concluded that the remaining five accrued liability balances totaling $74

million could not be supported. Of this amount, two of the balances, EDSN ($9 million) and

Capital Tax ($10 million), had been recognized as errors in the year in which they were created,

that is 2002, and so their release in Q1 2003 was considered to be the correction of an error.

[694] The memo concluded that the remaining three accrued liability balances released to the

profit and loss statement in Q1 2003; namely, Intercompany Out Of Balance ($35 million), QST

($5 million) and Short Close ($15 million) were errors, although the memo specifies that a

portion of the Short Close release in Q1 2003 was in accordance with US GAAP.

[695] The memo then spends three pages analyzing whether the releases were material to the

Q1 2003 financial statements. The analysis references Staff Accounting Bulletin 99 of the SEC,

which has been referred to repeatedly during this trial, as the foundation for a materiality

analysis. No materiality expert testified during the trial. The Crown’s expert did not comment on

the materiality analysis in this memo.

[696] The memo concluded that “the reversal of the provisions was not considered on a

qualitative and quantitative basis to be material to Nortel’s financial statements for Q1 2003…”

[697] One of the tests for materiality which is set out in Staff Accounting Bulletin 99 is whether

the misstatement “changes a loss into income or vice versa”. Accordingly, the memo re-

calculates Nortel’s net income for Q1 2003, excluding the effects of the release of the $80

million in accrued liability balances to the profit and loss statement. The memo concludes, after

making the appropriate accounting adjustments that Nortel would have had net income of $2.2

million without the benefit of the release of the $80 million to income. The memo concludes that

this net income of $2.2 million would have been earned after allowing for payment of the Return

to Profitability Bonus and the Success Plan Bonus. The Success Plan Bonus was the

performance-based bonus for a large portion of employees. Accordingly, the release of the $80

million did not turn a loss into a profit.

[698] More specifically, the memo concludes, in an Appendix, that the Return to Profitability

Bonus target is achieved whether the $80 million in accrued liability balances is released to the

profit and loss statement or not.

[699] The memo also concludes that the Success Plan Bonus earnings, revenue and cash flow

targets are met whether the $80 million in accrued liability balances is released to the profit and

loss statement or not.

[700] Thus, the memo concludes that the thresholds for these two bonuses would have been

met whether or not the $80 million in accrued liability balances is released to the profit and loss

statement.

[701] The memo, which was received as Exhibit 251D, is quite thorough. It analyzes six

specific accrued liabilities totaling $80 million and it calculates the financial state of affairs

relevant for our purposes that would have existed had the $80 million remained on the balance

sheet of Nortel instead of being incorporated into its profit and loss statement.

84

[702] Mr. Harrison testified that he did not calculate the Return to Profitability Bonus plan

target in the same fashion as Deloitte & Touche. His evidence in this regard was not particularly

helpful.

[703] A review of the minutes of the Human Resources Committee of the Board of Directors of

Nortel Networks Corporation, known in Nortel speak as the Joint Leadership Resources

Committee (“JLRC”), demonstrates that the bonus target for the Return to Profitability Bonus is

to be calculated using Nortel’s method in 2002 of calculating pro forma gains before taxes.

[704] The only issue is whether Deloitte’s calculation is consistent with that definition. The

lack of similarity between Mr. Harrison’s method of calculating the target for the Return to

Profitability Bonus and Deloitte’s method is of no assistance.

[705] Deloitte’s calculation is contained in one of the Appendices to the memo. The only way

to describe this Appendix is by the document number, DT 601338. The Appendix has two

purposes: its first stated purpose is to evaluate the effects of the release to income of $80 million

of accrued liability balances in Q1 03 on Nortel’s ability to achieve the Return to Profitability

Bonus and Success Plan Bonus thresholds. In this memo, the release of accrued liability balances

to the profit and loss statement is described as the “reversal of provisions”. The second stated

purpose is to evaluate the effects of the reversal of these provisions reported on net income for

Q1 03.

[706] As a result, this Appendix addresses two important issues in this trial.

[707] The first calculation concludes that the Return to Profitability Bonus target is met with

and without the release of the $80 million. The calculation is plainly set out. It starts with

Nortel’s loss from continuing operations as reported and then adjusts for the pro forma items that

are called for by the 2002 definition of pro forma income; namely, the amortization of acquired

technology, stock compensation expense, special charges, and gains on the buyback of bonds. It

then adjusts for the cost of the bonuses and arrives at positive pro forma gains before taxes of

$161 million. It then adjusts or subtracts the $80 million with which we are concerned and it

concludes that the Return to Profitability Bonus target is met.

[708] Mr. Dans testified about this calculation, although I found his evidence to be vague. He

agreed with the adjustment for the amortization of acquired technology, stock compensation,

special charges and gains on the buyback of bonds. To the extent that he said that Deloitte, in this

Appendix, did not adjust for the cost of the Return to Profitability Bonus, he was in error. If I

misunderstood Mr. Dans’ evidence, it does not matter because the Deloitte calculation did adjust

for the cost of the bonus.

[709] Deloitte included in its calculation two positive adjustments totaling $28 million. Mr.

Dans did not agree with these adjustments. It does not matter. Assuming Mr. Dans is correct, pro

forma gains before taxes are $133 million. If I had to decide this matter, I would prefer the

Deloitte analysis in the Appendix to Mr. Dans’ conclusory statement.

85

[710] The Appendix then considers the Success Bonus Plan which had three targets: an

earnings target, a revenue target and a cash flow targets. Deloitte, in this memo, concluded that

all three targets were met with or without regard to the $80 million with which we are concerned.

[711] I observe here that the Restricted Stock Unit Bonus Plan, with which we were also

concerned in this trial, is not referred to in this memo. It was never suggested that a threshold for

this bonus plan was achieved in Q1 03.

The effect of the $80 million on earnings

[712] The appendix then considers the effect of the $80 million with which we are concerned

on reported earnings. It concludes that Nortel achieved positive earnings with or without the $80

million. This calculation appears on document DT 601339. Mr. Dans did not comment on this

calculation.

[713] Apart from the calculation’s conclusion, the analysis contains a note dealing with foreign

tax credits. The note reveals that the authors of this memo participated in a conference call with a

person identified as John Van Oglrop. The purpose of the call was to obtain clarification about

certain foreign tax credits. It appears that a foreign tax credit, which had been recorded as a

recoverable asset, had been written off in Q1 2003 and it should have been written off in 2002.

This meant that the accrued liability balance for foreign tax credits was overstated by $20 million

in Q1 2003 and understated in 2002. The note is interesting because it demonstrates the

thoroughness with which the authors of this desk memo approached their task.

Conclusion concerning the Bonus Payments & earnings

[714] I am satisfied that the Return to Profitability Bonus was payable in Q1 2003 with or

without the release of $80 million in Non-op accrued liability balances. I am satisfied that the

Success Plan Bonus was payable with or without the release of $80 million in Non-Op accrued

liability balances. The Restricted Stock Unit Bonus Plan was not an issue in Q1 03.

[715] I am satisfied that Nortel achieved net US GAAP income in Q1 03 with or without the

$80 million.

[716] I am satisfied that Mr. Hathway was not misled when he was told by either Mr. Beatty or

Mr. Gollogly that the Return to Profitability Bonus would have been paid with or without the

release of the $80 million in Non-op accrued liability balances.

[717] I am not satisfied that the accused used Non-op “cookie jar” accrued liability balances to

manage earnings and permit the payment of a bonus in Q1 03.

[718] I am not satisfied that the inclusion of the $80 million with which we are concerned in

Nortel’s profit and loss statement for Q1 03 misrepresented Nortel’s financial results.

86

The materiality of the release of $80 million of Non-op accrued liability balances

[719] Ms. De Acetis, Mr. Chant and Mr. Allen considered whether the $80 million in Non-op

accrued liability balances, which were released to Nortel’s profit and loss statement in Q1 03,

were material to the Q1 03 financial statements.

[720] Notwithstanding the fact that this is entitled a draft memo, the materiality analysis is

instructive.

[721] The memo concluded that, from a quantitative perspective, the $80 million was material

because the materiality threshold used for Deloitte’s Q1 03 audit review was $14 million. These

authors noted that the $14 million threshold was calculated in accordance with the stated policy

of the Deloitte & Touche firm.

[722] The authors then considered whether the $80 million was material from a qualitative

perspective.

[723] Staff Accounting Bulletin 99 of the SEC mandates both a quantitative and qualitative

analysis prior to a materiality determination.

[724] No materiality expert was called during the trial.

[725] The draft memo then applies all of the considerations which are set out in Staff

Accounting Bulletin 99.

[726] The draft memo concludes that all six accrued liability balance releases all relate to

estimates which are inherently imprecise. The memo concludes that the degree of imprecision is

high due to the changes at Nortel and in the industry. According to the authors, there is an

inability to accurately predict liabilities of the type that make up the $80 million.

[727] The memo concluded that the $80 million in changes do not mask a change in earnings or

other trends. Six ($6) million in releases were in accordance with US GAAP. Of the remaining

$74 million $44, million was reported in “other income”. Of the remaining $30 million, $25

million was due to the reversal of a tax provision. The short close liability release ($5 million)

was reported as a part of selling, general and administrative expenses during a time when sales,

general and administrative expenses were going through dramatic reductions. The remaining $5

million was composed of a portion of the Out Of Balance account which related to Research and

Development. Apparently, the classification of items within selling, general and administrative

expenses and research and development expenses did not affect trends for those financial

statement line items.

[728] The memo then concluded that the $80 million did not hide a failure to meet analysts’

expectations. In order to make this determination, the authors reviewed a variety of analysts’

reports and concluded that they focused primarily on revenues, gross margins, operating

expenses and operating income and earnings before interest taxes depreciation and amortization

(commonly known as “EBITDA”).

87

[729] The memo then examined whether the $80 million changed a loss into income. It was the

opinion of the authors that, without the $80 million, Nortel would have made a net income of

$2.2 million after payment of the Return to Profitability Bonus and the Success Bonus.

[730] Pursuant to the provisions of Staff Accounting Bulletin 99, the authors then addressed the

question of whether the $80 million concerned a segment or other portion of Nortel’s business

that had been identified as playing a significant role in Nortel’s profitability. The authors

answered this question in the negative because Nortel reported contribution from four segments.

Research and Development (“R & D”) and “Other Income” were excluded from this calculation.

Selling, General and Administrative expense was included when calculating contribution to

profit, but the contribution of this item was small.

[731] The authors concluded that the release of the $80 million did not affect Nortel’s

compliance with regulatory requirements.

[732] The authors also concluded that the $80 million did not affect Nortel’s compliance with

loan covenants and other contractual requirements. These requirements required Nortel to have a

tangible net worth of $1.8 billion or more. In Q1 03, Nortel reported a tangible net worth of

$2.33 billion.

[733] Finally, the authors concluded that the release of the $80 million did not conceal an

unlawful transaction.

[734] As part of their analysis, the authors commented on the fact that Nortel specifically

disclosed the release of the $80 million of favorable impacts in the 10-Q Report for Q1 03.

[735] The authors pointed out that the effect on Nortel’s earnings of the release of the $80

million was brought to the attention of Nortel’s Audit Committee on April 23, 2003 prior to

Nortel’s publication of its financial results.

[736] After making all these observations, the authors set out their conclusion. They noted that,

quantitatively, the $80 million appeared to be material. The authors concluded that the $80

million did not have any of the qualitative characteristics that would indicate a particular concern

to users of the financial statement. These items were, at the most, 5% of any particular line item

in which they were included and fully disclosed in the notes to the financial statements.

[737] When the authors considered all of these factors, their collective conclusion was that, if

the $80 million had been removed from the financial statements, it would not have altered the

total mix of information available to an investor.

[738] It was the authors’ opinion that the $80 million was not material in the broadest sense of

the term.

[739] Mr. Hathway, from late February 2003 Deloitte’s lead audit partner on the Nortel 2003

audit, attempted to distance himself from these conclusions by saying that it was based on the

knowledge that Deloitte had at the time the memo was prepared.

88

[740] On cross-examination, he seemed to say that it was still possible that US GAAP was not

complied with, but the non-compliance was immaterial.

[741] Later on in his cross-examination, Mr. Hathway indicated that he did not agree with the

conclusion that the Return to Profitability Bonus target would have been met with and without

the $80 million. He suggested that the authors, although he seemed to be referring to Ms. De

Acetis, may not have understood the metric for calculating the bonus, although he conceded that

Ms. De Acetis would have done her best to understand it before doing her calculation. It would

have been a simple matter for Mr. Hathway to explain the error in Ms. De Acetis’s calculation.

He never did this on cross-examination or on re-examination.

[742] I do not know how Mr. Hathaway could presume to disagree with Ms. De Acetis’

calculations when he admitted in his direct examination that he did not have a detailed

understanding of the Nortel pro forma calculations. He stated that he recommended that Nortel

discontinue disclosing pro forma earnings in its Q1 03 financial statements, which Nortel did do.

[743] Mr. Hathway admitted that he reviewed the memo. Mr. Hathway said he had a vague

recollection of providing his comments to the author of the memo, but he could not remember

what his comments were.

[744] Mr. Hathway said that he would have made changes or edits to the memo, but did not do

so because it was determined that there would be a restatement of earlier published financial

statements and that the payment of the bonus would be looked at as part of the restatement.

[745] Finally, Mr. Hathway said that the author of the memo, by which he seemed to mean

Diana De Acetis, was not part of the engagement team and was not familiar with everything that

was going on at Nortel. This particular assertion is misleading.

[746] Ms. De Acetis was consulted on other matters and obviously was familiar with the Nortel

file [see: Exhibit 228, tab 215].

[747] In addition, the memo, which Mr. Hathway seemed to view as only the work of Ms. De

Acetis, was co-authored by her superior, Mr. Chant, as well as Mr. Allen.

[748] Mr. Allen joined the Nortel engagement in 2001. In Q1 03 and Q2 03, he was a senior

member of the Deloitte engagement team for Nortel. Finally, Mr. Allen attended the meeting on

April 15, 2003, where each one of the accrued liability balance releases which made up the $80

million, which is the subject of the memo, was specifically discussed prior to Deloitte agreeing

to their Q1 03 release.

[749] Mr. Chant was a partner in the firm and was the practice group leader of the Complex

Accounting and Transaction Expertise Practice Group to which Ms. De Acetis was assigned.

[750] Mr. Ciciretto, who provided information to Diana De Acetis, was a senior member of

Deloitte’s Nortel engagement team.

[751] I simply do not accept this portion of Mr. Hathway’s evidence. He admits he was asked

for his comments about this memo. I am satisfied he would have provided those comments in a

89

timely way. I do not understand why he would not have insisted on his comments being

incorporated into the memo.

[752] The notion that Mr. Hathway had some comments concerning and disagreements with the

memo, which he may have communicated to the author, but which were ignored and never

recorded in writing, seems unlikely. I do not believe Deloitte would conduct itself in this fashion.

It seems far more logical to me that the memo would have been changed to reflect Mr.

Hathway’s comments or that his comments and edits would have been described in the memo in

some form that made clear the portions with which he disagreed.

[753] I do not accept this portion of Mr. Hathway’s evidence based on the thoroughness of the

memo.

[754] The Crown’s expert, Mr. Chambers, did not comment on this memo.

Conclusion

[755] I accept the analysis and conclusions in the draft memo prepared by Ms. De Acetis, Mr.

Chant and Mr. Allen. I reject Mr. Hathway’s evidence to the effect that the calculations in this

draft memo are somehow not correct. This memo represents a coherent materiality analysis and I

find it persuasive.

[756] I am satisfied that the release of the $80 million from Nortel’s balance sheet to its profit

and loss statement was not material to Nortel’s Q1 03 financial results.

[757] I am not satisfied that including the $80 million with which we have been concerned in

Nortel’s Q1 03 profit and loss statement or removing the $80 million from Nortel’s Q1 03

consolidated balance sheet misrepresented Nortel’s financial results for Q1 03 to the public or to

Nortel’s Audit Committee and its Board of Directors.

[758] I am satisfied that the thresholds for the Return to Profitability Bonus and the Success

Bonus Plan were met with or without the release of the $80 million.

Susan Shaw’s list of $189 million Non-op accrued liabilities

[759] Reference was made earlier to Ms. Shaw’s 2002 report. This is a second occurrence

involving Ms. Shaw. It involves Non-op accrued liability balances with which she was

concerned in Q1 03. This occurrence not only involves the $80 million to which I have referred,

but an additional $109 million in accrued liability balances.

[760] One of Susan Shaw’s responsibilities was to analyze and be responsible for Non-op

accrued liability balances. Throughout Q4 2002, Ms. Shaw had been expressing to her superior,

Helen Verity, uneasiness about some of Non-op accrued liability balances for which she lacked

support.

[761] In February 2003, Ms. Shaw started reporting to Brian Harrison because Helen Verity left

Nortel. In an effort to educate Mr. Harrison about Non-op and to bring to his attention the

90

problem with some of the accrued liability balances, Ms. Shaw classified the Non-op accrued

liabilities on a chart which was entered into evidence as Exhibit 11, tab 11.

[762] On this chart, she referred to the accrued liability balances which concerned her as

"releasable provisions”. Specifically, Ms. Shaw’s concerns were that the “releasable provisions”

on the chart were not current, didn’t seem to be changing and lacked sufficient backup. Ms.

Shaw believed that the problem with backup flowed both from the fact that there had been

substantial staff reductions (two out of every three employees had been dismissed) and because

facilities had been closed resulting in documents being packed up and put into storage making it

virtually impossible to search for supporting documentation. Ms. Shaw pointed out that she was

not suggesting that backup for these accrued liabilities did not exist; she was simply saying that

she did not have that backup.

[763] Ms. Shaw also cautioned that prematurely releasing an accrued liability which was truly

required would create an exposure at a point in the future when the accrued liability crystallized.

The evidence established that failing to provide for a risk was very countercultural at Nortel.

[764] Ms. Shaw thought she met with Mr. Harrison in the latter part of February 2003 and, at

that meeting, presented her list of Non-op accrued liabilities and explained the Non-op balance

sheet. During the course of her explanation, she identified $189 million worth of “releasable

provisions” or accrued liability balances which, in her view, had to be removed from the balance

sheet.

[765] Ms. Shaw’s list of releasable provisions presented a problem: there was no justification

for retaining these accrued liability balances on the balance sheet; there was no justification for

releasing them in Q1 03; Mr. Dunn, Mr. Beatty and Mr. Gollogly had to provide certifications

with their financial filings to the effect that, based on their knowledge, Nortel’s financial

statements fairly presented Nortel’s financial condition; the auditors had to provide an opinion

that the financial statements “present fairly, in all material respects, the financial position of

Nortel Networks…”.

[766] Mr. Harrison was unable to assist Ms. Shaw with the problem. Mr. Harrison was not a

chartered accountant. He was a Registered Industrial Accountant; later called a Certified

Management Accountant. Quite illogically, he suggested that they release half of it in Q1 03 and

half of it in Q2 203. Mr. Harrison described his solution as “an elegant way of, you know, getting

out of the problem”. Mr. Harrison’s solution was hardly elegant. Ms. Shaw was a chartered

accountant; she was not comfortable with his suggestion. Mr. Harrison agreed to raise the issue

with Mr. Gollogly.

[767] When Susan Shaw returned from a winter holiday, she was advised that Mr. Harrison was

proposing to release $75 million of the Non-Op accrued liabilities on her list of releasable

provisions. Mr. Harrison indicated, in his e-mail of March 24, 2003, that he was waiting

confirmation from Mr. Beatty and Mr. Gollogly. Later, Ms. Shaw was advised that an additional

$9 million from her list of releasable provisions was added to the liabilities that were to be

released (total $84 million). Ms. Shaw was unable to say who made this decision.

91

[768] Ms. Shaw testified that she was then asked to prepare an explanation of these releases,

both for Nortel’s purposes and so that Nortel could explain the accrued liability balance releases

to Deloitte & Touche.

[769] Ms. Shaw’s written explanation was entered into as an exhibit. Specifically, it appears at

tab 20 of Exhibit 11. By the time Ms. Shaw began to prepare her explanation, the list of accrued

liability balances to be released had been reduced to $80 million from $84 million. Ms. Shaw did

not know how the reduction came about. This $80 million in accrued liability balances is the

same $80 million to which I have previously referred.

[770] Ms. Shaw’s prepared explanatory notes described the $80 million in accrued liability

balances. Ms. Shaw testified that she prepared an additional chart which showed the $109

million remaining accrued liability balances. This chart was introduced as Exhibit 67G.

[771] The Crown submitted that the decision to only release $80 million in accrued liabilities in

Q1 03 is illogical. The Crown submits there is no difference between the $80 million which was

released in Q1 03 and the remaining $109 million which was not released.

[772] The Crown submitted that Ms. Shaw was aware of these liabilities in Q4 02. The Crown

submitted many of them appeared on her $303 million liability list which she compiled in

August 2002. The Crown pointed out that the $189 million in accrued liability balances were

restated as part of the Comprehensive Balance Sheet Review and the first restatement process.

Therefore, the Crown submits that the inclusion of these accrued liability balances in Q4 02, Q1

03 and Q2 03 represented the inclusion of false financial information on Nortel’s consolidated

balance sheet and as a result Nortel’s financial results were misrepresented.

[773] Ms. Shaw e-mailed her typewritten explanatory notes and other information to Joyce

Lam and Guillermo Olguin, both of whom are chartered accountants with Deloitte & Touche, on

April 14, 2003. Mr. Olguin forwarded her e-mail and attachments to John Cawthorne, Tony

Ciciretto, Chris Allen and others on April 14, 2003.

[774] Ms. Shaw indicated that she sent her material to Deloitte & Touche in advance of a joint

meeting between Nortel and Deloitte to highlight for them the fact that $80 million in accrued

liabilities for which there was little backup had been released to the profit and loss statement in

one of the preliminary closings of General Ledger for Q1 03.

[775] Mr. Shaw testified that, by the time this document was discussed with Deloitte & Touche

on April 15, 2003, the $80 million had been released to the profit and loss statement. April 15,

2003 was approximately halfway through the close cycle for the preparation of the Q1 2003

financial statements.

[776] At the April 15 meeting, on the Nortel side, Ms. Shaw, Brian Harrison, Linda Mezon,

Michael McMillan and Michael Gollogly attended; on the Deloitte & Touche side, John

Cawthorne, Don Hathway, Tony Ciceretto, Joyce Lam and Chris Allen attended. Mr. Hathway

and Mr. Cawthorne were the two most senior Deloitte & Touche auditors on the Nortel file, with

the exception of Mr. Richmond. Mr. Allen was one of the co-authors of the desk file memo to

which I referred earlier.

92

[777] Ms. Shaw said that her role at the meeting was to walk the Deloitte & Touche partners

through her explanation of each of the provisions that had been released, as well as the

provisions that remained. She said that her own purpose was to make it very clear that her report

was the sum total of her knowledge of the accrued liability balances in her chart.

[778] Ms. Shaw testified that she went through each item mentioned. She recalled a lengthy

discussion about the Intercompany Out of Balance accrued liability balance because it was an

ongoing issue between Nortel and Deloitte. Other evidence established that Mr. Dunn wanted to

maintain the provision and Deloitte’s wanted the Non-op Intercompany Out Of Balance account

reconciled and then eliminated. Ms. Shaw indicated that the Intercompany Out Of Balance

portion of the discussion was quite heated.

[779] Ms. Shaw testified that, after the Intercompany Out Of Balance item had been discussed,

the meeting proceeded to discuss the other items in her report. She said that Deloitte wanted to

know what event had triggered the releases and that she informed them that there really were no

triggering events. Ms. Shaw also recalled, at one point, someone on the Deloitte side wanted to

know whether Nortel staff understood that there had to be a triggering event before an accrued

liability balance could be changed or released to the profit and loss statement. She informed

Deloitte that the accrued liability balances had been on Nortel’s books for a number of quarters if

not years. Ms. Shaw said it was quite evident at the meeting that these balances did not have

adequate backup and that their release to the profit and loss statement had not been triggered.

She said that Deloitte wanted to know why they were releasing these accrued liabilities in Q1

2003.

[780] Ms. Shaw indicated that after the $80 million was discussed the remaining accrued

liabilities, which totaled $109 million, were discussed.

[781] The existence of provisions for which there was little support would not come us a

surprise to either Mr. Cawthorne or Mr. Hathway despite their lack of experience with the Nortel

engagement. In February 2003 Mr. Cawthorne asked for and received a list of “soft provisions”

prepared in connection with the 2002 audit. The accrued liability balances on this list totaled

$413 million. Mr. Hathway saw this list because his handwriting is on it. Soft provisions were

accrued liability balances with questionable support.

[782] Ms. Shaw elaborated that the other Deloitte partners were experienced with the Nortel

account and the liability balances to which she was referring. Ms. Shaw testified that these

balances had been on the books for many quarters and, for those experienced with the Nortel

account, were not new. She said, for example, everyone from Deloitte, with the exception of

John Cawthorne and Don Hathway, who were both new to the file, knew what the Matra

Restructuring accrued liability balance was.

[783] Evidence was introduced which established that balance sheet reviews were conducted in

2002 in relation to the balance sheet for Non-op. Ms. Shaw testified that these balance sheet

reviews could go on for hours and that partners from Deloitte & Touche attended. Ten e-mails

were introduced, which indicated that, in 2002, accountants with Deloitte & Touche were

reviewing and asking questions about changes in accrued liabilities in Non-op in Q3 2002. I

accept this aspect of Ms. Shaw’s evidence.

93

[784] John Cawthorne, Tony Ciciretto, Joyce Lam and Chris Allen did not testify. Only Don

Hathway testified and gave evidence about the April 15, 2003 meeting. Mr. Hathway was not

part of the Nortel engagement prior to early 2003.

[785] Ms. Shaw testified that, in her mind, there was no difference between the $189 million,

which she initially identified, and the $80 million which was actually released in Q1 2003. Ms.

Shaw said that, after she made her presentation and after the partners at Deloitte & Touche had

finished asking her questions, she and others left the meeting. Ms. Shaw estimated that the

portion of the meeting which she attended lasted for about forty-five minutes. She said four

people remained behind in the meeting room: John Cawthorne, Don Hathway, Linda Mezon and

Michael Gollogly.

[786] I accept Ms. Shaw’s evidence concerning the $109 million Non-Op accrued liability

balances which remained on Nortel’s balance sheet. Her conduct as she described it is entirely

consistent. Ms. Shaw had responsibility for Non-op’s liabilities; she had concerns about some of

them. She brought her concerns to the attention of her superiors. As a chartered accountant, she

understood the importance of making sure that Nortel’s auditors understood that there was no

support for the $80 million in accrued liability balances that were being released to the profit and

loss statement and no support for the $109 million in accrued liability balances which remained

on Nortel’s balance sheet. She was quite candid in describing her own discomfort with these

liability balances.

[787] The $80 million remained released to income in Nortel’s published financial results for

Q1 2003. The $109 million remained on Nortel’s published balance sheet where it always been

included in Nortel’s $5 billion in liabilities...

[788] Ms. Shaw made further inquiries about the $109 million in Q2 03. She testified that she

consulted with a broader group concerning the remaining $109 million of Non-op accrued

liability balances. She described it as “taking more time and really going deeper into the

provisions…” Ms. Shaw indicated that no new information concerning the remaining provisions

was discovered. It was her evidence that “quite a bit of time was spent trying to find out about

some of these items”. Ms. Shaw testified that, because so many people had left the company, it

was impossible to track down the information. I accept this aspect of Ms. Shaw’s evidence.

Should the $189 million have been dealt with in Q4 02?

[789] The Crown suggested that the accrued liability balances, which appeared in Ms. Shaw’s

$189 million list, also appeared in her Accrued Liability Analysis report which she presented to

Mr. Gollogly in October 2002. The Crown suggested, in argument, that this meant that Mr.

Gollogly should have decided in October 2002 that these accrued liability balances were not

supportable and dealt with them at that time. I reject this argument.

[790] Ms. Shaw’s Accrued Liability Analysis Report in October 2002 (Exhibit 1, tab 5) listed

all of the Non-op accrued liabilities. This list totaled $315 million. Ms. Shaw identified each

accrued liability balance and the total. Ms. Shaw did not state in her Report that all of these

accrued liability balances could not be supported and should be released. Ms. Shaw indicated in

94

her Report that $66 million of Non-op accrued liability balances could not be supported and

should be released. Ms. Shaw did not identify these individual balances.

[791] In February 2003, Ms. Shaw, in her capacity as a person responsible for the Non-op

accrued liability balances, met with Mr. Harrison to whom she was directly reporting. She met

with him about the state of accrued liability balances in Non-op. In that meeting, Ms. Shaw

advised Mr. Harrison that there were $189 million in Non-op accrued liability balances which, in

her view, at that time were not supportable. In her notes which she prepared for that meeting, she

referred to these accrued liability balances as “Releasable Provisions.” In her notes, Ms. Shaw

specifically identified each one of these provisions. Mr. Gollogly was not present at that meeting.

[792] There is no basis for suggesting that Ms. Shaw had disclosed to Mr. Gollogly in the fall

of 2002 the specific Non-op accrued liability balances which were incorporated into the memo

which she were prepared for the April 15, 2003 meeting with Deloitte.

[793] The Crown also suggested that Mr. Gollogly did not deal with the $189 million in

accrued liability balances in Q4 02 because he wished to maintain them as a “cookie jar” to assist

in managing earnings. I reject this argument for the same reason.

The knowledge of Mr. Dunn, Mr. Beatty and Mr. Gollogly

[794] I have already indicated elsewhere that I am satisfied that Mr. Dunn, Mr. Beatty and Mr.

Gollogly were very aware of financial developments within Nortel.

[795] I am also satisfied that accrued liability balances owned by the two non-operational units

of Nortel; namely, Corporate and Non-op, were under the control of the Controller. The Crown

relied on this fact to suggest that all three accused were more familiar with accrued liability

balances in Corporate and Non-op.

[796] The decisions to be taken with respect to this $189 million were important. Nortel’s

financial situation was still precarious although improving. It is clear that Mr. Gollogly was at

the meeting with representatives of Deloitte in April 2003 when the decision to release the $80

million in accrued liability balances was confirmed.

[797] The evidence discloses, and Mr. Gollogly well-understood, his obligations as Nortel’s

controller. I am satisfied that he brought to Mr. Beatty’s attention this $189 million balance sheet

problem. Mr. Dunn was described in the evidence as a strong, intelligent detail-oriented leader.

[798] I am satisfied beyond a reasonable doubt that Mr. Gollogly, Mr. Beatty and Mr. Dunn

were aware of Ms. Shaw’s and Nortel’s $189 million in releasable provisions.

[799] The Crown relied on the presence of two accrued liability balances in Non-op as a further

indication of the familiarity of all three accused with Corporate and Non-op accrued liability

balances. The two accrued liability balances to which the Crown referred were known as the

Degree of Difficulty (“DOD”) bonus and the General Provision.

95

[800] I am satisfied that all 3 accused were familiar with Non-op accrued liability balances.

However, reference was made to these 2 accrued liability balances and it is helpful to look at

them in detail and see what they demonstrate.

The accrued liability balance for the Degree of Difficulty bonus –

$25 million

[801] The Degree of Difficulty accrued liability balance was created when Mr. John Roth was

Nortel CEO. It was created to provide for the risk created by the fact that Mr. Roth had the

authority, at his discretion, to pay a bonus to a senior executive. As a result, the Degree of

Difficulty bonus was payable at the discretion of the CEO. Ms. Mezon indicated that details

surrounding the payment of a Degree of Difficulty Bonus were considered confidential to the

CEO. The other Bonus Plans disclosed in the evidence were payable upon the recommendation

of the JLRC committee of the Board of Directors.

[802] Mr. Roth left Nortel in 2000. Accordingly, this accrued liability balance was set up prior

to that time. The original accrued liability balance was $19 million and later increased to $25

million.

[803] Due to the fact that Nortel was in extremely difficult financial circumstances from 2000

forward, it is not surprising that Mr. Dunn never attempted to use this balance to pay a bonus.

[804] The Crown suggested that the accused attempted to release this provision as a

substitution for the Intercompany Out Of Balance provision. It is the Crown’s position that

Deloitte & Touche would not agree to the release of any portion of the Intercompany Out Of

Balance accrued liability balance in Q2 03 because the entire Intercompany Out Of Balance

account was under review. It is the Crown’s position that the accused then attempted to release

both the Degree of Difficulty accrued liability balance and the General Provision as a substitute.

[805] It is also the Crown’s position that this provision had been identified in February 2003 by

Susan Shaw’s as a provision that should not be on the balance sheet and that it ought not to have

been, therefore, retained on the balance sheet in Q1 03.

[806] The inclusion of the Degree of Difficulty bonus in Ms. Shaw’s notes simply demonstrates

that she knew nothing about the details surrounding this accrued liability balance. Ms. Shaw had

no documentation herself because details surrounding the payment of a degree of difficulty

bonus were considered confidential. She knew that it had been on the books for a long time and

that it had not changed. As a result, Ms. Shaw included reference to this bonus in the notes she

prepared for her discussion with Deloitte in April 2003. In her April 14, 2003 Report, Ms. Shaw

recorded a brief description of the bonus plan and then the words “left in place per Frank Dunn”.

[807] This is perhaps an appropriate place to note that documentation existed supporting this

bonus plan. It was approved by Nortel’s Board of directors when it was created. The person, who

had the authority to pay the bonus, Mr. Dunn, was still employed at Nortel. Ms. Shaw’s note

“left in place per Frank Dunn” obviously means that Ms. Shaw had received information from

someone that Mr. Dunn wished to retain the discretion to pay a bonus to a senior executive.

96

[808] Nortel did not attempt to release this accrued liability balance in Q1 03. In Q2 03, the

attempt to release this accrued liability balance was unsuccessful because Mr. Hathway would

not approve it and the other balances which totaled $142 million. Even if the release of this

accrued liability balance would have been material to Nortel’s profit and loss statement in Q2 03,

it never happened. All that happened was that this $25 million accrued liability balance remained

on Nortel’s balance sheet where it always been.

[809] Mr. Hathway testified that, at the April 15, 2003 meeting, he questioned reference to this

accrued liability balance because Ms. Shaw, in her memo, did not indicate whether a bonus was

going to be paid.

[810] Even if the Crown’s submission is correct and it is true that Mr. Gollogly, Mr. Beatty and

Mr. Dunn attempted to release this accrued liability balance to substitute, in part, for the fact that

they could not release the Intercompany Out Of Balance accrued liability balance that is not the

end of the matter. The release never took place. It is not a crime for a corporation to try to

achieve a financial target. A line is crossed when, in pursuit of that goal, financial statements are

released to the public which misrepresent the corporation’s financial results. No such

misrepresentation was brought about by an unsuccessful attempt, if that is what happened, to

release the accrued liability balance associated with the Degree of Difficulty bonus.

[811] Mr. Richmond testified that it was Deloitte’s opinion that leaving the $142 million on the

Nortel balance sheet pending The Comprehensive Balance Sheet Review did not misrepresent

Nortel’s financial results. Mr. Chambers, the Crown’s expert, did not offer a contrary opinion.

[812] I attach no significance to the existence of the Degree of Difficulty accrued liability

balance. I attach no significance to the fact that Mr. Dunn wanted it left in place in Q1 03 and

subsequently changed his mind in Q2 03. I attach no significance to the fact that the 3 accused

unsuccessfully attempted to release this balance in Q2 03.

The accrued liability balance for the General Provision $10

million

[813] In an undated note, Ms. Shaw records that the General Provision was set up to cover

various items confidential to the Controller.

[814] The evidence indicated that the timing of the set-up of this General Provision was

unclear. Documentary evidence indicated that this accrued liability balance was set-up either in

Q3 00 or Q4 01. Mr. Beatty was the Controller of Nortel at the time. Helen Verity testified that

this provision was, in fact, held by the Controller. Ms. Mezon said she had very little knowledge

about this accrued liability balance except that it was confidential.

[815] This provision was not released in Q1 03. Ms. Shaw referred to it in her notes for the

April 15, 2003 meeting with Deloitte & Touche. In her report, the only note Ms. Shaw recorded

concerning this accrued liability balance was “left in place per Doug Beatty”. Ms. Shaw had no

information about this accrued liability balance except that it was confidential and held by the

Controller. Ms. Shaw indicated that this limited information had come from Brian Harrison or

Linda Mezon.

97

[816] Ms. Shaw indicated that the name of the accrued liability balance in the General Ledger

cannot be relied upon to define it. Ms. Shaw indicated that the only way to know the risk for

which an accrued liability balance was providing was to read the specific backup for it.

[817] Ms. Shaw pointed out in her evidence that this accrued liability balance was well-known

to Deloitte & Touche. It had been on the Nortel books for many quarters.

[818] Mr. Hathway indicated that he questioned the provision at that April 2003 meeting when

he saw it on Susan Shaw’s list. He testified that US GAAP did not permit a general provision

and that, unless there was more to this provision than Susan Shaw had provided, it was not

permitted. Mr. Hathway agreed that, even though he was new to the Nortel file, he was aware

that some of the provisions on Susan Shaw’s list, including this one, had been on Nortel’s

balance sheet for a long period of time. As indicated earlier Mr. Hathway had seen a soft

provisions list totaling $413 million which had been provided to Mr. Cawthorne in February

2003.

[819] Mr. Richmond testified that an accrued liability balance intended to provide for liability

generally, that is, a provision that was not tied to a specific liability, existed inside corporate

Canada and in the United States prior to 1999. In 1999, he testified there was a clear attempt to

eliminate this type of accrued liability balance. Accordingly the purpose of the provision needed

to be understood.

[820] Obviously Mr. Beatty could have been asked about the provision at any time. If the

provision was for a specific purpose then the only question would be whether Mr. Beatty thought

it was possible that he might use it. If the provision was general in nature it had to be eliminated

because it was contrary to US GAAP.

[821] An attempt was made to release this accrued liability balance to the profit and loss

statement in Q2 03. Ms. Shaw could not remember how it was that she learned that this balance

was to be released. Specifically, it was part of the $59 million in Non-op accrued liability

balances which were included in the $142 million of accrued liability balances which were, for a

short time during a preliminary close of Nortel’s Q2 03 general ledger, released to Nortel’s profit

and loss statement.

[822] In a note explaining why, in Q2 03, this accrued liability balance should be released to

the profit and loss statement, Ms. Shaw explained that specific drawdowns and the timing of

those drawdowns were unknown and, therefore, the accrued liability balance should be

eliminated.

[823] This accrued liability balance was not released to Nortel’s Q2 03 published profit and

loss statement. Karen Sledge testified that, during the first restatement, this accrued liability

balance was completely eliminated.

[824] The Crown suggested that the accused attempted to release this provision as a

substitution for the Intercompany Out Of Balance provision. It is the Crown’s position that

Deloitte & Touche would not agree to release any portion of the Intercompany Out Of Balance

accrued liability balance to Nortel’s profit and loss statement because the entire Intercompany

98

Out Of Balance account was under review. It is the Crown’s position that the accused then

attempted to release both this balance Degree of Difficulty balance as a substitute. This never

happened.

[825] Even if the Crown’s submission is correct and it is true that Mr. Gollogly, Mr. Beatty and

Mr. Dunn attempted to release this accrued liability balance to substitute, in part, for the fact that

they could not release the Intercompany Out Of Balance accrued liability balance that is not the

end of the matter. The release never took place. It is not a crime for a corporation to try to

achieve a financial target. A line is crossed when, in pursuit of that goal, financial statements are

released to the public which misrepresent the corporation’s financial results. No such

misrepresentation was brought about by an unsuccessful attempt, if that is what happened, to

release the accrued liability balance associated with the General Provision.

[826] It is also the Crown’s position that this provision had been identified in February 2003 by

Susan Shaw’s as a provision that should not be on the balance sheet and that it ought not to have

been, therefore, retained on the balance sheet in Q1 03. Ms. Shaw identified this provision as one

that Mr. Beatty wanted left in place. The only question is whether this accrued liability balance

existed to provide for a specific risk.

[827] As indicated this accrued liability balance was never released. It was included in the $142

million. It never affected Nortel’s profit and loss results. It remained on the balance sheet where

it had always been. Mr. Richmond testified that it was Deloitte’s opinion that leaving the $142

million on the Nortel balance sheet pending The Comprehensive Balance Sheet Review did not

misrepresent Nortel’s financial results. Mr. Chambers, the Crown’s expert, did not offer a

contrary opinion.

[828] I attach no significance to the existence of the General Provision accrued liability

balance. I attach no significance to the fact that Mr. Beatty wanted it left in place in Q1 03 and

subsequently changed his mind in Q2 03. I attach no significance to the fact that the 3 accused

unsuccessfully attempted to release this provision in Q2 03.

The $142 million in accrued liabilities which Nortel wished to release in Q2 03

[829] Mr. Hathway testified that Mr. Gollogly advised him that, in the initial close or one of the

initial closes of the General Ledger for Q2 03, Nortel had identified $142 million of reserves that

did not have support and had released those reserves to the profit and loss statement, thereby

positively impacting earnings by $142 million. Mr. Gollogly asked Mr. Hathway if this would be

acceptable to Deloitte & Touche. Mr. Hathway objected.

[830] Mr. Hathway indicated that his objection was that, because these amounts must have had

no support at the end of Q1 03, when these amounts were combined with the $80 million

released to income in Q1 03, they would have amounted to a material error in Nortel’s profit and

loss statement.

99

[831] As a result of Mr. Hathway’s objection, Mr. Gollogly returned the $142 million to

Nortel’s balance sheet where it had always been. This happened at the next preliminary close of

the General Ledger. Mr. Hathway had no recollection of discussing the $142 million release with

Mr. Beatty or Mr. Dunn.

[832] As a result of this occurrence, Deloitte insisted that Nortel undertake a comprehensive

review of its balance sheet. Mr. Gollogly had already instituted a balance sheet review. However,

this comprehensive balance sheet review was agreed on between Mr. Dunn and Mr. Richmond,

endorsed by Nortel’s Audit Committee and disclosed in Nortel’s public filings.

[833] The results of the comprehensive balance sheet review led to a decision to restate for the

first time Nortel’s previously-published financial results.

[834] Included in these $142 million balances were $59 million in Non-op accrued liability

balances from the $109 million in Non-op balances which Ms. Shaw discussed with Deloitte on

April 15, 2003.

[835] The return of the $142 million in releases resulted in the return to Nortel’s balance sheet

of $55 million out of the $59 million in Non-op accrued liability balances. The one release which

did not return to the balance sheet was a $4 million release that had to do with Siemens, which is

discussed elsewhere in these reasons.

[836] No published Nortel financial results reflected this $142 million as a component of

Nortel’s earnings.

[837] There is no doubt that Mr. Dunn and Mr. Beatty were aware of the momentary release of

the $142 million. Mr. Dunn told both Mr. Richmond and the Audit Committee that the $142

million represented all of the remaining unsupported accrued liability balances on Nortel’s

balance sheet. It was Mr. Dunn’s view that those liability balances should remain released to

Nortel’s Q2 03 profit and loss statement with the appropriate disclosure in Nortel’s financial

statements and press release. Mr. Beatty attended the Audit Committee meeting where these

releases were discussed.

Conclusion

[838] I am also satisfied that the attempt to release $142 million in accrued liability balances in

Q2 03 did not misrepresent Nortel’s financial results because Mr. Hathway objected to the

release and Mr. Gollogly returned the $142 million to Nortel’s balance sheet where those

balances had always been.

[839] Mr. Richmond testified that it was Deloitte’s opinion that leaving the $142 million on the

Nortel balance sheet pending The Comprehensive Balance Sheet Review did not misrepresent

Nortel’s financial results. Mr. Chambers, the Crown’s expert, did not offer a contrary opinion. I

adopt this conclusion is my own.

[840] The $109 million in balances which remained on Nortel’s balance sheet as Non-op

accrued liability balances were defined by Ms. Shaw as releasable provisions. Their presence on

the balance sheet raises an issue concerning the appropriateness of the certification signed by the

100

accused as part of the Nortel financial filings and the appropriateness of the Deloitte audit

opinions while those releasable provisions were on the balance sheet.

[841] Mr. Richmond testified that the $142 million, which contained $59 million from Ms.

Shaw’s list, was appropriately parked on the balance sheet pending the Comprehensive Balance

Sheet Review.

[842] The Crown’s expert, Mr. Chambers, in his report offered no opinion concerning the

appropriateness of the certifications of Mr. Dunn, Mr Beatty or Mr. Gollogly. He also offered no

comments concerning the Deloitte opinion which accompanied the Q1 03 published financial

statements.

[843] I am not satisfied that it is safe for me to draw a conclusion about this particular aspect of

the matter in the absence of such evidence.

[844] I am not satisfied beyond a reasonable doubt that the retention on Nortel’s balance sheet

of $109 million of accrued liability balances which Ms. Shaw identified as releasable

misrepresented Nortel’s financial results.

[845] I am satisfied, based on my acceptance of Ms. Shaw’s evidence, that Ms. Shaw at the

April 15, 2003 meeting fully-disclosed to Deloitte the circumstances surrounding the release of

$80 million in accrued liability balances, as well as the circumstances surrounding and the

decision to keep the remaining $109 million in accrued liabilities on the balance sheet.

[846] The $80 million which was released in Q1 03 had been conclusively determined to be

unsupportable. Deloitte, the Audit Committee, Ms. Shaw and all the accused knew that there

were no triggering events in Q1 03 which required the release of this $80 million. It was

obviously the view of everyone involved that the disclosed release of this $80 million would not

materially affect Nortel’s balance sheet profit and loss statement and thereby misrepresent

Nortel's financial results. As indicated elsewhere in these reasons, I agree with this conclusion. I

mention it here to note that the way in which the release of the $80 million was handled was

unobjectionable.

[847] Disclosure of the fact that Nortel’s financial results for Q1 03 were positively affected by

the release of this $80 million was included in Nortel’s published financial statements and the

press release announcing the Q1 03 financial results.

[848] When I consider all of the evidence, including the evidence to which I have specifically

referred, I am not satisfied that the release of this $80 million misrepresented Nortel’s financial

results.

The use of Outlooks and Roadmaps in 2003

[849] Nortel management used documents known as Outlooks and Roadmaps in connection

with forecasting. Several Outlooks, approximately five, were prepared for every quarter.

[850] Mr. Brian Harrison prepared many of the Outlooks and Roadmaps which were entered

into evidence. Mr. Harrison was assigned to the Global Planning and Reporting Group.

101

[851] Mr. Harrison said the Outlook’s purpose was to provide insight into the estimates that the

various business units provided to management. Mr. Harrison indicated that, in the volatile

environment in which Nortel found itself, with cash challenges, downsizing and a soft market,

forecasting was important.

[852] Mr. Harrison indicated that the Outlook process called for him to collect forecasts and

other information from each of the business units through their financial representatives and

consolidate those forecasts into an overall view. The Outlooks which he produced included

information about accrued liability balances that the business units had released in the quarter;

the Outlooks included information about possible releases of accrued liability balances to

income. Mr. Harrison’s evidence in this regard is confirmed by notations identifying possible

releases which appear on some of the Outlooks.

[853] Mr. Harrison received the financial information used in his Outlooks from contacts

within the Finance Groups of the various units within Nortel.

[854] Mr. Harrison prepared Outlooks whenever he received news of any importance from the

various business units.

[855] The business units engaged in active operations were known as: Enterprise, Wireline,

Wireless, and Optical. There were two other units, Corporate and Non-Op, referred to on these

Outlooks and Roadmaps. As indicated earlier, Corporate was a consolidation of the various

corporate functions such as real estate, human resources etc.; Non-op was a catchall – a

collection of everything that was left over.

[856] Mr. Harrison did not perform calculations to arrive at the numbers employed in the

Outlooks which he created; he did perform the mathematical calculations within the Outlook

itself.

[857] Mr. Harrison included a Gross Margin in his Outlooks calculation because Gross Margin,

in his experience, was a useful metric for profitability. In Mr. Harrison’s experience, Nortel’s

gross margin during the time-frame of this indictment was in the 40% range.

[858] Mr. Harrison testified that he prepared a document known as a Roadmap. His evidence

was that Roadmaps were started in February 2003; they were prepared in Q1 03 and Q2 03 and

not after that time. Mr. Harrison described them as a modeling exercise.

[859] According to Mr. Harrison, a Roadmap was more ambitious than an Outlook; it described

where Nortel wanted to go rather than where it was heading. Mr. Harrison said that the

difference between an Outlook and a Roadmap was that a Roadmap reflected what the business

units would like to achieve or had been asked to achieve. Roadmaps included items positively

affecting earnings such as higher sales, reduction of expenses and accelerated deal closings to

record revenue sooner and releases or possible releases of accrued liability balances to income.

[860] Mr. Harrison indicated that he received information on a variety of fronts from the

business units concerning what had actually occurred in relation to their attempts to achieve their

targets.

102

[861] Mr. Harrison testified that it was his responsibility to work with the business units to

determine how the business units were going to achieve the target.

[862] Mr. Harrison described the Roadmap as a hypothetical scenario. He indicated that it was

not clear to him when he was creating these hypotheses that they were doable; rather, they were

based on the best information he had from the various business units.

[863] Mr. Harrison indicated that the targets in the Roadmaps came from Mr. Beatty, although

in one instance, a target for a Roadmap came from Mr. Dunn. Mr. Harrison stated that the

targeted figure was pro forma income earnings before taxes. Mr. Harrison indicated that he

passively accepted the target and prepared his Outlooks with the target as a given.

[864] Mr. Harrison indicated that the practice of setting targets was a long-standing one at

Nortel; this practice did not originate with Mr. Beatty or the other defendants. Mr. Harrison also

testified that the practice of preparing Outlooks pre-dated Mr. Beatty’s appointment as CFO.

[865] Mr. Harrison testified that, despite the fact that he reported to the Controller, the main

customer for his Outlooks and Roadmaps was the CFO, Douglas Beatty, although e-mail

evidence demonstrated that, on occasion, the Outlooks and Roadmaps were shown to Mr. Dunn

and the business unit presidents, who were collectively referred to as the “FAD Cabinet”.

[866] I am satisfied that the targets set by Mr. Beatty and contained in the Roadmaps were

approved by Mr. Dunn. Given the precarious financial position of Nortel, it is inconceivable that

financial targets would be set for the various business units without the approval of the CEO. Mr.

Gollogly was also aware of these targets because he was on the Outlook distribution list.

[867] Mr. Harrison left Nortel in June 2003 and, thereafter, the Outlook process, including

Roadmap preparation, was taken over by Mr. Peter Dans. Mr. Dans had assisted with the

preparation of Outlooks prior to taking over from Mr. Harrison.

[868] According to Mr. Dans, the Outlook was part of a standard process whereby the Global

Planning and Reporting Group collected forecasts from the various leadership categories and

consolidated them into a forecast for the subsequent quarters.

[869] Mr. Dans described the Outlook process as a short-term forecast that tended to focus on

two or three quarters out from the time the Outlook was prepared.

[870] Mr. Dans said that he first became aware of Roadmaps in February or March 2003. Mr.

Dans indicated that, from that point onward, the Outlook package also included a Roadmap and

was, therefore, received by all persons who were on the Outlook distribution list.

[871] It was Mr. Dans’ evidence that a Roadmap was an analysis or scenario that was put

together by the Global Planning and Reporting Group. It was quite often based on an Outlook.

According to Mr. Dans, the Global Planning and Reporting Group came up with targets for

revenue and profitability. Mr. Dans then reviewed his analysis with his superior, Peter Browne,

and then with Douglas Beatty. Mr. Dans understood that Mr. Beatty reviewed these targets with

Mr. Dunn.

103

[872] Mr. Dans’ evidence in this regard is slightly different than Mr. Harrison’s. In my view,

Mr. Harrison sought to distance himself from the target-setting process which I found odd, given

that he was the Director of Global Planning and Reporting. I prefer the evidence of Mr. Dans in

this regard concerning the origination of targets.

[873] Mr. Dans testified that the Corporate Planning and Reporting Group where he was also

assigned would ask the various business units to indicate the extent to which balance sheet

releases were included in their forecasts and then record these releases separately within the

Outlook package. Mr. Dans indicated that the Global Planning and Reporting Group did not

segregate provision releases according to whether they had been triggered in the current quarter;

they just looked at provision releases in general. It is clear that balance sheet releases to income

were recorded on the Outlooks and Roadmaps and I accept Mr. Dans’ evidence in this regard.

[874] Some of the Outlooks referred to accrual liability releases as “balance sheet”; this was

later changed to “other” at the suggestion of Mr. Beatty. Mr. Beatty apparently offered no reason

for the terminology change.

[875] Mr. Harrison testified that the Outlook distribution list was limited. Mr. Dans testified

that Mr. Beatty would further distribute the Outlook package if he thought it advisable. The

Outlook package was forwarded to Mr. Peter Browne when Mr. Harrison reported to him and to

Michael Gollogly when Mr. Harrison reported to him.

[876] I attach no significance to the fact that the distribution of Outlooks and Roadmaps was

relatively narrow because there are disclosures issues which arise when confidential financial

information is widely disseminated within the corporation but not otherwise publicly made

known.

[877] The Crown pointed out that the presentations made to the Board of Directors consistently

understated what senior management believed Nortel’s actual results would be. Mr. Harrison,

who prepared the Outlooks, offered his own observation which was that commitments to the

Board of Directors were more conservative generally. Mr. Harrison explained that his Outlooks

had a short shelf life. They were frequently replaced by other Outlooks. Board communications

were more rigid and less frequent and, in his experience, more conservative. Mr. Harrison said

the Outlooks were a short-term management tool to generate discussion. The Board update was

more like placing a marker to explain how Nortel was doing versus its budget.

[878] The Crown suggested that the Board was not given accurate information about Nortel’s

performance. The Crown suggested that Mr. Beatty deliberately understated Nortel’s financial

results and withheld Mr. Harrison’s Outlooks.

[879] The Crown’s suggestion applies to all three accused because the evidence was that Mr.

Dunn, Mr. Beatty and Mr. Gollogly attended Audit Committee and Board of directors meetings

when Board updates were presented.

[880] I am satisfied that any financial presentation to the Audit Committee or the Board of

Directors was, in effect, a representation to the Board by all three accused.

104

[881] I previously referred to Exhibit 42E and the portion of it I found unreliable. I now

propose to refer to other information contained in that exhibit. Exhibit 42E was used by the

Crown to put some specificity to the argument that the Audit Committee received understated

estimates concerning Nortel’s financial performance.

[882] On January 23, 2003, Mr. Beatty provided the Board with a financial forecast update for

Q1 03 which predicted a pro forma loss of $112 million. Mr. Beatty also advised the Board that

Nortel could expect a US GAAP loss of $240 million.

[883] On February 27, 2003, Mr. Beatty provided the Board with a financial forecast update for

Q1 03 which predicted a pro forma loss of $50 million. Mr. Beatty also advised the Board that

they could expect a US GAAP loss of $128 million.

[884] By March 28, 2003 Mr. Beatty provided the Board with a financial forecast update for

Q1 03 which predicted a pro forma loss of $20 million. Mr. Beatty also advised the Board that

they could expect the US GAAP loss of $48 million.

[885] On April 24, 2003, Mr. Beatty advised the Board that Nortel achieved a pro forma profit

of $40 million. Mr. Beatty also advised the Board that Nortel achieved US GAAP profit of $54

million.

[886] It would be obvious to the Board that Nortel’s results for Q1 03 were improving

throughout the quarter. Secondly, among other things, the Board would know that these results

were based on revenues of $2.4 billion which helps to put the fluctuations into perspective.

[887] In Q2 03 (which began April 1, 2003), Mr. Beatty advised the Board on April 22, 2003 in

a financial update that Nortel would report pro forma earnings before taxes for Q2 03 of $25

million. Mr. Beatty also advised the board to expect a US GAAP loss of $54 million.

[888] On May 2, 2003, Mr. Beatty advised the Board to expect a pro forma profit of $25

million. Mr. Beatty also advised the Board to expect the US GAAP loss of $54 million.

[889] On May 29, 2003, Mr. Beatty advised the Board in a financial update that Nortel was

anticipating a pro forma profit for Q2 03 of $25 million. Mr. Beatty also advised the Board to

expect the US GAAP loss of $54 million.

[890] On July 28, 2003, the Board was advised that Nortel’s pro forma profit for Q2 03 was

$34 million. Mr. Beatty also advised the Board that Nortel experienced a US GAAP loss of $14

million.

[891] Nortel’s revenues for Q2 03 were $2.3 billion.

[892] In Q3 03 (which began July 1, 2003), the Board was advised in a financial update, dated

July 28, 2003, to expect a pro forma loss before taxes of between $30 million and $60 million.

Mr. Beatty also advised the Board to expect the US GAAP loss of between $40 million in $70

million.

105

[893] On September 25, 2003 in two financial updates, the Board was advised that Nortel’s pro

forma gain before taxes for Q3 03 was predicted to be $65 million or, alternatively, between $50

and $75 million. Mr. Beatty also advised the Board that the US GAAP income was predicted to

be $51 million or, alternatively, between $45 million and $65 million.

[894] On October 23, 2003, the Board of Directors was advised that Nortel was expecting a pro

forma profit before taxes of $172 million. Mr. Beatty also advised the Board to expect a US

GAAP profit of $179 million.

[895] On November 21, 2003, the Board was advised that for Q3 03 the pro forma gain before

taxes was $179 million. Mr. Beatty also advised the Board that Nortel US GAAP profit was $185

million.

[896] Nortel’s revenues for Q3 03 were $2.2 billion.

[897] The evidence indicated that forecasting can be difficult. Nortel’s difficulty with

forecasting in Q1 03 is demonstrated by the circumstances surrounding the Arris proposal.

The Arris Proposal

[898] On the day after Mr. Beatty provided his January 23, 2003 Board update (which predicted

a US GAAP loss of $240 million), he received an e-mail telling him about a proposal from the

Board of Arris. Nortel owned 27% of Arris and the majority owners of Arris wanted to buy

Nortel out. The buyout, if it took place, would increase Nortel’s US GAAP income by

approximately $137 million.

[899] In Q1 03 Nortel, eventually accepted a proposal from Arris, although the transaction did

not close until March 2003, shortly before the end of Q1 03.

[900] Obviously, Mr. Beatty could not go to the Audit Committee the day after he made his

financial update presentation and advise them that there was a possibility of a dramatic

improvement in US GAAP net income in Q1 03. It was not clear until March that there would

actually be a deal. There was evidence that the chair of the Audit Committee was in regular

contact with Mr. Dunn and was very often given a “heads up” about what was happening.

[901] The Arris Proposal illustrates not only the vagaries of forecasting, but also the sense of

urgency on the part of Mr. Beatty and others within Nortel to close the transaction in Q1 03 and

significantly improve US GAAP earnings in that quarter.

Deloitte’s interest in forecasting

[902] Mr. Harrison testified, and his evidence was confirmed by e-mail correspondence and

Deloitte and Touche business records, that the forecasting process which he used was reviewed

by Nortel’s auditors in Q4 2002.

[903] Mr. Harrison also indicated that Deloitte & Touche were interested in forecasting to assist

in planning. At this time, Deloitte was required to express an opinion on the likelihood of Nortel

106

remaining in business in the twelve months following their audit or quarterly review This

confirms Mr. Harrison’s evidence in this regard.

[904] Accordingly, I accept Mr. Harrison’s evidence concerning Deloitte’s interest in

forecasting.

[905] Mr. Dans indicated that Deloitte and Touche were provided with a copy of the final

Outlook for Q1 2003 and Q2 2003. It was also his recollection that Deloitte & Touche were

provided with both a preliminary and final Outlook for Q2 03. Mr. Dans confirmed that the

process worked out with Deloitte & Touche was that they were given the last Outlook of the

quarter so that they could compare the actual results with the final Outlook. In addition, there

was a telephone conference with each of the heads of the business units, Mr. Dans and

representatives of Deloitte & Touche during which the actual results were presented and

variances, if any, between those results and the final Outlook explained. Exhibit 53 confirms that

the Outlook, dated September 17, 2002, was provided to Deloitte & Touche as part of their audit

of the forecasting process. In addition, some further confirmation of Mr. Dans’ evidence is

provided in Exhibit 65 – an internal Deloitte & Touche e-mail – forwarding “the most recent

outlook/forecast”. There was some evidence that the Outlooks provided to Deloitte & Touche

were in a different format than the internal Nortel Outlook package; the content, however, was

similar.

[906] Exhibit 2, tab 94 is an e-mail. This e-mail records that “D & T will be looking for the

Outlook and the list of accrued liability balances to be released to the profit and loss statement”.

This e-mail establishes that at least some of the Outlooks produced by Mr. Harrison and Mr.

Dans were provided to Deloitte & Touche and that these Outlooks included the accrued liability

balances that were to be released to the profit and loss statement.

[907] I accept Mr. Dans’ evidence that Outlook packages were provided to Deloitte & Touche

during Q1 and Q2 2003 and that Deloitte & Touche was aware of the Outlook forecasting

process which he employed. Mr. Dans could not recall Deloitte & Touche receiving Roadmaps

and I find that none were provided to them.

[908] During the close period when the consolidated financial results were being prepared, Mr.

Harrison also prepared for Mr. Gollogly and the Assistant Controller, Linda Mezon, a similar

looking document, also called an Outlook, based on actual numbers to provide management with

a perspective on the evolving financial results for the quarter. This update was prepared daily and

each time there was an update of the General Ledger. By this method, management could

compare the actual results recorded in the General Ledger with the targeted results that Mr.

Harrison had been preparing in the form of Outlooks and Roadmaps throughout the quarter.

[909] I accept the evidence of Mr. Harrison and Mr. Dans concerning the preparation and

distribution of Outlook packages including Roadmaps. Their evidence in this regard was entirely

consistent with the documentary evidence.

[910] I am satisfied that the Board was given accurate, albeit understated, updates about

Nortel’s progress through each of the three quarters to which I referred. I am satisfied that the

Board was given predictions about Nortel’s performance which were deliberately understated in

107

the sense that Mr. Dunn, Mr. Beatty and Mr. Gollogly were confident that the targets which they

had predicted could be achieved. The Audit Committee and the Board of Directors were

composed of experienced sophisticated directors whom I would expect to be able to assess

management’s targets.

[911] I do not find it unreasonable that the three accused would avoid promising the Audit

Committee more than it might be able to deliver. Hitting the target was an important part of

Nortel’s culture. Mr. Kinney offered the observation that one negotiated targets to succeed not to

fail and I accept his evidence in this regard as an accurate description of the Nortel approach to

target setting.

[912] I am satisfied that the financial updates provided to the Board of Directors accurately

presented Nortel’s financial results. Even if I had not come to this conclusion, I would not have

been persuaded by the evidence that it was proven beyond a reasonable doubt that the financial

updates misrepresented Nortel’s financial results.

The 2003 Outlooks and Roadmaps tracked proposed releases

The February 19, 2003 teleconference

[913] I have already commented on the fact that the Outlooks and Roadmaps tracked releases

of accrued liability balances to income. The Crown also introduced other evidence which, in its

submission, supported the idea that the accused were managing earnings by arbitrarily releasing

accrued liability balances to income contrary to US GAAP and thereby misrepresenting Nortel’s

financial results to the investing public and Nortel’s Audit Committee and Board of Directors

[914] Mr. Harrison testified that he participated in a conference call on February 19, 2003 with

Mr. Beatty, Mr. Gollogly and the four Vice-Presidents of Finance for the four business units:

Wireline, Wireless, Enterprise and Optical. Mr. Dunn did not participate in the call.

[915] At this time, Mr. Harrison had prepared a Roadmap which was part of a series of

documents entitled, “2003 Financial Commitment”. This document was prepared for Mr. Beatty,

who intended to present it at Mr. Dunn’s cabinet meeting. Mr. Dunn’s cabinet, or the FAD

Cabinet, consisted of all the persons reporting directly to Mr. Dunn; that is, the Presidents of the

business units.

[916] Mr. Harrison’s Roadmap contained a target of a $20 million pro forma loss before taxes.

This represented an improved target from a previous Q1 03 Roadmap. Similarly, there was a new

improved Q2 03 target.

[917] In Q1 03, the Roadmap required Corporate to achieve a $2 million improvement over

budget; the Roadmap required Non-op to achieve a $13 million improvement over budget.

[918] Mr. Harrison said Corporate and Non-op were not revenue-producing business units. It

was Mr. Harrison’s view that Corporate could achieve the increase required ($2 million) by

spending less. It was Mr. Harrison’s view that there were a variety of income and expense lines,

including releasing accrued liability balances to the profit and loss statement in Non-op that

could be used to achieve the $13 million improvement required of it by the Roadmap.

108

[919] The Roadmap indicates that there is still a $12 million shortfall which is represented by a

$12 million “plug” to hit the target. This plug is recorded under Non-op. Mr. Harrison indicated

that he recorded the shortfall under Non-op because it was the least contentious way to record it.

Apparently, if Mr. Harrison had tried to record the $12 million shortfall under any of the active

business units, the heads of those units would have objected.

[920] Mr. Harrison testified that he made notes of the conversation on the Roadmap which was

entered as a Nortel business record (Exhibit 1, tab 45). He identified his handwriting on portions

of the Roadmap.

[921] Part of the documentation shows whether meeting the Roadmap target will result in the

payment of Return to Profitability Bonus, the RSU bonus and the Success Bonus.

[922] Mr. Harrison made notes of the call as the call was progressing. According to Mr.

Harrison’s notes, the Vice-President of Finance for Wireless said he could meet his $70 million

Roadmap and that he would be releasing $50 million of accrued liabilities to his profit and loss

statement in order to do that. The Vice-President for Enterprise said that he could achieve his

target and that Enterprise would be releasing $8 million of accrued liability balances to the profit

and loss statement. The Vice-President Finance for Wireline indicated that it would be able to

achieve its Roadmap target and would be releasing $20 million. The Finance Vice-President for

Optical indicated that it could achieve its target and it would be releasing $21 million in accrued

liability balances. There appears to have been no discussion concerning the shortfall.

[923] According to Mr. Harrison’s notes, the various Finance Vice-Presidents indicated that

they could achieve the Roadmap target and that they would be releasing, in total, $99 million of

accrued liability balances to the profit and loss statement.

[924] This presentation also contains a Roadmap for Q2 03. This Roadmap sets a target of

positive $54 million in earnings before taxes. This Roadmap contains a “plug” or shortfall of $22

million.

[925] According to Mr. Harrison’s notes, the Vice-President Finance for Wireless indicated that

it could reach this target and that it would be releasing zero accrued liability balances. The Vice-

President Finance for Enterprise indicated that it could achieve its Roadmap target for Q2 03 and

that it would be releasing $7 million in accrued liabilities from its balance sheet to its profit and

loss statement. The Vice-President Finance for Wireline indicated that it could achieve its Q2

Roadmap target and that it would be releasing $15 million. Mr. Harrison noted that the Vice-

President of Finance for Optical indicated that it could achieve the Roadmap target and that it

would be releasing $20 million in accrued liability balances. There appears to have been no

discussion concerning the shortfall.

[926] Mr. Harrison said that these Vice-Presidents were indicating what they realistically

thought they could achieve.

[927] Mr. Harrison’s evidence in-chief was to the effect that the information concerning the

release of accrued liability balances was in addition to the acceptance of the target by the various

Finance Vice-Presidents. The gist of his evidence was, for example, that the Vice-President

109

Finance for Enterprise indicated in the conference call that Enterprise could not meet the $85

million target suggested for it in the Roadmap in Q1 03, but could meet a target of $80 million

and that included in its revenues would be $8 million in accrued liability balances that had been

released to the profit and loss statement.

[928] Mr. Crosson, who attended the teleconference, had no specific recollection of the

teleconference.

[929] Mr. Kinney described the Roadmap as a “what if scenario”. Mr. Kinney’s version of this

teleconference prior to the trial apparently had been that he had been given the target for

Wireless on February 3, 2003 and asked to use the release of accrued liability balances from

Wireless’ balance sheet to meet the target.

[930] At the trial, however, Mr. Kinney’s evidence was different. Mr. Kinney confirmed that

his original recollection of this matter was that he could not remember a telephone call on

February 19, 2003. However, over the years, he had been shown documents to help refresh his

memory and that, as a result of looking at those documents; he had come to believe what I set out

in the previous paragraph.

[931] Mr. Kinney agreed that counsel for Mr. Dunn had shown him documents at an interview

immediately prior to his testimony. Mr. Kinney agreed that, based on those documents, he was

now satisfied that the $75 million target for Wireless came from Wireless itself as far back as

December 13, 2002. Documentary evidence tendered on cross-examination made it clear that the

President of Wireless suggested the $70 million target to Mr. Dunn on January 15, 2003.

Apparently, there had been some negotiation between the President of Wireless and Mr. Dunn in

January 2003, which resulted in the target for Wireless being pushed back to $70 million from

$75 million.

[932] It was very clear on cross-examination that Mr. Kinney’s recollection of this matter has

been confused over the years. Mr. Kinney concluded by saying, “I am the first to admit that I

have probably mixed them all up…”

[933] Mr. Kinney testified that he and his staff paid attention to potential releases of accrued

liability balances to the profit and loss statement. Mr. Kinney stated that he and his staff would

try to resolve outstanding issues and obtain releases from his customers so that accrued liability

balances could be released to the profit and loss statement in a particular quarter. He mentioned

Qualcomm as an example of an issue that he thought he would be able to resolve in Q1 03. He

also indicated that there were some matters not resolved in Q4 02 which he thought could be

resolved in Q1 03.

[934] Finally, Mr. Kinney was referred to an Outlook, dated February 6, 2003, in which

Wireless projected $48 million in releases of accrued liability balances. Mr. Kinney agreed that it

appeared that he already knew at the time of the February 3 phone call that Wireless was

projecting $48 million in releases of accrued liabilities.

[935] Projections about balance sheet releases were not always positive. Specifically, Mr.

Kinney pointed out that when he was asked about possible releases of accrued liability balances

110

for Q2 03, he indicated there would be zero releases from Wireless in that quarter. In December

2002, Mr. Crosson told Mr. Harrison that he was considering increasing the accrued liability

balance for excess and obsolete inventory by $50 million. Mr. Harrison recorded this on his

December 19, 2002 Outlook. Mr. Crosson changed his mind.

[936] I am satisfied that Mr. Kinney’s recollection of the telephone calls of February 3 and

February 19, 2003 is unreliable.

[937] I am also satisfied that the documentation confirms Mr. Harrison’s evidence of these two

teleconferences. The Q1 Roadmap at Exhibit 1, tab 45 was a target which represented an

improvement upon Nortel’s Q1 03 budget target. This target, I am satisfied, was communicated

to Mr. Harrison by Mr. Beatty and then discussed with the Vice-Presidents of Finance of the

various business units.

[938] I am satisfied that these discussions, as recorded in Mr. Harrison’s notations on Exhibit 1,

tab 45, represented two pieces of information: whether the business unit could meet the revised

target and to what extent the unit would be relying upon releases of accrued liability balances.

[939] Nortel was in an extremely difficult financial situation; forecasting was both difficult and

important.

[940] I am satisfied that Mr. Harrison was interested in this information because he thought it

was part of his job to understand whether or not Nortel’s various business units were generating

positive net income on their operations.

[941] The reference to balance sheet releases in the Roadmaps is disconcerting. On the one

hand, tracking releases suggests earnings management; on the other hand, it is undeniable that

Mr. Kinney indicated that Wireless would have zero balance releases in Q2 03. Mr. Harrison

noted his comments on Exhibit 1, tab 45, document number 505-5637. Mr. Kinney’s comment of

zero balances, as noted by Mr. Harrison at the time, is consistent with the Vice-Presidents of

Finance for the business units keeping Mr. Harrison aware of the contribution anticipated from

balance sheet releases in each quarter.

There was also a part of Nortel’s culture which understood that the balance sheet could be used

to achieve the target. In a July 31, 2003 e-mail, Mr. Gollogly makes the following observation:

“it seems like a throwaway comment, but if we clean up the balance sheet, the LC’s ability to

deliver earnings based partly on discretionary elements pretty much goes away”. There are other

references in emails to digging up “opportunities” and having “flexibility”.

[942] The claim by Mr. Harrison and Mr. Dans that they tracked proposed accrued liability

balance sheet releases throughout the quarter in their Outlooks and Roadmaps for forecasting

purposes and so that they could encourage events triggering these releases within the quarter is

supported by notes that appear in the Outlook packages. For example, see the Q2 2003 Roadmap

at Exhibit 2, tab 78. The Roadmaps also include notes concerning the setup of accrued liabilities

and expenses (see: for example, Exhibit 1, tab 35). The Outlooks also include written notes

concerning potential impacts which have yet to be included in the forecast (see also: Exhibit 1,

tab 35).

111

[943] I am not satisfied that that these two telephone calls represent an example of Mr.

Gollogly, Mr. Beatty and the Vice-Presidents of Finance of Nortel’s business units discussing

how they would each resort to their balance sheet without regard to US GAAP to meet the

February Roadmap financial earnings before taxes target of $20 million referred to in Exhibit 1,

tab 45.

[944] I am satisfied that Mr. Harrison, for his own forecasting purposes, wanted to know the

extent to which releases of accrued liability balances were assisting the business units in meeting

their financial target.

[945] I am not satisfied that these two telephone calls represent Mr. Gollogly, Mr. Beatty and

the Vice-Presidents of Finance of Nortel’s business deciding to use approximately $100 million

in excess accrued liabilities to meet financial targets.

The June 6, 2003 Outlook and the surrounding events

[946] The Crown also suggested that the true nature of the Outlook and Roadmap process was

demonstrated by events which occurred around the June 6, 2003 Outlook.

[947] Mr. Beatty made notes of his attendance at the June 18 Frank Dunn Cabinet meeting. Mr.

Dunn’s cabinet consisted of the Presidents of Nortel’s business units. Mr. Beatty’s notes read in

part “FAD Staff Meeting… Q2 results-embarrassed/ashamed-no RTP-grow the top line/cut

costs”.

[948] The Crown asked me to infer that Mr. Beatty recorded Mr. Dunn’s comments. The e-mail

traffic prior to the meeting makes it clear that Mr. Beatty was presenting his June 6, 2003

Outlook. As part of the backup for his presentation, Mr. Beatty had what was termed a “Q2 2003

Bottom-up Roll up”. The Bottom-up Rollup reflected the actual experience of the business units

in Q2 03 as of June 6, 2003. Q2 03 ended on June 30, 2003.

[949] The Bottom-up Rollup stated that, if the books were closed on June 6, 2003, Nortel

would experience a pro forma loss before taxes of $45 million and a loss calculated according to

US GAAP of $95 million.

[950] The Crown suggested that, on June 20, 2003, two days after the Frank Dunn cabinet

meeting, Nortel’s Bottom-Up Rollup suggested that, if the books were closed that day, Nortel

would experience a pro forma gain before taxes of $50 million and US GAAP net income of

zero.

[951] This improvement, according to the Crown, resulted from a $129 million increase in

liability balances released to the profit and loss statement. Specifically, on June 6, accrued

liability balance releases totaled $179 million and, on June 18, totaled $308 million.

[952] Finally, the Crown points out that the June 20 Outlook also tracked whether the required

RSU Bonus Plan milestone would be met.

[953] If one accepts the Crown’s argument, then one has to assume that the Presidents of the

business units left Mr. Dunn’s cabinet meeting on June 6 and returned to their business units and

112

began releasing accrued liability balances to the profit and loss statements to improve their

financial performance so that Mr. Dunn would no longer feel “embarrassed and ashamed” and so

that they would avoid any consequences attendant upon Mr. Dunn feeling like that. While this

sounds plausible enough, it actually is not when you consider what was actually going on within

Nortel at this time.

[954] Mr. Dans testified, and his evidence in this regard was not challenged, that Nortel had

been going through a process of balance sheet reviews initiated by Mr. Gollogly in June 2003.

These reviews are to be distinguished from the Comprehensive Balance Sheet Review which was

formally launched on July 31, 2003. These reviews were being used to identify excess accrued

liability balances, as well as any accrued liability balances that were to be released in Q2 03 in

the normal course. All of these balances were fed centrally into corporate headquarters in

Brampton so that headquarters could understand them. Initially, the accrued liability balances

were released into the profit and loss statement and then reviewed by a corporate control team

working with Deloitte & Touche. Obviously, some releases would be normal course releases and

others would represent a cleaning-up of the balance sheet.

[955] Not surprisingly, it was in Q2 03 that Mr. Gollogly informed Mr. Hathway that $142

million in releases for which there was no support had been released to Nortel’s profit and loss

statement in an early preliminary closing of the general ledger.

[956] I do not find it logical that the Presidents of the business units would indiscriminately

release accrued liability balances to attempt to satisfy Mr. Dunn in the face of this type of

scrutiny. To the extent that these excess accrued liability balances represented a “cookie jar”,

they were, in effect, at least partially emptying the “cookie jar” in a pointless exercise. Decisions

to release liability balances which were not US GAAP compliant would likely be discovered

when the release was reviewed by headquarters and the auditors.

[957] Assuming that the Presidents were upset by Mr. Dunn’s comments and move to do

something about it, it is unlikely that this could have taken place between June 18 and June 20.

Mr. Dans testified that his Outlooks were based on information which the business units had

received and consolidated from the regions in which they were operating. When Mr. Harrison

was soliciting the set-up of late entry accrued expenses/liabilities in Q4 02, his contacts within

the Regions first had to call their own contacts to identify specific accrued expenses/liabilities. It

seems reasonable that, in seeking to locate specific accrued liabilities for release, a similar

process would be followed. It is difficult to see this being done within two days. Further, there

was no necessity to complete the process within two days because Q2 03 did not end until June

30, 2003 and the business units were not required to close in their sub-ledgers for a few days

after that.

[958] I cannot accept the Crown submission. The events surrounding the June 6 and June 20

Outlooks seem to me to be disconnected from the submission of accrued liability balances to

Nortel head office.

113

The release of the $4 million Siemens accrued liability balance

[959] The Crown suggested that the way in which the Siemens accrued liability balance was

manipulated illustrated the management of earnings to achieve a bonus target. The Siemens $4

million dollar release occurred originally in Q2 03. This is an appropriate place to examine that

release in detail.

[960] In connection with the January 28, 2000 acquisition of a company called Qtera, that

company and two of its employees were named as defendants in a lawsuit filed by Siemens ICN

in Palm Beach County Florida. The lawsuit (Siemens v. Qtera, Diner & Cao) alleged, among

other things, misappropriation of trade secrets.

[961] An accrued liability balance was set up to allow for the fact that Nortel might be

unsuccessful in defending the lawsuit. The original accrued liability balance was in the amount

of $36 million; it was part of a larger entry involving various Qtera balances.

[962] The original accrued liability balance was set up in Q3 01. In Q4 01, a portion of this

balance, namely $32 million, was internally re-classified from Corporate to the United States

where the litigation was taking place. This left the $4 million balance in Corporate on account of

the Siemens litigation.

[963] Mr. Beatty was Nortel’s Controller at this time and responsible for Corporate accrued

liability balances.

[964] Nortel entered into a settlement agreement with Siemens on September 17, 2001. Nortel’s

first payment to Siemens on account of the settlement in the amount of $20 million occurred on

October 25, 2001. A final payment of $12 million due in October 2002 remained.

[965] Mr. Beatty was required, as the CFO, to authorize the final $12 million payment. Upon

being requested to authorize this payment, Mr. Beatty asked Mr. Gollogly, the Controller in

October 2002, to look into the matter and advise him about it. Mr. Beatty was later told that the

proposed final payment amount was correct and the final payment was made in October 2002.

Accordingly, as of October 2002, approximately $32 million of the original $36 million accrued

liability balance had been used. The accrued liability balance in the amount of $4 million

remained with Corporate.

[966] When Ms. Shaw met with Mr. Harrison in February 2003 to discuss Non-op accrued

liability balances, she did not identify the Siemens $4 million accrued liability balance as one

that should be released.

[967] In the notes she prepared for her meeting on April 15, 2003 with representatives of

Deloitte, the Siemens $4 million was not part of the $80 million that had been released in Q1 03.

However, the $4 million Siemens accrued liability balance was referred to in Ms. Shaw’s notes

as a Non-op liability balance. Specifically, Ms. Shaw recorded: “this provision was established in

Q3 01 for potential exposures relating to a legal suit with Siemens. This settlement was made in

Q4 02 after extremely rancorous dealings with Siemens. It was determined by management that

this provision would be left in place for a couple of quarters after the settlement to ensure no

further claims were made or adjustments to the settlement”.

114

[968] The Siemens $4 million accrued liability balance was released to the profit and loss

statement in Q2 2003; ultimately, the $4 million excess accrual balance was restated during the

First Restatement to Q4 2001 when the litigation was settled.

[969] Deloitte’s view in the first restatement was that this matter should not have remained an

accrued liability balance after the settlement was entered into in Q4 01.

[970] The Crown suggested that accrued liability balances were restated because they were

false. This entry, along with others, illustrates the difficulty with the Crown’s assertion. Simply

put, the Crown’s submission ignores the possibility that there can be a difference of opinion.

[971] Indeed, there would have been a difference of opinion in connection with this entry. Mr.

Hathway stated that proper accounting mandated that there be no remaining accrued liability

balance for this matter subsequent to the final payment, rather than the entering into of the

settlement agreement. Mr. Hathway’s opinion, as expressed in his evidence and Deloitte’s

opinion during the First Restatement are obviously different.

[972] The truth of the matter probably is that there is more than one financial quarter to which

this $4 million accrued liability balance could properly be restated. Put differently, one chartered

accountant might conclude that the triggering event for the release of the accrued liability

balance was the entering into of the written settlement of the litigation in Q4 01; another

chartered accountant acting in good faith might conclude that the triggering event for the release

of the accrued liability balance was Nortel’s final settlement payment.

[973] Interestingly, the Crown asserted, in its closing submissions that the correct course of

action was to clear the $4 million from Nortel’s balance sheet after the final settlement payment.

[974] Management’s decision to release the accrued liability balance one or two quarters after

the final settlement payment was excessively cautious, but entirely consistent with Nortel’s

culture.

[975] I decline to draw any inculpatory inference from the retention of the accrued liability

balance, given Nortel’s history of ensuring that every liability was properly provided for.

[976] The Siemens accrual liability balance had been on the Nortel balance sheet since 2001

and, thus, had been reviewed in one form or another for every quarter since then. No secret was

made of the fact that the litigation had settled and that Nortel had made a $20 million payment on

account of that settlement in October 2001.

[977] As discussed elsewhere, in Q2 03, Mr. Gollogly advised Mr. Hathway about the release

during a preliminary close of the books of $142 million in accrued liability balances. Mr.

Hathway did not approve of this release, with the result that the $142 million was returned to

Nortel’s balance sheet in subsequent draft Q2 03 financial statements. However, the $4 million

Siemens balance remained released. Given the controversial nature of the $142 million accrued

liability balance release in Q2 03, I am satisfied that Deloitte adverted to the Siemens release at

that time.

115

[978] The Crown’s position is that the Siemens accrual was not released when it should have

been and remained for the accused to utilize in Q2 03 in order to achieve a Restricted Stock Unit

Bonus Plan milestone.

[979] This assertion requires some consideration of the Restricted Stock Unit Bonus Plan.

The Restricted Stock Unit Bonus Plan

[980] As the name implies, this bonus was payable in shares unless the executive receiving the

bonus elected to receive payment in cash. No such election was made in Q2 2003.

[981] Payment of this bonus was not made on an “all or nothing” basis. In other words, a

percentage of the total allocation for a particular quarter could be paid. For example, the JLRC

Committee of the Board of Directors (the Board’s HR Committee) could determine and

recommend to the Board of Directors that 90% of the bonus was earned, in which case that

percentage of the bonus would be paid out.

[982] The performance period for payment of this bonus was January 1, 2003 to December 31,

2005. The proposed performance milestones were four distinct “Return on Sales before Tax”

percentage targets. The percentage was calculated on Sales, as the description of the milestones

suggests. In other words, the milestone considered what percentage Nortel’s return on sales

before tax was of total sales. In addition, the milestones were calculated “on a rolling four

quarter basis”. [Emphasis added]

[983] The first milestone required a Return on Sales before Tax percentage of sales of equal to

or better than negative 6.5% calculated “on a rolling four quarter basis.”

[984] The “rolling four quarter basis” for the calculation means that, if you want to make the

Restricted Stock Unit Bonus Plan milestone calculation in Q2 03, you have to look back four

quarters starting with Q2 03; namely, Q2 03, Q1 03, Q4 02 and Q3 02.

[985] The final payment on account of the Siemens settlement was made in Q4 02. If the $4

million had been released to the profit and loss statement in Q4 02, as Mr. Hathway thought it

should, it would have been included in the RSU Bonus Plan milestone calculation in the same

way as it was when it was originally released in Q2 03 because the calculation of the percentage

is “on a rolling four quarter basis” and Q4 02 and Q2 03 are in the same four quarter set.

[986] Accordingly, the release of the $4 million to the profit and loss statement in Q4 02 or Q2

03 would have the same effect on the ability of the accused to benefit from the Restricted Stock

Unit Bonus Plan.

[987] The Crown’s position seems to be that, because the Siemens accrual was not released

when it should have been, it remained in a “cookie jar” to be utilized in Q2 03 in order to achieve

the RSU milestone.

[988] In the first restatement, the $4 million was restated to Q4 01 when Nortel and Siemens

entered into their settlement agreement. It is true that, at that point in time, Mr. Dunn was the

CEO and Mr. Beatty was the Controller. I am not satisfied that the evidence demonstrates that

116

Mr. Dunn or Mr. Beatty played any role in the decision to retain the $4 million Siemens accrual

balance in Corporate in Q4 2001.

[989] It is also true that, in Q4 01, Nortel reported negative net income of $1.8 billion. I am not

persuaded that, in that quarter facing that level of negative net income, Mr. Beatty and Mr. Dunn

decided to manipulate liabilities and set them aside in a “cookie jar” for a rainy day. It seems

more reasonable to me that their thoughts at the time would be that the rainy day was upon them.

[990] Ms. Shaw’s note, based on her inquiries, was prepared in Q1 03 and it provides that

management decided to leave the $4 million excess accrued liability balance in place for a

“couple of quarters” to ensure no further claims were made and that there were no further

adjustments to the settlement. Her note suggests that management made a decision in Q4 02 to

retain the $4 million as an accrued liability for a “couple of quarters” which would be to Q2 03,

which was the quarter when the $4 million was released to the profit and loss statement. This

decision meant there were no surprises in connection with the Siemens settlement without

making it harder to achieve the Restricted Stock Unit Bonus Plan milestone of -6.5% calculated

on a rolling 4 quarter basis.

[991] Leaving the accrued liability on the balance sheet for a time after it was releasable is

consistent with Mr. Kinney’s approach to releasing accrued liabilities. Mr. Kinney said he

followed the practice of allowing a cooling-off period, when he reached a point in time when he

thought he could reduce an accrued liability balance. Specifically, he would wait one extra

quarter to make sure that some unexpected exposure did not present itself. This is similar in

approach to what happened with the Siemen’s $4 million. I do not condone Mr. Kinney’s

practice because it was contrary to US GAAP; I simply mention it.

Conclusion

[992] I am not satisfied beyond a reasonable doubt that the three accused used the $4 million

Siemens accrued liability balance to falsely represent to Nortel’s Audit Committee, JLRC

committee and board of directors that Nortel had achieved the financial results of meeting the

Restricted Stock Unit Bonus Plan milestone of -6.5%.

[993] I am not satisfied that the restatement of this accrued liability balance to Q4 01 proves

anything. Mr. Hathway thought that the accrued liability balance should have been released in

Q4 02 when the final settlement payment was made. This seems to be a reasonable conclusion. It

apparently was not correct according to Deloitte’s opinion in the first restatement. The difference

of opinion demonstrates that one should be careful before drawing an inculpatory inference

based, in part, on the fact that an accrued liability balance was restated. The circumstances

surrounding the restatement of an item are significant.

[994] Finally, I am not satisfied beyond a reasonable doubt that any or all of the three accused

knew that the $4 million Siemens’ accrued liability balance should have been released in Q4 01.

117

The draft letters Mr. Gollogly prepared for the Board of Directors and the Audit

Committee in July 2003

[995] Some of the evidence concerned two unsent letters authored by Mr. Gollogly, in which he

questioned whether Nortel had truly returned to profitability. The Crown pointed out that the

three accused never expressed similar sentiments in Nortel’s financial statements or press

releases. The relevant time period is July 2003.

[996] Mr. Hathway testified that, shortly before Monday, July 7, 2003, Mr. Gollogly advised

him that, in the initial close or one of the initial closes of the books for Q2 03, Nortel had

identified $142 million of accrued liabilities that did not have support and had released those

accrued liabilities to the profit and loss statement.

[997] After Mr. Hathway objected, Mr. Gollogly reversed the $142 million out of the profit and

loss statement and put it back on the balance sheet. This reversal happened on Thursday, July

10, 2003.

[998] Mr. McMillan testified that the draft financial results, produced after the $142 million

was returned to the balance sheet, recorded that Nortel had a US GAAP loss of $14 million for

Q1 03.

[999] Mr. McMillan testified that, on Friday, July 11, 2003, he was advised by his superior, Mr.

Peter Browne, to make three journal entries. Mr. McMillan said that Mr. Browne provided him

with support for the entries and they were made on Friday, July 11, 2003.

[1000] These entries transferred $20 million in accrued liability balances to the profit and loss

statement. They, therefore, had a positive impact of $20 million on the profit and loss statement.

As indicated earlier, prior to this entry, Nortel had a US GAAP loss of $14 million; thus, this $20

million positive impact on net income had the effect of changing the $14 million tiny US GAAP

loss into to a tiny gain.

[1001] Nortel’s pro forma income for Q2 03 was positive despite the return of $142 million to

the balance sheet.

[1002] Thus, the effect of these three journal entries was that Nortel had both positive pro forma

income and positive US GAAP income.

[1003] Mr. McMillan testified that Mr. Gollogly was away when this happened.

[1004] The evidence established that Mr. Dunn had expressed publicly to Mr. Harrison that he

did not believe it was in Nortel’s interest to have a pro forma gain before taxes and a US GAAP

loss at the same time. This was always a possibility because pro forma net income was calculated

differently than US GAAP net income.

[1005] Mr. Hathway testified that, on Sunday, July 13, 2003, Mr. Gollogly called him at his

home in the United States. Mr. Gollogly told Mr. Hathway that while he, Mr. Gollogly, was out

of the office on July 11, 2003; Mr. Beatty had instructed Mr. Gollogly’s staff to post three

journal entries which transformed the Q2 2003 results from a tiny loss to a tiny profit. Mr.

118

Hathway indicated that he and Mr. Gollogly agreed to discuss the matter further on Monday,

July 14, 2003 when he, that is Mr. Hathway, would be back in Canada.

[1006] Mr. Hathway indicated that Mr. Gollogly’s concern centered on the fact that turning a

loss into a profit was one of the qualitative factors to be considered in deciding whether an entry

to the General Ledger was material.

[1007] Mr. Hathway testified that he saw Mr. Gollogly on Monday, July 14, 2003 at Mr.

Gollogly’s office in Brampton. He said Mr. Gollogly was very upset about the entries. Mr.

Gollogly told Mr. Hathway that he was going to see Mr. Beatty and demand that the three entries

be removed from the profit and loss statement and put back on the balance sheet. Mr. Gollogly

advised Mr. Hathway that he intended to resign if Mr. Beatty refused. Mr. Hathway described

this as a “gutsy move by Mr. Gollogly”.

[1008] The three entries were reversed.

[1009] Mr. Hathway indicated that, later, he had a conversation with Mr. Beatty about what had

happened. Mr. Hathway indicated that Mr. Beatty’s view was that he, that is Mr. Beatty, was

Nortel’s CFO and, therefore, entitled to make General Ledger entries.

[1010] This is perhaps an appropriate place to make the obvious point that these three entries

never had any effect on the profit and loss statement published by Nortel for the period Q2 03.

The three entries were put back on the balance sheet before the financial results were published.

These entries did not cause the Audit Committee or the Board of Directors to do anything.

[1011] Similarly, the $142 million in balances released to the profit and loss statement and then

returned to Nortel’s balance sheet never had an effect on the profit and loss statement published

by Nortel for the period Q2 03. The $142 million was brought to the attention of Nortel’s Audit

Committee because it prompted the Comprehensive Balance Sheet Review.

[1012] With respect to the three entries totaling $20 million, the Crown submits that this is

another example of senior management at Nortel, in this case Mr. Beatty, doing whatever it takes

to meet a target. It is also the Crown’s position that I should draw the inference that Mr. Dunn

was aware of these matters and approved of Mr. Beatty’s actions.

[1013] I have already indicated that I have no difficulty in drawing the inference that Mr. Dunn

was aware of important matters affecting Nortel’s profit and loss statement. This is especially

true with respect to these three matters because they had the effect of turning a tiny US GAAP

loss into a tiny profit and Mr. Dunn had publicly-stated that Nortel would be profitable for Q2

03.

[1014] In addition, Nortel, despite the fact that the $142 million was not released to the profit

and loss statement, still had a pro forma profit and, therefore, was in a position that Mr. Dunn did

not think advisable; namely, a pro forma profit and a US GAAP loss. Specifically, Mr. Dunn did

not want Nortel to be reporting a US GAAP loss while, at the same time, reporting internally

positive pro forma income because reporting positive pro forma income would require the

payment of bonuses. Mr. Dunn was concerned that Nortel would be criticized for paying its

employees bonuses when it was publicly reporting a loss.

119

[1015] In Q1 03, Nortel reported US GAAP results only. Accordingly, Nortel was publicly

reporting a loss and publicly reporting that it was paying bonuses to its employees.

[1016] Mr. Gollogly reported to the Board on July 24, 2003, which was after the $142 million

had been removed from the profit loss statement and returned to the balance sheet, that there was

positive pro forma income for the quarter of $40 million and a positive pro forma income for the

year to date of $48 million. It is not clear from Mr. Gollogly’s presentation whether this was a

pro forma income calculation according to the 2002 formula or the 2003 formula. The Board of

Directors had decided that it was the 2002 formula which was to be used for bonus purposes.

However, the evidence suggested that the 2002 formula yielded a higher net income figure than

the 2003 formula.

[1017] Mr. Beatty’s instruction to release the $20 million in accrued liabilities to the profit and

loss statement had the effect of solving this problem because it converted the tiny US GAAP loss

into a profit and thereby created a situation in which Nortel would have been publicly reporting

US GAAP net income and publicly reporting that it was paying a bonus.

[1018] I accept the Crown’s submission that Mr. Beatty’s conduct demonstrates he was, with

Mr. Dunn’s knowledge and consent, willing to go to considerable lengths to achieve a targeted

result.

[1019] I am satisfied that this episode proves that Mr. Beatty, with Mr. Dunn’s consent, was

prepared to go to considerable lengths to avoid a situation which Mr. Dunn considered awkward.

[1020] I am satisfied that the only reason Mr. Beatty intervened as he did was to manage

Nortel’s US GAAP income for the purpose of turning a tiny loss into a tiny profit. The effort was

unsuccessful.

[1021] To help Mr. Beatty understand how unhappy he was with the three Journal entries,

authorized in his absence, Mr. Gollogly prepared two draft letters which were never sent.

[1022] The Crown submits that this entire incident demonstrates that entries made to the General

Ledger were intentional. The Crown also submits that these letters demonstrate that Mr. Gollogly

was well aware of the significance of turning a tiny loss into a tiny profit or vice versa.

[1023] I am satisfied that Mr. Gollogly well-understood the significance from a materiality

perspective of turning a tiny profit into a tiny loss or vice versa. I am satisfied that the draft

letters demonstrate that Mr. Beatty was capable of directing entries to the General Ledger that

were quite intentional and quite significant.

[1024] I want to consider the Crown’s submission that Mr. Gollogly’s concern about Nortel’s

quality of earnings and return to profitability were not disclosed by Mr. Gollogly or Mr. Beatty. I

have no difficulty in assuming that Mr. Gollogly brought the draft letters to Mr. Beatty’s

attention and used those letters to help persuade Mr. Beatty to reverse the entries to which Mr.

Gollogly objected.

[1025] I propose to consider each draft letter separately.

120

Mr. Gollogly’s draft letter to the Chairman of the Board of Directors, the

Chairman of the Audit Committee and the Chairman of the Joint Leadership

Resources Committee

[1026] This undated draft letter was never sent. However, Mr. Gollogly’s draft letter to Mr.

Beatty, which was also introduced in evidence, is dated July 14, 2003. I am satisfied that this

draft letter was drafted at the same time as the draft letter to Mr. Beatty. The content of the two

letters is similar. In addition, the evidence establishes that Mr. Gollogly was in the mood to

resign if the three entries were not reversed and the effect of this draft letter, had it been sent,

would almost certainly have been his termination.

[1027] In this draft letter, Mr. Gollogly indicates that, due to the fact that the SEC was making

inquiries of Nortel in April and May 2003, it was necessary to be particularly vigilant in the

application of accounting issues within the company.

[1028] Mr. Gollogly then called attention to unsupported accrued liability balances on Nortel’s

consolidated balance sheet which he placed in the area of $192 million. I should note at this point

that Mr. Gollogly’s $192 million is the same as the $142 million referred to in these reasons. The

$142 million was specifically discussed by the Audit Committee. The $50 million was actually

the Intercompany Out Of Balance account which was under review by the auditors and not a

secret. Nortel’s auditors publicly-reported a problem with Nortel’s internal controls which

referred to the $142 million that, for a short time, had been released to income. Mr. Richmond

indicated that, when these matters were discussed, some people spoke of $142 million and others

spoke of $192 million. Mr. Richmond testified that everyone was speaking about the same set of

numbers.

[1029] Mr. Gollogly then disclosed that management had a forecast suggesting a $75 million pro

forma loss in Q3 03. He indicates that this forecast begs the question whether further

restructuring is required. He suggests that a change in the company-stated policy that a small loss

position is unconcerning may be in order.

[1030] Finally, Mr. Gollogly says that the Q3 03 forecast calls into question the quality of the Q2

03 results.

[1031] The forecast to which Mr. Gollogly refers was, in a word, incorrect. Nortel reported

positive net income of $185 million in Q3 2003. Nortel’s published results for Q3 2003 were not

restated in the first restatement. Financial results for Q3 03 were restated in the second

restatement. Net earnings remained positive in the amount of $131 million despite the revenue

recognition issues that were prevalent during that restatement.

[1032] In addition, the Crown, in its opening, suggested that the Q3 03 results had been affected

by improper earnings management techniques employed by the accused. Evidence was received

concerning the extent to which Nortel and Deloitte’s staff preserved the integrity of the general

ledger for Q3 03. As indicated in my discussion of the financial results for Q3 03, I accept that

evidence. I am satisfied that the integrity of the Q3 03 general ledger was maintained.

121

[1033] Mr. Gollogly then makes reference to a positive impact of $51 million to the Q2 2003

profit and loss statement. He also makes the point that Nortel’s gross margins contain

approximately $50 million worth of positive adjustments due to changes in estimates.

[1034] Mr. Gollogly made a presentation to the Board on April 24, 2003, in which he

specifically noted and highlighted at page 38 of his presentation, the $51 million to which he

referred in his draft letter. Thus, the Board of Directors was made aware of this concern.

[1035] The $50 million in gross margin adjustments was not discussed by Mr. Gollogly. No

opinion evidence was offered concerning gross margin calculations. Mr. Harrison indicated that

typically Nortel’s gross margins were approximately 40%. His evidence in that regard was on

contentious.

[1036] In his draft letter, Mr. Gollogly makes reference to the July 11, 2003 journal entries.

These entries were reversed on July 14, 2003.

[1037] Mr. Gollogly indicates that he questions the wisdom of making bonus payments because

the Q2 03 results are affected by the two items referred to above which total $101 million. Mr.

Gollogly notes, in his letter, that there are many other factors to consider when determining

whether to pay bonuses. This latter observation is correct. The evidence disclosed that Nortel’s

competitors were approaching key Nortel employees and urging them to leave the company. This

was a primary reason for the creation of the Return to Profitability Bonus.

[1038] Mr. Gollogly indicates in the draft letter that he feels so strongly about the payment of the

bonuses that he will not accept his return to profitability bonus. Mr. Gollogly obviously thought

better of the matter and, in fact, accepted his bonus.

Conclusion

[1039] When I consider the content of this draft letter and the other evidence, I am not prepared

to accept the Crown submission in regard to the disclosure of the contents of this letter.

[1040] I am satisfied that Mr. Gollogly’s concern about the prospects for Q3 03 was misplaced. I

am satisfied that the other matters concerning earnings were disclosed to the Audit Committee

and, through the Audit Committee, to the Board of Directors with the exception of the gross

margin adjustments. There was public disclosure of the Comprehensive Balance Sheet Review

and the fact that the auditors had identified a reportable condition as a result of the attempt to

release the $142 million. Finally, Mr. Gollogly’s concern over the appropriateness of paying a

bonus was a matter beyond his authority. The decision to pay a bonus was a decision for the

JLRC committee of the board and the Board of Directors as a whole.

Mr. Gollogly’s draft letter to Mr. Beatty

[1041] This is the second draft letter to which the Crown referred.

[1042] Mr. Gollogly begins his letter by referring to certain elements of the Q2 results with

which he is uncomfortable.

122

[1043] He first refers to what he called the three final July 11, 2003 journal entries. These are the

three entries totaling $20 million. He speaks to the need for supporting documentation and

indicates to Mr. Beatty that he, that is Mr. Beatty, will have to sign each of the three journal

entries. He also indicates that a memo or note is required explaining why the three final entries

are not material.

[1044] The three final Journal entries to which Mr. Gollogly objects were reversed on July 14,

2003 prior to the publication of Nortel’s financial statements.

[1045] Mr. Gollogly then indicates that he is insisting upon a full and fair discussion of two key

elements of the Q2 2003 results with the Audit Committee.

[1046] The first is the inclusion of the $101 million composed of the $51 million of customer

financing services and $50 million relating primarily to contract changes in estimates and

contract finalization in Nortel’s Q2 03 profit and loss statement.

[1047] Nortel’s press release, dated July 24, 2003, discloses the fact that selling, general and

administrative expenses included the US$51 million benefit to which Mr. Gollogly referred. In

addition, Mr. Gollogly made a presentation to the Audit Committee concerning this $51 million.

[1048] The second is that the balance sheet as at June 30 contains $142 million of accrued

liabilities that Nortel is investigating and approximately $50 million of accrued liabilities relating

to what he refers to as the “now infamous intercompany out of balance provision…” Mr.

Gollogly wants the Board informed that these provisions will likely need to be reversed into the

profit and loss statement when Nortel’s analysis is complete.

[1049] The second point suggests Mr. Gollogly thinks that the Board needs to know that $192M

will be “reversed into the P&L at some point in the future”. If this is what he means, he was

simply mistaken concerning what would become of the $142 million. The Audit Committee and

the Board of Directors were well aware of the $142 million.

[1050] Mr. Richmond indicated that, when these matters were discussed, some people spoke of

$142 million and others spoke of a $192 million. Mr. Richmond testified that everyone was

speaking about the same set of numbers.

[1051] Mr. Richmond also testified that the $50 million Out Of Balance accrued liability

balance, which Mr. Gollogly in his draft letter referred to as the “now infamous intercompany

out of balance provision…”, had been the subject of discussion between Mr. Dunn and the audit

partners for months.

[1052] Due to the fact that Mr. Gollogly referred to the Intercompany Out Of Balance account as

“infamous”, I think it is appropriate to consider that account in some detail.

The “now infamous intercompany out of balance provision”

[1053] Mr. Richmond indicated that Nortel had maintained an Intercompany Out Of Balance

account for many years. Mr. Richmond explained that, when you have a company as large as

Nortel, there are transactions that flow from one company to another within Nortel’s corporate

123

world. Therefore, you will have balances due to and due from the various entities in Nortel’s

corporate world. When you come to do a consolidation, these balances should net out to zero but

frequently do not. As a result, an accrued liability balance is maintained to account for the

discrepancy. In Nortel’s case, this had been true for some years.

[1054] Mr. Richmond indicated that Nortel’s Intercompany Out Of Balance accrued liability

balance fluctuated. In the years 2001 and 2002, the quantum of the account was driven up with

the result that the balances due to and due from the various entities in Nortel’s corporate world

were out of balance by as much as $100 million.

[1055] Mr. Richmond explained that Deloitte wanted to work through a reconciliation process

and reconcile the balances due to and due from the various Nortel entities to attempt to bring the

Intercompany Out Of Balance accrued liability balance to zero.

[1056] Mr. Richmond indicated the Intercompany Out Of Balance account had been the subject

of discussion between Mr. Dunn and the audit partners for months.

[1057] The Intercompany Out Of Balance account was well-known to Deloitte. It was the

subject of two detailed Deloitte memos, dated April 10, 2003 and April 16, 2003 (Exhibit 227,

tab 79). The memos were received as business records of Deloitte & Touche. Neither of the

Deloitte’s accountants who authored these memos was called as a witness.

[1058] These memos explain, in part, that the Intercompany Out Of Balance account is reviewed

monthly and that, at that time, discrepancies are identified. Importantly the memos disclose that

discrepancies identified as “material” are cleared.

[1059] The Intercompany Out Of Balance account balance fluctuated as a result of judgment

exercised at the senior management level of Nortel concerning what was sufficient. Therefore,

the opportunity to achieve an earnings target by varying the Intercompany Out Of Balance

account balance presented itself. However, the account was well- known and scrutinized by

Deloitte & Touche and material discrepancies were cleared monthly.

[1060] Specifically, the April 16, 2003 memo demonstrates that the reduction in the

Intercompany Out Of Balance accrued liability balance by $35 million, which formed part of the

contentious $80 million Q1 03 release to income, was reviewed prior to the finalization of the Q1

03 financial statements. The reduction was found to be unobjectionable.

[1061] There was nothing infamous about the Intercompany Out Of Balance account. Mr.

Gollogly’s reference may have been facetious; in which case, it is understandable. If the

reference was serious, it was erroneous.

Mr. Gollogly’s reference to the unsupported accrued liability balances

[1062] Mr. Richmond indicated that he met with Mr. Dunn between July 11 and July 15, 2003.

They agreed that the $142 million would be “warehoused” on Nortel’s balance sheet pending the

outcome of the Comprehensive Balance Sheet Review. While Mr. Richmond and Mr. Dunn

resolved the matter between July 11 and July 15, in fact, Mr. Gollogly had already reversed the

124

entry on July 10, 2003. I interpreted Mr. Richmond’s evidence to be that Mr. Dunn agreed to

leave the $142 million on Nortel’s balance sheet.

[1063] Mr. Richmond indicated that there was a longer discussion concerning Deloitte’s

insistence that there be a comprehensive balance sheet review. Mr. Dunn said that he had been

the Controller, the CFO and the CEO and that he was intimately aware of Nortel’s financial

affairs and that it was his view that the $142 million was the end of the matter. Accordingly, it

was Mr. Dunn’s view that the $142 million should be released to the profit and loss statement

and disclosed in Nortel’s Q2 03 press release. Mr. Richmond testified that he expressed

Deloitte’s view that a comprehensive balance sheet review was required to corroborate Mr.

Dunn’s position. Mr. Richmond also expressed the view that simply releasing $142 million of

accrued liability balances into a profit and loss statement that otherwise showed a loss of $14

million would not satisfy regulators.

[1064] Mr. Richmond indicated that, during the meeting, Mr. Dunn agreed that a comprehensive

balance sheet review was necessary.

[1065] The minutes of the Audit Committee meeting in July 18, 2003 indicate that Mr. Gollogly

made a presentation concerning Nortel’s Q2 03 results. His presentation was described as

preliminary and subject to change. Part of his presentation outlined “Key Issues.” The first item

under this heading was entitled “Reserves”. Mr. Gollogly’s notes indicate that he made reference

to the fact that: significant reserves and provisions were recorded on the balance sheet;

significant additions, usages and releases of those reserves and provisions had occurred in Q2 03;

management had a project underway to gather support and determine the proper resolution of

certain reserve balances.

[1066] Mr. Cleghorn confirmed that, at the July 23 Audit Committee meeting, Mr. Dunn

indicated that, while he was not pleased at the prospect of a comprehensive balance sheet review,

it would result in stronger financial statements.

[1067] Minutes of the Audit Committee for July 24, 2003 indicate that Mr. John Cawthorne

made a presentation dealing specifically with an analysis of Nortel’s balance sheet. In his

presentation, he pointed out that certain balance sheet accruals and provisions were established

by management in prior periods dating back to 1999 and earlier. He indicated that these accruals

and provisions were recorded by the company during periods when the balance sheet and income

statement were much larger. Mr. Cawthorne indicated that these accruals and provisions were

receiving greater scrutiny due to the shrinking size of Nortel’s overall balance sheet and their

materiality to the income statement. His presentation points out that there is a lack of

documentation about certain accruals and that, as a result of that and the passage of time and the

turnover of personnel, it is unclear what adjustments should have been made be made to these

provisions in prior years. As a result, management has a project underway to gather support and

determine the proper resolution of these questionable balances.

[1068] Prior to making this presentation Mr. Cawthorne and Mr. Hathway had received a soft

provisions list in February 2003 which listed $413 million in soft provisions or accrued liability

balances was questionable support.

125

[1069] Finally, Nortel’s press release of July 24, 2003 announced a Comprehensive Balance

Sheet Review.

[1070] I am satisfied that what Mr. Gollogly mistakenly thought was a problem involving only

$142 million of accrued liability balances and $50 million of Intercompany Out Of Balance

accrued liability balances was brought to the attention of the Audit Committee as Mr. Gollogly

suggested in his draft letter.

[1071] I am satisfied that, as of July 24, 2003, some ten days after the date on Mr. Gollogly’s

draft letter, the Audit Committee was well-aware of the fact that there were potential problems

with accrued liabilities.

Mr. Gollogly’s reference to the forecasted Q3 03 loss

[1072] Mr. Gollogly also records in this draft letter that he wants a discussion at the Audit

Committee of the fact that the current Q3 03 forecast projects a loss in circumstances where the

projected revenue for Q3 03 is the same as the actual revenue in Q2 03.

[1073] As indicated in my discussion of Q3 03, this forecast was simply wrong. Nortel reported

net income of $185 million calculated according to the US GAAP despite the fact that revenue

for Q3 03 was flat to Q2 03.

[1074] Nortel’s published results for Q3 03 were restated in the second restatement; net income

was positive in the amount of $131 million after restatement.

[1075] Nortel also reported positive net income in Q4 03 of $528 million (Exhibit 85B).

[1076] Mr. Gollogly’s concern in this regard seems to have been misplaced.

Mr. Gollogly’s concern about Nortel’s internal controls

[1077] Finally, due to the fact that there were late adjustments and an ongoing review of

unsubstantiated or poorly-supported accrued liabilities, Mr. Gollogly wanted a full debate with

Mr. Nick DeRoma, Nortel’s General Counsel, on the adequacy of Nortel’s internal controls.

[1078] I am not certain whether a debate involving Mr. DeRoma, Mr. Gollogly and others within

Nortel took place.

[1079] Mr. Cawthorne, in his presentation to the Audit Committee of July 24, 2003, brought to

the committee’s attention that Deloitte had identified a reportable condition which, in my view,

was sufficient to bring to the Audit Committee’s attention the fact that Nortel was experiencing

an internal control problem.

Conclusion

[1080] Generally, I am satisfied that the matters of concern to Mr. Gollogly, which he expressed

in his draft letter to Mr. Beatty, were disclosed to the Audit Committee. Mr. Gollogly’s concern

126

about earnings in Q3 03 was misplaced. The other issues were disclosed to Nortel’s Audit

Committee and Board of Directors.

The language in the 2003 press releases and the notes to the first restatement

[1081] The Crown objected to a statement in the press release, dated April 24, 2003, which

stated that Nortel’s reported results included approximately $80 million of favorable impacts

associated with reductions in accrued liability balances. The press release went on to say that

these favorable impacts were more than offset by costs related to the Return to Profitability

Bonus Plan and stock-based compensation.

[1082] There is no basis for this objection. The return to profitability bonus was estimated to cost

$73 million. This amount is very close to the $80 million in favorable impacts. The two entries

basically offset each other.

[1083] What is not true is that the $80 million in favorable impacts permitted Nortel to pay the

return to profitability bonus that it would otherwise not have been able to pay. As explained

elsewhere, I am not satisfied that such a conclusion is proven by the evidence.

[1084] In my view, the press release simply says that Nortel’s earnings were not inflated by this

$80 million because Nortel’s expenses included an employee bonus of virtually the same amount

of money. The statement in the press release is not false and no objection can properly be

maintained to it.

[1085] The Crown also objected to the same press release because it failed to properly describe

the $80 million as excess accruals.

[1086] The Crown also objected to the press release because it said that the press release alluded

to the $80 million in a manner that was almost unintelligible.

[1087] The press release stated “in the first quarter of 2003, our SG&A and R&D and other

income-net included approximately $80 million of favorable impacts associated with reductions

in accruals which principally related to the accumulation of charges associated with the

integration activities of previously acquired companies and operations originally structured as

joint ventures as well as miscellaneous tax matters…”

[1088] The procedure for drafting press releases was not explicitly spelled out in the evidence.

The evidence did disclose, however, that there was an Investor Relations Committee and a Press

Release Working Group that was a subcommittee of that committee that decided on the wording

of press releases. Various persons were canvassed for their views. In addition, the committee had

the assistance of internal and external securities lawyers. In addition, Mr. Cleghorn indicated that

the Audit Committee would not approve press releases without a sign-off from Nortel’s auditors.

Mr. Richmond confirmed that he assisted in drafting the April 24, 2003 press release.

[1089] On the evidence before me, I am not prepared to conclude that any or all of the accused

are entirely responsible for the wording of Nortel’s press releases announcing financial results

and other material matters. I am satisfied that the press release was the product of many people

127

including outside counsel. I also do not accept the Crown’s characterization of the wording of the

press release as far as the $80 million was concerned.

[1090] The Crown also asserted that Conservatism was contrary to US GAAP and disclosure of

the existence of this practice within Nortel was required in the press release.

[1091] As indicated elsewhere, I am not satisfied that the evidence established that Conservatism

was contrary to US GAAP.

[1092] The Crown also suggested that the introductory note to the restated financial statements

was false and relied upon a draft note prepared by Mr. Gollogly. Mr. Gollogly’s draft was his

suggestion concerning the wording of the note that would accompany the restated financial

statements and the Item 4 disclosure required by the September 30 10-Q report.

[1093] In his draft of the note, Mr. Gollogly, in part, states the following:

 Nortel initiated a comprehensive review in the 2nd quarter of fiscal 2003;

 the objective of the review was to assess whether previously-recorded accrued

liability balances could potentially have a material impact on future financial

results;

 preliminary observations indicated a lack of support and documentary

evidence for certain accrued liabilities established in fiscal 2002 and 2001;

 the review is now completed and preliminary results indicate that certain

accrued liabilities recorded in 2002 and 2001 were either overstated or not

drawn down in the correct fiscal period;

 the systemic causes of these errors are the high level of conservatism used to

identify Nortel’s financial exposure during the period of business

realignment, significant workforce reductions resulting in departures from

stated finance policies and lost business knowledge around specific internal

control processes; and,

 Nortel has determined the need to voluntarily restate its financial statements

for the errors contained in previously reported financial statements because

the aggregate impact would be material to future financial results.

[1094] Mr. Gollogly indicates an email to Mr. Beatty attaching the draft that this was the first

note that he had drafted.

[1095] The first restatement of the financial statements for Q2 03 included a note which

disclosed that:

 Nortel had initiated a comprehensive review of its assets and liabilities;

 in excess of $900 million in accrued liability balances needed to be restated;

128

 these balances were either initially recorded incorrectly in prior periods or not

properly released to the profit and loss statement in the appropriate period;

 in certain cases these accrued liability balances had not been adjusted for

changes in estimates in the appropriate periods;

 certain other errors which were not material were also corrected;

 Nortel made certain revenue adjustments, corrected errors related to its

deferred income tax assets and foreign-currency accounts and reclassified

adjustments to its consolidated balance sheet;

 certain accruals and provisions should not have been recorded because the

appropriate conditions in documentation supporting the establishment of these

accruals and provisions did not exist at the time of recognition. These accrued

liability balances were re-profiled to the periods in which they were created

and then eliminated;

 Nortel identified situations where accrued liability balances had been released

to the profit and loss statement in inappropriate periods. These accrued

liability balances have been recognized in the appropriate periods;

 the restatement includes the release of accrued liability balances established

to bring the intercompany payables and receivables into balance. (I note that

this is a reference to the Intercompany Out Of Balance account which

occupied a certain amount of attention during the course of this trial); and,

 excessive accrued liability balances for discretionary bonuses have been

adjusted.

[1096] The Crown relies on the fact that Mr. Gollogly states in his draft that the systemic causes

for overstating accrued liability balances or failing to draw them down in the correct fiscal period

was a high level of Conservatism used to identify financial exposure during the period of

Nortel’s realignment from 2000-2002.

[1097] The note in the financial statements does not use the word Conservatism, but it discloses

that accrued liability balances were recorded incorrectly in prior periods, not properly released,

not adjusted for changes in estimates in the appropriate period.

[1098] The Crown indicated, in its opening, that Conservatism was contrary to US GAAP. The

evidence did not support such a conclusion.

[1099] The Crown complained that the press release announcing the first restatement did not say

that the restatement was required due to a systemic tendency to overstate accrued liabilities.

[1100] It is true that the note to the restated financial statements does not say that there was a

systemic or cultural tendency in Nortel to set-up accrued liability balances on a worst-case

129

scenario basis. The restatement, however, discloses that over $900 million in accrued liability

balances were excessive because they were not recorded properly, not properly released or not

adjusted in a timely manner. The restatement discloses that this happened in 2000, 2001, 2002

and the first two quarters of 2003. A reasonable reader would conclude that the problems

identified in the restatement note were systemic at least in the years that were stated.

[1101] I attach no significance to the absence of a reference, in the note accompanying the

restated financial statements, to Nortel’s financial errors resulting from systemic causes.

[1102] The Crown suggested that the assertion in Mr. Gollogly’s draft that certain known errors

which were not material were not corrected until the restatement was false. The Crown submitted

the errors were material. Mr. Gollogly’s draft does not define those errors. It is impossible to

know to what he was referring.

[1103] The note that accompanied the restated financial statements makes a similar statement.

That note also fails to define the errors to which it refers.

[1104] It is impossible to conclude that either of these references to the correction of unspecified

immaterial errors were references to material errors.

[1105] Finally, Mr. Gollogly clearly prepared a draft of the note that was to accompany the

restated financial statements. He submitted it first to Blair Morrison, Gordon Davies, Karen

Sledge and Gary Beck. The next day Mr. Gollogly forwarded the same note to Mr. Beatty for his

consideration. In his e-mail to Mr. Beatty, Mr. Gollogly makes reference to a new draft note

which potentially will have been reviewed by someone named Nick. Nortel’s General Counsel

was Nick DeRoma. While it makes sense that Nortel’s General Counsel would review the

wording of the note accompanying the restated financial statements, I cannot say for certain to

whom Mr. Gollogly was referring.

[1106] I am not satisfied that there is any real difference between Mr. Gollogly’s draft and the

note that actually accompanied the restated financial statements.

[1107] Even if the note accompanying the restated financial statements was incomplete and I am

not satisfied that it was, I am not satisfied that Mr. Gollogly, Mr. Beatty or Mr. Dunn could in

their sole discretion determine the final wording of Nortel press releases.

THE CROWN’S CRITICISM OF THE Q3 03 FINANCIAL RESULTS

[1108] The Crown maintained that Mr. Gollogly’s concerns about Q3 03 were never properly

disclosed either to the Audit Committee or to the public. Mr. Gollogly’s concern about Q3 03

earnings was misplaced as indicated earlier. The forecast to which Mr. Gollogly referred was

likely a September 19, 2003 Outlook.

[1109] The Crown attacked Nortel’s original publication of Q3 03 results. The Crown

maintained that Nortel’s financial statements, as originally published for Q3 03, misrepresented

Nortel’s financial results for that fiscal period. Specifically, the Crown maintained that the Q3 03

results were “polluted” because $391 million in accrued liability balances were released to the

profit and loss statement in Q3 03.

130

[1110] The September 19, 2003 Outlook referred to by Mr. Gollogly in his draft letters indicates

that this sum is made up of $264 million, the release of which was triggered in Q3, and $127

million the release of which was triggered in earlier quarters of 2003.

[1111] The Crown also highlighted a reference in Mr. Gollogly’s diary which the Crown

suggested demonstrated his opinion that the accounting oversight in Q3 03 was a “joke”.

Specifically, Mr. Gollogly indicated, in a diary entry, dated October 7, 2003, “intense scrutiny on

Q3-it is a joke”. This reference occurs on a page which is entitled “LC\Region Finance Call”.

The diary entry seems to be recording comments that were made during this telephone call. It is

not clear from the entry that the comment represents Mr. Gollogly’s view or one of the callers

that it is a joke to suggest that there is intense scrutiny on Q3.

[1112] The Crown also relied on a note made by Mr. Beatty. This note states “Q3 was

‘Amnesty’ time from now on people will be fired for not following proper accounting practices”.

The Crown asked me to interpret this reference as a statement by Mr. Beatty that Q3 was

everyone’s last opportunity to manage earnings by releasing accrued liability balances to the

profit and loss statement.

[1113] Mr. Beatty’s note is dated September 30, 2003 and the document purports, on its face, to

be notes of the Finance Conference Call. The note appears under a bullet point entitled “what is

needed going forward”. The first item that is needed, according to the note, is an understanding

of how much the world has changed from a regulatory point of view. The second thing that is

needed, according to the note, is that Q3 was amnesty time and that from now on people will be

fired for not following proper accounting practices. The third item that is required, according to

the note, is that if you are in doubt about what to do, you are to ask Karen’s team who have the

final say. The note is dated September 30, 2003, which is the last day of Q3.

[1114] With respect to Mr. Beatty’s note, it seems to me to be more reasonable to construe the

statement, assuming for a moment it was made by Mr. Beatty, as a promise not to fire employees

who disclose, in Q3 03, items which should be removed from the balance sheet. This would

certainly be consistent with the worldwide effort to comprehensively review the balance sheet.

[1115] The Crown also relied upon the fact that the September 19, 2003 Outlook prepared by

Mr. Dans forecasted net income of $178 million and the press release of October 23, 2003

announced net income of $179 million. The Crown suggested that it was extraordinary that Mr.

Dans’ forecast could be so accurate.

[1116] In this regard, it is also a fact that Mr. Dans produced an Outlook, dated September 2,

2003, (seventeen days earlier) in which he projected net income for Q3 03 at $19 million.

[1117] It is more reasonable to me to conclude that Mr. Dans produced Outlooks which

forecasted varying levels of net income; one of which, in Q3 03, happened to be quite accurate.

[1118] Wilmer Cutler Pickering, on behalf of Nortel’s Audit Committee, in effect, investigated

the behavior of the three accused and their report resulted in all three accused being fired.

Wilmer Cutler Pickering concluded with respect to Q3 03 and Q4 03: “In light of concerns raised

by the inappropriate accounting judgments outlined above, the Audit Committee expanded its

131

investigation to determine whether excess provisions were released to meet internal EBT targets

in each of these two quarters. No evidence emerged to suggest an intent to release provisions

strategically in those quarters to meet EBT targets”. Wilmer Cutler Pickering indicated that a

further review down to a low threshold would be conducted and that any changes would be

reflected in the second restatement.

Preservation of the integrity of the Q3 03 General Ledger

[1119] Returning to the Crown’s suggestion that the Q3 03 general ledger was polluted, some

care needs to be taken with references to non-trigger items finding their way into the Q3 03

general ledger due to the way in which Nortel and Deloitte used the Q3 03 General Ledger

during the Comprehensive Balance Sheet Review.

[1120] The Comprehensive Balance Sheet Review took place during Q3 03. Ms. Sledge

described the steps taken to preserve the integrity of the Q3 03 general ledger:

 Balance sheet items identified as not belonging on the balance sheet any

longer were given a specific code in the General Ledger;

 The code identified them as items that potentially would need to be restated.

These separately coded balance sheet items were separately tracked in a

parallel system because they were recorded in a database as items marked for

potential restatement;

 Ms. Sledge testified that these entries were tracked very carefully. These

balance sheet items, by definition, were items that needed to come off the

balance sheet, but did not belong in the Q3 profit and loss statement;

 These separately coded items were then audited by Deloitte & Touche; and,

 When it was decided that prior published financial statements were, in fact,

going to be restated, the coded items removed from the General Ledger and

restated to the appropriate prior financial period.

[1121] Ms. Sledge testified that she felt rushed into the October 23, 2003 press release but,

nevertheless, she felt that Nortel’s balance sheet and profit and loss statement and financial

records were accurate. In this regard, it should be remembered that the October 23, 2003 press

release specified that the financial results were preliminary results.

[1122] During the Crown’s opening submissions, reference was made to the fact that Ms. Sledge

prepared a project update for Mr. Gollogly, dated October 10, 2003, and that the presentation

stated that the preliminary Q3 03 results were “polluted”. In this presentation, the word polluted

is placed in quotation marks. Ms. Sledge testified that the slide was prepared by one of her staff

and meant to convey that all of the unsupported balances were initially released to the Q3 03

profit and loss statement because they could not remain on the balance sheet. The items were

separately coded and then restated when it was determined that a restatement was necessary.

132

[1123] I attach no significance to the fact that one of the pages of Ms. Sledge’s report to Mr.

Gollogly contains the word polluted in quotes. The unsupported balances were separately coded

so that they could be identified and, in that sense, the Q3 03 results were, for a time, “polluted.”

[1124] I am satisfied that the process employed by Ms. Sledge and her team and audited by

Deloitte preserved the integrity of the Q3 03 results.

[1125] Mr. Chambers did not offer the opinion in his report that the Q3 03 financial results were

polluted or otherwise contaminated.

Conclusion

[1126] When I consider this evidence, I am not satisfied that the Q3 03 results were false due to

the improper release of accrued liability balances to the profit and loss statement.

[1127] In Q3 03, the total accrued liability balances released to the profit and loss statement, in

fact, totaled $391 million. This is a significant volume of releases. Some of these releases were

in the normal course and some were not. Steps were taken to identify which was which. The

integrity of Nortel’s General Ledger was maintained. There was no misrepresentation of Nortel’s

Q3 03 financial results.

[1128] I am not satisfied beyond a reasonable doubt that Nortel’s original Q3 03 financial

statements misrepresented Nortel’s financial results.

CONCLUSION

The excess and unsupported accrued liabilities

[1129] I am satisfied beyond a reasonable doubt that all three accused, by virtue of their long

experience with Nortel and their positions of responsibility, well-understood how the men and

women in the field were implementing Nortel’s policy of Conservatism.

[1130] I am satisfied beyond a reasonable doubt that they knew that the policy of Conservatism

and its implementation had created excess accrued liabilities which could be released to assist in

meeting financial targets. Liabilities were very often estimated by men and women in the field on

a worst-case scenario basis. As well, in order to avoid exposing Nortel to risks that were not

provided for, there was a reluctance to reduce accrued liability balances in the appropriate

quarter in response to a triggering event. The result was the presence of excess accrued liabilities

on Nortel’s balance sheet.

[1131] The evidence does establish, and I so find, that excessive accrued liabilities existed

because genuine accrued liabilities were not released when they should have been and because

genuine accrued liabilities were not adjusted when they should have been. I am not satisfied that

any or all of the accused understood the extent of the excess accrued liabilities on Nortel’s

balance sheet.

[1132] I am satisfied that, in addition to excess accrued liabilities, there were accrued liabilities

on Nortel’s balance sheet which could not be supported.

133

[1133] The evidence persuades me that accruals were present on Nortel’s consolidated balance

sheet which could not be supported by documentation. I am satisfied that the downsizing of

Nortel, which involved the closing of offices, the selling of real estate and, undoubtedly, the

storage of documents, created a situation in which supporting documentation for some of

existing accrued liability balances could not be located. Further, the loss of employees (two out

of every three worldwide) created a situation in which the institutional memory concerning the

unsupported accruals no longer existed within the company.

[1134] I am satisfied beyond a reasonable doubt that all 3 accused knew that there were

unsupported accrued liabilities on Nortel’s balance sheet. I am not satisfied that any or all of the

accused understood the extent of the unsupported accrued liabilities on Nortel’s balance sheet.

[1135] I am satisfied that neither the unsupported nor the excess accrued liabilities were

fictitious. This finding does not mean that the release of accrued liabilities could not be used to

manage earnings or achieve a pre-published financial target. It simply means that both the

unsupported and the excessive liability balances originated from real risks.

[1136] I am satisfied, on the evidence, that Mr. Gollogly, virtually from the time he took over as

Corporate Controller, turned his attention to Nortel’s balance sheet.

[1137] I am satisfied that the enormous losses suffered by Nortel in fiscal 2000 and 2001 created

a situation in which senior management, Nortel’s Board of Directors and Nortel’s auditors were

concentrating their efforts and energy on doing what was necessary to make sure that Nortel had

sufficient cash reserves to survive.

Q4 2002(Q4 02)

[1138] Mr. Harrison initially reported in his January 6 snapshot pro forma earnings before taxes

of $73 million. It is clear that he erroneously included $59 million in his revenue calculation and

that the 360 networks accrued liability balance of $50 million is unchallenged. These two

uncontested adjustments are capable of turning Mr. Harrison’s forecasted earnings before taxes

into a loss.

[1139] I am not satisfied that Nortel’s Q4 2002 financial results were pro forma net profitable.

[1140] When I consider all of the evidence, including the evidence to which I have made specific

reference, I am not satisfied beyond a reasonable doubt that the late entry accrued

expenses/liabilities solicited by Mr. Harrison and recorded in Q4 02 misrepresented Nortel’s

financial results.

[1141] When I consider all of the evidence, including the evidence to which I have specifically

referred, I am not satisfied beyond a reasonable doubt that Nortel’s January 23 press release

reporting a pro forma net loss of $62 million misrepresented Nortel’s pro forma financial results.

[1142] When I consider all the evidence, including the evidence to which I have made specific

reference, I am not satisfied beyond a reasonable doubt that the accruals solicited by Mr.

Harrison and recorded in Q4 02 resulted in a misrepresentation of Nortel’s US GAAP financial

results.

134

[1143] I am not satisfied beyond a reasonable doubt that the late entry accruals solicited by Mr.

Harrison caused a misrepresentation of Nortel’s financial results to Nortel’s Audit Committee,

Nortel’s JL RC Committee or Nortel’s Board of Directors.

[1144] I am satisfied that $222 million of the $303 million identified by Ms. Susan Shaw as

provisions no longer required and available for release were, in fact, released in Q3 02 and Q4

02. I am also satisfied that $57 million worth of accrued liability balances, described by Mr.

McMillan as unreleased, included releases which could not be identified.

[1145] I am satisfied that the release of this $222 million in Q3 02 and Q4 02 did not result in a

misrepresentation of Nortel’s financial results for those quarters or for fiscal 2002. These

releases positively impacted earnings in those quarters but Nortel still lost in excess of $2 billion

in those two quarters.

[1146] I am not satisfied beyond a reasonable doubt that the manner in which the three accused

dealt with the $303 million in accrued liability balances identified by Susan Shaw in her October

2002 compilation resulted in a misrepresentation of Nortel’s financial results to the investing

public or Nortel’s Board of Directors.

The $80 million in Non-op Accrued liability balances released to the Q1 03 profit

and loss statement

The Return to Profitability Bonus

[1147] I am satisfied that the Return to Profitability Bonus was payable in Q1 2003 with or

without the release of $80 million in Non-op accrued liability balances.

[1148] I am satisfied that Mr. Hathway was not misled when he was told by either Mr. Beatty or

Mr. Gollogly that the Return to Profitability Bonus was payable with or without the release of

the $80 million with which we have been concerned.

The Restricted Stock Unit Bonus

[1149] I am not satisfied that the $4 million Siemens accrued liability balance released in Q2 03

misrepresented Nortel’s financial results by causing them to indicate that a Restricted Stock Unit

Bonus Plan milestone had been reached.

[1150] I am not satisfied that releasing the $4 million Siemens balance in Q2 03 created a risk to

the pecuniary interests of Nortel Networks Corporation contrary to count 2 in the indictment by

falsely indicating that the first milestone of the Restricted Stock Unit Bonus Plan had been met.

[1151] I am satisfied that the release of the $4 million Siemens accrued liability balance in Q4 02

or Q2 03 would have had exactly the same effect as far as the first milestone of the Restricted

Stock Unit Bonus Plan was concerned.

135

[1152] I am not satisfied that any or all of the accused knew that the $4 million Siemens accrued

liability balance should have been released in Q4 01.

The $80 million generally

[1153] I am satisfied that Nortel achieved net income in Q1 03 with or without the $80 million.

[1154] I am satisfied that including the $80 million with which we have been concerned in

Nortel’s Q1 03 profit and loss statement or removing the $80 million from Nortel’s Q1 03

consolidated balance sheet did not misrepresent Nortel’s financial results for Q1 03.

[1155] I am satisfied, based on my acceptance of Ms. Shaw’s evidence, that Ms. Shaw, Mr.

Gollogly and the other Nortel employees at the April 15, 2003 meeting fully disclosed to their

auditors the circumstances surrounding the release of $80 million in accrued liability balances, as

well as the circumstances surrounding the remaining $109 million in accrued liabilities on the

balance sheet.

[1156] The $80 million which was released in Q1 03 had been conclusively determined to be

unsupportable. Deloitte, the Audit Committee, Ms. Shaw and all the accused knew that there

were no triggering events in Q1 03 which required the release of this $80 million. It was

obviously the view of everyone involved that the release of this $80 million would not materially

affect Nortel’s balance sheet or profit and loss statement. As indicated elsewhere in these

reasons, I agree with this conclusion.

[1157] Disclosure of the fact that Nortel’s financial results for Q1 03 were positively affected by

the release of this $80 million was, in fact, included in Nortel’s published financial statements

and the press release announcing the Q1 03 financial results.

[1158] I accept the conclusions in the draft memo prepared by Ms. De Acetis, Mr. Chant and Mr.

Allen. I find the memo persuasive. I reject Mr. Hathway’s evidence to the effect that the

calculations or conclusions in this draft memo are not correct.

[1159] I accept the coherent materiality analysis in the draft memo prepared by Ms. De Acetis,

Mr. Chant and Mr. Allen.

[1160] I am satisfied that the release of $80 million in Non-op accrued liability balances to

Nortel’s profit and loss statement was not material to Nortel’s Q1 03 profit and loss statement.

[1161] I am satisfied that the release of the $80 million from Nortel’s balance sheet to its profit

and loss statement was not material to Nortel’s Q1 03 balance sheet.

[1162] I am satisfied that the release of this $80 million did not create a risk to the pecuniary

interests of Nortel Networks Corporation.

[1163] I am not satisfied that the way in which the three accused dealt with the $80 million in

unsupported accrued liability balances in Q1 03 misrepresented Nortel’s financial results to the

investing public or Nortel’s Audit Committee or Nortel’s board of directors.

136

The attempt to release the $142 Million

[1164] I am also satisfied that the attempt to release $142 million in unsupported or excess

accrued liability balances in Q2 03 did not misrepresent Nortel’s financial results. Mr. Hathway

objected to the release and Mr. Gollogly returned the $142 million to Nortel’s balance sheet

where those balances had always been.

[1165] I am satisfied that the presence of this $142 million in accrued liability balances on

Nortel’s balance sheet in Q2 03 did not misrepresent Nortel’s liabilities or otherwise

misrepresent Nortel’s financial results in Q2 03. Mr. Richmond was clearly of this opinion; the

Crown expert Mr. Chambers did not offer a contrary opinion.

[1166] Because the presence on Nortel’s balance sheet of $142 million in unsupported/excess

accrued liability balances was disclosed to Nortel’s Audit Committee in a way which resulted in

a Comprehensive Balance Sheet Review, I am satisfied that the presence of this $142 million in

unsupported balances on Nortel’s balance sheet did not create a risk to the pecuniary interests of

Nortel Networks Corporation.

Nortel’s published financial results for Q3 03

[1167] When I consider this evidence, I am not satisfied that the original published Q3 03

financial statements misrepresented Nortel’s financial results for Q3 03 due to the improper

release of accrued liability balances to the profit and loss statement or for any other reason.

[1168] In Q3 03, the total accrued liability balances released to the profit and loss statement, in

fact, totaled $391 million. This is a significant volume of releases. Some of these releases were

in the normal course and some were not. Steps were taken to identify which was which to ensure

that the published financial statements were not affected inappropriately. Neither Mr. Chambers

nor any other witness offered the opinion that the steps were inadequate.

[1169] I am satisfied that the steps taken to preserve the integrity of the Q3 03 financial

statements were successful with the result that Nortel’s financial results for that quarter were not

misrepresented.

The Comprehensive Balance Sheet Review

[1170] The first restatement produced $900 million in favorable impacts to shareholders. The

$900 million in excess accrued liabilities represented expenses/liabilities on the balance sheet

that did not have to be recognized. It was never suggested that these accrued liability balances

ought not to have been restated. As a result of restating these balances, shareholder equity was

increased.

[1171] I am satisfied that the Comprehensive Balance Sheet Review was comprehensive. It

identified more than $900 million in excessive accrued liabilities.

[1172] I am satisfied that there was intense pressure to complete the Comprehensive Balance

Sheet Review as quickly as possible. I do not attribute this imperative to the accused alone. I

accept the evidence of Mr. Richmond that there was an agreement among the Board, senior

137

management and Deloitte that the comprehensive balance sheet review should be completed “as

rapidly as was humanly possible”. I am satisfied that this imperative existed because the accused

and Nortel’s Audit Committee wanted to make their appropriate filings with the SEC and the

Ontario Securities Commission within normal reporting lines. I am not satisfied, on the

evidence, including the evidence specifically referred to, that the Comprehensive Balance Sheet

Review was not comprehensive because timelines were short.

[1173] The evidence falls far short of proving that the accused, either individually or

collectively, attempted to frustrate the Comprehensive Balance Sheet Review or the first

restatement of Nortel’s previously-published financial results. Deloittes, specifically Mr.

Richmond, insisted on the Comprehensive Balance Sheet Review and I am satisfied that Deloitte

would not have accepted such obstruction and would have brought the matter to the attention of

the Audit Committee.

[1174] I am not satisfied that the first restatement was under-resourced. Deloitte was free to add

staff as they saw fit. Mr. Richmond did not hesitate to recommend that Nortel staff and Deloitte

staff be compelled to take a long weekend. I have no doubt he would have recommended that

Nortel find additional staff for the Comprehensive Balance Sheet Review if it had come to his

attention that the project, which Deloitte had insisted upon, was being compromised because it

was under-resourced on the Nortel side.

[1175] I am satisfied that the scope of the Comprehensive Balance Sheet Review was

reasonable. The scope of the Comprehensive Balance Sheet Review was accepted by Nortel’s

auditors and its Audit Committee. Throughout the Comprehensive Balance Sheet Review, there

was no suggestion that the scope of the review was too narrow.

[1176] I accept the evidence of Mr. Richmond, Ms. Sledge, Mr. McMillan and others attesting to

the effort that went into the Comprehensive Balance Sheet Review.

[1177] I accept the evidence of Mr. Dans that there was a trending analysis done at the

conclusion of the first restatement which validated the results of that restatement.

[1178] An accrued liability balance when Deloitte decided there had been an error. In order to

understand what to make of the error, one has to understand the specifics of the release. An

example is the JDS Uniphase transaction. Deloitte gave Nortel an opinion in 2001 concerning the

accounting for this transaction which Nortel accepted. Deloitte confirmed its original advice on

January 9, 2003. During the second restatement, Deloitte changed its opinion entirely. Nortel

accepted Deloitte’s new opinion and, as a result, restated $319 million worth of revenue. Deloitte

behaved in a similar manner when considering the Optical Warranty accrued liability balance.

[1179] It would be imprecise and dangerous to conclude, without knowing the specifics of the

transactions, that Nortel’s prior published financial results were false because transactions such

as these were restated. The more accurate statement is that Deloitte changed its mind about the

accounting treatment for these transactions and, as a result, previously-published financial

statements had to be changed. Once the specifics of the transaction are known, it is clear that the

three accused could not have known about these so-called errors.

138

[1180] It would be wrong to infer that the three accused knew that an accrued liability balance

that was restated was false in the absence of evidence concerning the specifics of the balance.

[1181] When I consider all of the evidence, it is my conclusion that the second restatement

produced different results than the first restatement because the thresholds of the second

restatement were different, because the second restatement concentrated on revenue recognition,

as well as excessive accrued liability balances, and because Deloitte changed its mind about the

accounting for specific transactions. Sometimes, as the specifics of the Genuity accrued liability

balance demonstrate, Deloitte disagreed with itself. With respect to that release, the U.S.

National Office of Deloitte & Touche disagreed with the Deloitte reviewers at Nortel and

overruled them.

[1182] I am not satisfied by the evidence in this case, including the fact that the second

restatement resulted in financial statements which were different than Nortel’s previously-

published and restated financial statements, proves that the previously-published and restated

financial statements misrepresented Nortel’s financial results. For example, in the period Q4 02,

which occupied a considerable amount of the court’s time, Nortel’s original published financial

statements reported a US GAAP loss of $248 million and revenue of $2.5 billion. After two

restatements, Nortel reported a US GAAP loss of $294 million and revenue of $2.6 billion.

The Q1 & Q2 03 accrued liability balance releases

[1183] I am not satisfied beyond a reasonable doubt that the three accused deliberately

misrepresented Nortel’s original Q1 03 and Q2 03 published financial results by releasing $361

million and $372 million, respectively, to Nortel’s Q1 03 and Q2 03 profit and loss statements.

[1184] The restated releases referred to in the evidence lead me to the conclusion that the

decision to restate on account of an error can be the same thing as saying that there was a

decision to restate on account of a difference of opinion. The difference of opinion can occur

with the benefit of hindsight. The difference of opinion can be influenced by new information.

As indicated earlier, when deciding to restate an accrued liability balance, sometimes Deloitte

disagreed with itself. The specifics of each restated item are a story, the details of which cannot

be inferred from the ending.

[1185] In the abstract, it is true that the fact that accrued liability balances in Nortel’s balance

sheet were restated is capable of supporting an inference that, in their original form, the financial

statements misrepresented Nortel’s financial results. Based on the evidence that I have heard, it

is my conclusion that I should not draw such an inference in this case.

[1186] When I consider the evidence generally, including the evidence to which I have referred,

I come to the conclusion that I am not satisfied by the evidence that, apart from the $80 million

in Non-op releases, the Q1 03 and Q2 03 accrued liability releases were outside the normal

course of business.

[1187] As a result, I cannot give effect to the Crown submissions concerning the inferences I

ought to draw from the fact that the original Q1 03 and Q2 03 accrued liability balances were

restated.

139

VERDICT

[1188] For the reasons that I have set out and having regard to all the evidence, I am not satisfied

beyond a reasonable doubt that Frank A. Dunn, Douglas C. Beatty and Michael J. Gollogly

deliberately misrepresented the financial results of Nortel Networks Corporation and, therefore, I

find each of them not guilty of counts one and two in this indictment.

MARROCCO J.

Released: 20130114

CITATION: R. v. Dunn, 2013 ONSC 137

COURT FILE NO.: 10-00145

DATE: 20130114

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

FRANK A. DUNN, DOUGLAS C. BEATTY AND

MICHAEL J. GOLLOGLY

Defendants

JUDGMENT

MARROCCO J.

Released: 20130114