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Man asks judge to remove herself in challenge of Muskrat Falls

Brad Cabana, a political blogger and small businessman, who is challenging the Muskrat Falls hydro megaproject, is seen at the Supreme Court of Newfoundland and Labrador in St. John's on Friday, Feb. 22, 2013. Cabana has asked the judge hearing the case to remove herself. THE CANADIAN PRESS/Sue Bailey

ST. JOHN'S, N.L. - The Newfoundland man who is challenging the Muskrat Falls hydro project threw a legal curve ball Friday, asking the judge to step aside for an alleged conflict of interest.

Brad Cabana, a political blogger and small businessman, is arguing in provincial Supreme Court that the $7.7-billion development in Labrador should be stopped. He asserts that the megaproject is rife with legal uncertainties and constitutional breaches that leave it vulnerable to court action.

Judge Gillian Butler is also hearing his claims that the province unjustly denied residents a say on Muskrat Falls through a referendum.

But Cabana, who isn't a lawyer and is representing himself, asked Butler to recuse herself from the case because of her husband's legal ties. David McKay is a partner with the St. John's law firm representing former premier Danny Williams.

Cabana is embroiled in a defamation lawsuit and countersuit with Williams.

Butler said she knew nothing of the case and that Cabana's request was a complete surprise to her.

"It's disappointing that this would be raised on the second day of this hearing," Butler said.

Cabana apologized, saying he only realized the connection on Thursday after proceedings began.

"Should she find against me, she is in a position to award damages against me," Cabana said outside court, referring to possible court costs. "And those damages could render me incapable of fighting the other lawsuit as represented by her husband's company."

Outside court, Cabana was critical of Butler for shutting down one of his main arguments as the hearing started. The judge refused to give Cabana a delay of at least 10 days — the time it would take to properly notify the federal Attorney General's office of his constitutional challenge.

"She denied me an adjournment of 10 to 12 days to ... serve the federal government that would allow the primary backbone of this case to go forward."

Cabana said he did an Internet search and found a newspaper article naming Butler's husband, a partner with Roebothan McKay Marshall, the law firm that Williams helped found but later left to enter politics.

Cabana asked for Butler's removal as soon as Friday's hearing began after a winter storm delay.

Cabana also raised concerns that Gilbert Bennett, the vice-president of Crown corporation Nalcor Energy overseeing Muskrat Falls, was allowed to hear his cross-examination Thursday of a provincial bureaucrat. The official was involved in negotiating related benefits agreements for the Innu Nation.

Cabana said he was "very disturbed" that Bennett heard that exchange before he was to be cross-examined on Nalcor Energy's affidavit.

Nalcor Energy lawyer Thomas Kendell interjected that Cabana may not appreciate certain legal "nuances" but Bennett has every right to remain in court during such proceedings.

The court adjourned to allow all parties to prepare over the weekend for arguments Monday on the legal test for a judge's removal.


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