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Health Firing Inquiry 'Adversarial, Intimidating'

Refusal to fund legal costs in ombudsperson's probe unfair, says Rebecca Warburton.

By Andrew MacLeod 22 Jun 2016 |

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria and the author of A Better Place on Earth: The Search for Fairness in Super Unequal British Columbia (Harbour Publishing, 2015). Find him on Twitter or reach him here.

Two people fired from British Columbia's health ministry in 2012 say they can't afford to participate in the ombudsperson's investigation into what happened to them and other workers.

"We have been severely traumatized, and I feel re-victimized by the way the ombudsman inquiry is proceeding," Rebecca Warburton said in an email. "The whole sad saga continues to be incredibly stressful and disruptive."

Despite receiving a $260,000 settlement, a large part of which went to lawyers, Warburton said she and her husband Bill are in a deep financial hole after losing their work and taking the government to court.

The couple and at least six others lost contracts or jobs over what then health minister Margaret MacDiarmid called concerns about privacy, data management, contracting procedures and conflicts of interest.

The government has since apologized for some of the firings, rehired some workers and settled five lawsuits, including that with the Warburtons.

Premier Christy Clark has apologized to the family of Roderick MacIsaac, a co-op student who killed himself a few months after being fired from the health ministry. Clark also apologized for misleading the public by claiming the RCMP was investigating the allegations. That was not true.

An initial investigation of the firings by employment lawyer Marcia McNeil failed to answer questions about who fired the employees, and why. Key senior officials refused to participate in her review.

Liberals shunned calls for full inquiry

Despite calls for a full public inquiry, Health Minister Terry Lake asked the legislative finance and government services committee to refer the matter to ombudsperson Jay Chalke for investigation last year.

Chalke expressed detailed concerns about taking on the file. To ensure public confidence in the process, he said, the committee should consider the views of the fired people before making the referral.

Representatives for several of the employees argued a public inquiry would be a better forum, but the committee's Liberal majority voted to refer the matter to Chalke.

The Warburtons and others affected met with Chalke on Jan. 25 to discuss the inquiry process, but Rebecca said she has not been allowed to meet with him since then.

She is scheduled to talk with Chalke for half days on June 27 and 28. Bill Warburton is scheduled for a full day with Chalke on July 13.

But Rebecca said the Warburtons have been denied the support and information they need to participate fully.

"We explained that because of the unfair treatment we had received in 2012 and later, we wanted to have legal advice while providing witness testimony to the inquiry, and to have the costs of legal advice fully paid by the [ombudsperson's] office," she said.

"I have told his staff that in my opinion, if the inquiry fails to provide either funds for legal advice or access to documents, this will ensure that the inquiry will ultimately prove to be unsuccessful and unfair," she said. "It is now clear that neither funds nor document access will be provided."

Government capped legal fees for fired workers at $1,000

In February the government announced it had capped legal fees for potential witnesses at a maximum of $250 per hour and $1,000 in total per person.

An official in Attorney General Suzanne Anton's ministry said in an emailed statement that the hourly rate is the standard maximum the government pays for legal fees. "There is no intention to revisit the hourly rate," the statement said.

The $1,000 maximum is for "process advice" to help people asked to participate in the investigation better understand "what their participation may involve or require," the official said. There is also up to $25,000 for legal advice available to people who may be adversely affected by the ombudsperson's findings, she said.

"There is no intention to revisit the allocated amounts as they are considered sufficient for each type of coverage."

In March, Chalke wrote lawyers representing two of the other affected workers and MacIsaac's family to say that lawyers do not "generally" participate in ombudsperson investigations. "Even a modest amount for process advice to cover the cost of counsel reviewing our witness information package and providing advice is, as far as we can determine, unprecedented."

Warburton said she and her husband have been using experienced lawyers who charge more than the government is willing to pay. The couple can't use the government funding unless the lawyers cut their rates or they come up with the extra costs, which they can't afford, she said. "This would likely be true for most or all of the others affected," she added.

The lack of advice will make a difference to their participation in the investigation, she said. "I will be, and Bill may be, forced to go to these sessions without any prior legal advice," she said. "And full legal advice, during testimony, is completely unaffordable for either of us."

Warburton said the government bargained aggressively during the settlement negotiations and insisted on treating her and her husband's cases together, even though they had filed separate lawsuits. The government negotiators pushed for the smallest possible settlement, rather than one that reflected how much the couple had lost or how they'd been harmed, she said.

In a joint statement with the B.C. government released in December, the Warburton's acknowledged "that they did breach some rules and procedures" and the province recognized "that such breaches were motivated by their intention to further the research goals of the Ministry of Health, and not for their own personal gain."

Settlement short of loss

After $9,000 in taxes and $115,000 in legal fees were deducted from the $260,000 settlement, the couple received $136,000, Rebecca Warburton said.

That compares with $720,000 they lost because of the firings, an amount that includes lost income and employment benefits and interest on money borrowed to finance their lawsuits.

Rebecca Warburton is a University of Victoria associate professor in the school of public administration who was cross-appointed to the health ministry as a co-director of research and evidence development in the pharmaceutical services division.

Bill Warburton held a $1-a-year contract that gave him access to government health data to use in his research. The government cancelled the contract at the time of the firings.

"Our finances are extremely strained," Rebecca Warburton said, noting that she and her husband are both approaching their 63rd birthdays.

"This ordeal has been personally, professionally and financially devastating for us," she said. "My student killed himself because of it. Work that we regarded as vitally important has been cancelled."

They want to see the truth come out, but Warburton said she has no confidence the ombudsperson's investigation will treat her any more fairly than than the 2012 process that led to the firings.

"It is the worst thing that has ever happened to us, and we've had our share of adversity," she said. "It is far worse to be falsely accused, than caught when committing a crime -- the injustice is painful and shocking. My health and ability to work, and Bill's, have been damaged by depression and anxiety."

She said her husband's reaction to the ombudsperson's investigation has been more positive but she remains deeply troubled by the process.

"Mr. Chalke's staff do not seem to understand that whatever their intent, I experience their process as inherently adversarial, confrontational and intimidating."

Despite suggestions the review could produce some results this fall, Chalke has said it will take as long as it takes and he is more interested in being thorough than fast.  [Tyee]

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