Freedom from Information: NL gov’t keeps lid slammed tight

The province’s score on public access to government records is boosted by the performance of municipalities across the province. But that’s not the same as the provincial government.

Its record of openness  - on the other hand  - is nowhere near as good Saturday’s news suggests. 

Of six requests for information under open records laws during a recent survey by the Canadian Newspaper Association, the Government of Newfoundland and Labrador did not fully disclose in response to any of the requests.

The provincial score is boosted by the responses by municipalities across the province, all of which applied both the spirit and the letter of the access to information law to a greater extent than did the provincial government.

Provincial government departments and agencies received six requests.  Of those half met the response that no records existed.  Another was denied in full, while another was deemed a denial of access by the researchers.  Only one request was answered with a partial disclosure.

The responses fit the pattern of apparently inaccurate or false responses found recently by the Telegram. 

In one notorious case, the Executive Council claimed it had no records on so-called “purple files” even though the Telegram had an e-mail from the Premier’s Office – a record within the Executive Council under the access to information law – and the reporter saw such a file during an interview.

The responses to the CNA survey are astonishing and in some cases laughable:

1.  Vehicles: No records/Not my department.  The request for a “list of vehicles (including make, model, and year) available for transportation of members of cabinet and senior public servants. As well, please provide a copy of your policy on the idling of vehicles.” made to the Executive Council – the central government agency that vets all access requests yielded this answer:

Newfoundland and Labrador said it didn’t have any records on such vehicles, although the executive council office suggested filing a request to another department for an idling policy.

That’s right, rather than respond to the request and provide the information, the Executive Council told the researcher to file another access request with a line department.  And that’s after the central agency that co-ordinates all government activity claimed it had no records on vehicles available for the use of cabinet ministers senior public servants.

It took 20 days to get those responses.

2.  Road paving:  A request for information on road paving work in the province got a ludicrous response.  Specifically, the researchers asked for “[a]n electronic list of highway construction contracts including fields for the contractor,
contract value, date contract awarded and description of the work, for contracts of $100,000 or more awarded during the 2007-2008 fiscal year. Please provide the data in Microsoft Excel, Access or delimited text format.”

Provincial government departments use Excel and certainly maintain records electronically, i.e. on computers.  The department’s response, therefore,  is laughable: 

The letter from the Transportation and Public Works department in Newfoundland stated that the information “does not exist in electronic form within this department,” even though the record released was a computer printout.

The government is known to maintain detailed records on road paving  - by provincial electoral district - and political staff in the Premier’s Office have a hand in determining how much money goes to what district in the highly politicized system.  Someone has the records and likely keeps them electronically rather than with quill pen.

3.  Tasers:  A request to the Royal Newfoundland Constabulary for policy on use of tasers by police did not receive any decision and was recorded as a refusal in full.

4. A request for briefing notes for the finance minister on carbon tax was denied in full.

5.  A request for  any audit conducted of physicians’ billings under the provincial medical plan earned a response of “no records.”

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Rumpole and …

Things overheard in the clerks’ room at Number 3 Iniquity Court:

1.  and The Old Boys Net, Redux.  Seems there was an omission from the biography that went with the notice that Karl Inder had taken silk.  The newly minted Queen’s Counsel (to be sworn next week) “began his professional career in St. John's where he practiced for five years before returning to his hometown of Grand Falls-Windsor in 1989.”  No mention though of what firm, which would be odd given that it was the Premier’s.

How many of the Premier’s friends, relatives and acquaintances have been appointed counsel to Her Majesty, learned in the law, since October 2003? The number must be getting embarrassing even if it does include, among others, most of the partners at his old chambers, his brother and the current minister of finance.

2. and the Embarrassment of Riches.  Mark Pike was doubly blessed in October 2008, being named Queen’s Counsel and then a few weeks later appointed as the the next in line to be chief provincial court judge.

He was sworn to the bench last week but, as word goes, the silks aren’t to be handed out until next week.

Whatever to do?  It would hardly be appropriate for a judge to take an oath to counsel Her Majesty as one learned in the law when Her Majesty has already removed one from the fray.  As a judge one is to decide cases, not argue them.

Ah, if only they’d handled the ceremonies in the same order as the news releases.

3.  and the First Time Ever.  The Queen’s Counsel appointments had a first time event in the history of the local legal community, namely the first time a husband and wife took silk at the same time.  Mark Pike is married to Pamela Goulding.

4.  and the Judge’s Elbow.  Or is it the judge’s ear?  Don’t be surprised if every time someone appears on a criminal matter before Assistant Chief Provincial Court Judge Mark Pike (one and the same as Pike QC) that defense counsel doesn’t raise the uncomfortable point that the prosecutor’s boss is the judge’s spouse.

Pamela Goulding QC is the Director of Public Prosecutions for the province.

Seems it’s the first time ever for that little problem to occur as well. Lesser issues have been raised and some not quite so interesting have gone to the Supreme Court of Canada no doubt.  Someone  - not a QC surely - might be bloody minded enough to push this one quite far.

5.  and the Blind Tasting.   Some rumblings of discontent this week with news that Don Singleton has been appointed to the provincial court bench.  The new Judge Singleton had a run-in with the law in 2005, in that he pleaded guilty to charges of evading taxes on tobacco and alcohol purchased from the Italian air force duty free shop in Goose Bay.

He received an absolute discharge.

Judge Singleton had only been at the bar – the legal one – for a decade prior to his appointment. He was a fisherman and went to law school under the TAGs program. At the time of the tax problem, he was handling federal government legal work in Labrador;  he very quickly lost the contract to prosecute drug and assorted regulatory offences.

Judge Singleton’s wife, it should be noted, sits on the executive of the Provincial Conservative Party.  Unreported publicly thus far, though, is the fact that this is not Judge Singleton’s first appointment since 2003.  In 2005, he was appointed as an alternate employer representative on the labour relations board.

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Budget Farce starts next week

In keeping with tradition, Jerome Kennedy, the province’s noob finance minister, will be holding a round of farcical “consultations”.

The “consultations” are open to the public.

The minister claims the sessions “provide residents the opportunity to have their voice heard with respect to their priorities for the upcoming budget.”  Since members of the public won’t have an accurate picture of public spending from 2007 – yes 2007 – until some time later in 2009 and because the public won’t have any solid information on government projections for 2009, there really isn’t much a chance that people can have meaningful  - that is, informed - imput.

But then again, that’s not what the annual farce is about. It’s about the provincial government appearing to listen while in reality telling the public what it wants them to hear and nothing more.

It’s a farce because the major budget decisions are already made.  How do we know?  Well, the Premier told us when – around this time last year – the public heard about hospital facilities reports the government had sat on for three years.  The Premier gave enough information so anyone with a clue could figure out that the amount for hospital repairs had already been set and that was while the consultations were in progress.


Government upped the figure by a paltry four million or so, compared to the umpteen millions required.  The money was available of course, given the huge oil revenues.  The provincial government just hadn’t decided to increase the repair budget by any great amount until they were embarrassed into it.

Farce on, Jerome.

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Foggy Bottom probing expropriation; other diplomatic inquiries to follow?

According to The Telegram, American diplomatic officials have inquired with the Government of Newfoundland and Labrador about Bill 75.  That’s the expropriation bill rammed through the legislature before Christmas with virtually no debate.

No details on the inquiries have been released.

While attention has focused on AbitibiBowater – the public target of the bill - Bill 75 also expropriated assets belonging to  Manulife, Standard Life, Industrial Alliance, Sun Life, Fortis Generation and Enel. 

Enel is an Italian energy company represented in the Star Lake project by its subsidiary CHI. No word on whether Italian diplomats have also inquired about the expropriation.

Standard Life Canada is the Canadian division of the Scottish international financial services group. No word on any diplomatic inquires from the United Kingdom High Commission.

Fortis Generation is a subsidiary of Fortis, Inc, the Newfoundland-based energy company with interests in Canada, the United States and Central America.

Manulife and Sun Life are Canadian financial services companies.

 

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Rambler halts mine development

In what it calls the first phase of a cost reduction program, Rambler Metals and Mines is halting all underground drilling and pre-development work on its Ming Mine at Baie Verte, Newfoundland. 

The company is laying off 18 employees and retaining those staff necessary to complete a technical report, resource study and engineering assessment. That work is due by the end of January.

In December, the company reported net losses of more than GBP 212, 000 but company management indicated they were confident that additional financing could be secured by mid-2009.  In making the announcement on Thursday, however, Rambler chief executive officer George Ogilvy said the halt at Ming would enable the company “to care [sic] and maintain its high quality asset without requiring any external funding until 2010.”

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Shithouse?

Down this way, ignorant has a connotation that others may not pick up.

To be ignorant means that one is unaware of facts, but to be ignorant also means taking that lack of knowledge and acting in a rude, boorish, offensive manner.

Now we can look to the dictionary and see a reference to David Angus’ comments in Lawrence Martin’s stroke piece on Peter Mackay, DDS:

"I think Peter's got the opportunity to be the regional powerhouse in taking an area of Canada from shithouse to lighthouse."

That’s the epitome of ignorance in too many ways to waste time explaining.

Let’s just let the words speak for themselves.

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Clueless, useless “opposition”

Lorraine Michael is clueless.

She obviously – painfully obviously – doesn’t understand how cabinet appointments are made.  How the heck else would she make this kind of comment to voice of the cabinet minister?

NDP Leader Lorraine Michael wants the Premier to consult with the Minister Responsible for the Status of Women when filling board positions. Danny Williams appointed Ed Drover to replace outgoing member Mary J. Whelan on the Offshore Petroleum Board earlier this week and Michael says the new makeup may not be able to adequately address employment equity issues for women in the offshore since there are now no women sitting at the table. Michael says Williams missed the opportunity to name a woman to the now all-male board, which also has an all-male management team. Michael plans to raise her concerns in a letter to Williams.

If not understanding the process wasn’t bad enough, the biggest concern she’s got about the recent appointment of a Tory bagman to a plum job on the offshore regulatory board is that the fact the board is now all-male means they won’t be able to adequately address gender equity employment offshore.

First of all, Lorraine Michael is making a sexist comment.

That’s right, a sexist comment.  Her comment is based on the assumption that men cannot understand, appreciate or act on issues involving gender equity evidently merely because of their chromosomal structure.

Utter crap, Lorraine.  Sheer crap.

Second, she might want to pay attention to something like the lack of any obvious qualification for the appointee other than his impeccable Provincial Conservative ones. Rather than make sexist comments, Lorraine might try addressing substance.

Third, she might want to watch the news once in a while. 

Lorraine Michael is the kind of opposition a government loves:  clueless and hence completely ineffective. 

Go ahead and write your letter to Danny, Lorraine. 

It’s sure to have a profound effect on the guy who eats tough multinational companies for breakfast.

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Kruger to trim production by 25K tonnes in first half of 2009

A short news release from Kruger on Wednesday confirmed the company will shed 25,000 tonnes of production in the first half of 2009 with the cuts being spread across the company’s three Canadian mills.

KRUGER TO REDUCE NEWSPRINT PRODUCTION IN 2009

Montréal (Québec), January 7, 2009 – Kruger Inc. announced today its intention to reduce its newsprint production by 25,000 tonnes in the first half of 2009. This curtailment will allow the company to re-balance its order book to capacity. The downtime will be spread throughout the Company’s three Canadian mills.

Founded in 1904, Kruger Inc. is a major producer of publication papers, tissue, lumber and other wood products, corrugated cartons from recycled fibers, green and renewable energy and wines and spirits. The Company is also a leader in paper and paperboard recycling in North America. Kruger operates facilities in Quebec, Ontario, Alberta, British Columbia, Newfoundland and and Labrador, in the United States and the United Kingdom and has 9,000 employees.

This cut will affect the mill at Corner Brook but no details were released by Kruger.

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Nostalgia: CF-101 Voodoos

Some eye candy for the interceptor lovers out there:  a short vid of 12 Canadian Forces Voodoos flying in formation.

Your humble e-scribbler once met a Voodoo backseat guy who had been on exchange with the Brits in Tornado fighters. He was amazed at how quiet they were.  In the Voodoo, he said, you could tell how fast you were going by how loudly you had to yell so the driver could hear you.

St. John’s declares war on Tim Horton’s

St. John’s city council doesn’t have much better to do – evidently – than to impose a ban on drive through eating establishments, particularly the Tim Horton’s franchises.

Interestingly enough, one Timmies on the west end of Water Street that is almost complete renovations to improve parking and deal with the traffic problems caused by its drive-through, will likely be denied an occupancy permit.

You can tell this latest move is another of the ill-considered policies that come from Tammany on Gower since no consideration seems to have been given to the implications of the supposed cause of the ban.  If a commercial establishment can have such business success that it causes some inconvenience  - the mayor throws out the spectre of “tragedy” - and therefore attract action specifically by Council, then every other enterprise that causes traffic snarls can expect the same treatment.

The mayor’s rhetoric is extreme.  These drive-throughs have been around for quite some time causing on occasion far worse problems than have been seen lately. If the fear of some unspecified “tragedy” is behind Doc O’Keefe’s sudden discovery of the Timmies crisis, one can only wonder what might happen if he walked along Brookfield Road instead of turning up Cowan Avenue during his daily constitutional. 

Lester’s Farm might be toast, especially on some Saturday’s.  Heck, the road itself can be treacherous at times.  Doc might even notice the absence of sidewalks in an area that has been residential for over three decades and yet…for some unknown reason…the city has not seen fit to provide an ounce of sidewalk for pedestrians. 

Doc might even wander into the neighbourhoods and find, for example, that city council crews often force residents to shovel six feet out into the street during the winter to find the one narrow lane left by council ploughs.  We are not talking major snowstorms here and usually the crews do a decent job;  it’s just that your humble e-scribbler found such a state  - six feet from curb to road - in front of his own humble dwelling only this past weekend when the total snowfall was something on the order of 10 centimetres.

But wait.

That would be city council’s responsibility to keep the roads in good condition or install sidewalks and maintain them properly and keep them cleared of snow. Perhaps they’d even have to explain last fall’s auditor problems. Or figure out how to fund curb side recycling.

And if city council had to focus on the basics, then – by Keith Coombs’ beard – they wouldn’t get to pour money down the Mile One sinkhole or gallivant all over the globe at the taxpayers’ expense  around trying to lure cruise ships to the city.

Not much has changed in St. John’s.

Incidentally, it’s an election year in the capital. If this Timmies attack is happening at the start of the year one can only imagine what sort of nonsense councillors will find to raise their ire come voting time.

Rest assured, though, as councillor Art Puddister told radio listeners this morning, it will occur – like the Tims attack - “on a go forward basis.”

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“The Celtic Tiger may be dead…”

From the New York Times, a perspective on the Irish economy and the impact the global economic crisis is having on the model once held aloft alongside that other now-crumbled relic, Iceland.

Ireland’s policy makers, like their counterparts in the United States and Britain, were seduced by record tax inflows and a full-employment economy. They paid little heed to the lonely voices that warned of the crash that finally came over the summer, when interest rates in Europe began to rise. Banks that had steered more than 60 percent of their loans toward property stopped lending, and asset values plummeted.

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Nice work if you can get it, patronage appointments version

Voice of the cabinet minister puts a happy government- face on the news that the provincial government just appointed Ed Drover to the offshore regulatory board on a “part-time” basis.  That’s a wee bit odd since the board isn’t a full-time job anyway.

Well, it’s also a bit odd that a radio station that started out claiming to be the Voice of the Common Man has flipped 180 degrees, but that’s another issue.

CBC’s Here and Now reminded everyone in the province tonight of two things.

First, the guy who got the plum is a well-known Provincial Conservative fundraiser.

Second, they reminded us – as CBC reported last April  - that the guy and the company he worked for are being sued by a former employee of the life insurance company who claims “she was verbally abused, harassed and bullied while on the job.”

No less a personage than Olympic gold medalist and Danny icon Brad Gushue had a few observations about the guy as well:

Gushue was employed as an adviser selling London Life products for nine months beginning in 2001. When he quit in June 2002, Gushue wrote to company vice-president Jim O'Neill, saying the office was led through "intimidation and fear."

Gushue alleged Drover addressed him in a "very unprofessional and inappropriate manner" in a meeting, and also said that when he quit, Drover called him "a failure."

So what is it about this cabinet and appointments to the offshore regulatory board?  Andy Wells and now this guy, neither of whom have any obvious background or experience in anything related to the offshore industry.

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The rules only apply to other people

Michael Walker is right when he draws this analogy to Danny Williams’ expropriation bill:

Under the terms of the monopoly that Mr. Williams eventually abandoned — in return, reportedly, for a couple hundred million dollars — Newfoundlanders in his area were compelled by force of federal law to use no other television delivery system than the one that Mr. Williams provided. Satellite dishes which brought “illegal” television signals to their owners also brought the RCMP to seize the illegal dishes and charge the owners. Now, presumably Mr. Williams would claim that he owned the license to exploit Newfoundlanders in this way and he had every right to sell it. In fact, he would probably agree that if there had not been a system of laws ensuring him of his right to sell the right to exploit he would not have invested the money in the monopoly in the first place. “To attract capital investment in such activities, governments have to create the rule of law to make the environment attractive for the investors,” he would have had to agree.

Poor Michael just misses the crucial point:  in Newfoundland and Labrador, the rules only apply to everyone else.  If Danny Williams had every been treated the way he treats other people, you’d never hear the end of the screaming and moaning.

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Coming soon to the History Channel!

What have we learned from history?

The Great Sheaves Cove Chainsaw Massacre

News of a racket in Lourdes between two fellows clearing snow brought back memories from 25 years ago of a story from Sheaves Cove, another community on the Port au Port peninsula.

A university mate spent the summer working with the Mounties patrolling that portion of the west coast of Newfoundland and brought back all sorts of tales – tall and otherwise – as he took the Force out for a pre-hiring test spin.  Aside:  he joined the Force and has worked his way up to dizzying heights.

Anyway, seems that in Sheaves Cove, constables responded to a call one night of two fellows going at each other’s property with chainsaws.  A dispute over a fence or something got a bit out of hand a before too long, the boys were headed for the Poulans or whatever gas-powered wood-slicer was in the shed. 

When the Mounties arrived one guy was chopping into the disputed fence while the other fellow was slicing into his neighbour’s house.

Then there was the one about what became known as the Bay St. George Space Station.  A crowd gathered in the kitchen of buddy’s new house to celebrate finishing the work on the place and getting the family moved in. 

In the middle of the festivities, the house was rocked by an explosion.  Da b’ys rushed around to figured out what had happened and to see if anyone was injured.  As the story goes – and this is where it hits Mythbusters territory -  they’d hooked up the hot water tank and forgot to install the pressure relief valve.  Once the pressure built up in the tank, it had no where to go but out through the drain valve toward the bottom of the tank.

The thing reputedly took off like a rocket and headed up through the floor.  It tore out the toilet and tank, which happened to be installed above on the floor immediately above the hot water heater. The toilet wound up 300 yards out in the back yard and the water heater ended up 600 yards out.

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So now we know where the Ig-man was…

Before you pile on Lawrence Martin’s latest column, consider the following:

1.  The has to be a really good reason why the new Liberal leader has laid low  - read been completely invisible - for the past couple of weeks.  Writing a book is an excuse not a reason.

2.  “By comparison to his predecessor, he is a man of magnitude.”  Only in some small minds.  That sort of comment belittles Stephane Dion in a fashion the man does not deserve on any account.  it also inflates Iggy in a way he certainly doesn’t deserve.

3.  Excuses, excuses…

At a volatile political juncture when the moment needs be seized, Iggy's off to a quiet and rather unremarkable beginning.

It's not so much his own doing.

If the guy’s dropped the ball, as Martin suggests, then there’s no reason to give him an excuse.  Iggy wanted the job – has been drooling over the job – ever since the convention.  If he wanted it so badly, his team should have been ready for the coronation they helped engineer.  If the Ig-man’s off to a slow and quiet start, then it must be because his people want it that way.  Ask why that would be rather than offer excuses.

4. And then it appears, sort of…:

The public discussion centres not so much on the new lord of the Liberals but on the continuing aversion to the idea of a Liberal-led coalition. Archduke Ignatieff, perhaps for good reason, has not wanted to disown the coalition concept.

The aversion to the coalition is within the Ig-man himself, not within the public at large.  Well, at least the public could have been persuaded if someone wanted to push the idea.  Staying quiet allowed the anti-coalition line to cement.  That’s something you’d let occur only if you wanted it to happen. 

Iggy hasn’t wanted to disown the coalition because there are lots of people within the Liberal Party – starting with Iggy-backer Warren the K – who want to bring down the Harperites NOW!  They might take a decidedly different view of the new saviour of the party if his true feelings were clear up front.  His actions, though, speak far louder than his words.

5.  D’uh!

His low profile speaks too much of a party inclined to stay the course, as opposed to being in a rush to change it.

Larry finally gets it.

It just took him weeks and weeks and finally a ton of words to get to the point.

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Bond Papers unveils BP’s draft whistleblower legislation

Williams acknowledged one election promise he hasn't kept yet is to enact whistleblower legislation, which would protect government employees who come forward with complaints against the province that could otherwise cost them their jobs.

"We indicated that we would try and get that done by the end of this year. We realized getting into that, that that's a very complex piece of legislation that we have to make sure that it's done properly," says Williams.

"I would think, that would be one thing that was probably on the list for this year but couldn't get accomplished."

That’s from the Premier’s year-ender with the Telegram.  You’ll find references to whistleblower legislation all over the place, including some year-end comments from the leader of the New Democratic Party in Newfoundland and Labrador, Lorraine Michael. She’s complained before but somehow over the past 12 months neither the government nor opposition could find time to sort this out. 

Perhaps this fall they thought it best to repeal a raft of old statutes one at a time in order to appear busy rather than actually produce some meaningful legislation.

Last spring, the Premier promised consultations and a bill would be completed by last fall:

Justice Minister Jerome Kennedy indicated in May that those consultations were holding up the development and implementation of the law.

"We are, and have been working on the whistleblower legislation," Kennedy said in the House of Assembly May 20. "We have looked at the legislation that is in place across this country, and we have had extensive discussions as to the nature and content of this legislation.

"However, what we are looking at now, there does need to be some consultation with certain groups to determine the matters of significance that would come under the whistleblower legislation."

The lack of whistleblower protections became an issue in the 2007 provincial election. During the September 2007 televised debate, NDP Leader Lorraine Michael said she has received clandestine, late-night phone calls from provincial employees informing her about potential problems in government.

Premier Danny Williams reacted angrily to the claim anyone would feel afraid of coming forward with such information.

At a campaign stop in Carbonear Oct. 6, Williams pledged that his government would implement whistleblower laws in the first session of the legislature after the election.

"We'll get that on at the very earliest opportunity," Williams said in response to questions from reporters last October.

"The very first session of the House that we have, that's something we'll have a look at.

All the public got by year-end were excuses for a failure to deliver.  The legislation may be complex, but with all the lawyers on the government payroll, all the public servants tasked with working on legislation and  - here’s the kicker – a government firmly committed to delivering whistleblower protection the thing could get done.

Surely whistleblower legislation is considerably less complex than the expropriation bill that was – if you believe the government explanations – drafted and rammed through the legislature in less than two weeks.   That wasn’t hasty, though, according to the official line.

Surely whistleblower legislation is less complex than the energy act amendments (Bill 35) speeded through the House last spring.)

Well, to demonstrate that drafting legislation to protect the public interest isn’t all that complicated, we present the following draft for public consideration.

The draft bill establishes a simple, transparent system in which public servants can blow the whistle on illegal acts without running the risk of employer retaliation. The bill also describes the types of information which can be made public in conformity with existing open records and privacy laws.

The bill gives important responsibilities to the Citizen’s Representative and the Auditor General in dealing with any disclosures.  This is intended to ensure – to the fullest extent possible – that partisan considerations are not involved in the disclosure or in the response to a disclosure.

The bill also whistleblower protection to individuals who are not public servants or who are working on government contracts. It establishes a fine of up to $10,000 for wilfully obstructing an investigation under the whistleblower act.

This draft bill appeared in your humble e-scribbler’s e-mail last April  - that’s right April 2008 - as the result of a discussion with several interested people. It is modelled on successful legislation from other jurisdictions.  That’s because there is no need to reinvent the wheel when it comes to legislation that exists in other parts of the country.

This draft bill circulated through a few hands in late April and early May  but since no one – government or opposition –has bothered to bring this or any similar measure forward for public discussion in the legislature, the time has come to put this into the public domain and open it up for wider discussion.

Whistleblower Protection Act

Whereas it is important to facilitate the disclosure and investigation of significant and serious matters in or relating to the public service, that are potentially unlawful, dangerous to the public or injurious to the public interest; and

Whereas it is important to protect persons who make those disclosures; and

Whereas despite promising, more than a year ago, to bring forward whistleblower protection legislation in the first session of the Legislature after the most recent election, the government has still not done so;

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Analysis

Short Title

1. This Act may be cited as the Whistleblower Protection Act.

Definitions

2. The following definitions apply in this Act.

“board” means The Labour Relations Board appointed under The Labour
Relations Act.

“chief executive” means

(a) in relation to a department, the deputy minister of that department;

(b) in relation to a public body or agency, the chief executive officer of that
body or agency; and

(c) in relation to an office, the officer of the House of Assembly in charge of
that office.

“department” means a department of the government.

“designated officer” means the senior official designated under section 6 to receive and deal with disclosures under this Act.

“disclosure” means a disclosure made in good faith by an employee in accordance with this Act.

“employee” means an employee or officer of a department, public body or office.

“public body” means

(a) a public body as defined in The Financial Administration Act;

(b) a regional health authority established or continued under The Regional
Health Authorities Act;

(c) a child and family services agency as defined in The Child Care Services Act; and

(d) any other body designated as a public body in the regulations.

“office” means

(a) the office of the Auditor General;

(b) the office of the Chief Electoral Officer;

(c) the office of the Child and Youth Advocate; and

(d) the office of the Citizen’s Representative.

“Citizen’s Representative” means the Citizen’s Representative appointed under The Citizen’s Representative Act.

“public service” means departments, government bodies and offices.

“reprisal” means any of the following measures taken against an employee because the employee has, in good faith, sought advice about making a disclosure, made a disclosure, or co-operated in an investigation under this Act:

(a) a disciplinary measure;

(b) a demotion;

(c) termination of employment;

(d) any measure that adversely affects his or her employment or working
conditions;

(e) a threat to take any of the measures referred to in clauses (a) to (d)

“wrongdoing” means a wrongdoing referred to in section 3.

PART I

Disclosures of wrongdoing

Wrongdoings to which this Act applies

3. (1) This Act applies to the following wrongdoings in or relating to the public service:

(a) an act or omission constituting an offence under an Act of the Legislature or the Parliament of Canada, or a regulation made under an Act;

(b) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of an employee;

(c) gross mismanagement, including of public funds or a public asset;

(d) knowingly directing or counselling a person to commit a wrongdoing described in clauses (a) to (c)

(2) For greater certainty, this Act applies to wrongdoings which were committed or otherwise occurred before the coming into force of this Act.

Discipline for wrongdoing

4. An employee who commits a wrongdoing is subject to appropriate disciplinary action, including termination of employment, in addition to and apart from any penalty provided for by law.

Procedures

Procedures to manage disclosures

5. (1) Every chief executive must establish procedures to manage disclosures by employees of the department, public body or office for which the chief executive is responsible.

Content of procedures

(2) The procedures established under subsection (1) must include procedures

(a) for receiving and reviewing disclosures, including setting time periods for action;

(b) for investigating disclosures in accordance with the principles of procedural fairness and natural justice;

(c) respecting the confidentiality of information collected in relation to disclosures and investigations;

(d) for protecting the identity of persons involved in the disclosure process, subject to any other Act and to the principles of procedural fairness and natural justice;

(e) for reporting the outcomes of investigations; and

(f) respecting any other matter specified in the regulations.

Designated officer

6. Every chief executive must designate a senior official to be the designated officer for the purposes of this Act, to receive and deal with disclosures by employees in the department, public body or office for which the chief executive is responsible.

Exception

7. (1) Sections 5 and 6 do not apply to a chief executive who determines in consultation with the Citizen’s Representative that it is not practical to apply those sections given the size of the department, public body or office for which the chief executive is responsible.

Chief executive to be designated officer

(2) If no designation is made under section 6, the chief executive is the designated officer for the purposes of this Act.

Information about Act to be communicated

8. The chief executive must ensure that information about this Act and the disclosure procedures is widely communicated to the employees of the department, public body or office for which the chief executive is responsible.

Making a disclosure

Request for advice

9. (1) An employee who is considering making a disclosure may request advice from the designated officer or the Citizen’s Representative.

Request may be in writing

(2) The designated officer or Citizen’s Representative may require the request for advice to be in writing.

Disclosure by employee

10. If an employee reasonably believes that he or she has information that could show that a wrongdoing has been committed or is about to be committed, the employee may make a disclosure to

(a) the employee’s supervisor;

(b) the employee’s designated officer; or

(c) the Citizen’s Representative.

Disclosure to Auditor General re Citizen’s Representative

11. If an employee of the office of the Citizen’s Representative is seeking advice or making a disclosure regarding that office, the advice may be sought from, or the disclosure made to, the Auditor General. If a disclosure is made, the Auditor General must carry out the responsibilities of the Citizen’s Representative under this Act in relation to that disclosure.

Content of disclosure

12. A disclosure made under section 10 or 11 must be in writing and must include the following information, if known:

(a) a description of the wrongdoing;

(b) the name of the person or persons alleged to

(i) have committed the wrongdoing, or

(ii) be about to commit the wrongdoing;

(c) the date of the wrongdoing;

(d) whether the wrongdoing has already been disclosed and a response received.

Citizen’s Representative to facilitate resolution within department, etc.

13. When an employee makes a disclosure to the Citizen’s Representative, the Citizen’s Representative may take any steps he or she considers appropriate to help resolve the matter within the department, public body or office.

Making a disclosure about an urgent matter

Public disclosure if situation is urgent

14. (1) If an employee reasonably believes that a matter constitutes an imminent risk of a substantial and specific danger to the life, health or safety of persons, or to the environment, such that there is insufficient time to make a disclosure under section 10, the employee may make a disclosure to the public

(a) if the employee has first made the disclosure to an appropriate law enforcement agency or, in the case of a health-related matter, the chief medical officer of health; and

(b) subject to any direction that the agency or officer considers necessary in the public interest.

Disclosing to supervisor or designated officer

(2) Immediately after a disclosure is made under subsection (1), the employee must also make a disclosure about the matter to his or her supervisor or designated officer.

Types of information that can be disclosed

Disclosure despite other Acts

15. Subject to section 16, an employee may make a disclosure under this Act, even if a provision in another Act or regulation prohibits or restricts disclosure of the information.

Where disclosure restrictions continue to apply

16. (1) Nothing in this Act authorizes the disclosure of (a) information described in subsection 18 (1) of The Access to Information and Protection of Privacy Act (Cabinet confidences), except in circumstances
mentioned in subsection 18 (2) of that Act;

(b) information that is protected by solicitor-client privilege;

(c) in the case of a disclosure to the public under subsection 14 (1), information that is subject to any restriction created by or under an Act of the Legislature or the Parliament of Canada, or a regulation made under an Act.

Caution re disclosure of personal or confidential information

(2) If the disclosure involves personal information or confidential information, the employee must take reasonable precautions to ensure that no more information is disclosed than is necessary to make the disclosure.

Other obligations to report not affected

17. Nothing in this Act relating to the making of a disclosure is to be construed as affecting an employee’s obligation under any other Act or regulation to disclose, report or otherwise give notice of any matter.

Annual report about disclosures

Report about disclosures

18. (1) Each year, a chief executive must prepare a report on any disclosures of wrongdoing that have been made to a supervisor or designated officer of the department, public body or office for which the chief executive is responsible.

Information to be included

(2) The report must include the following information:

(a) the number of disclosures received and the number acted on and not acted on;

(b) the number of investigations commenced as a result of a disclosure;

(c) in the case of an investigation that results in a finding of wrongdoing, a description of the wrongdoing and any recommendations or corrective actions taken in relation to the wrongdoing or the reasons why no corrective action was taken.

Public access to report

(3) The report must be included in the annual report of the department, public body or office if an annual report is made publicly available. Otherwise, the chief executive must make the report available to the public on request.

Part II

Investigations by the Citizen’s Representative

Purpose of investigation

19. The purpose of an investigation into a disclosure of wrongdoing is to bring the wrongdoing to the attention of the appropriate department, public body or office, and to recommend corrective measures that should be taken.

Investigation by Citizen’s Representative

20. (1) The Citizen’s Representative is responsible for investigating disclosures that he or she receives under this Act.

Informal investigation

(2) An investigation is to be conducted as informally and expeditiously as possible.

Right to procedural fairness and natural justice protected

(3) The Citizen’s Representative must ensure that the right to procedural fairness and natural justice of all persons involved in an investigation is respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings.

When investigation not required

21. (1) The Citizen’s Representative is not required to investigate a disclosure — and the Citizen’s Representative may cease an investigation — if he or she is of the opinion that

(a) the subject matter of the disclosure could more appropriately be dealt with, initially or completely, according to a procedure provided for under another Act;

(b) the disclosure is frivolous or vexatious, or has not been made in good faith or does not deal with a sufficiently serious subject matter;

(c) so much time has elapsed between the date when the subject matter of the disclosure arose and the date when the disclosure was made that investigating it would not serve a useful purpose;

(d) the disclosure relates to a matter that results from a balanced and informed decision-making process on a public policy or operational issue;

(e) the disclosure does not provide adequate particulars about the wrongdoing as required by section 12;

(f) the disclosure relates to a matter that could more appropriately be dealt with according to the procedures under a collective agreement or employment agreement;

(g) there is another valid reason for not investigating the disclosure.

Referral to Auditor General

(2) If the Citizen’s Representative believes that a disclosure made to the Citizen’s Representative would be dealt with more appropriately by the Auditor General, the Citizen’s Representative may refer the matter to the Auditor General to be dealt with in accordance with The Auditor General Act.

Reprisal protections apply

(3) If a matter is referred to the Auditor General under subsection (2), the reprisal protections set out in Part 4 of this Act apply to the employee or former employee who made the disclosure to the Citizen’s Representative.

Conducting an investigation

22. The Citizen’s Representative and persons employed under the Citizen’s Representative have the powers and protections provided for in The Citizen’s Representative Act when conducting an investigation of a disclosure under this Act.

Investigating other wrongdoings

23. If, during an investigation, the Citizen’s Representative has reason to believe that another wrongdoing has been committed, the Citizen’s Representative may investigate that wrongdoing in accordance with this Part.

Citizen’s Representative’s report re investigation

24. (1) Upon completing an investigation, the Citizen’s Representative must prepare a report containing his or her findings and any recommendations about the disclosure and the wrongdoing.

Copy to employee and chief executive

(2) The Citizen’s Representative must give a copy of the report to the employee and the chief executive of the appropriate department, public body or office.

Matter being investigated involves chief executive

(3) When the matter being investigated involves the chief executive, the Citizen’s Representative must also give a copy of the report,

(a) in the case of a department, to the minister responsible;

(b) in the case of a public body, to the board of directors and the minister responsible; or

(c) in the case of an office, to the Speaker of the House of Assembly.

Department to notify Citizen’s Representative of proposed steps

25. (1) When making recommendations, the Citizen’s Representative may request the department, public body or office to notify him or her, within a specified time, of the steps it has taken or proposes to take to give effect to the recommendations.

Report to minister or Speaker

(2) If the Citizen’s Representative believes that the department, public body or office has not appropriately followed up on his or her recommendations, or did not co-operate in the Citizen’s Representative’s investigation under this Act, the Citizen’s Representative may make a report on the matter

(a) in the case of a department, to the minister responsible;

(b) in the case of a public body, to the board of directors and the minister responsible; or

(c) in the case of an office, to the Speaker of the House of Assembly.

Annual report

26. (1) The Citizen’s Representative must make an annual report to the House of Assembly on the exercise and performance of his or her functions and duties under this Act, setting out

(a) the number of general inquiries relating to this Act;

(b) the number of disclosures received and the number acted on and not acted on;

(c) the number of investigations commenced under this Act;

(d) the number of recommendations the Citizen’s Representative has made and whether the department, public body or office has complied with the recommendations;

(e) whether, in the opinion of the Citizen’s Representative, there are any systemic problems that give rise to wrongdoings; and

(f) any recommendations for improvement that the Citizen’s Representative considers appropriate.

Report to be tabled in Assembly

(2) The report must be given to the Speaker, who must table a copy of it in the House of Assembly within 15 days after receiving it if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.

Special report

(3) Where it is in the public interest to do so, the Citizen’s Representative may publish a special report relating to any matter within the scope of the Citizen’s Representative’s responsibilities under this Act, including a report referring to and commenting on any particular matter investigated by the Citizen’s Representative.

Part III

Protection from Reprisal

Protection of employee from reprisal

27. No person shall take a reprisal against an employee or direct that one be taken against an employee because the employee has, in good faith,

(a) sought advice about making a disclosure from his or her supervisor, designated officer or chief executive, or the Citizen’s Representative;

(b) made a disclosure; or

(c) co-operated in an investigation under this Act.

Complaint to Labour Relations Board

28. (1) An employee or former employee who alleges that a reprisal has been taken against him or her may file a written complaint with the board.

Board order

(2) If the board determines that a reprisal has been taken against the complainant contrary to section 27, the board may order one or more of the following measures to be taken:

(a) permit the complainant to return to his or her duties;

(b) reinstate the complainant or pay damages to the complainant, if the board considers that the trust relationship between the parties cannot be restored;

(c) pay compensation to the complainant in an amount not greater than the remuneration that the board considers would, but for the reprisal, have been paid to the complainant;

(d) pay an amount to the complainant equal to any expenses and any other financial losses that the complainant has incurred as a direct result of the reprisal;

(e) cease an activity that constitutes the reprisal;

(f) rectify a situation resulting from the reprisal;

(g) do or refrain from doing anything in order to remedy any consequence of the reprisal.

Part IV

General Provisions

Information about wrongdoing provided by persons outside the public service

Disclosure of wrongdoing by others

30. (1) If a person who is not an employee reasonably believes that he or she has information that could show that a wrongdoing has been committed or is about to be committed, the person may provide that information to the Citizen’s Representative.

Information to be provided

(2) Information provided to the Citizen’s Representative under subsection (1) must be in writing and must include the following information, if known:

(a) a description of the wrongdoing;

(b) the name of the person or persons alleged to

(i) have committed the wrongdoing, or

(ii) be about to commit the wrongdoing;

(c) the date of the wrongdoing;

(d) whether the information has already been provided to the department, public body or office concerned and a response received.

Citizen’s Representative may investigate

(3) Upon receiving information under this section, the Citizen’s Representative may investigate the wrongdoing. In that event, Part 3 applies, other than subsection 21 (3) (protection from reprisal)

Report

(4) The Citizen’s Representative must give a copy of the report of an investigation under this section to the person who provided the information about the wrongdoing.

Protection for private sector employee who provides information

31. (1) No employer of a private sector employee shall take any of the measures listed in subsection (2) against an employee by reason only that

(a) the employee has, in good faith, provided information to the Citizen’s Representative about an alleged wrongdoing; or

(b) the employer believes that the employee will do so.

Prohibited measures

(2) The measures prohibited by subsection (1) are

(a) a disciplinary measure;

(b) a demotion;

(c) termination of employment;

(d) any measure that adversely affects the employee’s employment or working conditions

(e) any measure that otherwise harms the interests of the employee; and

(f) a threat to take any of the measures referred to in clauses (a) to (e)

Other rights not affected

(3) Nothing in this section affects any right of a private sector employee either at law or under a collective agreement or employment contract.

Meaning of “private sector employee”

(4) In this section, “private sector employee” means an employee or officer other than an employee or officer of a department, public body or office.

Protection for person contracting with government

32. No person acting or purporting to act on behalf of the government, a public body or an office shall

(a) terminate a contract;

(b) withhold a payment that is due and payable under a contract; or

(c) refuse to enter into a subsequent contract;

by reason only that a party to the contract or a person employed by a party to the contract has, in good faith, provided information to the Citizen’s Representative about an alleged wrongdoing in or relating to the public service.

General Offences

False or misleading statement

33. (1) No person shall — in seeking advice about making a disclosure, in making a disclosure, or during an investigation — knowingly make a false or misleading statement, orally or in writing, to a supervisor, designated officer or chief executive, or the Citizen’s Representative, or to a person acting on behalf of or
under the direction of any of them.

Obstruction in performance of duties

(2) No person shall wilfully obstruct a supervisor, designated officer or chief executive, or the Citizen’s Representative, or any person acting on behalf of or under the direction of any of them, in the performance of a duty under this Act.

Destruction, falsification or concealment of documents or things

(3) No person shall, knowing that a document or thing is likely to be relevant to an investigation under this Act,

(a) destroy, mutilate or alter the document or thing;

(b) falsify the document or make a false document;

(c) conceal the document or thing; or

(d) direct, counsel or cause, in any manner, a person to do anything mentioned in clauses (a) to (c)

Offence and penalty

(4) A person who contravenes this section or section 27, 31 or 32 is guilty of an offence and is liable on summary conviction to a fine of not more than $10,000.

Commencement of prosecution

(5) A prosecution under this Act may not be commenced later than two years after the day the alleged offence was committed.

Legal Advice

Arranging legal advice

34. If the designated officer or Citizen’s Representative is of the opinion that it is necessary to further the purposes of this Act, he or she may, subject to the regulations, arrange for legal advice to be provided to employees and others involved in any process or proceeding under this Act.

Liability Protection

Protection from liability

35. No action or proceeding may be brought against a supervisor, designated officer or chief executive, or the Citizen’s Representative, or a person acting on behalf of or under the direction of any of them, for anything done or not done, or for any neglect,

(a) in the performance or intended performance of a duty under this Act; or

(b) in the exercise or intended exercise of a power under this Act;

unless the person was acting in bad faith.

Regulations

Regulations

36. The Lieutenant Governor in Council may make regulations

(a) designating a public sector body as a public body for the purposes of this Act;

(b) designating an entity that receives all or a substantial part of its operating funding from the government as a public body for the purposes of this Act;

(c) for the purpose of section 5, respecting the procedures to be followed in managing and investigating disclosures and reporting the outcome of investigations, including setting time periods for action;

(d) exempting Acts or regulations from the application of section 15 where the exemption is in the public interest;

(e) respecting the provision of legal advice under section 34, including determining the circumstances under which legal advice may be provided and the amounts that may be paid;

(f) defining any word or phrase used but not defined in this Act;

(g) respecting any other matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.

Coming into force

37. This Act comes into force upon Royal Assent.

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Not my department:

The provincial government’s innovation department achieved almost all its targeted reduction in “red tape” during the fiscal year ending March 2008.

They killed 22% towards the goal of a 25% reduction.

Innovation Trade and Rural Development, the people who never learned google, did it the old fashioned bureaucratic way.  They didn’t actually eliminate the sorts of pointless, redundant bureaucratic obstacles imposed by government departments that the reduction initiative  is aimed at.

Nope.

These clever innovators shuffled responsibility for 731 “regulatory requirements” – whatever that is – off to another government department.

Human Resources, Labour and Employment is now the proud owners of 731 regulations.

RED TAPE REDUCTION

In 2005 the Provincial Government introduced a Red Tape Reduction Initiative to reduce regulatory burdens for the business community by 25 per cent within three years. INTRD originally identified 6,692 business
regulatory requirements but that number was reduced by 731 when the Provincial Nominee Program was moved to HRLE. The Department has achieved a 22 per cent reduction and expects to attain the additional three per cent within the required timeframe. INTRD is committed to ensuring high-service standards with its clients and the public.

That little piece of "innovation" only took three years to figure out.

The year before that, the department focused on finding issues with what the red tape reduction was really all about:  counting up the number of lines of forms and seeing if there were creative ways of collapsing the number of lines.  They weren’t concerned so much with reducing the actual amount of information gathered, mind you, just the number of specific lines it took to collect the information. 

RED TAPE REDUCTION

To support the Province’s initiative to reduce red tape and regulatory road blocks for the business community by 25 per cent, the Department conducted a full inventory of its programs. INTRD identified 6,692 business regulatory requirements – 80 per cent of which were various funding program forms. INTRD reviewed all forms as well as the departmental processing system looking for ways to simplify the forms, eliminate
duplication and make processing more effective and consistent for clients and staff. During 2006–07, the Department reduced the number of regulatory requirements by 20.6 per cent.

An earlier external review of INTRD’s programs found a high client–approval rating for the Department’s response time and service. A departmental review in 2006–07 explored ways to benchmark the major–funding
approval process. A report to recommend clear standards for client services is nearing completion.

Oddly enough, the 2007-08 HRLE annual report doesn’t mention any red tape reduction.

But notice that in 2006-07, the department was proud that its clients gave it high marks.  Well, they should. Companies like SAC Manufacturing got cash and folded four months later, apparently with very little security left for the public cash they took. Over a half million dollars of public cash. No mention of SAC in the 2007-08 annual report, though. 

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This should be interesting…

New staffer in the opposition office come Monday:

Joan Marie Aylward.

Former health minister.

Former finance minister.

Former minister of social services.

Former minister of municipal and provincial affairs.

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How Jim will screw Iggy and his crew…

Tax cuts are always politically popular.

What political party – especially one headed by a guy who isn’t at all keen on an election any time really soon – would possibly vote against putting more money in the hands of ordinary Canadians especially in these uncertain economic times?

Steve can leave on his own time and never have to sweat his job again.

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