On the wrong side of right Public-sector employees who try to right wrongs often forced out of their jobs
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Hey there, time traveller!
This article was published 16/01/2020 (1551 days ago), so information in it may no longer be current.
Around the time that a whistleblower turned U.S. President Donald Trump’s world upside down last summer, three local whistleblowers approached the Winnipeg Free Press to tell the stories of what happened to them when they attempted to reveal wrongdoing. One blew the whistle on past financial corruption at the Middlechurch nursing home, one exposed questionable surgical-instrument cleaning practices and one raised allegations that some Grace Hospital employees were threatening patient care by taking extra-long breaks or ending shifts early.
Manitoba has had whistleblower protection legislation since 2007. An amended version of the Public Interest Disclosure (Whistleblower Protection) Act came into effect in December 2018. But the three whistleblowers — and several experts in the area — say PIDA and Canadian whistleblower-protection laws, in general, fail to adequately shield those who call out public-sector wrongdoing.
She did the right thing and was punished for it.
Eight years after sounding the alarm on financial corruption at the West St. Paul nursing home where she worked, Jean (not her real name) is unemployed, living on the kindness of family members and mistrustful of the institutions that ought to have protected her.
Law ‘completely ineffective’
Since Manitoba’s whistleblower protection law came into effect in 2007, the Manitoba Labour Board has received 12 complaints of reprisal against people who have attempted to expose wrongdoing.
None has been upheld.
The board dismissed nine of the complaints and three were withdrawn.
Under the amended law that took effect in December 2018, reprisal complaints must now first be made to the provincial ombudsman’s office. To date, the office has not found that a reprisal, as defined by legislation, has occurred.
David Hutton, a former management consultant who has assisted whistleblowers for the past dozen years, said the fact that nobody has been punished for taking reprisals shows the law is “completely ineffective.”
“If there’s no mechanism to provide a remedy to prevent these reprisals, then what is the law there for?” he said.
Hutton said he’s not aware of any case in Canada where someone has been punished for taking reprisals against a whistleblower.
He described the federal whistleblower protection law as “one of the worst pieces of legislation in the world.”
Under the national Public Servants Disclosure Protection Act (2005), there have been hundreds of reprisal complaints made by whistleblowers. In only one instance has a complainant completed the onerous and costly tribunal process, and the tribunal ruled against the whistleblower, Hutton said.
He and Allan Cutler, a former federal civil servant who helped expose the sponsorship scandal in the early 2000s, say whistleblower-protection laws should place the onus on the employer to prove that reprisals are not taking place against an employee who has come forward to disclose alleged wrongdoing.
Such so-called “reverse-onus” provisions are common in whistleblower protection laws outside of Canada.
Meanwhile, Cutler said those charged with receiving disclosures of potential wrongdoing should be completely independent from government.
And instead of passively accepting disclosures from employees, they should be actively encouraging them to come forward, he said.
Legislation should also protect whistleblowers who disclose wrongdoing to the media, Cutler said.
He said he has worked with whistleblowers to get their message out by becoming an intermediary between them and the press.
larry.kusch@freepress.mb.ca
In December 2011, Jean met with then-Winnipeg Regional Health Authority CEO Arlene Wilgosh and the WRHA’s internal auditor to express her concerns about financial wrongdoing at the Middlechurch Home of Winnipeg. She provided documents to back up some of her allegations.
Shortly thereafter, the WRHA urged her to disclose her concerns to the office of the Manitoba Ombudsman in the belief she would be given a higher level of protection against reprisal. She did so.
In her disclosure, Jean made numerous allegations of financial mismanagement and nepotism against Middlechurch’s then-executive director, Laurie Kuivenhoven, and its board of directors. Repair and maintenance contracts worth hundreds of thousands of dollars were issued, often without proper tender, to companies owned by Kuivenhoven’s husband and her brother-in-law.
The allegations were chronicled in a 70-page ombudsman’s report completed in October 2012. It found evidence of “gross mismanagement” of public funds and significant breaches of WRHA and Middlechurch care home policies committed by Kuivenhoven — whom it did not refer to by name — and the board of directors at the time.
But there was little vindication for Jean.
“I made the ethical decision to do the right thing and acted in good faith,” she said. “That one decision completely altered and destroyed every aspect of my life and consumed it for eight years.”
She said the WRHA and ombudsman’s office investigations took an immense toll on her mental, emotional and physical well-being.
Middlechurch threatened to pursue legal action against the person who had initiated the investigation.
At one point, Jean, who had taken a leave from her job, was under so much stress that she lost three-quarters of her hair.
She attempted a return to work in early 2013, after the ombudsman issued its report, because her employer had cut off her benefits but the atmosphere was toxic. She was formally terminated in 2014. By that time, the care home had come under direct management of the WRHA.
If that indignity wasn’t enough, the WRHA allegedly released documents identifying Jean as the whistleblower to her disgraced former boss and three local lawyers. The alleged privacy breach occurred when Kuivenhoven sued the WRHA for wrongful dismissal.
The alleged privacy invasion — revealed to Jean verbally by a WRHA employee — caused her to feel victimized by the very people who should have been protecting her, she said.
Jean has since filed a lawsuit alleging that her identify was not protected, violating a previous court order. The case is still before the courts.
Her case is bolstered by a second Manitoba Ombudsman investigation that found her personal information had been disclosed in a manner that would identify her as a whistleblower.
•••
Advocates for whistleblowers say those who come forward to disclose wrongdoing often suffer grave consequences.
“My experience with whistleblowers is that in almost every case they’re ordinary people doing their job who see something wrong (and) have a belief that if they do the right thing and tell about it, it will get fixed. It doesn’t,” says Jim Turk, director of the Centre for Free Expression at Ryerson University.
“If they persist, they then start suffering sanctions, and it almost always turns out badly for them.”
David Hutton, a once-high-priced management consultant who has devoted the last dozen years of his life to fighting corruption, has come into contact with hundreds of whistleblowers.
He describes them generally as “people of conscience” who witness wrongdoing and feel compelled to do something about it.
“People who come forward are typically the best and the brightest,” he said. “These are the people who are competent, they’ve been successful in their jobs. They don’t feel vulnerable, and they’re maybe a bit naive in that respect.”
The Ottawa-based Hutton advises whistleblowers and would-be whistleblowers. Too often, though, they come to him after they’ve taken the plunge, made mistakes and realize the dangerous path they’ve set for themselves.
Folks about to blow the whistle on wrongdoing in a public institution need to understand what they’re up against and move forward very cautiously, he said. They need to gather evidence and make sure that evidence is secure.
“That is just like a bear trap. It’s a big hole that you’re going to fall into and never come out of.” – David Hutton
Going though official channels — disclosing wrongdoing to a superior or someone designated under legislation, such as Manitoba’s Public Interest Disclosure (Whistleblower Protection) Act — can be hazardous, Hutton said.
“That is just like a bear trap. It’s a big hole that you’re going to fall into and never come out of,” he said.
Senior managers tasked with the responsibility of receiving disclosures under whistleblower protection legislation are often compromised in some way, he said, adding they may see the whistleblower, rather than the wrongdoer, as the problem.
“Even if they’re a completely decent person… it’s very embarrassing that (the alleged wrongdoing) happened on their watch,” he said.
The risk of reprisal against whistleblowers is great, Hutton said.
“These are calculated reprisals. They’re designed to harm the person every way possible: financially, their careers, psychologically, their social circle, their family,” he said.
•••
Would-be whistleblowers in Manitoba’s public sector can make disclosures to their supervisors, to someone designated within their workplace to receive disclosures or to the provincial ombudsman.
Since the province’s whistleblower protection law (PIDA) was enacted in 2007, the ombudsman’s office has received 187 disclosures (through December 2018), opened 26 investigations and found just four cases of wrongdoing as defined by the act.
Cutting cleaning corners
L.D. began raising concerns about contaminated surgical equipment with staff at Health Sciences Centre around 2004.
A senior surgical-instrument repair technician, L.D., whose name is being withheld at his request, noticed that some devices were not being properly cleaned.
Blood was allowed to dry on instruments, making them difficult to clean. Where instruments had to be disassembled to be properly cleaned, that wasn’t always being done.
“The hospital was not following the validated reprocessing and sterilization methods supplied by the medical device manufacturer,” L.D. said. “This is a proven process that medical devices must have to be licensed for sale by Health Canada.”
Rather than disassemble some instruments to clean blood off properly, he said the hospital would employ a method known as flash sterilization — steam heat at a temperature of 132 C for four minutes — to do the job.
Considered acceptable practice in emergency situations, flash sterilization does not always remove all traces of blood, leaving an instrument contaminated.
In one instance, L.D. said, a laparoscopic coterie forceps failed due to improper cleaning, causing a hole to be burned into a woman’s bowel during surgery, leading her to suffer a major infection. Blood residue had fused the forceps’ insulation to the stainless steel sheath, rendering it useless.
The defective instrument was one of numerous examples of faulty equipment maintenance he witnessed in his decade at the hospital, he said.
L.D. started photographing examples of improperly cleaned instruments and taking them to supervisors. But his concerns about patient safety mainly fell on deaf ears, he said.
“It was like spitting into the wind. It just came back into my face,” he said.
Instead of taking his concerns seriously, his superiors started to treat him like a troublemaker, he said.
His workplace became toxic. His small unit was left short-staffed for extended periods. He said he was “being documented” by superiors.
“I lost over 50 pounds and wasn’t sleeping,” he said.
Ultimately, he went on stress leave, received a buyout and resigned.
In the fall of 2010, while still with Health Sciences Centre, he filed a whistleblower complaint with the office of the Manitoba Ombudsman.
L.D. began raising concerns about contaminated surgical equipment with staff at Health Sciences Centre around 2004.
A senior surgical-instrument repair technician, L.D., whose name is being withheld at his request, noticed that some devices were not being properly cleaned.
Blood was allowed to dry on instruments, making them difficult to clean. Where instruments had to be disassembled to be properly cleaned, that wasn’t always being done.
“The hospital was not following the validated reprocessing and sterilization methods supplied by the medical device manufacturer,” L.D. said. “This is a proven process that medical devices must have to be licensed for sale by Health Canada.”
Rather than disassemble some instruments to clean blood off properly, he said the hospital would employ a method known as flash sterilization — steam heat at a temperature of 132 C for four minutes — to do the job.
Considered acceptable practice in emergency situations, flash sterilization does not always remove all traces of blood, leaving an instrument contaminated.
In one instance, L.D. said, a laparoscopic coterie forceps failed due to improper cleaning, causing a hole to be burned into a woman’s bowel during surgery, leading her to suffer a major infection. Blood residue had fused the forceps’ insulation to the stainless steel sheath, rendering it useless.
The defective instrument was one of numerous examples of faulty equipment maintenance he witnessed in his decade at the hospital, he said.
L.D. started photographing examples of improperly cleaned instruments and taking them to supervisors. But his concerns about patient safety mainly fell on deaf ears, he said.
“It was like spitting into the wind. It just came back into my face,” he said.
Instead of taking his concerns seriously, his superiors started to treat him like a troublemaker, he said.
His workplace became toxic. His small unit was left short-staffed for extended periods. He said he was “being documented” by superiors.
“I lost over 50 pounds and wasn’t sleeping,” he said.
Ultimately, he went on stress leave, received a buyout and resigned.
In the fall of 2010, while still with Health Sciences Centre, he filed a whistleblower complaint with the office of the Manitoba Ombudsman.
In his disclosure, he said medical device “reprocessing errors” at Health Sciences Centre were putting patients at risk.
“I feel there is an imminent threat to the health and safety of Manitobans that could ultimately lead to death due to complications arising from the use of contaminated and non-sterile surgical instruments,” he wrote.
Shortly after quitting his job, in early January 2011 he also took his concerns to the then-Opposition Progressive Conservatives and through them to the media. CTV Winnipeg aired his concerns.
The Winnipeg Regional Health Authority responded publicly at the time by saying Health Sciences Centre conducted random testing of instruments. When contamination with materials such as blood or a strand of hair is discovered, the instrument is labelled “difficult to clean” and extra measures are then taken to ensure it is properly cleaned, a spokeswoman said.
The Winnipeg Regional Health Authority investigated his whistleblower disclosure.
In addition to examining cleaning procedures at HSC, it broadened its review to all other city hospitals. It also contracted the services of an outside expert to assist in its investigation. The WRHA issued a report and press release on May 11, 2011.
The report said “many of the issues identified by the complainant relating to cleanliness and condition of instruments were serious concerns that were quite properly brought to the attention of site and regional management.”
However, it didn’t blame supervisors, concluding there was “evidence of appropriate management oversight” in respect of those concerns.
The report recommended that standardized instrument cleaning protocols be implemented at all hospitals. It said there was a need to update certain equipment and improve workspaces where instrument reprocessing was done.
It called for the “appropriate cleaning” of all medical devices, especially those designated as hard-to-clean.
It also recommended a review of the use of “flash” (immediate) sterilization of equipment.
A machinist by trade, L.D. got into surgical-instrument repair after answering a hospital advertisement in 2000. Largely self-taught, he loved the work. Not only did he repair instruments, he was also asked by surgeons to modify and even create some devices.
One of his proudest moments at HSC was when a pediatric surgeon asked him to custom make forceps for a procedure on a baby’s gall bladder.
“The surgeon is giving you a pat on the back and is actually impressed with your work. That’s a huge reward,” he said.
But while the work was fascinating and the pay and benefits were great, L.D. said there’s less stress in his life now that he’s back in the private sector and establishing his own business.
“I’m healthier now,” he said.
larry.kusch@freepress.mb.ca
During that same period, provincial government departments have received 21 disclosures of potential wrongdoing, conducted 15 investigations and found only one case of wrongdoing, according to the province. (The results of one of the investigations initiated during the last fiscal year is still pending.)
In the early 2000s, Jean Chrétien’s Liberal federal government was rocked by AdScam, a “sponsorship program” launched in the wake of the 1995 referendum on Quebec sovereignty to help promote federalism in that province. Money was supposed to be used to raise Canada’s profile and investments in Quebec.
Former federal civil servant Allan Cutler, who worked at Public Works and Government Services Canada, where he was responsible for negotiating the terms and costs of federal ad contracts, blew the whistle about bid-rigging and political interference.
Cutler scoffs at how few instances of wrongdoing have been uncovered under Manitoba’s whistleblowing legislation.
“I would love to be in Manitoba where nothing is done wrong,” he said, tongue firmly in cheek. “That’s God’s country.”
The low numbers of disclosures, investigations and findings of wrongdoing show that would-be whistleblowers don’t have faith in the system, Cutler said.
“When you’re getting only 187 (disclosures) and you’re only finding four instances of wrongdoing, what you’re doing is you’re telling people, ‘Don’t report,’” he said, referring to the ombudsman’s statistics. “Why risk your job if nothing is going to happen?”
Cutler founded the non-profit group Canadians for Accountability, now called Accountability and Anti-corruption Canada, in 2008 to assist whistleblowers.
He said that under U.S. federal whistleblower legislation, which is considered by experts to be superior to Canadian laws, about one-quarter of all disclosures result in findings of wrongdoing.
Whistleblower protection advocates consider the Canadian whistleblower law that came into force under the Harper government in 2005 to be woefully inadequate. Provincial laws, largely patterned on the national one, also fail to protect whistleblowers, they say.
Cutler said disclosing wrongdoing to a supervisor or a designated officer, whose career depends on working well with senior government officials, is problematic.
Even turning to the ombudsman’s office for help, he said, is not ideal unless there are rules in place to prevent senior officials there from one day working for the provincial government. In Manitoba, there are no such rules.
•••
Asked to explain why there have been so few confirmed cases of wrongdoing under Manitoba’s whistleblower law, Ombudsman Jill Perron points out that the legal threshold is high.
To qualify as wrongdoing, the act (or omission) must create a substantial or specific danger to the life, health or safety of persons, or constitute gross mismanagement of public funds.
Ramifications for reporting
Jason (not his real name) worked in the diagnostic imaging department at Grace Hospital for nearly 20 years.
In the late 2000s, he observed that three technologists who worked evenings and weekends at the hospital had forged a pact.
If two of them were on shift at the same time, one would take a two-hour dinner break — say, from 5:30 to 7:30 p.m. — and the other would go home at 9:30 or 10 p.m., when their shift was scheduled to end at 11:30 p.m.
The department, already operating with a skeleton crew, would be short-staffed for up to four hours on a given shift. This backed up waits for X-rays and other diagnostic scans.
“This went on for a long time with this group,” Jason said.
“I didn’t like it. It made me upset that they were stealing time, and they were putting patients and patient care at risk because they wanted to go home early. I didn’t do anything, because I feared reprisal.”
The technologists were his superiors.
But then an incident occurred that prompted Jason to blow the whistle.
One evening, at about 9:30 or 10, one of the technologists had gone home early while the other was called away to an operating room.
The emergency department called with an order for an immediate CT scan for a possible stroke patient. Time was of the essence. The ER wanted to send the patient for the scan but Jason had to say no. The ER physician called twice to demand what the holdup was.
Jason (not his real name) worked in the diagnostic imaging department at Grace Hospital for nearly 20 years.
In the late 2000s, he observed that three technologists who worked evenings and weekends at the hospital had forged a pact.
If two of them were on shift at the same time, one would take a two-hour dinner break — say, from 5:30 to 7:30 p.m. — and the other would go home at 9:30 or 10 p.m., when their shift was scheduled to end at 11:30 p.m.
The department, already operating with a skeleton crew, would be short-staffed for up to four hours on a given shift. This backed up waits for X-rays and other diagnostic scans.
“This went on for a long time with this group,” Jason said.
“I didn’t like it. It made me upset that they were stealing time, and they were putting patients and patient care at risk because they wanted to go home early. I didn’t do anything, because I feared reprisal.”
The technologists were his superiors.
But then an incident occurred that prompted Jason to blow the whistle.
One evening, at about 9:30 or 10, one of the technologists had gone home early while the other was called away to an operating room.
The emergency department called with an order for an immediate CT scan for a possible stroke patient. Time was of the essence. The ER wanted to send the patient for the scan but Jason had to say no. The ER physician called twice to demand what the holdup was.
Finally, more than an hour later, the lone technologist who had been called to the OR returned and the scan was done.
“Conscience-wise, I had to bring it forward. I couldn’t stay silent. So I brought it to my supervisor and I said, ‘This is what’s going on,'” Jason said.
The hospital arranged to document the trio’s comings and goings, and eventually all were called before management. Jason isn’t aware of what discipline they faced but they all kept their jobs.
All suspected that he had blown the whistle on them. One never made an issue of it, but the other two bullied and harassed him.
“I would be just doing my job and I’d be laid into for no good reason,” the whistleblower said. “Yelling, swearing, intimidation.”
In the years that followed, Jason also observed that members of his department were breaking the law by snooping into patient files, curious about the health of friends, family, co-workers and prominent people.
He brought it to the attention of the Winnipeg Regional Health Authority as well, in early 2015. The hospital made an example of one of the employees, firing him, but others kept their jobs.
Folks within the department suspected Jason had alerted authorities as he had spoken out against snooping when he had witnessed it.
The bullying he faced continued non-stop, he said. It took its toll.
“I remember, one day, I was walking to work and I actually bent over and I started dry-heaving. I felt like I was going to throw up because I was so scared and torn up about having to go into work and be harassed,” he said.
Repeatedly, over the course of several years, he reported both to his direct supervisors and to the Grace Hospital’s human resources department that he was being bullied and harassed, he said.
“While the supervisors did what they could to address the situation, each report I made only resulted in the bullying, harassment and retaliation becoming worse,” he said.
The HR department seemed reluctant to intervene, he said, instead suggesting that he move on to a different position.
Meanwhile, eight technologists, all of whom he had worked with on the evening shift, complained about him to management in early 2017, claiming he had gossiped about and spoken ill of a colleague.
There was an investigation and Jason was suspended for three days without pay. He said the investigator appointed by the Winnipeg Regional Health Authority, a former WRHA employee, failed to speak to all relevant witnesses and didn’t give him a full opportunity to respond.
While the investigation took place, Jason was placed on administrative leave with pay for about two months. His union subsequently filed three grievances, including an appeal of the three-day suspension. Almost three years later, the grievances have yet to be resolved.
The hospital sought to transfer him to a different department, but he feared continued retaliation from his former workers.
Jason has not worked at the Grace since April 2017. When the hospital administration offered him no special protections upon his return, he went on stress leave. “At that point, I physically could not go back (to work),” he said.
In early 2018, the Winnipeg Regional Health Authority offered him a position at another hospital at a lower salary and with fewer hours. He would have lost thousands of dollars a year and refused to accept it. He was offered a second job at the same hospital that May, with even fewer hours. When he refused it, he was let go via email.
Bronwyn Penner Holigroski, a spokeswoman for the WRHA, said she could not comment on specific human resource matters.
“It is the expectation of the WRHA that managers and supervisors would take reasonable and practical measures to address disrespectful behaviour among staff whether or not a complaint has been brought forward,” she said in an email.
“It’s important to note, however, that those who bring forward a whistleblower complaint are not as a matter of course identified to site or program leadership, making it difficult to conclude that their complaint would play a part in any disrespectful behaviour they may be experiencing,” she added.
She said the WRHA encourages employees who feel they are not being treated respectfully or fairly by managers or colleagues to bring those concerns to their supervisors or the human resources department.
While his union is fighting his dismissal, progress has been slow. In the meantime, Jason has found work outside the health field.
He claims that employees in his department continued to take extended breaks after he blew the whistle. He alleges that the hospital did not implement safeguards to ensure that employees worked their entire shifts.
“All that changed was that (the employees) would threaten me and say, ‘You better not say anything,'” Jason said.
larry.kusch@freepress.mb.ca
If someone believes they have a disclosure under PIDA, they are considered a whistleblower and protected under legislation — even if their allegations do not meet the strict standards of the law, Perron noted.
If a matter doesn’t meet the threshold of wrongdoing under the act, it doesn’t mean that the matter is dropped, she said in an interview.
Often her office, in dealing with a complaint, will discover that an organization is failing to follow proper procedures or needs to improve employee training.
“We will make sure that the public entity is made aware of the concerns raised” and that corrective action is taken, Perron said.
Investigations are conducted in private and the results are generally not made public. If the ombudsman finds an instance of wrongdoing, as defined by the Act, a short summary will appear in her annual report — with names of the perpetrators and the institutions involved removed.
The 70-page report on the Middlechurch Home of Winnipeg was never intended to be made public. It was leaked to the media.
In the other three cases of wrongdoing found by the ombudsman’s office, one involved the unauthorized use of government equipment and property by an employee for their own benefit; one saw a health-care facility using faulty respiratory equipment that put patient health and safety at risk; and one involved a government executive who gave advance notice to a company about a public-sector tender.
Perron, who was appointed to her post by the legislative assembly last May, said she would be open to publishing longer reports when wrongdoing under PIDA is found — as long as the identities of whistleblowers and witnesses were protected.
“If there’s broader public value in terms of it being educative, instructive, yeah that is something we would have to consider,” she said.
•••
Despite all the personal distress she’s suffered after blowing the whistle on financial mismanagement at Middlechurch, Jean said she would do it again.
“I would, because it was the right thing to do,” she said.
To her chagrin, no charges were ever laid as a result of her decision to step forward.
“I’ve suffered more consequences than the people who did the wrongdoing,” she said.
“I’ve suffered more consequences than the people who did the wrongdoing.” – Jean
While she still does not believe that Manitoba law offers sufficient protection to whistleblowers, she’s proud that her case helped prompt several improvements to PIDA that came into effect in 2018.
Whistleblowers now have their identity protected in civil court proceedings, the ombudsman’s office can now investigate complaints of reprisals, supervisors must pass on whistleblower complaints promptly to the appropriate office and a review of the act must now be carried out every five years.
“We need to do more to protect whistleblowers and hold others accountable for their actions,” Jean said.
larry.kusch@freepress.mb.ca
Larry Kusch
Legislature reporter
Larry Kusch didn’t know what he wanted to do with his life until he attended a high school newspaper editor’s workshop in Regina in the summer of 1969 and listened to a university student speak glowingly about the journalism program at Carleton University in Ottawa.
