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Fork over Full Health Firings Findings: Dix

Public paid for report full of holes, MLA writes Justice Ministry, demanding facts, names be unveiled.

By Andrew MacLeod 8 Jan 2015 | TheTyee.ca

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria. Find him on Twitter or reach him here.

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New Democrat MLA Adrian Dix wrote to deputy attorney general Richard Fyfe: 'We have a right to receive the full report, without sections inconvenient to the government, hidden from public view.'

The British Columbia government must release the full report on the botched 2012 Health Ministry firings, then do more to find out what really went wrong, said Adrian Dix, the MLA for Vancouver-Kingsway.

On Dec. 19 the government released a report by employment lawyer Marcia McNeil on the seven firings, some of which Premier Christy Clark had already admitted were overreactions, but redacted key information from two of its appendices.

"We were repeatedly promised [the full report]," Dix said in an interview, noting Clark said in the legislature the report would be available to the public. "The full report should be released. This is government misconduct depicted page after page."

McNeil's report, Investigatory Process Review -- 2012 Investigation into Employee Conduct in the Ministry of Health, made a dozen findings about errors in the process that led to the firings, including that investigators did not conduct the investigation with open minds and that employees weren't given sufficient chance to respond to allegations that had been made against them.

In a Jan. 7 letter to deputy attorney general Richard Fyfe, who had been responsible for receiving and reviewing McNeil's report, Dix wrote, "Given the specific commitments made and the seriousness of the issues involved, we have a right to receive the full report, without sections inconvenient to the government, hidden from public view."

Names of officials redacted

The public version of the report had the names of Health Ministry assistant deputy ministers Lindsay Kislock, Manjit Sidhu and Barbara Walman redacted from the terms of reference for the 2012 review that eventually led to the firings, included in McNeil's report as Appendix C.

"There's no basis to keep the names out," Dix said. "There's none."

The government also withheld all of Appendix D, other than the title: "Legal Services Chronology -- Advice Provided by Legal Counsel with the Ministry of Justice ('Counsel')."

The chronology "is of particular interest on the important issue of the government's decision to smear the wrongfully dismissed employees with the taint of an RCMP investigation," Dix wrote in his letter to Fyfe.

When the firings were announced in September 2012, the government's news release said the RCMP had been asked to investigate, but more than two years later the force is yet to confirm that there has ever been such an investigation.

"The decision made by Government Communication and Public Engagement Office to include a reference to such an investigation in the press release, media leak and press statements on Sept. 6, 2012 was, in my view, disgraceful and inappropriate," Dix wrote.

The chronology would show whether senior officials received legal advice on whether or not to mention the RCMP, but not give the advice itself, wrote Dix. Those officials include deputy premier John Dyble, others in the office of the premier, deputy minister Athana Mentzelopoulos who had responsibility for Government Communications and Public Engagement (GCPE), former health minister Mike de Jong, former health minister Margaret MacDiarmid and former deputy minister of health Graham Whitmarsh.

It's unlikely anyone giving legal advice would have counselled mentioning the RCMP, Dix said in an interview. "Those decisions were made by the Premier's Office and GCPE, in my view."

'Reputational interests' protected

Kurt Sandstrom, assistant deputy attorney general in the Legal Services Branch, said in an emailed statement that the redactions were necessary to protect solicitor-client privilege and to comply with the Freedom of Information and Protection of Privacy Act.

"Solicitor-client privilege applies not only to the content of confidential communications with a person's lawyer, but also to communications, from which the content might be inferred," he said. "Civil litigation is ongoing with respect to some of the Ministry of Health firings. To avoid any possible prejudice to the province's position in that litigation, great care has been taken to ensure that there has been no waiver of privilege through the McNeil review."

Appendix D included the dates and the subject matter of legal advice that had been provided, so needed to be removed, he said.

The names were removed from Appendix C because of restrictions in the FOIPPA restricting the disclosure of personal information, Sandstrom said. "There was concern that disclosure of the names could accurately or inaccurately associate individuals with actions taken, and therefore might harm their reputational interests."

There was an assessment under the Act of whether it was necessary to disclose the personal information, but because McNeil's mandate didn't include finding fault, "there was no necessity to disclose the names," he said.

Unanswered questions

Dix also criticized the government's decision not to post McNeil's report on the Internet, instead making it available to the media on request, as it did with a report last year on compensation at Kwantlen Polytechnic University written by Rob Mingay, an assistant deputy minister in the finance ministry.

"This is the government keeping embarrassing reports from the public, that the public paid for and the public has a right to have access to," said Dix.

Sandstrom said Section 33.2 of the FOIPPA prohibits public bodies from disclosing personal information outside Canada. "If the report were posted online, it could be accessed outside of Canada," he said. "To meet our obligations under the act, we cannot make the report available on a government server. The same was true of the Mingay report."

McNeil's report left many questions unanswered, said Dix, noting it appears she was unable to interview key people, including Clark's deputy John Dyble.

There needs to be a full inquiry ordered under the Public Inquiries Act so that the decision makers have to give evidence under oath, powers that had not been given to McNeil for her review, said Dix. Those decision makers would include Dyble, Whitmarsh, de Jong, MacDiarmid and Mentzelopoulos, he said.

They would also include Lynda Tarras, who retired as head of the Public Service Agency, and Elaine McKnight who replaced her, Dix added. McKnight was an assistant deputy minister in health at the time of the firings, but in her new role was responsible for the government's response to McNeil's report.

Despite McKnight having been involved in meetings that led to the firings, said Dix, "She's receiving the report and passing judgment on it."

The public, the people who were fired and their families deserve answers, said Dix. "There's much more to come, obviously."

In 2014 the government rehired two people who'd been fired in 2012 after settling lawsuits with them out of court. A third lawsuit ended with a former employee receiving a settlement but saying he'd decided to retire rather than return to the ministry.

Lawsuits filed by Rebecca Warburton, the former co-director of research and evidence development in the ministry's pharmaceutical services division and her husband Bill Warburton, a researcher, remain before the courts.

A union grievance process ended without two B.C. Government and Service Employees' Union members who were fired receiving their jobs back. Dix said, "Dave Scott should be reinstated. Ramsay Hamdi should be reinstated. The Warburtons need to be settled with. All these things are true."

A third union member, Roderick MacIsaac, was a co-op student with the ministry designing an evaluation for the smoking cessation program when he was fired. He committed suicide a few months later.

"Here we have more than ample evidence of unjust treatment by management and no such repercussions," said MacIsaac's sister Linda Kayfish in an emailed statement about McNeil's report. "It is another example of one set of rules for the people and another for those in positions of power."

A more detailed inquiry is needed to get answers from the people who were in positions of authority and power at the time of the firings, she said, "One that has the teeth to get to the hard questions that need to be asked and get them answered."  [Tyee]

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