Government Operations Committee on March 21st, 2017

[The Chair, Conservative, Tom Lukiwski]

Thank you very much.

Finally, we have Mr. Garrett.

[Don Garrett, D.R.Garrett Construction Ltd., As an Individual]

Thank you for the opportunity and privilege to attend here today.

I was raised on a farm and started working as a carpenter apprentice and in the logging industry as a faller. In 1982, I became a bonded contractor at 27 years of age, which allowed me the freedom to tender publicly funded projects—that is, until I was put out of business by the federal government.

In October 2008, I was invited to tender a project at Kent prison, replacing porcelain sinks and toilets in 160 cells with stainless steel fixtures. I was the low bidder and awarded the contract. That is when the problems began.

On the first day on site, after unloading the materials, I was told that we could not proceed with work because of a snag. I received no explanation and eventually learned that the snag was asbestos. I later learned that Kent had just been seriously contaminated with asbestos exposure by allowing a contractor to grind floor tile that contained asbestos with no abatement procedures. The guards discovered the release, and after serious exposures to them, the inmates, and also workers from that contractor, apparently the guards took job action.

We were restricted to installing sinks only. Public Works then suspended the toilet installation by five weeks. Toilet installation required rebuilding leaking valves, but unknown to me and my crew, those valves contained very high concentrations of asbestos. No one told me this. I found it out through my own inquiries. By this time I, my crew, and many others in the facility had already been exposed.

When I reported this serious matter, instead of their acknowledging the problem, I was treated as the problem. It seemed that every effort was made to deny what had happened and to punish me. I reported this to the oversight branch of Public Works, under the control of Barbara Glover. They conducted an investigation, with Margherita Finn from the special investigations department coming to interview me in B.C. Now there was a spark of hope. To my astonishment, their verdict was that there was no wrongdoing.

I've gone nowhere with other agencies, so PSIC was my last hope. I submitted a disclosure of wrongdoing; however, dealing with PSIC turned out to be a nightmare. For example, they obviously gave my case very low priority. It eventually took 24 months to complete their investigation. At one point, they told me they could not speak to me because I was from the private sector, even though I was the whistle-blower.

In all of the two years trying to communicate with PSIC, I probably had less than two hours of conversation with them. They kept me in the dark nearly all the time regarding the status of my case. Eventually a contractor investigator was assigned, who seemed to be very competent and thorough. She told me that based on the evidence it looked as if there was serious wrongdoing. She planned to come to B.C. to interview me and made a list of 29 questions she felt needed to be answered before that interview.

Everything went quiet. I found out after several months that her contract had been allowed to expire, rather than complete the investigation.

A new investigator, a member of the PSIC staff, was assigned, who wrapped up everything in a few days. He never spoke to me or key witnesses or attempted to have the 29 questions answered. The conclusion from the Integrity Commissioner, Mario Dion, was that there was no wrongdoing. It relied upon the assurances from the two departments that were implicated in the alleged wrongdoing: PWGSC and HRSDC.

His letter contained a reference to an asbestos-containing material or “ACM” survey done for Kent prison in 2004. Before receiving PSIC's decision of no wrongdoing, I did not know about the existence of that report on Kent, although PSIC did. This was new information to me. For over five years I'd been asking for information about asbestos in the Kent prison. Eventually, through ATIP, I received the ACM report. I have it here.

On page 3 of this report, the primary contact reference is shown as Michael Cuccione. He was the person who had invited me to tender and was also the project officer of my contract. Both Public Works and PSIC had hidden this document from me. This is a document that, had I been shown it at the start, would have saved me, my crew, and others from exposure to deadly asbestos. In fact, I did not need the whole document, but only the following two sentences:

...ACM gaskets are most likely installed on all mechanical systems (i.e. domestic water...) throughout the facility, however once these materials have been installed they are hidden from plain view and impossible to find without dismantling the system. Therefore, ACM abatement procedures should be exercised when this material is disturbed or removed during service work.

That's straight from the report.

I repeat, this is a document that Public Works and PSIC hid from me and from other witnesses while arriving at their conclusion that there was no wrongdoing. If I had known about this document, do you really think I would have exposed myself and my crew to asbestos? If I did, I would have been faced with huge fines from WorkSafeBC and most probably lawsuits from others.

Throughout the confusion of all this, I was supported by Allan Cutler and David Hutton. David offered to review the documentation I had assembled and wrote a 17-page report, which has been entered into the evidence for the committee. This report explains how PSIC concealed vital evidence from me and hobbled its own investigation.

Today, my circumstances have changed unimaginably. I have lost my bonding status and my business is bankrupt. My health may be at risk. I never know when I might receive the diagnosis of asbestos-related disease that is a death sentence. I'm now estranged from business associates, friends, and worst of all family, who believe that I must have done something wrong to cause all this.

Clients both public and private have quit calling me for work, an unofficial blacklist. This dispute with Public Works has overtaken my life and taken a serious toll. Many think I now have mental problems. In some respects they are correct, as I am on a path of becoming seriously affected by PTSD. I'm now the primary caregiver for our adopted daughter, a Romanian orphan with special needs who requires full-time attention. At times I feel I am scarcely hanging on to my sanity.

Yet the government is still not finished with me. I have launched a lawsuit against them, but I've been told that the Department of Justice will have a whole team of lawyers lined up that could run up my legal bills into additional tens or hundreds of thousands of dollars.

Both my father and grandfather served overseas in past World Wars, and they believed they fought to preserve our Canadian values of freedom and common decency, and in their honour I'm doing the same in a slightly different way.

Where do I turn to now? Do any of you know of a way that I can finally get some help without further confrontation?

Thank you.

[The Chair, Conservative, Tom Lukiwski]

Thank you very much, Mr. Garrett.

Thank you all for your testimony.

We'll start with our normal seven-minute rounds.

Mr. Drouin, you have the floor for seven minutes.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Thank you, Mr. Chair, and I want to thank the witnesses for being here today.

I'll deal with a few points that Mr. Conacher brought up, but I want to talk to you—maybe to you, Ms. Meyers, if you have some experience around the world—about how much emphasis you put on culture. I know we have an act here, but it's back-ended. It is here that the worst-case scenarios happen.

How much focus do you put on culture within government to ensure that when issues arise, there is a level of confidence, that people can declare something's wrong, that there's a level of confidence within the bureaucracy such that people are comfortable? How much focus do you put on culture?

[Anna Myers]

A focus on culture without offering some clear, rational ways in which to raise things leaves a mixed message. I think people are incredibly smart and rational. They will have understood that somebody has tried something and that it didn't work. That's a message that gets around culturally much faster than one about what works. The proactive side of making sure that if you have a system you're going to rely on and that you tell people about it and do so really well is incredibly important, then, because you start to change the culture in terms of confidence in the system in place and being able to speak up.

Culturally in Canada I don't think you'll have much difficulty in saying that it is your duty and your responsibility—not in a legal way that duty can be, but as someone who's providing a public service. Even within private sector companies, they are providing services.

One of the backgrounds of public concern at work was consumer protection. Most of the background was actually private sector disasters—a sinking of a ferry, the explosion on an oil rig, and a bank that collapsed before we had the financial meltdown. You don't get a lot of push-back culturally, if you're talking about why you're doing it in the public interest and you're appealing to people's values and sense of wanting to do a good job and are providing them ways in which they can make sure that the people who are responsible and who will have to account for wrongdoing know about it and do something about it. Most of the shock comes when that doesn't happen.

I understood at the very beginning that in different parts of the world there are bodies within government who deal with civil servant codes of conduct and ethics. This is where I think this act became a bit confused, because it did that along with wrongdoing, and raising it somewhere, and also potential reprisals or detriment. It's trying to do an awful lot at once, and it doesn't seem to be doing anything very clearly for people and for the confusion and the questions people have. If you think about it, that's the default to silence.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Mr. Conacher, I'll get to you in a few seconds.

With regard to your recommendation number four, I want to ask, from the experiences of both of you across other jurisdictions with regard to priority transfers for whistle-blowers who decide to blow the whistle on a wrongdoing, whether other jurisdictions provide staff priority to ensure that whoever blows the whistle gets a lateral move, essentially, out of the organization.

From your experience in other jurisdictions, has any bureaucrat or any public servant stayed in the same organization once they blew the whistle, and is it realistic to think that we're really protecting their identity or their confidentiality within an organization? Is it realistic to think that we do that?

[Duff Conacher]

Other jurisdictions do allow that priority transfer.

Is it realistic? It depends, really, on the size of the organization and the wrongdoing. If only a few people know about the wrongdoing, then it is very difficult to protect someone's identity, because one of the few must have reported it and the others usually dig to find out who it was. In a large organization, though, in which lots of people know about something that's happened and someone reports it anonymously—and even the commissioner investigating doesn't know but just has enough written evidence and other evidence to actually prove a case—then the person can actually successfully do it anonymously. It is, however, difficult, and that's why those who don't want to report anonymously, who then face retaliation, should have the compensation of being able to transfer, or of a reward.

I didn't mention this when I was first presenting, but I'm sure you know and have heard that the Ontario Securities Commission has implemented an up-to-$5 million reward for whistle-blowing on Securities Act violations in Ontario. It just started last July. We have that example now in Canada, and you can argue about the amounts, but they are recognizing that people are going out on a limb and that financial compensation is not really a reward. It's really just a buffer to allow you to go out on that limb without having it cut off behind you.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Do you have anything to add Ms. Myers?

[Anna Myers]

Yes. I think there are a range of tools to help someone remain whole, either while an investigation is going on or if there's been an obvious reaction that's negative.

Transfers are one of the tools that need to be available. I've had cases where it seems that the whistle-blower gets moved to get rid of the problem. That makes everyone happy except the whistle-blower, who enjoyed their job, thought they were doing their job, and thought they were doing it very well, as in fact they were. In that situation, this can be a punishment.

You need a range of tools for this. I keep trying to find ways to think about it. A lot of the people I've worked with in the private sector are security people who started off in the police, and they get that you have a range of witnesses and people giving you bits of information. You don't expect them to prove it. You do your job, and you certainly don't put them in harm's way when you're investigating. We're not talking about criminal conduct necessarily, although we might be.

I think that's the issue for the public sector service. It's to be dealing with this sensibly from the beginning. People are smart. It's about getting people trained properly and what questions you're going to ask when people come to you. Sometimes having you dealing with it properly is the protection the person needs.

[The Chair, Conservative, Tom Lukiwski]

Mr. McCauley, please, you have seven minutes.

[Kelly McCauley, Conservative, Edmonton West, AB]

Good morning and welcome.

First of all, thank you for your words and your advocacy.

Mr. Conacher, I'll start with you. You mentioned protections outside the public service into the private sector. You mentioned federally regulated sectors only. Is that the intent just to start? Is that realistic, or possible, or is it too difficult to expand to the entire private sector?

[Duff Conacher]

I'm just talking about what's within the federal government's power. The provincial governments would have to strengthen their systems for the workers and the institutions that they regulate.

[Kelly McCauley, Conservative, Edmonton West, AB]

Mr. Garrett had pretty much a horror story, and Ms. Myers as well. In Mr. Garrett's case, how do we protect the private contractors who are working for the government so they can whistle-blow without having their lives ruined or, more importantly, so that their companies are not blackballed?

If you have experience with other countries, please tell us how they do it.

[Duff Conacher]

Essentially, everyone needs to be protected, including suppliers to the government. The enforcement has to include follow-up audits to ensure that they are not losing contracts in the future simply because they've blown the whistle. It would be very difficult for a person such as Mr. Garrett.

I would like to pause here to say “best wishes” to him and to also note how courageous he is to be coming forward in telling this story, which really is a horror story.

Suppliers are in a vulnerable position, as much as anybody. I think there have to be ongoing audits just as a regular part of the practice of the commissioner and, especially in a case like this, follow-up audits, essentially keeping the case open so that a supplier continues to be protected from retaliation going on into the future by auditing whether bidding on contracts has been fair or whether they have subtly been taken off the list—because it's so easy to do.

[Kelly McCauley, Conservative, Edmonton West, AB]

Ms. Myers, go ahead.

[Anna Myers]

One of the ways you can do it is as a public procurement service. This is where you're actually thinking about the bodies, the federal agencies, that do public procurement. They can have as part of their contract, first of all, that the organization must have their own whistle-blowing arrangements, that staff working on the project can come directly to the contracting department with any issues, and that they will take action if they find out that the private sector organization undertakes any punitive damage against that individual for having raised the issue.

There are tricks of the trade that mean you don't need to have a full legal protection system in place and that allow you, within that system, to say that you will not deal with companies that actually shut down that information or don't have good arrangements.

[Kelly McCauley, Conservative, Edmonton West, AB]

I'm not as much worried about the companies coming forward. I'm worried about them being blackballed by bringing up issues of waste, mismanagement, etc.—

[Anna Myers]

I think it's in the same—

[Kelly McCauley, Conservative, Edmonton West, AB]

—through the...if there were an ombudsman, perhaps.

[Anna Myers]

It's on the same lines. If you are raising issues that government needs to take into account, that's not a bar to making another....

[Kelly McCauley, Conservative, Edmonton West, AB]

We've heard about a whole army of lawyers going up to Mr. Garrett.... We heard from Ms. Gualtieri as well about the government going after her for several hundred thousand dollars in legal bills. Do we write that into our new laws to protect them or to stop the government from going after...?

[Anna Myers]

I think that's partly to do with the weak system of protection they have, because if they are able to have their rights protected then it will not make sense, both for a cost benefit for the government and for the public damage that will be done.

[Kelly McCauley, Conservative, Edmonton West, AB]

In your opinion, Ms. Myers and Mr. Conacher, which countries out there are doing it best? We've heard from Australia, Ireland, and the U.S.

Is doing this a combination of cherry-picking the best items or is there one we can use as a model?

[Anna Myers]

At the moment, I would say that the U.K. still has a good, solid base. The Irish law is called the “Public Interest Disclosure Act on steroids” by people around.... The Irish law is like the U.K. law, but on steroids. It actually did make some fundamental and important changes.

The Serbian law is a very good example of a system that did not have, culturally and legally, the issues around anonymity. They have a good law. On the Australian situation, I think you have talked to Professor A. J. Brown. They've developed it and kept an eye on it. Sweden has now taken some steps that may be—

[Kelly McCauley, Conservative, Edmonton West, AB]

Ireland seems to be the only one that has a provision whereby a whistle-blower has redress through the courts to go after someone who....